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The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association

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The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association Jon Hinckt United States conduct toward the island territoriesof the Pacific has been replete with broken promises and self-dealing. On the island of Palau, the evolution toward sovereignty has stalled because the United States refuses to concede defeat on the provisions of the Palau Constitution that outlaw nuclearpower, nuclear weaponry, and a foreign power's exer- cise of eminent domain in Palau. The United States has refused to con- tinue negotiations on the Compact of Free Association, arguing that validating those provisionsjeopardizes U.S. security interests in Palau to an intolerable degree. In this Comment, the author argues that U.S. intransi- gence in regard to the Compact violates multiple provisionsof international law. The author argues that the United States has violated both the Trus- teeship Agreement and the Palauans' right of self-determination under customary internationallaw. Furthermore, even if the Compact is now approved according to Palau'sconstitutional processes, the author argues that the agreement would be invalid under the international law of treaties. INTRODUCTION On February 6, 1990, the citizens of Palau, an island chain in the western Pacific, voted for the seventh time in a decade on whether to approve an agreement with the United States known as the Compact of Free Association.1 Under the Palauan Constitution, three-quarters of the electorate must approve the agreement in order for it to become effec- tive.2 The Compact requires 75% voter approval because it contains U.S.-imposed restrictions that would supersede certain provisions of the t B.A. 1976, University of Pennsylvania; J.D. 1990, Boalt Hall School of Law, University of California, Berkeley. I would like to thank my advisor Professor Stefan Riesenfeld; Professor David Caron and Professor Roger Clark for additional advice; Julie Browne and Naomi Roht-Arriaza for comments on drafts; and Mary Beth Braun and Sebia Hawkins for research assistance. 1. Compact of Free Association, Jan. 10, 1986, United States-Palau, 100 Stat. 3672 (codified as amended at 48 U.S.C. § 1681 (1988)) [hereinafter Compact of Free Ass'n]. 2. See REPUB. OF PALAU CONST. art. II, § 3, reprinted in CONSTITUTIONS OF DEPENDENCIES AND SPECIAL SOVEREIGNTIES 5 (A. Blaustein & P. Blaustein eds. 1988). CALIFORNIA LAW REVIEW [Vol. 78:915 Palauan Constitution adopted overwhelmingly in 1980. 3 Those provi- sions effectively bar nuclear weapons, power, and waste,4 and prohibit the government from exercising its power of eminent domain for the ben- efit of foreign entities.5 The Compact vote in the February 1990 plebi- scite, as in six prior votes, exceeded a simple majority but fell short of the required 75%.6 Adopting the Constitution, which became known as the world's first nuclear-free constitution,7 was to be one of the last steps taken before Palau gained its sovereignty for the first time in 400 years.' To complete the process, Palau must enter into an agreement with the United States, which is the administering authority under a 1947 trusteeship agreement with the United Nations.9 The United States, however, has refused to negotiate any change in its relationship with Palau that would restrict the transit of U.S. nuclear-powered vessels or threaten the status of U.S. mil- itary bases. The United States has refused to negotiate on these points, claiming that they jeopardize its security interests. From the inception of the U.N. trusteeship, the United States has expressed its strategic interest in the islands. 10 In fact, the Trusteeship Agreement between the United States and the U.N. Security Council recognized and affirmed a strategic U.S. role in the "maintenance of international peace and security" in the Pacific. 11 The same agreement obligated the United States to promote Palau's economic self-sufficiency and political development "toward self-govern- ment or independence" in accordance with the "freely expressed wishes of the people concerned." 2 In addition, the United States pledged to uphold the U.N. Charter, which unequivocally states that the interests of the inhabitants of non-self-governing territories are "paramount," and which provides that promoting their well-being is "a sacred trust." 3 3. See infra text accompanying notes 58-82. 4. See REPUB. OF PALAU CONST. art. II, § 3, art. XIII, § 6; see also infra note 125 (Palau trial court justice concluding that Palau Constitution effectively makes Palau nuclear-free). 5. REPUB. OF PALAU CONST. art. XIII, § 7. 6. L.A. Times, Feb. 11, 1990, at AI0, col. 3. 7. See, eg., Palau Approves Nuclear Free Zone Constitution, Associated Press, July 17, 1980 (LEXIS, Nexis library, AP file). 8. For a summary of Micronesia's colonial history, see Hirayasu, The Process of Self- Determination and Micronesia's Future PoliticalStatus Under InternationalLaw, 9 U. HAW. L. REv.487, 488-91 (1987). 