08 November 2011




* An early version of this paper was published in the Marianas Variety on July 27-29,2011 *

Julian Aguon is an attorney who specializes in international law as well as the author of numerous books and law journal articles on the subject of self-determination, decolonization, and international human rights law. He teaches International Law at the University of Guam and has lectured on these and other issues on four continents. He was recently named a 2011 Petra Fellow by the New York-based Petra Foundation, a national foundation that annually honors individuals deemed to have made distinctive contributions to human rights.

The imprecision let loose on this island in discussions regarding our future options under international law has now reached a danger point where writers schooled in the subject, like myself, must now battle as we have never done before to will some perspective from the rubble. In these high-stakes times—when the chips we are gambling with are children, coral reefs, limestone forests, cultural legacies, whole imaginations—writers are called upon to do more than use words; we are called to wield them. And in a time when words have been so methodically drained of meaning, it is irresponsible, if not indictable, to be imprecise.

The current haphazard flinging around of words on the subject of self-determination, in particular, is rife with danger. Indeed, the parade of opinions regarding the right of self-determination – what it is and who holds it – has reached a deafening roar. We can hardly hear ourselves think. But in the end opinions about the law are not the law. Moreover, self-determination’s legal parameters are already well demarcated on key points in international legal instruments, by international jurists, and through the practice of states.

Distortions nurtured in Guam will not change the meaning of self-determination in international law. Sadly, though, they might confuse some in the colonized population, and others of good faith in the general population, with respect to the nature of the international norm on which the future of Guam is entitled to be grounded. My clarification here is addressed to them.

From the outset it must be emphasized, given aggressive assertions to the contrary, that the liberating principle of self-determination has nothing whatsoever in common with the ugly history of racial privilege.

Self-determination is not principally a race-based issue. Second, the concept of self-determination is not a purely political, as opposed to legal, construct such that the power of the day can bend its meaning to its every political machination. In law, right is meant to restrict might. In reality, the norm of self-determination, i.e. principle and right, inhabits a particular politico-legal domain whose post-war shape and contours are generally recognized in both the international jurisprudential literature and, to a less consistent extent, the practice of states. More, self-determination is generally counted as one of those few exalted, or jus cogens, norms of contemporary international law that can only yield, if at all, to another equally exalted norm.

These points are elaborated below.

What is the content of the right of self-determination?

From the founding of the United Nations at the end of World War II until today, the international community has had to address the plight of colonized peoples, and later of indigenous peoples. Early in this period, it concluded that the situation of colonized peoples could be corrected only if they became formally vested with the right of self-determination. In fact, the UN Charter itself, being both a political compact and an organic document, asserted that the principle of the self-determination of peoples is the very foundation on which a new interstate system dedicated to the peaceful settlement of disputes and the outlawing of war is to be built. Later UN instruments, as well as the ensuing practice of states, then took on the task of delineating and elaborating on the right of self-determination itself.

Thus, the Charter’s Article 1 calls for the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Article 55, for its part, commands UN member-states to promote, among other values, “universal respect for, and observance of, human rights and fundamental freedoms for all.” More specifically, Article 73 commands, in relation to the rights of peoples in non-self-governing territories like Guam who have not yet attained a full measure of self-government, that states administering them “recognize the principle that the interests of the inhabitants of these territories are paramount.” 

Moreover, the Article continues, these Administering Powers accept as a “sacred trust” the obligation to develop self-government in the territories, taking due account of the political aspirations of the people. Toward this end, subsection (e) of Article 73 commands Administering Powers to submit annual reports to the United Nations on the steps they have taken and the progress they have made to move the territories toward self-government.

The first UN instrument to formally announce the right of self-determination is the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, also known as Resolution 1514, which explains that “[t]he subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.” The Declaration then laid down this by now classic formulation of the right of self-determination:

“All peoples have the right of self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 

While General Assembly declarations and resolutions are not in themselves binding, they do engender binding propositions of customary international law to the extent that they either illuminate and record the position of the international community on any given legal subject, or elicit states’ adherence to their provisions. The International Court of Justice (ICJ) in its 1975 advisory opinion in the Western Sahara case confirmed as much when it relied heavily on General Assembly resolutions to establish basic legal principles concerning the right of peoples to self-determination.

Several later major international instruments, whether called conventions or treaties, subsequently contributed to the elaboration of the substance of the right of self-determination. Both the International Covenant on Civil and Political Rights, and the companion International Covenant on Economic, Social and Cultural Rights, (known collectively as the 1966 Human Rights Covenants) enshrine self-determination as a right of all peoples. Approved by the General Assembly in 1966, and legally binding as of 1976, these treaties bind those countries that ratify them. The first article of each of the two Covenants, identically worded, repeats the classic formulation of the right quoted above, thereby establishing beyond doubt the right’s fundamental importance in the international architecture of not only interstate relations but also human rights law.

