THE DRAFT GUAM COMMONWEALTH ACT - University of Hawaii€¦ · The Library of Congress THE DRAFT "GUAM COMMONWEALTH ACT" r-RECEIVED IV [Prepared ·Specifically for the House Committee

W .. hlniton, D.C. 20540

Congressional Research Service

The Library of Congress

THE DRAFT "GUAM COMMONWEALTH ACT"

r-RECEIVED

IV

[Prepared ·Specifically for the House Committee on Interior and Insular Affairs]

Daniel Hill Zafren Specialist in American

Public Law American Law Division

May 27, 1986

University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

· '

,I

The Draft "Guam Commonwealth Act M

Before undertaking a specific analysis of the various provisions of the

Draft "Guam Commonwealth Act", dated December 18, 1985, and drafted by the Guam \

Commission on Self-Determination to establish a federal-territorial relations

act to create a Commonwealth status with the United States, some general,

overall observations would seem appropriate.

One Sided. Drafted solely by a "local" Commission, established by local

law for this purpose, its design is to create what the Commission members

believe is best for all the people of Guam. Obviously, there Is much greater

emphasis on the establishment of obligations by the United States to and for

the proposed Commonwealth, than on the interests, rights or. privileges of the

United States. Realistically, however, without a proper balance the document

becomes legally and politically troublesome.

Covenant with the Northern Marianas. A number of provisions are

intentionally based on the Covenant to Establish a Commonwealth of the Northern

Marianas Islands in Political Union with the United States of America

[hereinafter "CNMI" J. The use of such model, however, may not necessarily be

accurate or appropriate. Interestin~ly, no negotiations with the United States

seem to be contemplated. Further local changes may be forthcoming until a

plebiscite is held. First, the CNMI was the final product of negotiations and

each provision was probably the result of a give-and-take as to each item and

perhaps as a concession or inducement for the inclusion or exclusion of other

provisions. Second, while the political goal may be analogous, the particular

references to the Northern Mariana Islands as points of consideration seem at

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times misplaced or misinterpreted and' such may, in their actual application, be

different (historically and ideologically) to those of Guam. Further, in the

approximately ten years since that document was drafted, concepts and opinions

may have cast a different light on what was intended or hoped to have been

achieved by the original provisions. In addition, strictly from a legal

perspective there is always a danger in taking ideas or language out of

context.

Legal Shortfalls. As will be discussed in more detail later, from a

drafting stance there are a number of terms used in various places which would

be better understood if defined. There are also a number of ambiguous concepts

that should be clarified, and mysterious gaps which probably should be filled.

Legislative History. The pronouncements in an earlier draft that a

"legislative history" at the end of each section is required in all

congressional -bills as explanatory legal -notes is inaccurate and puzzling.

There is no such requirement, and such language has no legal force or effect.

In fact, it is perhaps misleading to even refer to such as a legislative

history. Such material would seem to be better labeled as "Drafters' Notes" to

more accurately describe their content, i.e., what the drafters' may have

intended by the particular section or why and where the draft language was

used. Thus, fori the purposes of this Report, such explanatory material will be

described under the term "Drafters' Notes".

Self-Determination. This concept is mentioned in various places in the

Draft. While this point alone would perhaps only be adequately addressed in a

separate, extensive analysis, some brief comments may be in order now with some

further elaboration later in reference to particular attempted usage in the

Draft. Under international law, the right of self-determination is rather


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confusing and highly controversial. See, e.g., H. Pomerance, Self... ~

Determination In Law and Practice (1982). While many aspects of the

applicat~on of any such right or the proper method of its exercise are

arguable, In general, its reference in the Draft seems to prompt a number of

legal issues. Notably, it appears that the Draft, while calling for the .. ~

reco&nition of such a right, is not to actually constitute its exercise. The 1

\

Comonwealth status is, apparently, to be interim in nature only (even though

specific langauge to that effect in earlier versions has now been dropped), one

which would seem to imply that the Commonwealth could terminate that status

unilaterally. That kind of postponement would seem to be legally uncertain and

practically problematical. As will be discussed in detail later, a number of

legal issues arise generally, and in particular to this proposed action. Does

the freely determined choice of a commonwealth status constitute the actual

exercise of the right of self-determination? Legally, is there such a thing as

an interim status on the road to self-determination? Can the same people /

exercise the right to self-determination twice under/similar circumstances with

regard to the same foreign sovereign? Within t.he scope of any such right, what /

group constitutes the "self", and who and how is such a determination to be

made?

SECTION-BY-SECTION ANALYSIS

Preamble. The nature of the text set forth here is uncertain. As a

Preamble it has little possible legal effect. The preamble of a statute merely

sets forth the goal of the statute. Glove fur Dyeing Corporation v. United

States, 467 F. Supp. 177 (D.D.C. 1978), affld 612 F.2d 586 (Customs and Pat.

App. 1979). It contributes to a general understanding of the statute but is "'-. -not an operative part of it, and where the enacting or operative parts of the


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statute are unambiguous it cannot be controlled by language in the preamble.

Association of American Railroads v. Costle, 562 F. 2d 1310 (D.C. Cir. 1977).

Portions of this Pream~le also seem to be incorrect or so broadly stated

as to raise an incorrect conclusion. For example, the Treaty of Paris of 1898

and the Charter of the United Nations are cited to support the idea of their

embracing the establishment of this Commonwealth and that the United States has

an obligation to protect the right of self-determination and heritage of the

Chamorro people. These documents, however, either individually or together, do

not support such an alleged "obligation". Besides the obscurity of the terms

and notions presented in the Preamble, there does not appear to be a proper

basis in law or fact for the kind or breadth of the sort of commitments

presumptively implied in the term "obligations" and the "rights" so described.

