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Max Planck Encyclopedia of Public International Law [MPEPIL]

Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America

Gregor Novak

Secession — Act of state — Prerogative — Sovereignty — Territory, dependent — Territory, non-self-governing — Territory, acquisition and transfer — Trust territory and mandate

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Introduction

In the absence of a generally accepted definition of the term ‘overseas territories’ in international legal practice, it is useful to proceed from a broad construction of the term which includes all territories that in some way are politically dependent on a relatively distant metropolitan State and were or are significant, as such, from the perspective of international law. The notion of a ‘metropolitan’ State and its politically dependent ‘polis’ is, at least etymologically, derived from the ancient Greek designation for a mother State or parent city of a Greek colony (see Bederman 35; see generally History of International Law, Ancient Times to 1648). A suggested link between the concept of the ‘Outremer’ (or outre-mer, ie ‘overseas’)—initially used to refer to the ‘medieval French crusader States’ (see the Oxford English Dictionary)—and the subsequent designation of the colonies of some European powers as ‘overseas’ territories has been debated by historians (see eg Riley-Smith 304–09).

Today’s overseas territories are characterized by the diversity of their political, economic, and cultural life, as well as of the constitutional and international legal arrangements in which they are embedded. However, the history of most overseas territories is closely related to colonialism and decolonization. This colonial legacy has affected both the domestic and the international legal status of many ‘overseas territories’. Many overseas territories are further faced with the principal challenge of socio-economic development as an inheritance of their colonial history and as a consequence of their small size and remoteness.

Overseas territories, as such, may be of interest in international law for a number of reasons, many of which can only be hinted at in this entry. Thus, such entities may generally be relevant in connection with the application of the principle of self-determination; with respect to the rights of indigenous peoples who inhabit or have inhabited particular overseas territories; with respect to the right to development (see Development, Right to, International Protection); with respect to their membership of or participation in the work of international organizations (see International Organizations or Institutions, Membership); with regard to the conclusion and territorial scope of application of treaties (see Treaties, Conclusion and Entry into Force; Treaties, Territorial Application); with respect to attribution under the law of State responsibility; with respect to various rights and obligations relating to territory under both treaty and customary international law, such as sovereignty over the territorial sea, airspace, and certain sovereign rights and jurisdiction within the exclusive economic zone (‘EEZ’); with respect to questions of State succession (see State Succession in Treaties; State Succession in Other Matters than Treaties), as well as more generally with respect to any other applicable right or obligation under international law pertaining to such territories and to their inhabitants, as groups or as individuals. Although a vast part of the legal debate surrounding ‘overseas territories’ deals with the varied constitutional and other domestic law problems such territories tend to raise, these are often linked to and sometimes overshadowed by related international law questions.

B. Notion

A generally accepted definition of the term ‘overseas territory’ in international legal practice is lacking. The term ‘overseas territory’ is not used in the United Nations Charter or generally in UN instruments relating to the issue of non-self-governing territories under Chapter XI UN Charter, other than when reference is made to the designation of a certain territory pursuant to the domestic law of a State, for example with respect to British ‘overseas territories’. In international legal practice, the different territories examined here may have varying designations. Likewise, the corresponding domestic classifications are divergent: Thus, UK law employs the term ‘overseas territory’ and EU law uses the term ‘overseas countries and territories’. However, Australia, New Zealand, the Netherlands, and the US do not use the term (or in the case of the Netherlands, its English language equivalent) for their ‘overseas territories’. French law does use the English language equivalent (territoire d’outre-mer), but only in relation to its ‘Southern and Antarctic Lands’.

The lack of a general definition is emblematic of some basic challenges facing a conceptualization of ‘overseas territories’ under international law. Generally, any possible definition of ‘overseas territory’ is closely related to the question of statehood and whether the latter is merely a question of fact (ie effectiveness) or, and to what extent, also of international legal principles (see generally Crawford [2006]). Some authors invoke a definition of ‘overseas territory’ that includes every territory which is under the sovereignty of a State (‘parent State’) but which is not governed as part of its ‘metropolitan territory’ under domestic law (Aust 29). This definition is practical, but gives precedence to ‘fact’, that is domestic law as seen from the perspective of international law, to the virtual exclusion of international law because it omits territories which, even though part of the ‘metropolitan’ territory under domestic law, nevertheless may be subject to international law in some way or another (for a similar point by reference to ‘associated’ statehood see Reisman 11). For example, this is the case for territories that qualify as units of self-determination (see below Crawford [2006]; Kingsbury). Likewise, the acknowledgment that some territories, in the process of decolonization, became governed as part of the metropolitan territory of a State after their peoples had ‘exhausted’ their right to self-determination must also be viewed in the context of international law. Therefore, whether or not some territory is of interest in international law as an ‘overseas territory’ cannot depend only on domestic law, but must take into account whether the territory, as such, somehow comes within the ambit of international law.

Consequently, in the present context, it is useful to adopt a broad definition of the term ‘overseas territories’. It includes a wide variety of inhabited territories which were originally colonized and today either remain ‘non-self-governing’ or have become self-governing other than through independence and are geographically separated from their ‘parent’ State by sea. Moreover, uninhabited territories, which were understandably never considered to be non-self-governing, are also included, as they may be of interest in international law, albeit to a lesser extent, particularly as sources of rights and obligations under the law of the sea, as disputed territories, or as formerly inhabited territories in respect of which the principle of self-determination may become relevant (such as in the case of the Chagos Islands/British Indian Ocean Territory [‘BIOT’]). The purpose of this broad definition is not to call into question the status of certain territories under international law as forming integral parts of a State’s territory, but rather to provide a coherent legal definition of a term under international law, instead of adopting a definition connected to a single domestic context. Finally, given this entry’s restriction to overseas territories of a select group of countries, the above definition excludes occupied or otherwise dependent territories that happen not to be separated from their respective metropolis by sea, such as the Western Sahara (see Western Sahara (Advisory Opinion); Decolonization: Spanish Territories), or that concern other states, such as Denmark in the case of the Faroe Islands.