Finally, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, also known as Resolution 2625 (XXV), likewise re-iterates that all peoples have the right to determine their political status without external interference, and further specifies that every state has the duty to respect this right. Unlike the 1966 Covenants, which bind only those states that ratify them, Resolution 2625 is considered a datum of customary international law binding on all countries. 

A number of commentators, likely desirous of limiting the right of self-determination so as to preserve the current distribution of power in the world, argue that the right of self-determination has two dimensions – internal and external – with differing mandates, yet fail to produce a single instrument of international law to date that sets out this bifurcation. These commentators depict internal self-determination as the right of a people within a state to “democratic” participation in government. They identify external self determination, in contrast, as a people’s right to reject alien subjugation, typically in the contexts of colonization or military occupation. While this framing of self-determination has been challenged in the academic literature, the debate in any event has no bearing on the non-controversial proposition that the exercise of self-determination in a non-self-governing territory necessarily includes, indeed highlights, the external element. 

That is, a colonized people is entitled to the full, unequivocal and, need one add, scrupulously above-board opportunity to throw off colonialism via a plebiscite that offers voters the full spectrum of political status choices possible, from forms of incorporation, through forms of free association, to full independence.

The recent characterization of the situation in New Caledonia as expressive of a new “fourth” expression of self-determination is misleading. While legal and political developments in that territory have yielded yet another example of how a particular people might construct a multi-step process to achieve self-determination, the current situation in New Caledonia is not, and has never been held out, not even by the interested French party, as the end-product of a self-determination process required by the UN. Indeed, under the 1998 Nouméa Accord, the Territorial Congress of New Caledonia is to call a plebiscite after 2014 on independence, which is hardly a new status in international law. 

The conflation by some commentators of the international norm of self-determination with interim arrangements of self-governance dangerously mis-represents the existing international law parameters of decolonization. Dangerous because the colonizer is always all too happy with the confusion that allows self-governance, a lid, to be mistakenly acquiesced to when the colonized have all along been entitled even to outright independence.

Who holds the right of self-determination?

Having dealt with the “what” of self-determination, it is now time to deal with its “who.” Textually, “peoples” are the collective “who” endowed with the right of self-determination. But who are “peoples?” Or, as the question is often framed in Guam: Who is the “self” in self-determination? 

While there is no definition of “peoples” in international law, “peoples” for purposes of self-determination have historically been understood as those living under the yoke of alien, colonial, and/or racist domination and subjugation.

In other words, these peoples were seen as suffering a grievous and unlawful injury inflicted on their collective being by outsiders. In consequence, they were entitled to the redress of “re-determining” themselves.

Through much of the 20th century, international law had little to say one way or the other on the issue of the right of self-determination of indigenous peoples as indigenous peoples. The latter were, when attended to at all, typically conflated with minority groups enclosed within states. The historic 2007 United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) changed this. It explicitly recognizes that the classic right of self-determination also covers indigenous peoples. That said, it is important to note here that, under international law, colonized peoples and indigenous peoples are not necessarily one and the same.

Where, as in Guam and New Caledonia, the colonized population at the onset of colonization also features, today, as the relevant colony’s indigenous people, it would seem evident that the latter’s right to self-determination is weighted with a double gravitas, so to speak, inasmuch as redress means the recovery of independence as well as of indigeneity, as spelled out in the UNDRIP.

In light of the latest string of editorials about self-determination in the local press, which has resurrected the deceptively simple phrase 'Chamorro only vote,' it has become clear that one of the most important issues to be settled before all else in Guam today is the issue of who gets to vote in a future self-determination plebiscite here. Some, it should be noted, seek to racialize and so prejudge the issue by phrasing the question as: “Is it impermissibly racist or otherwise illegal to limit the electorate (those eligible to vote) to Chamorros," as the term is presently envisioned in Guam law, i.e., those persons who became U.S. Citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons.

The correct approach, it is submitted here, requires us to understand that, for purposes of self-determination, Chamorro is a history-based, not race-based, designation. Put another way, international law is not here concerned with blood and ancestry but with providing a people with redress, i.e., a remedy, for a historical wrong: the wrong of having been denied by others the right to exist, as they once did, on their own terms. Hence the legally significant set of questions in the colonial context is: who has been harmed by colonization so as to be entitled to the prescribed cure of decolonization; when did said harm occur; and, has the harm been cured?

Turning to the case of Guam, international law scholars with whom I have discussed our situation conclude that though no single date for the onset of colonization of Guam has been incontrovertibly established, the most plausible date would be as early as 1898, when Guam was ceded by Spain to the United States under the Treaty of Paris. In no event could the date be later than 1946, the year Guam was placed on the U.N. non-self-governing territories list. Thus, only those persons (and their descendants) living on the island on the date chosen may be considered victims of colonization. The ethnic composition of this group of persons, in this case predominantly Chamorro, is legally irrelevant for purposes of the decolonization remedy to which they are entitled. International law and practice is quite clear on this point.