The Treaty of Paris of 1898 does not contain such a commitment. Actually, it

would seem that the reading of such document'supports the opposite conclusion,

i.e., that the Congress has the right to determine the future status of Guam.

Article IX of that Treaty reads, in part: "The civil rights and political

status of the native inhabitants of the territories hereby ceded to the United

States shall be determined by the Congress." 30 Stat. 1754, 1759 (1898). As to

the Charter of the United Nations, any United States commitment to self-c

government is actually a form of inner self-determination, and is referred to

only twice in the Charter. Article 1(2) of the Charter, which deals with the

purposes ~f the organization, states that one aim is "to develop friendly

relations among nations based on respect for the principle of equal rights and

self-determination of peoples and to take other appropriate measures to

strengthen univers.ll peace." Article 55 provides: "With a view to the creation

of conditions of stability and well-being which are necessary for peaceful and


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friendly relations a~ong nations based on respect for the principle of equal -"

rights and self-determinatIon of peoples, the United Nations shall promote-. .

higher standards of living, full employment, and conditions of economic and

,.

social progress and development." "Apart from these general articles there is

nothing.in the Charter which specifies the right of developing countries to

acquire independence and self-determination and no rules which safeguard the . I

1

independence of new developing nations once they have emerged a's states." I.

Delupis, International Law and the Independent State (1974), at 7. This

principle of self-determination, "with all its ambiguity, is referred to only

- -twice ••• almost in passing" and cannot be considered as an operative principle

of the Charter. It is not a legal right that can ~e invoked as such. M.

Pomerance, Self-Determination in Law and Practice (1982), at 9.

, .

The D.rafters' Notes indicate that this is supposed to be a recognition of

the principle of self-determination. However, quite a different meaning and

impression is left by the actual language. Recognizing such a principle as a

matter of policy is obviously distinct from declaring that the United States is

obligated to do certain things. It would even seem a further amorphous nQtion

to imply that the United States is legally obligated to create this

Commonwealth as a step towards, or as an interim status in, fulfillment of that

principle.

ARTICLE 1. POLITICAL RELATIONSHIP

Sec.IOl. Short Title.

It is indicated that the title "Guam Commonwealth Act" is intended to

emphasize the importance of the new "status" of the island. While the

qualifying word "interim" has been dropped from earlier drafts, it seems

apparent that the drafters still intend that this status should be a temporary

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one, and that the people of the Island are to retain a sovereign right to alter, '~

that status by some unilateral act at a later time. However, if the Congress

were to enact a proposal along the lines drafted here, the legal result would

arguably seem to be otherwise. Unlike the Northern Mariana Islands which

entered into a negotiated covenant with the United States, which Congress

approved by legislation, what appears to be designed here is solely a federal

statute, the operative provisions of which are intended to and do read that the

Congress is establishing the Commonwealth status. From the legal perspective

of the United States, that status would be considered permanent. Only some

subsequent federal legislation could alter or terminate that status, presumably

after some form of mutual consultation and consent. Thus, it would seem that a

sounder legal approach might be for Guam to shift its emphasis from one

assertive in character to one protective in nature. Rather than attempting to

establish controversial-unilateral rights on its behalf which ~ay or may not be

capable of being fully justified or developed legally, practically or

politically, a prudent operational approach might indicate pursuit of

provisions to assure that the unilateral legal right of the United States to

affect the status of the Island be tempered by consultation with and/or consent

of the proposed Commonwealth.

Sec.\l02. Creation of the Commonwealth. I

This provision is a legal morass. The Drafters' Notes indicate that it

follows sections 101 and 102 of the CNMI. Yet, it leaves out and confuses some

very important substantive provisions contained in that other document. First,

the Northern Mariana Islands is to be a self-governing commonwealth "in

political unton" with the United States and under its sovereignty. There is no

mention in this crucial Draft provision of the status being one political in


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nature or in the leg~l and practical reality that the United States would not

consider such a statuI unless it has full sovereign rights over the Island and

its adjacent islands and waters. Second, there is nothing in the cited

sections of the CNMI indicating that, in effect, the local constitution is to

be the supreme law of the commonwealth together with applicable provisions of

I'

the United States Constitution, laws, and treaties. The legal ramifications of , \

such an enactment could be great. Theoretically, it could allow provisions of

the Constitution of Guam, including any later amendments, to override any

applicable United States provisions. Arguably, it even purports to place the

Constitution of Guam on the same legal plateau as the Constitution of the

United States. Thus, the Commonwealth could, for example, negate a statute

passed by the Congress dealing with the Commonwealth by adopting, for example,

simply an amendment to the local Constitution conflicting or coptradictory to

that enactment. Therefore, it would seem crucial to make it clear that in all

-respects federal law will have the same status ~1.th respect to any proposed

/ commonwealth as it does to a state. Further, it would probably be

unconstitutional for the Congress to enact spch a provision. In no way can the

Congress legally make the Constitution of the United States subject or

subordinate to the Constitution of Guam.

Sec. 103. Guam Sovereignty and Citiz~nship.

-(a) This subsection contains a number of potential problems. First, that

the Congress recognizes that only a portion of the population of Guam has

accepted being under United States sovereignty is of little legal import and of

much practical and legal confusion. It certainly does not carry with it the

clear and convincing statement and legally soun~ ramifications if Section 102 -. were to read and establish the self-governing Commonwealth "under United States

. . . .


