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The Negotiations for the Future Political Status of Micronesia (1980-1984)

Published online by Cambridge University Press:  27 February 2017

Arthur John Armstrong  and
Howard Loomis Hills
Howard Loomis Hills
Affiliation:
Of the Virginia Bar; President’s Personal Representative for Micronesian Status Negotiations, and of the Guam Bar Micronesian Status Negotiations
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Extract

Fourteen years of Micronesian political status negotiations culminated in 1983 with the final signature of the Compact of Free Association between the United States and the Governments of Palau, the Marshall Islands and the Federated States of Micronesia (FSM). Upon being approved in accordance with its terms and the constitutional processes of the signatory Governments, the Compact will establish bilateral relationships between the United States and the new states emerging from the Trust Territory of the Pacific Islands. Approval of these future political status arrangements will also provide the basis for termination of the Trusteeship Agreement between the United States and the United Nations Security Council. The Compact defines an international political partnership between the United States and the freely associated states that is without precise precedent in international law or U.S. domestic practice. Under the Compact, each freely associated state will enjoy control over its internal affairs and its foreign relations, including competence to enter into international agreements. Mutual security arrangements, set forth in the Compact and its separate agreements, provide for a U.S. defense umbrella during the life of free association and long-term exclusion of third-country military forces, should any or all of the freely associated states opt for independence at some future date.

Type
Current Developments
Information
American Journal of International Law , Volume 78 , Issue 2 , April 1984 , pp. 484 - 497
Copyright
Copyright © American Society of International Law 1984

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References

1 Compact of Free Association, opened for signature Aug. 26, 1982 (U.S.-Palau, Aug. 26, 1982; U.S.-Federated States of Micronesia, Oct. 1, 1982; U.S.-Marshall Islands, June 25, 1983) (on file at the Office for Micronesian Status Negotiations, Washington, D.C. 20240).

2 Compact of Free Association, supra note 1, §§411,412. For discussion of the approval process in Palau, the Marshall Islands, the Federated States of Micronesia and the United States, see Armstrong, , The Negotiations for the Future Political Status of Micronesia, 74 AJIL 689, 690 (1980)CrossRefGoogle Scholar; Armstrong, , The Strategic Underpinnings of the Legal Regime of Free Association: The Negotiations for the Future Political Status of Micronesia, 7 Brooklyn J. Int’l L. 179, 185, 227–28 (1981)Google Scholar.

3 Trusteeship Agreement for the Former Japanese Mandated Islands, approved by the UN Security Council April 2, 1947, approved by the United States July 18, 1947, 61 Stat. 3301, TIAS No. 1665, 8 UNTS 189. For analysis of trusteeship termination, see MacDonald, , Termination of the Strategic Trusteeship: Free Association, the United Nations and International Law, 7 Brooklyn J. Int’l L. 236 (1981)Google Scholar; cf. Clark, , Self–Determination and Free Association—Should the United Nations Terminate the Pacific Islands Trust?, 21 Harv. Int’l L. J. 1 (1980)Google Scholar.

4 See Armstrong, , The Emergence of the Micronesians into the International Community: A Study of the Creation of a New International Entity, 5 Brooklyn J. Int’l L. 207, 239–59 (1979)Google Scholar; Clark, supra note 3, at 38–64, 71–74; MacDonald, supra note 3, at 240–49; Leary, P., The Northern Marianas Covenant and American Territorial Relations (Institute of Governmental Studies Research Report 80–1, University of California, Berkeley, 1980)Google Scholar; Leibowitz, , United States Federalism: The States and Territories, 28 Am. U.L. Rev. 449 (1979)Google Scholar.

5 Compact of Free Association, supra note 1, Preamble, cl. 6, and Title 1, Arts. I and II. The full internal self-government and foreign affairs capacity recognized in these provisions is limited only by the requirement that the freely associated states will refrain from actions that the United States, after consultations with the Government or Governments concerned, determines to be incompatible with U.S. authority and responsibility for defense and security matters.