Legal issues raised by a wide variety of territories which were colonized and today either remain non-self-governing or, more commonly, have become self-governing other than through independence (ie through association, integration into the metropolitan State, or in the form of another arrangement) arise under both domestic and international law. In practice, as the recent discussions over the status of Puerto Rico or Norfolk Island show, the domestic legal questions raised by such territories are of fundamental importance also to the position of such territories under international law (see eg Neuman and Brown-Nagin [eds]; Hendry and Dickson; Kochenov [ed] [2011]). However, although domestic law relates to such territories in the sense that it is shaped by and itself shapes the respective international regulation of such territories, this entry focuses on the international law aspects of such territories.

C. Historical, Political, Economic, and Cultural Context

1. Colonialism and the Process of Decolonization

The process of decolonization following the decline of the colonial empires, which accelerated in the period after World War II, was of great significance for international relations and for the development of international law (see, with further references, Jansen and Osterhammel 234–35). Decolonization, among other factors, led to a rise in UN membership from 50 States in 1945 to 193 States in 2011. Yet the impact of decolonization on international relations was mainly due to the independence of most former colonies. Whereas these new States are not of interest in the present context, remaining territories deemed ‘non-self-governing’ or those territories which became self-governing other than through independence may be of especial interest from an international law perspective as potential ‘overseas territories’.

2. The Significance of Overseas Territories in International Relations

Overseas territories are diverse, not only with regard to the size of their landmasses, adjacent maritime zones and airspaces, or populations, but also in light of the structure of their economies, and the biological diversity, natural resources, and cultural richness they harbour. Moreover, as the homes and ancestral sites of a number of indigenous groups, ‘overseas territories’ are often significant elements of their inhabitants’ identities. Groups of territories affiliated with specific States include those of global scope (eg affiliated with the United Kingdom, France, and the US) and those of merely regional dimension (eg affiliated with New Zealand or Australia). Not all overseas territories are islands. Thus, Gibraltar and French Guiana are not; the latter’s incorporation into France occurred in 1947, albeit without express UN approval. French Guiana is today seen as an integral part and overseas department (département d’Outre-mer) of France and is therefore of less interest in the international legal context as an overseas territory. For this reason, French overseas departments are sometimes considered, by definition, not to be ‘overseas territories’. However, the present entry adopts a broader definition. The 17 ‘non-self-governing territories’ listed by the ‘Decolonization Committee’ (also known as ‘Special Committee’ or ‘Committee of Twenty-Four’) of the General Assembly of the United Nations (‘UNGA’; United Nations, General Assembly) currently have a population of around two million. This figure excludes ‘overseas territories’ that are not listed as ‘non-self-governing’ by the Decolonization Committee—such as the Chagos Islands (whose relatively small current indigenous population resides in Mauritius), the Norfolk Islands (where demands over inclusion in the list of ‘non-self-governing territories’ have recently been made), or Puerto Rico (with a population of around 3.6 million in 2014 [see Congressional Research Service (2016, Austin) 20], and in whose case demands over a recognition of its ‘non-self-governing’ status have occasionally been raised).

10 The diversity of overseas territories implies that they may be significant in international relations and for their metropolises for a number of reasons. Thus, overseas territories may be relevant as military outposts (eg the BIOT or Guam), for economic reasons by providing access to natural resources (such as fisheries, seabed minerals, or other natural resources (such as, eg, nickel on New Caledonia)), as sites ideally placed for launching satellites into geostationary orbit (eg French Guiana), and by virtue of their human resources and related service industries, particularly finance and tourism (eg Puerto Rico and Bermuda). At the same time, many overseas territories continue to face pressing issues of socio-economic development as an inheritance of their colonial history and as a consequence of their small size and remoteness (for a study comparing development indicators for dependent versus independent small island nations see McElroy and Parry). In this context, recent UNGA resolutions concerning territories listed as ‘non-self-governing’ have referred to the 2030 Agenda for Sustainable Development and the Sustainable Development Goals, commonly stressing ‘the importance of fostering the economic and social sustainable development’ of such territories (see eg UNGA Res 71/115 [28 December 2016] para. 11).

D. Legal Context

1. Statehood, Self-Determination, and Overseas Territories

11 Under international law, legal questions associated with overseas territories are tied to the concept of statehood, as well as to the related concepts of territory, government, population, and the principle of self-determination. An ‘overseas territory’ that is considered to be under the sovereignty of a metropolitan State generally contributes to defining the extent of the territory of the respective ‘parent’ State under international law. This may be the case—depending on the circumstances—even for territories that may formally be considered as merely ‘in association’ with a State. ‘Overseas territories’ are thus commonly at the origin of various rights and obligations relating to territory, such as sovereignty over the territorial sea and airspace, and certain sovereign rights and jurisdiction within the EEZ. In addition, other rights and obligations that arise on the basis of customary international law or treaties can also relate specifically to ‘overseas territories’. In the case of treaties, the territorial application of a treaty will in practice often be subject to possible limitations, eg see Art. 56 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Sometimes, States have used reservations to exclude their ‘overseas territories’ from the scope of application of a treaty (see below on the recent extension of various human rights treaties to overseas territories by their respective administering States). In such cases, customary international law corresponding to the excluded treaty provisions will generally continue to apply to the entirety of a State’s territory, including its overseas territories. The territorial scope of treaties has most prominently become an issue in relation to the EU treaties, as well as the WTO Agreements (on the EU, see below; on the WTO Agreements, see eg Kennedy). Moreover, when overseas territories come under the ambit of international law through the operation of the self-determination principle, that principle as well as the concept of statehood may become pertinent (on the former, see generally Cassese). Thus, Crawford notes in the context of the relationship between statehood and the operation of the self-determination principle that the

secession of a self-determination unit, where self-determination is forcibly prevented by the metropolitan State, will be reinforced by the principle of self-determination, so that the degree of effectiveness required as a precondition to recognition may be substantially less than in the case of secession within a metropolitan unit (Crawford [2006] 128).