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. sovereignty". It impUes not only that there are subclasses of people on Gu;m~"",

that ~ither Congress will treat differently or not deal with at all, but that

only certain populace acts will or can be recognized by the United States as

having any validity. This would seem to open up the entire gamut of potential

problems pertaining to minority rights.

Second, any recognition by the Congress of what might constitute the

indigenous population of Guam might not necessarily satisfy or effectuate any

test or result that might otherwise be determinable under international legal

principles for any present or future exercise of the right of self

determination. The Chamorro people of Guam, born on Guam before August 1, 1950,

and their descendants, may not necessarily constitute the actual or complete.

"self" for the proper exercise of the right of self-determination. The first

and pivotal question is: who is the "self" to whom the right of self

determination attaches? It is far more-complex than merely deciding whether it

should be a race, a territorial area or a community. Selection of a unit

requires decisions on further delimitation. For example, who would be the

inhabitants or members of the race or community? Thorny questions arise if

identifying and affording rights to "indigenous" and "settler" populations,

particularly if a time-based calculation enters the calculus together with

space-bound and group-bound considerations. A "critical date" or "critical

period" may enter as a further controversial factor. In Alsace-Lorraine, for

example, the Allies agreed that it would be "insultingly illegitimate" to view

the population of 1919 as the "self" that could separately determine its fate

because it would be preferring the historic rights of an earlier community over

the desires )f the existing inhabitants. "The necessity of defining the 'self'

which is to exercise 'self-determination' lies at the heart of what is probably


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the most basic dilemma in the matter o.f self-determination: recognition of the '"

rights of one 'se~f' entails a denial of the rights of a competing 'self'" M.

Pomerance, Self-Determination in Law and Practice (1982), at 2. General

Assembly Resolution 1514 (XV) states that the right of self-determination

belongs to "all peoples." •. "In order to reconcile conflicting claims to

'selfhood'the definition of the self must be internationall~ determined. The , \

United Nations has adopted ~ territorial rather than an ethnic criterion to

define the self." Comment, Self-Determination in Hong Kong: A New Challenge to

an Old Doctrine,' 22 San Diego L. Rev. 839, 853 (1985).

Third, the existence and scope of the right of self-determination is not

settled. For, example, due to the provisions of the sixth paragraph of General

Assembly Resolution 1514, there is doubt as to the acceptance of the principle

of the right to self-determination of peoples as distinguished from the self-.

determination of rerritories. It can b~ mai~tained that the prin~iple is one

of "political organization" and not a legal pri.nciple. Individuals or groups

of individuals are not yet subjects of international law but are just

beneficiaries. Arguably, General Assembly resolutions dealing with such a

right are not binding rules of international law since that body does not have

prescriptive rights. It can also be contended that the principle lacks clea·r I

definition and is self-contradictory in nature, and thereby is, lacking in \ I

universal application. Y. Makonnen, International Law and the New States of

Africa (1983), at 19, 21-22.

Fourth, this Draft provision raises the legal issue of whether the

choosing of commonwealth status is the actual exercise of the right of self-

determination, and if it is, can the same people exercise the right again at a

subsequent time? The gist of the Draft provision appears to be that


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commonwealth status is not one of the' three modes by which self-determ{ri"ation ".

may be acco~plished as found in General Assembly Resolution 1541, namely,

emergence as a sovereign independent state, free association with an

independent state, or integration with an independent state. However, the

exercise of such a right does not seem to be limited to those three enumerated

alternatives. If one is to argue that self-determination has ripened into a

legal right, it would have to be on the basis that the principle has been

reiterated in a long line of General Assembly resolutions. In the Western

Sahara case, 1965 I.C.J. 4, 23 (advisory opinion), the International Court of

Justice, in discussing the principle of self-determination, reviewed

resolutions 1514 and 1541, and also cited with approval Resolution 2625 (XXV),

the Declaration on Principles of International Law Concerning Friendly

~elations and Cooperation Among States in Accordance with the Charter of the -

United Nations. That R~solution expands the application of the principle of

self-determination. It proclaims that "the establishment of a sovereign and

independent State, the free association or integration with another State or

the emergence into any other political status freely determined by a people

constitute modes of implementing the right of self-determination by that

people" (emphasis added). Thus, one might argue with some persuasion that, at

\ the least, a freely chosen commonwealth status is just such a political status

and therefore a proper and effective exercise of the right of self-

determination. Interestingly, the United States has taken the position

concerning the CNMI that the choice of commonwealth status does, in any event,

conform to the requirements of "free association" in Resolution 1541. See, M.

Pomeran~e, Self-Determination in Law and Practice (1982), at 92-93.

If it could be established in fact and in law that the freely determined


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act by the "Reople of Guall is an exercise of a right of self-determination, no

authority has been found that would support an argument that such a right could

be exercised again at a later time and with a possibly different result. In

other words, it would seell that the right cannot be exercised twice "by the same

people in the same territory and involving the same foreign sovereign, and its

due exercise thereby extinguishes whatever legal right exists in that regard.

Thus, no legal right would appear to remain with such people to change their

previously chosen status by merely determining they want a new status. That is

not to say, however, that an opted for commonwealth status could not be revised

or otherwise terminated by whatever mechanism(s) may be agreed to within the

political union. What it does mean, in effect, is that if Guam becomes a

Commonwealth of the United States, it would not have the right of succession.