6 In 1975 the people of the Northern Mariana Islands approved the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States, Proclamation No. 4534, 3 C.F.R. 56–57 (1978), reprinted in 48 U.S.C. §1681 (1976). Though many aspects of the legal and political relationship established under the Covenant have been implemented under U.S. law, the Northern Mariana Islands remain a part of the Trust Territory.

7 Statement of Agreed Principles for Free Association, reprinted in 72 AJIL 882–83 (1978).

8 See Armstrong, Strategic Underpinnings, supra note 2, at 183–84.

9 See Compact of Free Association, supra note 1, Title 4, Art. VI, §462, for a list of all separate agreements concluded pursuant to specific provisions of the Compact.

10 See Statement of Ambassador Fred M. Zeder II, the President’s Personal Representative for Micronesian Status Negotiations, before the Subcomm. on East Asian and Pacific Affairs of the Senate Comm. on Foreign Relations, 97th Cong., 2d Sess. 7 (Dec. 10, 1982).

11 See Statement of James L. Buckley, Under Secretary of State for Security Assistance, Science and Technology and Chairman of Interagency Group on Micronesia, and Message from President Reagan to People and Leaders of Palau, the Marshall Islands and the Federated States of Micronesia, Micronesian Political Status Negotiations, Maui, Hawaii, Oct. 3, 1981 (on file at Office for Micronesian Status Negotiations, Washington, D.C. 20240).

12 See Statement of Noel C. Koch, Principal Deputy Assistant Secretary of Defense for International Security Affairs, Micronesian Political Status Negotiations, id.

13 See Crawford, J., The Creation of States in International Law 370–84 (1979)Google Scholar.

14 UN Charter art. 76, para, b; Trusteeship Agreement, supra note 3, Art. 6, para. 1.

15 Republic of Palau Const, art. II, §3.

16 See Vienna Convention on the Law of Treaties, Arts. 27 and 46, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

17 See letter from Ambassador Fred M. Zeder II, the President’s Personal Representative for Micronesian Status Negotiations, to President Haruo I. Remeliik, Republic of Palau, dated April 21, 1983.

18 Agreement on Extradition, Mutual Assistance in Law Enforcement Matters and Penal Sanctions Concluded Pursuant to Section 175 of the Compact of Free Association, May 24, 1982, U.S. Marshall Islands; Aug. 26, 1982, U.S.–Palau; Oct. 1, 1982, U.S.-FSM.

19 Federal Programs and Services Agreement Concluded Pursuant to Article II of Title Two and Section 232 of the Compact of Free Association, Aug. 26, 1982, U.S.-Palau; Oct. 1, 1982, U.S.-FSM; June 25, 1983, U.S.–Marshall Islands.

20 Compact of Free Association, supra note 1, §221(a).

21 Status of Forces Agreement Concluded Pursuant to Section 323 of the Compact of Free Association, May 24, 1982, U.S.-Marshall Islands; Aug. 26, 1982, U.S.-Palau; Oct. 1, 1982, U.S.-FSM.

22 Agreement Concluded Pursuant to Section 234 of the Compact of Free Association, Aug. 26, 1982, U.S.-Palau; Oct. 1, 1982, U.S.-FSM; June 25, 1983, U.S.-Marshall Islands.

23 Agreement regarding the Provision of Telecommunication Services by the Government of the United States to Palau, the Marshall Islands and the Federated States of Micronesia Concluded Pursuant to Section 131 of the Compact of Free Association, Aug. 26, 1982, U.S.-Palau; Oct. 1, 1982, U.S.-FSM; June 25, 1983, U.S.-Marshall Islands.

24 Agreement regarding the Operation of Telecommunication Services of the Government of the United States in Palau, the Marshall Islands and the Federated States of Micronesia Concluded Pursuant to Section 132 of the Compact of Free Association, May 30, 1982, U.S.-Marshall Islands; Aug. 26, 1982, U.S.-Palau; Oct. 1, 1982, U.S.-FSM.

25 Agreement concerning Procedures for the Implementation of United States Economic Assistance, Programs and Services Provided in the Compact of Free Association, June 16, 1983, U.S.-FSM. Negotiations on this Agreement have not yet been completed with the Marshall Islands and Palau.