9. See Trusteeship Agreement for the Former Japanese Mandated Islands, Apr. 2-July 18, 1947, United States-U.N. Security Council, art. 2, 61 Stat. 3301, T.I.A.S. No. 1665 [hereinafter Trusteeship Agreement]. 10. See, eg., 2 U.N. SCOR (113th mtg.) at 410 (1947) (statement of Warren R. Austin, U.S. Rep. to the United Nations). 11. Trusteeship Agreement, supra note 9, art. 5. 12. Id. art. 6. 13. See U.N. CHARTER art. 73, para. 1. Commentators have struggled for years to reach a workable formula to describe the administering authority's mission under the oxymoronic "strategic 1990] SELF-DETERMINATION OF PALA U A divergence of interests between Palauans and U.S. military plan- ners was therefore foreseeable, if not inevitable. The Palauans wanted their promised sovereignty; the United States wanted to protect its strate- gic interests. Not surprisingly, the first rift appeared during the drafting of Palau's Constitution in the late 1970s. 14 Although the subsequently negotiated Compact has evolved over the ensuing decade, the conflict between the Palau Constitution and the Compact with the United States remains intractable so long as the Compact fails to gain 75% approval from Palau's voters. Consequently, Palau's political situation remains essentially as it was in 1947 when the United Nations created the Trust Territory of the Pacific. The United States retains authority to engage in foreign relations on Palau's behalf, and even to run the Republic's domestic affairs. Although Palau today is largely internally self-governing, four decades after the United States pledged to promote Palau's political development, Palauans are still denied their sovereignty and the trusteeship continues.15 This Comment explores Palau's agonizing and so far futile efforts to terminate the trusteeship and enter into a mutually acceptable agreement with the United States to end the prolonged era of trusteeship. The Comment argues that the United States has violated both the Trusteeship Agreement and the Palauans' right of self-determination under custom- ary international law. Moreover, the Comment asserts that even if the Compact in its present form is now approved according to Palau's consti- tutional processes, the agreement would be void or voidable under the international law of treaties. trust." In 1949, a writer described it as a "somewhat bastard and contradictory" concept. See A. McDONALD, TRUSTEESHIP IN THE PACIFIC 54 (1949). Professor Prince, in one of the most recent articles on the trust territory, struggled to harmonize the strategic trusteeship's dual purposes: "[D]espite the undeniable primacy accorded to its security concerns, the United States ultimately made a binding commitment to make advancement of the Micronesian peoples the basic or paramount objective of the Trust Territory." Prince, The United States, the United Nations, and Micronesia: Questions of Procedure, Substance and Faith, 11 MICH. J. INT'L L. 11, 23 (1989). 14. See STAFF OF HOUSE COMM. ON FOREIGN AFFAIRS, 96TH CONG, IST SaSS., MICRONESIAN POLITICAL STATUS NEGOTIATIONS: REPORT OF A STAFF STUDY MISSION TO MICRONESIA, NOVEMBER 4 TO DECEMBER 1, 1978, at 7, 12 (Comm. Print 1979) (early drafts of the Constitution of the Federated States of Micronesia, successfully opposed by the United States, included a ban on testing and storage of nuclear material). 15. The failure to agree on the future political status of Palau is apparently frustrating for both the United States and Palau. Compare, eg., 134 CONG. REC. H9763 (daily ed. Oct. 6, 1988) (statement of Hon. Ron de Lugo, Delegate to Congress from the Virgin Islands) [hereinafter Statement of De Lugo] (U.S. interests in the Compact include "ending the embarrassment of the U.S. being the last trust administrator") with Position Statement on the Future Political Status of Palau, signed by Hon. Ngiratkel Etpison, President of the Republic of Palau, and by presiding officers of Palau's legislative body, the Olbiil Era Kelulau (OEK) (Jan. 13, 1989) ("present status as the last Trust Territory smacks of a quasi-colonial status which is degrading to Palauan people and unworthy of America"). CALIFORNIA LAW REVIEW [Vol. 78:915 Part I summarizes the history of the U.S. administration of the Trust Territory of the Pacific, giving particular attention to the negotia- tions between the United States and Palau, the plebiscites that resulted in the adoption of the Palauan Constitution, and the repeated rejections of the Compact of Free Association. Part II examines U.S. obligations under the Trusteeship Agreement with the U.N. Security Council and concludes that the United States has violated that agreement. Part III then discusses the nature of additional U.S. obligations under customary international law and concludes that the United States violated the Palauans' right of self-determination by undermining freely chosen con- stitutional provisions to protect Palau's environment and restrict foreign military activities in Palau.16 Finally, Part IV examines the validity of the Compact under the international law of treaties and concludes that it could be void or voidable even if now adopted pursuant to constitutional processes.
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