(b) It would seem meaningless for the Congress to pronounce recognition"

o~ the residency and/or citizenship rights contained in the Constitution of

Guam. / /

(c) This subsection is confusing, especially when read in conjunction

with Section 102. /

(d) The matter covered in these items seem to be strictly a matter of

local law and policy, and should be "contained not in federal commonwealth

legislation but in local law as an exercise of self-government, if at all. I I

Certain concepts presented have constitutional overtones. For example,

restricting the right to vote in local elections to a residency requirement ~f

five years might be unconstitutional. See, ~ v. Blumstein, 405 U.S.330

(1972), where a Tennessee durational residency requirement of one year for

state elections was held to impair voting,,!ights and the right to travel. The

Drafters' Notes refer to precedents In Hawaii, Alaska and the Northern Mariana


,:----- ,

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Islands for the Chamorro Land Trust •. No such germane precedents appea~ to ~

exist, with any federal involvement or authorization.

Sec. 104. Full Self-Government.

Subsection (a) appears to be inadequate. If the establishment of the

Commonwealth of the Northern Mariana Islands is to be any precedent, that

Covenant in this regard sets forth what the three separate branches will be and

where the power in each branch shall be vested. Likewise, the CNMI provides

that the Constitution will be submitted to the United States for approval and

determination as to its consistency with the applicable Constitution, treaties

and laws of the United States. The Draft has no approval requirement and is

unclear as to who, how or when any determination for consistency Is to be made.

By virtue of the fact that Guam would have self-government, as if it were

a government of a state, it would have sovereign immunity in its own right and

therefore could not be sued on the basis of its own l~ws without its consent. -

Thus, the inclusion of subsection' (b) would seem to be unnecessary.

Subsection (c) would or should be a policy decision of local government

and would, therefore, seem inappropriate in the Draft. Having self-government

would enable Guam as a matter of local sovereign authority to establish,

maintain, and operate a public educational system.

Sec. 105. Mutual Consent.

While this provision may be based on Sec. 105 of the CNMI as indicated by

the Drafters' Notes, it is far more more sweeping. The CNMI basically only

provides that there is to be mutual consent for alteration of the fundamental

provisions of the Covenant designed to protect the right of local self-

government. The Draft, on the other hand, is a broad, and virtually all-

inclusive, attempt to restrict the Congress in enacting legislation that will


affect Guam unless the latter consents thereto. In effect, such a provision "

would give the pro.posed Commonwealth a veto power over all legislation

affecting it. Even the exceptions as to national defense or foreign affairs

found in earlier drafts have been excised. Further, this veto-type power would

extend to rules and regulations o~ United States administrative agencies. This

provision would seem to carry a small precedent well bexond its designed

limited scope and particular setting.

, \

ARTICLE 2. APPLICABILITY OF FEDERAL LAW

Sec. 201. Applicability of U.S. Constitution.

From the perspective of the Congress, probably the most serious legal

defect c?ncerning this proposed section is the application of the Tenth

Amendment of the Constitution to the proposed Commonwealth. To make that

Amendment applicable to Guam would be to curtail the greater authority that

Congress would otherwise have over Guam as a territory under Article IV,

Section 3, Clause 2 of the Constit'ution, which ,allows the Congress to enact

laws which affect matters within the territory which it could not do concerning

a,state by virtue of the Tenth Amendment. The Tenth Amendment was 'not made

applicable the CNMI. In the same vein, there is an apparent discrepancy in the

Constitutional provisions made applicable to the CNMI and those proposed in the

Draft. Particularly, why would the United States want Article IV, Section 4 to , I

be applicable and have the federal government "guarantee" the Guam government

against domestic violence? If modeled after the CNMI, why are not the'same

provisions that are included there also included in the Draft? It would also

seem inappropriate to extend U.S. citizenship by Constitutional edict,

especially when the proposed Commonwealth is suggesting it should have a

unilateral!ight to terminate the Commonwealth status.


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Sec. 202. Effect ot Federal Law.

tn spite of the Drafters' Notes that this provision is similar to Sec. 105

of the Marianas Covenant. it is quite different and ~uch broader. Sec. 105

provides that the United States can enact legislation applicable to that

Commonwealth but if such legislation cannot also be made applicable to the

States then the Northern Mariana Islands must be specifically mentioned in the

legislation for it to be effective therein. The design of that provision is to

assure that when the Congress exercises its special authority under Article IV,

Section 3, Clause 2 of the Constitution, it will take into account any

particular circumstances existing in the Northern Marianas. On the other hand,

the import of the Draft provision is that no subsequent federal legislation,

rule or regulation can be made applicable to Guam unless Guam consents to it.

In effect, this would give Guam a form of veto power over Congressional and

administrative action.

Sec. 203. Joint Commission.

Contrary to the Drafters' Notes, this Commission does ~ generally follow

the CNMI. That Covenant established a United States Commission to survey the

laws of the United States and to make appropriate recommendations to Congress.

All of the appointees were to be made by the President. The Draft attempts to

establish a joint commission, with the Guam members (majority) to be appointed

by the Governor of Guam. The nature of, and United States control and

responsibility to the United States, is quite different in the instance of a

joint commission than with a United States commission. After indicating that

this Commission is to make its own regulations and procedures, the Draft

unexplainably continues on to set forth some of th6se procedures. The


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reep-onsibil1ties of the Commission are.extensive, ambiguous, and appear to '"

'. bestow' it with certain authority which might subject the Congress to possible

negotiation and mediation processes. The responsibilities appear. to be

monumental. Likewise, it reaffirms indications throughout the Draft that the

comonwealth status is to. be only temporary or interim in nature, and gives the

impression that commonwealth status cannot or should not be a maximum political

autonomy. The prescribed tasks would seem to possibly require a large working

staff, all of which would have to be funded by the United States. It also

might be noted that the CNM! Commission was modeled after the similar

commission set up in the Organic Act of Guam (48 U.S.C. Sec. 1421c), and that

the CNMI Commission, even with a more limited scope ,than the one envisioned in -

the Draft, issued only its Second Interim report in August, 1985, approximately

five years after its first meeting.