Incredibly enough, some commentators heard here have had the temerity to assert that the U.S. Constitution requires a color-blind compilation of the electorate that will cast ballots in Guam’s self-determination vote when it is the very reach of the U.S. into Guam, U.S. Constitution and all, that would be assessed in the vote. It appears these individuals do not know international law’s provisions for decolonization for they seem to forget that the anticipated self-determination act falls under the aegis of international, not U.S., law.

In 1980, the General Assembly adopted a resolution calling on member states to prevent migration to colonial territories lest it frustrate the colonized population’s eventual exercise of self-determination. In its Plan of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, the General Assembly instructs that member states “shall adopt the necessary measures to discourage or prevent the systematic influx of outside immigrants and settlers into territories under colonial domination, which disrupts the demographic compositions of those territories and may constitute a major obstacle to the genuine exercise of the right to self-determination and independence by the people of those territories.” 

This language indicates that, to the extent that new populations, ethnic and otherwise, are “let in” to the colony by way of the colonizer’s control of immigration, said populations are not deemed to be part of the colonized polity and thus neither they nor their descendants are entitled to the right of self-determination which is, in the colonial context, the remedy for the injury of colonization.

Further still, in Resolution 2625, the General Assembly instructs that the physical territory of a non-self-governing territory “has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non Self-Governing Territory have exercised their right to self-determination in accordance with the Charter, and particularly its purposes and principles.”  

This language further indicates that the United States, as Guam’s Administering Power, cannot first exploit its control over Guam’s immigration to flood the island with its own non-colonized expatriates, or even third-party settlers, and then claim that every person residing in Guam is entitled to vote in a decolonization plebiscite.

The international community has previously repudiated a similar proposition advanced by French parties in Kanaky/New Caledonia. There, France had argued for years previous to the 1998 Nouméa Accord that all French citizens who had moved from France to Kanaky/New Caledonia had the right to vote in any self-determination referendum in the colony. Denying them the vote, it said, would be tantamount to discrimination forbidden, it continued, by France’s Constitution, laws and, it claimed, the International Covenant on Civil and Political Rights (“ICCPR”), which bars racial discrimination.

In 2002, in the case of Gillot et al. v. France, the Human Rights Committee, which is the treaty body created by the ICCPR to monitor its implementation, addressed the issue of voting restrictions placed on a class of residents of Kanaky/New Caledonia. The case involved French citizens who failed to meet qualifications for voting in future referenda as set out in the 1998 Nouméa Accord executed between representatives of France and the Kanaky independence movement both of whom, in the process of negotiating the Accord, made several political concessions to the other on the matter of the composition of the electorate. Said French citizens brought the case to the Committee under the Optional Protocol attached to the ICCPR. 

The Committee – in explaining that a referendum to effectuate a colonized people’s right of self-determination is not to be likened to ordinary elections – adopted the reasoning that it is in the very nature of a self-determination referendum that it should be “limited to eliciting the opinion of, not the whole of the national population, but the persons concerned with the future of a limited territory who prove that they possess certain specific characteristics.” Such a “restricted electorate,” it ruled, did not violate the treaty’s anti-discrimination provisions because these must be read in the first place to harmonize with the ICCPR’s own Article 1 highlighting the right of self-determination.

The Committee noted that such voting restrictions work to “ensure that the referendums reflect the will of the population ‘concerned’ and that their results cannot be undermined by a massive vote by people who have recently arrived in the territory and have no proven, strong ties to it.” 

The French claimants were challenging, among other referenda provisions, a 20-year residency requirement for voting. The Committee found that the cut-off points set for the referendum of 1998, and for referenda from 2014 on, were neither discriminatory nor excessive inasmuch as they were in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. The Committee summed up its view as follows:

restrictions on the electorate in the 1998 Noumea Accords are not discriminatory but instead based on “objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant.” 

Closer to home, the General Assembly has repeatedly taken up what it terms the Question of Guam, and has frequently stated that it is the Chamorro people – and not the registered voters of Guam in general – who hold the right of self-determination. As stated earlier, international tribunals, including the ICJ, take judicial notice of such General Assembly pronouncements.

Finally, a last word on the charge that limiting the electorate in any future self-determination referendum in Guam to Chamorros would be unconstitutional vis-à-vis the U.S. Constitution. This charge prominently displays the failure, so prevalent in the U.S. and U.S. influenced territories, to reach for international law to help solve a problem that is clearly international in nature. Beyond the cynicism inherent in the call to conform a project of potentially separating from the U.S. to U.S. law, the failure marks a chilling conceptual inability in the American imagination to see the world in any light other than what the American establishment has shone.

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