By Ilker Gokhan Sen
Ilker Gokhan Sen writes on colonialism - following the 61st anniversary of the “Declaration on the Granting of Independence to Colonial Countries and Peoples” - examining a number of territories and their administering states in detail, including Guam, Virgin Islands and American Samoa.
Is colonialism over?
14 December 2021 was the 61st anniversary of the “Declaration on the Granting of Independence to Colonial Countries and Peoples.” The end of 2020 marked the end of the third international decade for the eradication of colonialism. Yet, it seems that this venture of decolonisation by the UN has yet to be accomplished completely.
Self-determination and decolonisation in international law
Some of the readers may think that the matter of colonialism was just an issue of the post-WWII era, the significance of which has waned towards the end of the 70s. However, the relics of colonialism has remained up until today with a list of 17 entities still retaining the status of “non-self-governing territories”. The term finds its definition by the Chapter XI of the United Nations Charter, that is, a territory “whose people have not yet attained a full measure of self-government.” It refers to the international status of a certain territory (and its people) as being subject to a foreign sovereignty and to which international law on decolonisation applies. It does not however, as the term and definition may misleadingly imply, refer to any sort of non-democratic, authoritarian or despotic regime.
In terms of decolonisation, the UN Charter contains two separate legal frameworks that identify the potential territories:
- The Trusteeship System (Chapter XII, Articles 75–85)
- Non-Self-Governing Territories (NSGT) (Chapter XI, Articles 73–74)
The former concerned the territories taken from countries defeated in the WWII, whereas the latter was devised for the colonies of the victorious countries. In contrast to the territories under the trusteeship system, the Chapter regulating the NSGT has a somewhat vague and hesitant formulation, both as to the procedure and objective. Most notably, while the trusteeship framework offered explicit right to independence, the NSGT territories were only entitled to “self-government”, which could be interpreted as a constitutional status within the administering states, rather than independence. This duality, needless to say, was a result of the resilience of the UK and France to safeguard their own colonial possessions.
Thus, this dual system of decolonisation failed to create a solid legal base that could offer an unfettered liberation of the colonized peoples, at least during the immediate years following the WWII. Further steps had to be taken; and two important documents from 1960 should be reminded here. The first one is the “Declaration on the Granting of Independence to Colonial Countries and Peoples”. This document offered the right to independence to “all peoples”. Then, a second UN resolution (Resolution No 1541), laid additional standards for the potential units of self-determination.
Decolonisation today: A task “urgent but incomplete”
Sixty years after the adoption of these resolutions, today there are over one million people in the Global South under the sovereignty of a foreign state from Global North waiting for a final resolution of their international status.
Full list of the territories and their administering states may be found on the UN website. For the purpose of this note, few examples may be reminded.
New Caledonia is an overseas territory of France, which is located in the Pacific Ocean. The Constitution of France classifies the territory as a sui generis community, with a large autonomy. The international status of the region is subject to controversy between autochthone people (the Kanaks) and the descendants of the French settlers (the Caldoche). Once violent during the 80s, this controversy was settled with the Nouméa Accord (1998), which provided for a transitional phase for the final resolution of the territory. As of December 2021, this transitional status still persists.
There are three non-self-governing territories that are administered by the USA:
- Guam
- Virgin Islands
- American Samoa
Situated in the Pacific and Caribbean, these islands are ruled under the Territorial Clause of the US constitution. Their constitutional status has been clarified by a series of supreme court opinions called the “Insular Cases”. In these decisions, the Court coined the status of “unincorporated territories” as opposed to the “incorporated” ones. (the American States proper). The insular cases created a second-class constitutional status, the people of these islands are U.S citizens (with the exception of American Samoa), yet this status is revocable by the Congress. Certain federal laws are directly applicable overriding the local laws, but the inhabitants do not have a right to vote in federal elections (as US citizens, they may vote if they reside in the USA). This situation, as one observer argued, put “the US Constitution at the service of colonialism.”
In Virgin Islands, for example, the local executive rightfully contended that a US law permitting a locally drafted constitution but subjecting it to the approval of the Congress, was in violation of the international law. Similar problems may be observed in Guam and American Samoa.
Puerto Rico is an interesting case; an unresolved decolonisation question where current international status has been subject to controversy. The UN does not consider the territory as non-self-governing; yet the insular cases also apply to Puerto Rico. The resulting colonial relationship with the USA is a reason of close scrutiny by the Special Committee on Decolonisation. In its 2020 report, the Committee observes that interpretation of the Territorial Clause of the US Constitution as giving unilateral plenary powers to the Congress over Puerto Rico, “aggravates the colonial situation”.
Arguably, one reason of the delay of final resolution of these territories may be the preferences of the peoples themselves. At different times since the 1980s, large majorities of several of these islands have rejected full independence in referendums and opted for a continuation of negotiation of different forms of sovereignty with their respective administering states.
In New Caledonia for example, the inhabitants voted for remaining as a part of France in two consequential referendums held in 2018 and 2020(4th of October). A final referendum was scheduled for 2022. Most recently, in a referendum held on November 3, 2020, the voters in Puerto Rico wanted to be admitted into the USA as a State. However, this referendum, as the several previous ones on the island, are non-binding since the US Congress should give the final decision for that matter, which has the constitutional competence to admit new states to the Union. Nevertheless, the Congress has always remained silent on that issue.
Against this backdrop, some argue that there is an emerging form of “islandian” sovereignty different from classically defined state sovereignty. According to this conception, the people in these territories are happy to be under a foreign sovereignty (as traditionally defined) and pursue their rational interests by procrastinating the negotiations with the metropolitan state.
These accounts are in great contrast with the normative tenets of the principle of self-determination in modern international law. Indeed, certain comments define the current situation as the “relics of colonialism”. Similarly, the international community is quite persistent in its demand for ultimate decolonization of these territories. For example, on December 10, 2020, the UN General Assembly adopted several resolutions, among which, four of them are of relevance for this note. These resolutions were adopted by overwhelming majorities in the UN, but with either negative votes or the absence of the relevant administering states (i.e., United States, France and the UK)
The first resolution “expressed concern about activities of the administering states aimed at exploiting the natural and human resources of the territories to the detriment of their inhabitants.” The second resolution asked all the states to “intensify their efforts to ensure full and effective implementation” to resolve the problematic international status of these territories. Third resolution asked the administering states ensure that “economic and other activities in the Territories do not adversely affect the interests of their peoples, but instead promote development”; and “called upon the administering Powers to terminate military activities and eliminate military bases in the Territories.” Finally, fourth resolution declared the period 2021‑2030 as “the Fourth International Decade for the Eradication of Colonialism.”
Apparently, the complete achievement of the mission of decolonisation has still a long way to go. There may be internal (the relevant territory) and external (administering states and international community) factors that contribute to the procrastination of the resolution of the international status of these territories.
One thing is for certain that these territories have remained in limbo for decades now; and uncertainty is one of the biggest challenges that all individuals and societies face on their way to fulfillment of their right to “self-determination”.
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Ilker Gokhan Sen is a visiting researcher at the University of Bergen Faculty of Law and an alumnus of the 2021 Centre on Constitutional Change Summer School. His research focuses on Direct Democracy, Comparative Constitutional Law, and Populist Constitutionalism.
Image by Wei Zeng on Unsplash