Sec. 204. Delegation of Authority.

While it arguably might be constitu~ional for the Congress to authorize I

the President to make the kinds of delegation provided for in this section, it

would seem that there are adverse legal/policy considerations that might negate /

this k1"nd of contemplated action. First, by removing federal agency

participation there is an absence of federal control. There is even, it would

seem, a built-in lack of provision for, or delay in, the President being l I

advised about what is being done (or not being done) as the provision only

calls for consultation from time to time. Even those concepts are ambiguous.

What does "consultation" mean? Who is involved, and how is the Congress to be

informed? How are the agencies which, apparently, will still have to make the

appropriations for implementation, to',be advised on what they have to do or how '"

to spend the money? What kind of administrative review, if any, would be


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available if the Governor oversteps his authority? How wo~id',a delegation of "

"partial performance- be practically carried out? Second, this mechanism does

not seem to have any precedent with respect to the relationship between the

United States and other commonwealths or territories. If there is some reason

for federal legislation not to be implemented in Guam, arguably it is the

Congress that should make such a determination. It would seem that a more

reasonable alternative, if it is decided that certain adminstrative actions on

certain subjects should have the input of any special circumstances in Guam,

might be to provide for a system of agency notice to Guam in certain instances,

an opportunity for and consideration of the local government's comments

thereon, and perhaps in some particular limited subject areas even a final

review and approval by the Governor of Guam, similar to the procedure now

provided for pertaining to administrative grants under the Coastal Zone

Management Act (16.U.S.C. Sec. 1454).

ARTICLE 3. FOREIGN AFFAIRS AND DEFENSE

Sec. 301. United States Authority.

Since this legislation purports to establish Guam as a Commonwealth of the

United States, it would seem superfluous to include the fact that the United

States is to have the authority over and be responsible for the defense of that

entity. Such would be implied in the status itself, and to mention it here

would seem to be more appropriate if the status intended was one of an

independent nature, such as free asssociation, rather than a commoqwealth.

Further, the language employed is misleading in the sense that one supposes

that exceptions will follow in later sections as to that ·defense responsibility

or authority, when in fact the later provisions on military security zones

seems merely to be an attempt at limiting the exercise of that authority.


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-'" Likewise, it would also seem unnecessary, or at least redundant, to malte

reference to such ~uthority over foreign affa~rs. Technically, the material in

the ensuing sections are not "exceptions" to the United States' authority and

responsibility for foreign affairs in the international sense but merely some

modification on domestic operation concerning treaty making and an additional

aspect of assisting in certain trade_ matt"ers.:" \ -

Sec. 302. Consultation With Guam. " ..

This prescribed consultation function is inconsistent with commonwealth

status, and would seem more appropriate if free association were being

contemplated. Further, there is great ambiguity towards and about what may

constitute the "well-being "of the people of Guam";. who or how such a

determination can or should be made; or even what" procedures could or should

govern any consultation process, and any safe-guards that might be necessary if

"sensitive" treaty negoti~tions are contemplated. Further, treaty negotiations -

are strictly an Executive function, and any Co~gressional statement to this

effect is without binding effect and unenforceable.

Subsection (b) is ambiguous, and will probably not effectuate what is

intended. Consultation with the Governor of Guam may menn merely that the

United States has to notify and give an opportunity for comment before a base

is established. The declaration of war provbo only refers to military , i

~

security zones and foreign military personnel being stationed there. Even that

qualification seems unrealistic from the perspective of both the United States

and Guam. Most hostilities occur without a formal declaration of war, and

awaiting such action could negate real emergency situations and/or allow a

specified action for the United States to avoid the operation of such a

provision.


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Sec. 303. United States Consular and Trade Assistance.

Subsection (a)(i) according to the Drafters' Notes is taken from Section

904(b) of the CNMI. However, there appears to be an important distinction. In

that document, the offices to be established are limited in purpose, namely for

promoting local tourism and other economic or cultural interests of the

islands. Here, the purpose for such offices is apparently open-ended.

Subsection (a)(U) is inconsistent with the proposed commonwealth status.

To become a member of an international organization or to enter into

international agreements denotes a right of sovereignty, or quasi-sovereignty.

As a Commonwealth of the United States, sovereignty would rest with the United

States.

Subsection (b) uses the word "shall" while "will" is contained in the

CNMI. Such may connote a stronger mandatory action o~ the part of the United _

States. In ei ther case, efforts- to obtain such favorable treatment for exports

mayor may not be successful.

Sec. 304. Nuclear Waste.

This section is much broader than its title indicates. The Drafters'

Notes state that this section parallels the provisions of the Compact of Free

Association with the Marshall Islands and the Federated States of Micronesia.

However, it seems much broader than those provisions. For example, that

Compact only covers disposal of "toxic" chemicals "in an amount or in a manner

which would be hazardous to public health or safety." Here, since such

qualifying words or terms are absent, all dumping and utilization would

apparently be prohibited. Further, the "clean up and make safe" chemical waste

dump sites used or being used by the military is open-ended. Likewise, the


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United States would be absolutely liable for any injuries with no Ceiling on

monetary awards.

ARTICLE 4. COURTS

Sec. 401. Judicial Relationship of Guam to the United States.