12 Generally, the question of when an ‘overseas territory’ may be considered as a self-determination unit is central. Several possible cases have been distinguished. For instance, Kingsbury distinguishes at least five territorially defined units to which the right to self-determination may apply, including ‘territories treated as non-self-governing under Chapter XI of the UN Charter’ and ‘formerly independent entities reasserting their independence with at least the tacit consent of the established State, where their incorporation into that State was illegal or of dubious legality’ (Kingsbury 218–19). Crawford identifies certain established and recognized separate political units of self-determination, including

territories forming distinct political-geographic areas, whose inhabitants are arbitrarily excluded from any share in the government either of the region or of the State to which they belong, with the result that the territory becomes in effect, with respect to the remainder of the State, non-self-governing (Crawford [2006] 127).

13 The remaining 16 overseas territories (with the exception of Western Sahara in the present context) considered by the UNGA as ‘non-self-governing’ are obviously relevant. Nevertheless, in light of the above definition, at least in theory, other inhabited overseas territories may be relevant as well. Even currently uninhabited overseas territories, such as the BIOT in respect of its Chagossian population, eg, can raise issues of self-determination. Mainly due to the fact that most former colonies have gained independence or attained internationally recognized self-government through association or integration with a State, the ambit of the (external) right to self-determination is limited today, although the issue remains alive within some remaining ‘overseas territories’, among scholars, in international fora, and among other interested observers.

2. League of Nations (Mandate) Context

14 Following World War I, the former colonial territories of Germany and the Ottoman (Turkish) Empire were brought under the jurisdiction of mandatories and were regulated as mandates under Art. 22 Covenant of the League of Nations. Following the demise of the League, certain mandates continued to be governed under the UN Charter Trusteeship System (see United Nations Trusteeship System; International Status of South-West Africa (Advisory Opinion) ([1950] ICJ Rep 128, 133; and Cameroon v Nigeria: Equatorial Guinea Intervening) (Judgment of 10 October 2002) ([2002] ICJ Rep 303, para. 212). The last trusteeship (Palau) gained independence and joined the UN in 1994.

3. United Nations Context

15 Discussions over the status and future regulation of the remaining colonial territories strongly influenced the elaboration of the UN Charter and led to the provisions of Chapter XI (Arts 73 and 74) entitled ‘Declaration Regarding Non-Self-Governing Territories’ (Fastenrath 1089–96). Chapter XI proceeds from the recognition by those members of the UN ‘which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government’ of the principle that the interests of ‘the inhabitants of these territories are paramount’ (Art. 73 UN Charter). Specifically, Chapter XI obliges these States to inter alia

develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement (Art. 73 (b) UN Charter)

as well as to

transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories (Art. 73 (e) UN Charter).
Chapter XI failed to clearly specify its scope of application and to determine whether the UN or the respective State should have the competence to decide on this issue. As a consequence, certain UN Member States administering dependent territories started, early on, to oppose control of their administration of such territories by the UN, particularly concerning the duty of transmitting information to the UN Secretary-General. Whereas these States originally claimed the exclusive competence to determine whether a territory was subject to Chapter XI, in practice at least concurrent competence was recognized and the extent of Chapter XI tended to be determined by the UN and the administering State together (Crawford [2006] 607–08). This practice was expressed in a number of UNGA resolutions and declarations, particularly the Resolution on Factors Which Should be Taken Into Account in Deciding Whether a Territory is or is Not a Territory Whose People Have not yet Attained a Full Measure of Self-Government (UNGA Res 742 [VIII] [27 November 1953]); the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 [XV] [14 December 1960]); the Resolution on the Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73 (e) of the Charter (UNGA Res 1541 [XV] [15 December 1960]); as well as the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (UNGA Res 2625 [XXV] [24 October 1970]; Friendly Relations Declaration [1970]). Thus, the term ‘self-governing territory’ was specified by the UNGA, which generally emphasized the geographical separateness of the respective territory (sometimes referred to as the ‘saltwater’ theory). In addition to some other affirmative elements of the definition of non-self-governing territories, the latter were defined in a negative sense as territories whose peoples have not yet exercised the right to self-determination. This right was generally considered as primarily procedural so as to enable a people to ‘freely determine [its] political status and freely pursue [its] economic, social and cultural development’ (UNGA Res 1514 [XV] and UNGA Res 2625 [XXV] 67). The UNGA generally recognized three forms of the exercise of the right to self-determination: independence, free association, and integration within an independent State. However, other means of implementing the right to self-determination were also considered conceivable if freely chosen by the peoples concerned (see UNGA Res 1541 [XV] [15 December 1960] and UNGA Res 2625 [XXV] [24 October 1970]).

16 State practice as reflected in a number of UNGA resolutions shows that self-government attained through free association with another State ‘should be the result of free and voluntary choice, expressed through informed and democratic processes’. The people of a territory ‘should have the right to determine its internal constitution without outside interference’ and retain ‘the freedom to modify the status of the territory’, that is to attain independent statehood later (UNGA Res 1541 [XV] Principle VII; UNGA Res 742 [VIII] Appendix 2nd Part). The integration within another independent State should occur ‘with full knowledge of the change in their status … expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage’ (UNGA Res 1541 [XV] Principle IX) and may be supervised by the UN. Integration respecting the right to self-determination of a people should be on the basis of complete equality between the people of the former colony and the independent country with which it is integrated (see UNGA Res 1541 [XV] Principle VIII). Following the resistance by some States to transmit information concerning areas for which they were responsible, the GA in 1961 created the ‘Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples’ (more commonly known as the ‘Decolonization Committee’ and since 1962 also as the ‘Committee of Twenty-Four’) with the task of inter alia gathering information and making recommendations with respect to the progress and extent of the implementation of UNGA Res 1514 (see UNGA Res 1654 [XVI]; UNGA Res 1810 [XVII]).

4. Overseas Territories and the Law of the Sea

17 Resolution III, adopted by the Third UN Conference on the Law of the Sea with the UNCLOS, concerns the rights of peoples of non-self-governing or disputed territories. It states that ‘provisions concerning rights and interest under the Convention shall be implemented for the benefit of the people of the territory with a view to promoting their well-being and development’ (at para. 1 (a)). Administering powers have established EEZs or fishing zones for most of their overseas territories, but the ambit of Resolution III and its impact remains to be tested (see Nordquist 482; Churchill and Lowe 164–65; O’Keefe; Kenny).

