Decolonization: Free Association

September 11, 2016 Jose Ulloa Garrido

Guam is an unincorporated territory of the United States, and is subject to the plenary power of Congress, with no inherent right to govern itself. Under U.S. constitutional law, the island has internal Organic Act limited self-government, but is not integrated into the U.S. political union on the basis of equality, thus it remains as simply a colony. As such, independence and free association are political status options that are established and exist in terms of international law, as well as other powers of Congress relative to constitutional authority respecting nations with separate sovereignty. And so, rather than conduct of relationships with Guam under the supremacy of Congress under the territorial clause, Guam-U.S. relations will be conducted on the basis of international law.

If Guam becomes a Freely Associated State, it would be recognized as a sovereign state in accordance with international law. A sovereign state must acquire certain characteristics to be legally recognized. It must have a fixed territory over which it exercises exclusive jurisdiction. It must have stability of organization and administration, and must be able to carry out its international duties and obligations. It must also have a population and operation of a government, for without these, there could be no assurance of internal stability and the ability to fulfill international obligations. Independence is the final and decisive requirement in order for any state to regulate its internal affairs without outside interference or control. As a Freely Associated State, Guam would have these characteristics.

Guam would have the right of "domestic independence" to fully control its internal affairs without outside interference. It would have territorial supremacy, recognized and protected as a sovereign state in accordance with international law. It can organize its government as it sees fit, adopt a constitution to suit its own needs, lay down rules and regulations for the property rights as well as the personal rights of its citizens and subjects, determine under what specific conditions foreigners may enter its territory, and so on.

Guam would be "master" in its own house, subject only to such limitations as are imposed on it, either by the rules of general international law or by such treaty arrangement as it may make with other states. It would have the sovereign status in accordance with the United Nations' decolonization process and the freedom from interference on the part of other nation states and the power of governance that is derived from the consent of the governed, the people of Guam.

The United Nations decolonization process embodied in its Charter, Article 73, which obligates the administrating power "accept(ed) as a sacred trust the obligation to promote to the utmost...the well-being of the inhabitants of the(se) territories, and to this end:

To ensure with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their treatment and protection against develop self-government, to take due account of the political aspirations of the people…to promote constructive measures of development..."

The United States, Guam's administering power, supported the steps for the attainment of full self-government, and bolstered the UN General Assembly's call for specific factors, which were to guide administering powers (and Member States) in determining whether a territory had achieved self-governance (U.N.G.A. Resolutions 567 [VI] and 648 [VII], 1952 and 742 [VIII], 1953). Attaining self-government was instituted by the incorporation of the principle of self-determination to the process (U.N.G.A. Resolutions 1514, 1541 [XV], 19601). These resolutions created the framework for the customary practice of Non-Self-Governing Territories to achieve a sovereign status as a result of the process of self-determination.

A Freely Associated State has "external independence." This ensures the right of Guam to conduct its foreign relations, as it desires, without supervisory control by other states. There is an international rule regarded as the basic test for the admission of new members into the community of nations that stipulates that there must be an absence of control by other states if a given state is to act as a free agent and is able to fulfill such international obligations as it assumes in dealing with other states. The Freely Associated States of Micronesia can be the models for Guam to begin its evolution in international diplomacy.

In Guam's domestic sovereignty, the principles of governance must be instituted in the form of a constitution that derives its power from the consent of the governed. The political, social, economic, and cultural principles of the people must be embodied in the government to promote greater self-determination, social justice, economic development to abolish poverty through local development and equitable distribution of wealth, protection of the Chamorro language, culture, identity, and lands, and the social vigor required to solve the problems related to health, housing, cultural alienation, land taking, war reparation, landlessness, homelessness, crime, youth, education, and empowerment. Guam must redress the injustices that have befallen the Chamorro people under colonialism for 348 years.

As a territory of the United States for over one hundred years, Guam has inherited the tradition of American democratic values. Although non-self-governing with the power of governance deriving from the Organic Act of 1950, Guam has institutionalized the principle of "representative democracy" in organizing its non-self-governing government under the plenary power of Congress. It is with this tradition in mind that the island, as a Freely Associated State, shall form a constitutional government on the principles of "representative democracy" and "popular consent" that "governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive to these ends, it is the right of the people to alter or abolish it." Guam must never again have a government that is not of the consent of the people, and that "the consent of the governed is more than a safeguard against ignorant tyrants; it is an insurance against benevolent despots as well." These shall be the guiding principles that shall be inherent in the establishment of a constitutional government of the Republic of Guam, in free association with the United States.*  

(*Excerpts from TFFA position paper.)

Jose Ulloa Garrido is chairman of Task Force on Free Association, Commission on Decolonization

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