This is one time the Drafters' Notes'should have indicated that the

provision is fashioned after the CNMI. A similar provision is found in Sec.

403(a) of the CNMI. To a great extent, the corpus of this section is already

contained in Federal law. See 48 u.S.C. Sec. 1424-2. However, that law

provides for a fifteen year period for possible review of all local decisions

by the United States Court of Appeals for the Ninth Circuit.

Sec. 402. Jurisdiction of District Court.

It is difficult to determine what 1s intended by this Section, and it

would seem to have a specific, limited effect. The way the provision reads,

the newly designated district ~ourt would lose the authority now contained in

48 U.S.C. Sec. 1424 to hear certain ,local cause,s. Interestingly, that ki'ndof /

provision from the Guam Organic Act to allow a U.S. District to hear certain

local causes of action without satisfying the ususal prerequisites for federal /

suits, was used as a model for the kind of jurisdiction to be exercised by the

District Court for the Northern Mariana Islands and is contained in Section

402(b) of the CNMI. Likewise, that document contains an exception for that

District Court from the sum or value of the matter in controversy. No such

exception is contained here, and apparently for the Court to exercise

jurisdiction the $10,000 threshold would be applicable. Perhaps, that is what

is intended, but if it is the Drafters' Notes are rather skimpy. . ..

Sec. 403. Applicable Distric~ Court Rules. "'<.,

This kind of provision would seem unnecesary, since, for example, Rule

, " -,


CRS-20

54(a) of the Federal Rules of Criminal Procedure would have to be amended to

conform to whatever procedure the Congress deems necessary for the District

Court of Guam.

Sec. 404. District Court Judge, United States Attorney, Marshal.

Selection and tenure of the District Judge, United States Attorney, and

the Marshal would seem to be already provided for in federal law, or in federal

law that would have to be amended to conform with any enactment of this sort.

See, 28 U.S.C. Secs. 133, 503, and 506. Thus, this provision would apppear to

. be unnecessary.

ARTICLE 5. TRADE

~ Sec. 501. Guam-United States Free Trade Area.

This cumbersome provision contains numerous problems. While it might not

be inconsistent with the General Agreement on Tariffs and Trade for the United

States to enter into a free trade arr~ngement with a consitituent territory,

certain prerequisites and formalities would appear to be necessary under

Article XXIV thereof. Further, it appears that the present federal statutory

scheme concerning the entering into of free trade areas involves only foreign

countries. See, 19 U.S.C. Sec. 1212. Likewise, there does not seem to be any

adequate ,reason for the change of the local percentage level from that already

contained!in general headnote 3a. In this regard, whatever change is made for

Guam would also be applicable to the Northern Marianas by virtue of Sec. 603 of

the CNMI. Further, the "value added" determinations seem especially difficult

and cumbersome under the guidelines presented. The determination by the

Governor of Guam on a certificate of origin seems to be an absolute decision.

Sec. 502. Coordination of Policy.

This section is confusing, and the Drafters' Notes add further ambiguity


, . CRS-21 "

to its scope and design. There would seem to be no sound legal reason for the

" United States to have a procedure whereby Guam should have to agree with aily

course qf action by the United States being in conformity with its

international obligations. Even as a matter of policy, such a "mutual

agreement" provision e~tabl1shes a dangerous and possibly time-delaying

i~ ... ' !: " .:

, precedent. Any course of action to be taken b,y the United States on behalf of \ ,

itself or any of its possessions in the intern~tional arena should be taken

only upon the sole determination of the United States that any such action is

in conformity with international obligations. At the extreme, a provision of

this sort might be determined to be unconstitutional on a ground such as an

intrusion upon the Executive's authority to conduc~ foreign affairs.

ARTICLE 6. TAXATION

Sec. 601. _ Mirror Image 'Tax.

While, as indicated in the Drafters' Notes, there is an attempt here to

retain the Guam Territorial Income Tax as provided for in the Organic Act, 48

U.S.C. Sec. 1421i, there are some notable distinctions and inconsistencies.

First, conspicuously absent is the present 'statutory limitation that the

separate tax not exceed ten percent. Second, one might note that the CNMI also

has a limitation to the effect that taxes are to limited to the inco~e derived \ I

from within the entity. Third, the section is entitled "Mirror Image Tax", and

it has seemed that the sentiment had been growing from Guam officials

themselves that rather than a "mirror image tax" there be a de-linkage from

U.S. tax laws because of their complexity and because it has caused friction

and resentment. See, for example, the statement of Senator Joe T. San Augustin

of the Guam Legislature before the House Ways and Means Committee on July 11,

..


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1985. It might be noted that current Congressional action might drastically .. ~"

affect this situation. See, for example, Section 671 of the tax reform bill

adopted by the House (H.R. 3838).

S~c. 602. Enforcement Institutions.

This section would seem to be unnecessary in light of the purported

commonwealth status of Guam. It would be appear that the Congress would not

have to give authority for the local government to assess and collect these

local taxes, as was apparently the need for the enactment of Section 31 in the

Guam Organic Act. See, Senate Report No. 2176, 85th Cong., in 1958 U.S. Code

Congo and Admin. News 3647. There is no comparable provision in the CNMI.

Sec. 603. Rebate of Taxes.

This provision, if necessary at all, could be added to the authority in

Sec. 601. It certainly would not seem necessary to add the purposes for which

the rebates may be given. However, if the CNMI 1s to be followed, in that

document there is no authority for "reductions" of taxes, and the rebate

authority is confined and limited to taxes on income derived from sources

within the Northern Mariana Islands.