18 Moreover, the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’) contains provisions providing for the participation of certain overseas territories. Thus, Art. 305 UNCLOS opens the convention for signature by

all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters

as well as

all self-governing associated States which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters


all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters.

The Fish Stocks Agreement (in Art. 2 (b) (i)) and the Agreement relating to the Implementation of Part XI of the UNCLOS (in Art. 3) also provide for participation by these categories of overseas territories. So far under these three provisions, only Niue (on 11 October 2006 in respect of all) and the Cook Islands (on 15 February 1995 in respect of the UNCLOS and the Part XI Agreement and on 1 April 1999 in respect of the Fish Stocks Agreement) have acceded to these treaties.

E. Overseas Territories of Australia, France, the Netherlands, New Zealand, the United Kingdom, and the United States of America

1. Australia

(a) General Domestic Law Aspects

19 Under Australian constitutional law, the Commonwealth of Australia encompasses six continental States and ten territories of which seven are overseas (on the historical context see the documents and commentary in Kerr; see also Aroney et al 23–32, 54). One territory, Norfolk Island, had a specific form of self-government until 2015, when the federal legislature initiated a set of governance reforms that have significantly altered the relationship between the mainland and that territory. The remaining six territories are directly under Commonwealth control and are governed under particular legislative acts. Australian overseas territories thus include Norfolk Island in the Pacific Ocean, the Cocos (Keeling) Island and Christmas Island in the Indian Ocean, the uninhabited Coral Sea Island and the Ashmore and Cartier Islands, the sub-Antarctic Heard and McDonald Islands, as well as Australia’s claim in Antarctica (see generally also in respect of other States’ claims in Antarctica). Art. 122 Commonwealth of Australia Constitution states that

[t]he Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Questions concerning the precise nature of the parliamentary competence under Art. 122, the reach of mainland law in respect of such territories, and the democratic representation of the territories’ inhabitants have been addressed mainly by the Australian judiciary and through legislation (see generally Aroney et al; Carney; White; Clarke; Keyzer and Stellios [eds]; Harris 160–61; on the representation of the various territories in the Australian Senate, see Sloane).

20 In 2015 and 2016, the Parliament of Australia passed a series of legislative reforms concerning Norfolk Island. According to the Explanatory Memorandum to the ‘Norfolk Island Legislation Amendment Bill 2015’, these reforms were prompted by an unsatisfactory state of governance on the Island and were preceded by ‘community consultations’ on the Island (see on the details Hardgrave; on the background Wettenhall 721–23). The legislation passed in 2015 sought to reform ‘governance arrangements’ on the Island and extend mainland ‘arrangements’ on issues such as social security, health, and immigration to Norfolk Island (see Madden; see also Sloane 114–15). A subsequent reform in 2016 made voting by Norfolk Island inhabitants in the federal elections compulsory. However, these central government reforms—in particular the abolition of the Island Legislative Assembly and Executive Council—continue to be met with opposition from Island groups, as suggested by the results of the 2016 election to the new Norfolk Island Regional Council.

(b) International Law Aspects

21 Originally, Australia had transmitted information concerning Papua (‘Resolution on the Transmission of Information under Article 73 (e) of the Charter’ UNGA Res 66 [I] [14 December 1946]). Papua became independent with the former Australian Trust Territory of New Guinea in 1975 (UNGA Res 3284 [XXIX] [13 December 1974]). Nauru, another former trust territory, gained independence in 1968. In 1955 and 1957, respectively, the United Kingdom transferred the Cocos (Keeling) Islands and Christmas Island from the Straits Settlement, a former British crown colony on the Straits of Malacca (Malacca, Straits of), to Australia, despite the absence of formal consent by any indigenous government. However, the transfer was tacitly accepted by the UN (Crawford [2006] 336–37). The Cocos (Keeling) Islands but not Christmas Island were considered as non-self-governing. In 1984, the UNGA (UNGA Res 39/30 [5 December 1984]) acknowledged that, under UN auspices, ‘the people of the Cocos (Keeling) Islands voted by a substantial majority for integration with Australia’ (at 238) and endorsed the view of the visiting UN mission that thereby

the people of the Territory have exercised their right to self-determination in accordance with the principles of the Charter of the United Nations and the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) (ibid).

Thus, the transmission of information in respect of the Cocos (Keeling) Islands under Art. 73 (e) UN Charter by Australia could cease. Likewise, the UNGA took note of the

actions taken by the Government of Australia to transfer ownership of land to the Cocos (Keeling) Islands community and to extend relevant legislation to the community so that it may enjoy the same benefits as those available to the Australian community at large, as well as the Government’s assurances that the unique cultural identity, heritage and traditions of the Cocos community will be preserved (ibid).

22 As noted above, the 2015 and 2016 legislative reforms concerning Norfolk Island (see Madden; Sloane 114–15) have recently been met with opposition spearheaded by the ‘Norfolk Island People for Democracy’, a movement campaigning for greater autonomy and self-governance on Norfolk Island. What was perceived as an illegitimate reduction of local autonomy led to a push towards internationalizing the question of Norfolk Island’s status. In 2016, several individuals submitted a ‘petition’ on behalf of the ‘People of Norfolk Island’ to the UN Special Committee on Decolonization, seeking the recognition by the UNGA of Norfolk Island as a ‘non-self-governing territory’ (see Norfolk Island ‘Petition’).