26 Agreement between the Government of the United States and the Government of the Marshall Islands regarding Mutual Security Concluded Pursuant to Sections 321 and 323 of the Compact of Free Association, May 24, 1982, U.S.-Marshall Islands; Agreement regarding the Military Use and Operating Rights of the Government of the United States in Palau Concluded Pursuant to Sections 321 and 323 of the Compact of Free Association, Oct. 1, 1982, U.S.-FSM. Palau; Agreement between the Government of the United States and the Government of the Federated States of Micronesia regarding Friendship, Cooperation and Mutual Security Concluded Pursuant to Sections 321 and 323 of the Compact of Free Association, Oct. 1, 1982, U.S.-FSM.

27 Agreement between the Government of the United States and the Government of Palau regarding Economic Assistance Concluded Pursuant to Section 211 (a)(2) of the Compact of Free Association, Nov. 23, 1982, U.S.-Palau.

28 Agreement between the Government of the United States and the Government of Palau regarding the Putting into Effect of the Compact of Free Association by the Government of Palau and Amending the Military Use and Operating Rights Agreement, July 1, 1983, U.S.-Palau.

29 Between 1946 and 1958, the United States conducted 66 nuclear and thermonuclear detonations in the Marshall Islands: 23 at Bikini and 43 at Enewetak. Section 177 of the Compact calls for a separate agreement settling all claims of the Marshall Islands Government and Marshallese citizens arising from that testing progrAm.

30 Agreement between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association, June 25, 1983, U.S.-Marshall Islands.

31 Dames & Moore v. Regan, 453 U.S. 654 (1981); 8 M. Whiteman, Digest of International Law §§37 and 38 (1967).

32 Agreement between the Government of the United States and the Government of the Federated States of Micronesia regarding Aspects of the Marine Sovereignty and Jurisdiction of the Federated States of Micronesia, Oct. 1, 1982, U.S.-FSM; Agreement regarding the Jurisdiction and Sovereignty of the Republic of Palau over its Territory and the Living and Non-living Resources of the Sea, Aug. 26, 1982, U.S.-Palau; Agreement between the Government of the United States and the Government of Palau regarding Radioactive, Chemical and Biological Substances, Aug. 26, 1982, U.S.-Palau.

33 Convention on the Law of the Sea, UN Doc. A/CONF.62/122, Art. 305(l)(d) (1982).

34 Proclamation No. 5030, 48 Fed. Reg. 10,605 (1983), reprinted in 77 AJIL 621 (1983).

35 Supra note 7.

36 See letter from Ambassador Jeane J. Kirkpatrick, Representative of the United States of America to the United Nations, to His Excellency Mr. Javier Pérez de Cuéllar, Secretary-General, the United Nations, dated Nov. 18, 1982, requesting that a special session of the Trusteeship Council be convened to organize observer missions for the Micronesian plebiscites. See also letter from Ambassador Kirkpatrick to Mr. Paul Poudade, President, Trusteeship Council, United Nations, dated Nov. 18, 1982, regarding scheduling of plebiscites.

37 UN Trusteeship Council resolution of Dec. 20, 1982, UN Doc. T/RES/2174 (1982). Mission representatives were Fiji, France, Papua New Guinea and the United Kingdom. France and the United Kingdom are members of the UNTC.

38 Federated States of Micronesia Const, art. IX, §4; Marshall Islands Const, art. V, §(l)(3)(d); Republic of Palau Const, art. II, §3.

39 The Trusteeship Agreement itself, supra note 3, is an international agreement that was enacted as a public law in the United States in the form of a joint resolution signed by the President.

40 See Texas v. White, 74 U.S. (7 Wall.) 700 (1868); Weinberger v. Rossi, 456 U.S. 25 (1982).

41 See Armstrong, Strategic Underpinnings, supra note 2, at 216–25, 227.

42 See 1 M. Whiteman, supra note 31, at 742, 754, 765–68; see also J. Crawford, supra note 13, at 349–50.