Sec. 604. Guam Income Tax Authority.

In effect, this provision makes the creation of the mirror image interim

in n'.ature. However, the way that it is worded has certain adverse legal

consequences. The Congress cannot require itself to take repealing action, and

if the one-year interval should happen to bridge two congresses, an earlier

Congress cannot bind a later one. It would seem no matter what kind of

language is employed, it would be discretionary upon the Congress whether or

not it would repeal a statute. Perhaps, if this is really what is intended, a


CRS-23 ,

sunset provisio,n should be employed which would have the effect of terminating '.

the provision after a period of ~ne year.

·Sec. 60S. Bonds Tax Exemption.

The absence of Drafters' Notes for this provision is mystifying,

particularly when the provision seems to be fashioned after Sec. 607 of the

CNMI. However, that provision contains certain limitations on authorization of

public indebtedness, a concept conspicuously absent here.

ARTICLE 7. IMMIGRATION

Sec. 701. Guam Immigration Authority.

This provision is completely mystifying. The Drafters' Notes do not seem

to reflect the content of this section. First,' there does not seem to be a

precedent either with regard to the CNMI or American Samoa that is being

followed here. For example, the CNMI provision dealing with immigration is

co~cerned with the appli~ability of the Immigration and Nationality Act,

primarily because Congress will have to take further action on this with /

respect to that entity when the trusteeship is terminated. Second, rather than

what would seem appropr~ate in giving the United States control over the

admission of aliens, this provison purports to award that kind of authority to

Guam itself. Such authority extends far beyond the purpose espoused In the

Drafters' Notes of treating Guam as outside of the area for customs searches. \

Sec. 702. Port of Entry.

This pro~ision seems to be in direct contravention with existing United

States law and the authority of the Attorney General over entry places for

aliens. See, 8 U.S.C. Secs. 1101(a)(13) and 1229.

Sec. 703. Guam-only VIsa • .........

This provIsion not only appears unprecedented by giving a local entity


.,-

CRS-24 .... """-

joint authority over the issuance of visas, but it would seem that its "

provisions would produce difficulty not only in the eventual execution of its

design but even to fashion out the "appropriate measures" called for in the

adoption to implement and enforce such provisions.

ARTICLE 8. LABOR

Sec. 801. Federal Employment.

This provision might be subject to a Constitutional challenge, and the

strength of any such challenge might well depend on the actual definition of

"resident" under Guam law. Even if sustainable if done by the Congress, one

might well argue that as a matter of policy the Congress should avoid such

residential restrictions for civil service employment. Noteworthy in this

regard is the absence of any similar provision in the CNMI.

Sec. 802. Guam Labor Laws.

First, contrary to the Drafters' Notes, this is not a similar grant of

authority in Section S03(c) of the CNMI, a provision which merely makes the

federal minimum wage provisions inapplicable there. That sought of provision

is consistent with United States precedent that local conditions may deem such

8? exemption feasible. See, 29 U.S.C. Sec. 206. The authority apparently I I

intended here is much broader.

ARTICLE 9. TRANSPORTATION AND TELECOMMUNICATIONS

Sec. 901. Maritime Shipping.

The Drafters' Notes indicate that a similar exception from the coastwise

laws is found in the CNMI. Actually, the provision in that document, Sec.

503(9b), rlere1y indicates a temporary form of exception until such time as the

trusteeship is te~inated and then whatever exception and the extent thereof

I .


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CRS-25

will be determined by the Congre:3s. ,The provision here estabUshes a broad

" ", exception. Further, subsection (c) is baffling. If Guam is exempted by the

other provisions from the coastwise laws, then this provision would seem

unnecessary. In addition, the coastwise laws are applied to the territories

and possessions of th~ United States pursuant to 46 U.S.C. Sec. 877 and not

. Sec. 883. It is also unclear as to what\ Commission is being referred to here.

Presumably, it is the Interstate Commerc~ Commission, but it appears unclear as

to what role, under the circumstances posed, such Commission would have to

play.

Sec. 902. Airlines.

The provisions of this. section seem largely ~nprecedented, and raise a

number of complex legal and policy issues. First, while the Congress may be

able by federal law to exempt an entity from the domestic operation of a

treaty, multilateral or bilateral, it .is quite another issue whether such would

have an international effect, and whether the other party or parties could

still hold and/or expect that such obligations and responsibilities would be

adhered to by certain United States possessions. Under international law,

unless a different intention appears, an international agreement binds a party

in respect of its entire territory •. See, Art. 29 of the Vienna Convention on

the Law of Treaties. Second, to exempt Guam fro~ all such '~reaties, even if I I

such could be effectuated legally, might raise certain legal/policy aspects to

be considered. Namely, many international agreements contain provisions that

might be beneficial to Guam, either directly or indirectly. As an example, the

Warsaw Convention limits liability for airline companies concerning their

international flights. If that Convention is no longer applicable to Guam, it

is possible that airlines might lose that liability ceiling for international

~:J

."1 ~:

/


,.

CRS-26

fUghts that originate there, and for the leg of such fUghts, at least for

passengers that bo~rd the aircraft in Guam. If that result is feasible,

airlines might be reluctant to service Guam for international flight~. In

other words, there can. be great legal dangers and many policy considerations

that should enter into a decision to usher forth a broad exemption as that

proposed here. A great number of applicable treaties would apparently fall

within the intended or unintended purview of the broad sweep posed here. Not

only should a detailed examination be made of each and every such applicable

document that could 'fall within a proposal of this kind, but the action of

granting such an exemption might be considered a precedent for future conduct

for the United States and, perhaps, also for the other party or parties to such

treaties.