23 During the last decades, some of Australia’s overseas territories have become relevant in the context of that country’s migration policy and its practice of establishing ‘excised’ territories—ie limiting the application of aspects of its migration law to those who arrived by boat to so-called ‘excised’ territories. At the same time, Australia emphasized that it did not thereby seek to abandon sovereignty (see Vogl for a critical analysis and background to the notion of ‘excising’; see also Briskman Goddard and Latham; Australian Human Rights Commission [2010]; Crock and Berg). This practice led to doubts about Australia’s compliance with its respective international obligations, specifically with respect to the obligation not to forcibly return (refoule) persons directly or indirectly to a place where they would face serious harm for reasons recognized by the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees (Refugees) or customary international law. Following important judicial developments in 2010 and administrative law changes commenced in 2012, Australia has since 2013 expanded its regime for unauthorized arrivals to its entire territory (see in particular Crock and Ghezelbash; Opeskin and Ghezelbash; see also Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia High Court of Australia [11 November 2010] HCA 41; see also Plaintiff M70/2011 v Minister for Immigration and Citizenship; and Plaintiff M106 of 2011 v Minister for Immigration and Citizenship High Court of Australia [31 August 2011] HCA 32).

24 The issues raised by Australia’s past practice of ‘excising’ certain territories from the scope of application of its migration law (see generally Blay in Zimmermann 153) point to a general issue concerning overseas territories and their ‘parent’ States under the law of treaties and the law of State responsibility. The law of treaties as codified in the Vienna Convention on the Law of Treaties (1969) (‘VCLT’) provides that unless a different intention appears from a treaty or is otherwise established, a treaty remains binding upon the entire territory of a party (Art. 29). Of course, even where a treaty’s territorial scope of application has been limited to the ‘metropolitan’ territory of a State, the application of relevant customary international law in respect of the ‘overseas territory’ will need to be examined. Likewise, Art. 27 VCLT states that a party may not justify a failure to perform a treaty by invoking the provisions of its internal law. Similarly, the law of State responsibility affirms a general principle in recognizing that a State ‘may not rely on the provisions of its internal law as justification for failure to comply with its’ international legal obligations (Art. 32 of the 2001 ILC Articles on Responsibility of States for Internationally Wrongful Acts).

2. France

(a) General Domestic Law Aspects

25 French constitutional law distinguishes between several categories of so-called territorial communities (collectivités territoriales): the overseas departments and regions which are governed by Art. 73 of the Constitution (Guadeloupe, French Guiana, Martinique, Réunion, and, since March 2011, Mayotte); the overseas territorial communities which are governed by Art. 74 of the Constitution (French Polynesia, Saint-Pierre and Miquelon, Wallis and Futuna, Saint-Barthélémy, Saint-Martin); the French Southern and Antarctic Territories, including the Scattered Islands in the Indian Ocean, which are governed by special legislation; New Caledonia, which is governed by Arts 76 and 77 of the Constitution; and Clipperton Island, which is part of the so-called French ‘overseas’ (l’outre mer) but does not fall under any of the above constitutional categories (for a historical legal analysis of the status of these territories in French constitutional law see eg Mrgudovic 85–95). Each of these categories is governed by particular constitutional rules, relating especially to the applicability of statutes and regulations, the consultation of local institutions, and the division of competences between the State and the overseas territorial communities.

26 Thus, in the case of the overseas departments and regions, French statutes and regulations are in principle applicable by operation of law, as these areas are considered to be integral parts of France. Nevertheless, they may be subject to specific legislation taking into account their particularities. Moreover, with the exception of Réunion, the departments and regions may be empowered to pass local legislation in a limited number of areas.

27 With regard to the overseas territorial communities governed by Art. 74, the application of statutes and regulations generally depends on the particular status of the community. This status determines the conditions under which statutes and regulations shall apply there, even if certain statutes and regulations remain applicable by operation of law. In principle, statutes and regulations must specifically provide that their scope of application extends to the respective community. Nevertheless, in the case of some of these communities, namely Saint-Barthélemy, Saint-Martin, and Saint-Pierre and Miquelon, most French statutes and regulations are applicable by operation of law. As to the requirements of consultation of local institutions before the adoption of legislative measures for the various overseas communities governed by Art. 74, specific rules exist for each community, but are to a large extent comparable. Art. 77 of the Constitution contains specific transitional provisions relating to New Caledonia which differ from those of Art. 74. However, generally the principle of the specific application of statutes and regulations continues to apply to New Caledonia, implicitly pursuant to the Nouméa Accord of 5 May 1998 and explicitly pursuant to other implementing legislation (see also Mrgudovic 97–99).

28 The French Southern and Antarctic Territories, which have no competence of their own and do not need to be consulted, have a particular status determined by statute in accordance with Arts 72 and 73 of the Constitution. Whereas in these territories the principle of the specific applicability of statutes and regulations applies, as of 2007, statutes and regulations have become automatically applicable in a number of important areas.

29 Clipperton Island is a separate category unlike the other territorial communities and is subject to the same legislative and regulatory regime as the French metropolitan territory. Since 2016, a legislative proposal (No 4102) seeking to institute a new status and governance framework for Clipperton Island has been discussed, but not yet adopted, by the French legislature. The current legislative proposal in part drew on findings resulting from a mission to Clipperton Island conducted by Philippe Folliot, a member of the French National Assembly (see Folliot). According to the explanatory report introducing the legislative proposal, Clipperton Island, while of great ‘strategic’ importance to France, has attracted the attention of ‘foreign’ powers, while also seeming quasi-abandoned by the metropolis, a situation that the report argues has been aggravated by the absence of a particular governance framework for the territory, which it proposes (see French National Assembly 11).

(b) International Law Aspects

30 Originally, France had transmitted to the UNGA, ‘without prejudice to their future status’, information concerning conditions in French West Africa, French Equatorial Africa, French Somaliland, Madagascar and Dependencies, French Establishments in Oceania, Indo-China, French Establishments in India, New Caledonia and Dependencies, Saint-Pierre and Miquelon, Morocco, Tunisia, the New Hebrides under Anglo-French Condominium, Martinique, Guadeloupe and Dependencies, French Guiana, and Réunion (UNGA Res 66 [I]). Of these territories, French West Africa, Morocco, Tunisia, French Equatorial Africa, French Somaliland, Madagascar and Dependencies, Indo-China, and the New Hebrides under Anglo-French Condominium eventually gained independence while French Establishments in India were transferred to India. The Comoro Archipelago, which was treated as non-self-governing, also eventually gained independence (see UNGA Res 3385 [XXX] [12 November 1975]). In contrast, French Establishments in Oceania (French Polynesia), New Caledonia and Dependencies, French Guiana, Réunion, Guadeloupe and Dependencies, and Martinique were incorporated into France in 1947, albeit without express UN approval, and information pursuant to Art. 73 (e) UN Charter ceased with respect to them. Saint-Pierre and Miquelon, which was at the centre of a maritime boundary dispute between France and Canada, is also a French overseas territory and is not considered as non-self-governing by the UNGA.

31 As noted above, the status of Mayotte under French constitutional law changed in March 2011 (see eg Hachimi Alaoui), making it an ‘integral’ part of France from the perspective of French constitutional law. However, international legal concerns with respect to the French administration of Mayotte in particular have been raised for many decades (see Crawford [1998] 91; see also Decolonization: French Territories), and the status of Mayotte’s indigenous populations remains a principal issue of concern (see on the latter point Motte-Baumvol 405–06, also referring to French Guiana and French Polynesia). As Crawford noted in 1999:

The expressed wishes of the inhabitants of Mayotte to remain under French administration have been opposed by the General Assembly on the basis of the territorial integrity and declared wishes of the people of the Comoros as a whole. This illustrates a broader point, viz, that the principle of self-determination in the colonial context has been applied by reference to existing colonial boundaries. The identification of sub-groups within a given territory as separate ‘peoples’ has been discouraged, and colonial territories have acceded to independence—or to other forms of self-government—as a whole (Crawford [1999] 91).

Moreover, the above-mentioned change in the status of Mayotte under French constitutional law in March 2011 also affected the status of that territory under EU law. Declaration 43 on Art. 355(6) Treaty on the Functioning of the European Union (‘TFEU’) had provided that

the European Council, pursuant to Article 355(6), will take a decision leading to the modification of the status of Mayotte with regard to the Union in order to make this territory an outermost region within the meaning of Article 355(1) and Article 349, when the French authorities notify the European Council and the Commission that the evolution currently under way in the internal status of the island so allows.

The European Council adopted such a decision in respect of Mayotte on 11 July 2012, providing (in Art. 1) that with effect on 1 January 2014

Mayotte shall cease to be an overseas country or territory, to which the provisions of Part Four of the Treaty on the Functioning of the European Union (TFEU) apply, and shall become an outermost region of the Union within the meaning of Article 349 TFEU (European Council Decision of 11 July 2012 Amending the Status of Mayotte with regard to the European Union).

32 With respect to New Caledonia, the UNGA reaffirmed France’s obligation to report on the territory in 1987 (UNGA Res 42/79 [4 December 1987]). New Caledonia remains a non-self-governing territory administered by France. In 1994, the UNGA welcomed the strengthening of the 1988 Matignon Accords, which had granted substantial autonomy to New Caledonia (UNGA Res 49/45) and affirmed that these were ‘based on the principle that it is for the populations of New Caledonia to choose how to control their destiny’ (at 2). Subsequently, the 1998 Nouméa Accord between the government of France and two political parties, the Front de libération nationale kanak et socialiste (‘FLNKS’) and the Rassemblement pour la Calédonie dans la République (‘RPCR’), was confirmed by the people of New Caledonia in a referendum in November 1998 (see Zalcberg on the background and history, as well as the link between the Nouméa Accord and the related but possibly separate claims to self-determination of the Kanak indigenous people; see also Graff; Taglioni 682). The Nouméa Accord foresees a gradual transfer of powers to New Caledonia and a negotiated consensual solution of the political status of New Caledonia. Moreover, it also provides that New Caledonia could become a member or associate member of certain international organizations. The future political status of New Caledonia is scheduled to be confirmed in a referendum to take place by November 2018. However, in 2013 concerns about the electoral process were raised in the context of preparations for the municipal and provincial elections in May 2014. In particular, it was reported that ‘about 6,700 people born outside New Caledonia had been deemed eligible to vote, whereas 1,900 eligible Kanak people had not’ (UN Special Mission to New Caledonia, para. 5). A visiting mission was dispatched by the Decolonization Committee to New Caledonia in 2014 to take stock of such and related concerns from the perspective of the actors involved. The Special Mission’s Report, which was ‘endorsed’ by the UNGA, stressed

the importance for all concerned to guarantee the full implementation of the Nouméa Accord by urgently undertaking genuine efforts to address current shortcomings in its implementation, particularly concerning the restricted electorate provisions (UN Special Mission to New Caledonia, para. 111).

Moreover, the Special Mission’s Report recommended

that the Special Committee continue to closely monitor the situation in New Caledonia in the context of the implementation and eventual expiration of the Nouméa Accord in 2019 and advise the General Assembly as appropriate (UN Special Mission to New Caledonia, para. 122).

With the planned referendum on self-determination on New Caledonia looming in 2018, an increase in tensions was widely reported. Therefore and in light of the concerns expressed by the relevant actors, the UNGA has repeatedly taken note of the importance of addressing challenges ‘in an amicable and peaceful manner’, most recently in 2016 when it:

[n]ote[d] the concerns expressed regarding the challenges encountered in the provincial elections process with respect to the persistent varying interpretations of the restricted electorate provisions and the voter registration appeal process, and encourage[d] the administering Power and the people of New Caledonia to address in an amicable and peaceful manner the concerns of all stakeholders under the existing relevant laws in the Territory and in France, while also respecting and upholding the spirit and letter of the Nouméa Accord (UNGA Res 71/119 [6 December 2016] para. 5).

33 In 2013, the UNGA ‘recognized that French Polynesia remains a Non-Self-Governing Territory’ and declared that France remained under an obligation to transmit relevant information on French Polynesia in accordance with the UN Charter (UNGA Res 67/265 [17 May 2013] para. 1; see on the historical background and also the role of regional powers and the Pacific Islands Forum Maclellan 266–71). France rejected this resolution in a press release by the Ministry of Foreign Affairs, initially describing it as a ‘flagrant interference’ and as ‘disrespectful’ of the democratic choices made by the Polynesian people (Maclellan 267). Since the relisting of French Polynesia in 2013, the UNGA has annually expressed regret at the fact that France had ‘not responded to the request to submit information on French Polynesia under Article 73e of the Charter’ and further has regularly

[r]eaffirm[ed] that an obligation exists on the part of the administering Power to transmit information under Chapter XI of the Charter, and request[ed] the administering Power to transmit to the Secretary-General such information on French Polynesia as called for under the Charter (most recently in UNGA Res 71/120 [28 December 2016] paras 4–5).