ARTICLE 10. LAND, NATURAL RESOURCES AND UTILITIES

Sec. -1001. Authority Over Land Resources.

This section attempts to cover so much subject matter, and does so largely

in a legally unacceptable fashion. The Drafters' Notes indicate that part of

this is merely a rewording of Section 806(a) and (b) of the CNMI Covenant.

Yet, there is more than a rewording here. There is an attempted inroad into

federal powers and authority. . ..

The Government of Guam would, as a government, have the inherent power of

eminent domain, and it is meaningless for the COngress to bestow such power.

Likewise, it is beyond the power of Congress to in any way curtail the federal

power of eminent domain, which is an inherent power of government for the

United States Government. Such is attempted here.

The authority suggested for Guam concerning pollution control, scientific

research, management, exploration and exploitation of ocean resources and


'.

- I.

energy sources within the 200 mile exclu~lve'~conomic zone 1s authority not

given to the states. Even the ~oncept of "exclusive economic zone" is one

apparently left exclusively to the field of international law and relations.

Its basis is traced to the development of customary international law,

reflected in the 1982 U.N. Law of the Sea Convention, .8 treaty which the United

States is not a party to and which there has been the indication that the

United States will not even sign. However, President Reagan proclaimed a 200-

mile Exclusive Economic Zone on March 10, 1983, underscoring the United States

assertion that the non-seabed parts of the UN Convention do reflect customary

international law.

The provisions exempting Guam from federal regulations governing the

transfer or sale of excess federal property appear to be unprecedented. While

it might be within the power of the Congress to remove restrictions on land

already. transferred, this mig~t be an9ther instance in which each such transfer

with its accompanying restrictions should be examined before a blanket /

provision of this kind can or should be considered.

Sec. 1002. Transf~r of Excess Federal Real Property.

This section seems problematical in a number of regards. First, there is

no provision for the retention or acquisition of land by the United States for

any future military or security use. Second, there seems to be no stated

rationale for allowing the transfer of property without the Guam Government

paying for su~sequent alterations or additions. Third, it would seem

cumbersome and potentially difficult to allow final determinations to be made

by the Joint Commission. ,

Sec. 1003. Access to~Federal Property.

The compromising of military security requirements appears to be a

'-


. , . . , ."1!

. . 7·~

CRS-28

nebuiau~ standard, one which the Joint Commission may not be able to resolve.

The United States should be allowed to freely make and amend rules for access

to each such property.

Sec. 1004. Authority Over Utilities.

"Within ninety days" may prove to be an unworkable scheme, particularly

with the unilateral right granted here for Guam to refuse acceptance of any

portion thereof. It is conceivable that by allowing Guam to make a sole

determination of this sort, the United States might not be able to run any of

the declined utilities without great diff~culty. It would seem that a more

workable and reasonable plan might, assuming that this kind of transfer is

deemed proper as a matter of policy, be for the United States and Guam merely

to commence discussions within ninety days for mutual agreement on what

portions of such utilities can or should be so transferred.

ARTICLE 11. U.S. FINANCIAL ASSISTANCE

Sec. 1101. Return of Taxes and Fees.

Interestingly, while continuing existing law (see, 48 U.S.C. Sec. 142lh),

it does not continue the authorized practice therein of advancing estimated

collections at the beginning of Guam's fiscal year.

Sec. 1102. Equal Finance for Guam Citizens Wit~ States.

The text of this section is broader than the heading, since it would make

Guam itself as well as its citizens eligible for federal benefits and financial

assistance. It would also have a broad affect on the Nothern Mariana Islands,

since under the CNMI their receipt of such benefits is based on a two prong

test of applicability to Guam and of general application to the States.


. ' . . , .

'. - ... : -:~~ .:: .: . .,

. f --, ..

Sec. 1103. Return of Economic Zone Fees. """'-,

-" As discussed earlier in connection with section 1001, the United States

200-mile exclusive economic zone is solely a mater of international law, with

an apparent federal preemption of that area.

Sec. 1104. Feder~l Payment.

This provision seems inappropriat, here, and would seem to be better ,

\

located, if at all, in local law in guiding the Governor to prepare a budget.

No comparable provision appears in the CNMI, and it seems unpersuasive to use

the District of Columbia as a model. The District of Columbia is not a

commonwealth.

Sec. 1105. Transition.Assistance to the Commpnwea1th.

This provision for United States assistance appears overly broad, and even

without possible limitations as to time and amount. Such a potentially open-

ended commitment by the United States is far more extensive than just

paralleling the CNMI, as described cryptically in the .Drafters' Notes. Even . '-

the presently established Guam Development Fund, 48 U.S.C. Sec. 1428 et seq.,

has a limited amount prescribed therein.

ARTICLE 12. TECHNICAL AMENDMENTS AND INTERPRETATION

Sec. 1201. Interpretation and Jurisdiction.

The addition of this provision is bewildering, and the references in the

Drafters" Notes seem to be unrelated to the scope of the wording. Subsection

(a) is meaningless, particularly if addressed to a court in a potential

conflict over involving the application of a provision thereof. As to (b), any

court involved with such a statute would have the capacity, If necessary, to

interpret it. The cases cited in the Drafters' Notes are apparently unrelated

/


THE DRAFT GUAM COMMONWEALTH ACT - University of Hawaii€¦ · The Library of Congress THE DRAFT "GUAM COMMONWEALTH ACT" r-RECEIVED IV [Prepared ·Specifically for the House Committee

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