Despite this noted absence of cooperation by France with the ‘Decolonization Committee’, representatives of the French Polynesian government have recently participated in the work of the Committee. Thus, October 2016 marked the first time that a representative of French Polynesia spoke before the UNGA’s Special Political and Decolonization Committee (the Fourth Committee) and in 2017 a representative of the French Polynesian government participated in a regional seminar organized under the auspices of the Decolonization Committee. The statements of both figures were generally supportive of the position of the administering power, and requested the UNGA to consider removing French Polynesia from the list of ‘non-self-governing’ territories, while also providing information on the current status in French Polynesia and the concerns of the local population (see Statement by Manuel Terai [French Polynesia]; see also the Annexes, including a 4 October 2016 address by Édouard Fritch, President of French Polynesia).

34 Between 1966 and 1996, when its last test occurred, France conducted 193 nuclear explosions in French Polynesia (of which 46 were atmospheric) (see FOA/SIPRI PRI 10–11). French nuclear testing caused considerable international criticism during that period (see eg Barrett; see also Nuclear Tests Cases). In UNGA Res 68/93 of 11 December 2013 (para. 5), the UNGA requested the UN Secretary-General ‘to compile a report on the environmental, ecological, health and other impacts as a consequence of the 30-year period of nuclear testing in the Territory’. Following UNGA Res 68/93, and subsequent requests for ‘continuous updates’ on the matter, the UN Secretary-General prepared two reports, most recently in March 2017 (UNGA ‘The Environmental, Ecological, Health and Other Impacts of the 30-Year Period of Nuclear Testing in French Polynesia: Report of the Secretary-General’ [28 March 2017]).

35 According to the statement by Fritch before the UNGA’s Fourth Committee on 4 October 2016, the question of the effects of nuclear testing on the territory are indeed a major concern for the French Polynesian population. At the same time, Fritch suggested that the UNGA had failed to appreciate the French government’s ongoing efforts to cooperate with French Polynesians. However, the visit by the then–French President to French Polynesia on 22 February 2016 was acknowledged in a 2017 Working Paper of the UN Secretariat. According to the Working Paper, the French President:

also solemnly recognized the contribution of French Polynesia to the nuclear deterrent of France and that the nuclear tests carried out in French Polynesia between 1966 and 1996 had had an environmental impact, led to health consequences and caused social upheaval once the tests had come to an end. He announced that the procedure for addressing requests for compensation from test victims would be reviewed; that an archiving, information and documentation institute would be established; that the French State would support oncology services at Tahiti hospital; that the comprehensive autonomy subsidy would be ring-fenced and restored to over 90 million euros; and that the environmental consequences of the tests would be addressed by dismantling the facilities, cleaning up the Hao atoll and closely monitoring the atolls of Mururoa and Fangataufa (UNGA ‘French Polynesia: Working Paper Prepared by the Secretariat’ UN Doc A/AC.109/2017/7 (6 February 2017) para. 11).
In February 2017, the French legislature amended the relevant legislation concerning the recognition and compensation of victims of nuclear tests (‘Loi nº 2010-2 du 5 janvier 2010 relative à la reconnaissance et à l’indemnisation des victimes des essais nucléaires français’), a move that has been understood as enlarging the number of possibly eligible victims under French law.

36 The current debate in the French legislature concerning the future status and governance of Clipperton Island (see above) has raised the issue of the status of Clipperton Island under international law and the extent to which it may be the basis of maritime zone entitlements for its metropolitan State. Thus, during the parliamentary discussion in the French National Assembly concerning Clipperton, French National Assembly member Philippe Folliot noted as follows (translation by the author):

We see China today … transform islets into islands, in view of increasing its Exclusive Economic Zone and its maritime domain, while we are taking the risk—in the long run, as French sovereignty over these two square kilometres is currently not questioned—if we do not find a remedy for all that, of a declassification of Clipperton Island into a islet, with the consequences that would have, notably the loss of the Exclusive Economic Zone (French National Assembly Verbatim Records, XIVe Ordinary Legislative Session [2016–2017] Second Session [24 November 2016]).
The interpretation and application of Art. 121 (3) UNCLOS has notably been a significant issue in the context of the South China Sea Arbitration (see PCA case No 2013-19 South China Sea Arbitration [The Republic of the Philippines v the People’s Republic of China] [Award] (12 July 2016)). While the status of Clipperton Island remains unchanged, the discussion in the French National Assembly may contribute to the subsequent practice relevant for the interpretation of Art. 121 (3) UNCLOS and the definition of the corresponding customary international law.

3. The Netherlands

(a) General Domestic Law Aspects

37 Following a series of referenda on the islands of the Netherlands Antilles and Aruba, formerly two of the three constitutive countries of the Kingdom of the Netherlands, a reform of the constitutional status of these islands within the Kingdom of the Netherlands became necessary. It was settled by agreement between the Netherlands, the Netherlands Antilles, and Aruba, signed on 15 December 2008 in Curaçao. Under the agreement, the islands of Curaçao and Sint Maarten would become autonomous territories, while Bonaire, Saba, and Sint Eustatius would become parts of the Netherlands with a similar status to that of the Netherlands’ municipalities. Foreign relations and defence would remain competences of the Kingdom. The specific implementation of this agreement was later decided in the framework of consultations in 2009. Pursuant to the final agreement, as of 10 October 2010 the Netherlands Antilles were dissolved and the Kingdom of the Netherlands includes Curaçao and Sint Maarten, in addition to the Netherlands and Aruba.

38 In 2015, a ‘Committee for the evaluation of the constitutional structure of the Caribbean Netherlands’ presented its evaluation of the relationship between Bonaire, Saba, and Sint Eustatius and the European Netherlands five years after the 2010 reforms. The report emphasized high expectations accompanying the 2010 reforms, many of which had not been met, and noted as follows:

[T]he disappointing results are also due to the major differences in language, culture and administration between the European part of the Netherlands and the islands. People find it hard to understand each other. Interests are also highly divergent; for the islands, the relationship with the Netherlands is of vital importance while this is certainly not the case for the Netherlands. In Dutch politics, the relationship with the islands is only of minor importance. The islands therefore find themselves in a relationship of dependence (Evaluatie Caribisch Nederland 104–05 [translation taken from the official English-language summary]).

(b) International Law Aspects

39 Originally, the Netherlands declared its intention to transmit information on the Netherlands Indies, Suriname, and Curaçao (UNGA Res 66 [I]). The whole of the Netherlands Antilles, of which Curaçao was the largest island, was considered by the UNGA as non-self-governing. The Netherlands Antilles also consisted of Bonaire, Saba, Sint Eustatius, and the Dutch sector of Sint Maarten. Aruba also formed part of the Netherlands Antilles, albeit only until 1986. The Netherlands Indies and Suriname eventually became independent. In 1955 the UNGA acknowledged that the people of the Netherlands Antilles (and Suriname, which later became independent in 1975) had, through their freely elected representative bodies, approved the decision to become autonomous and equal parts of the Netherlands as of 1954 (UNGA Res 945 [X] [15 December 1955]). Thus, all territories of the Netherlands formerly considered as non-self-governing have either become independent or parts of the Kingdom of the Netherlands or, in the case of Bonaire, Saba, and Sint Eustatius, of the Netherlands as a constitutive unit of the Kingdom.

40 In principle, the change in the status of some of the Dutch overseas territories under Dutch constitutional law may also affect their status under EU law in the future. Thus, Art. 355 (6) TFEU provides that the ‘European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory … .’ Moreover, Declaration 60 by the Kingdom of the Netherlands on Art. 355 TFEU provided that

an initiative for a decision, as referred to in Article 355(6) aimed at amending the status of the Netherlands Antilles and/or Aruba with regard to the Union, will be submitted only on the basis of a decision taken in conformity with the Charter for the Kingdom of the Netherlands.

At present, all of the above-mentioned Dutch overseas territories continue to be considered as ‘overseas countries and territories’ under the Treaty on the Functioning of the European Union. Even if their new status makes Bonaire, Saba, and Sint Eustatius similar to the EU’s outermost regions, their status pursuant to the EU treaties is considered to be unaltered in the absence of a Council decision and an initiative in accordance with the Kingdom of the Netherlands’ Declaration on Art. 355 TFEU (see Dutch Ministry of Foreign Affairs; see also generally Kochenov [2012] 730–31).

4. New Zealand

(a) General Domestic Law Aspects

41 The two self-governing territories in free association with New Zealand—the Cook Islands and Niue—are governed by the respective Constitution Acts as well as the annexed constitutions of these territories (see Mead on the respective processes of constitution-making). The Ross Dependency, New Zealand’s claim in Antarctica, has been constitutionally considered to be a part of New Zealand since 1923. Tokelau, which is still considered as non-self-governing by the UNGA, was transferred to New Zealand in 1926 and was incorporated under domestic law as part of New Zealand in 1948 (see generally Angelo 125–34).

(b) International Law Aspects

42 Originally, New Zealand had transmitted information to the UNGA concerning conditions in the Cook Islands (‘without prejudice to any interpretation of the expression “non-self-governing territories” in view of the fact that the Cook Islands are an integral part of New Zealand’) and had declared its intention to transmit information on the Tokelau Islands. Likewise, Niue had been considered as non-self-governing by the UNGA (UNGA Res 3155 [XXVIII] [14 December 1973]). Western Samoa, a former trust territory, gained independence as Samoa in 1962. Today, the Cook Islands as well as Niue are self-governing territories in free association with New Zealand.

43 The Cook Islands, following an election under UN supervision (UNGA Res 2005 [XIX] [18 February 1965]), obtained a status of free association with New Zealand and full internal self-government. The UNGA acknowledged the Cook Islands’ status and noted that they have attained full internal self-government so that the transmission of information in respect of the islands by New Zealand pursuant to Art. 73 (e) UN Charter could cease. However, the UNGA also reaffirmed ‘the responsibility of the UN, under GA resolution 1514 (XV), to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date’ (UNGA Res 2064 [XX] [16 December 1965]). In accordance with the Cook Islands Constitution Act 1964, New Zealand remained responsible for the external affairs and defence of the Cook Islands, those responsibilities having to be discharged ‘after consultation by the Prime Minister of New Zealand with the Premier of the Cook Islands’ (at para. 5). Over time, the responsibilities the Cook Islands have taken for their external affairs have multiplied. Thus, in an exchange of letters of 4 May 1973 between New Zealand and the Cook Islands on the Constitutional Relationship between the two countries, New Zealand stated that, pursuant to the arrangement,

the Cook Islands can continue to rely on New Zealand’s help and protection. To that end, the New Zealand Government has a statutory responsibility for the external affairs and defence of the Cook Islands. It is, however, also intended that the Cook Islands be free to pursue their own policies and interests—as they are doing, for example, through separate membership of the South Pacific Forum and other regional bodies (quoted in Igarashi 261).
A number of New Zealand domestic court decisions have described the Cook Islands as a ‘fully sovereign independent State’ (Igarashi 262–23, also discussing associated statehood generally with respect to the Cook Islands and other territories). A 2001 Declaration signed by the two countries’ Prime Ministers further sought to ‘restate the principles underpinning the relationship of partnership and free association between the Cook Islands and New Zealand as equal States independent in the conduct of their own affairs’ (see Cook Islands and New Zealand ‘Joint Centenary Declaration of the Principles of the Relationship between the Cook Islands and New Zealand’ [Rarotonga, 11 June 2001]).

44 Niue, which was a part of the British Cook Islands colony until 1904, also has the status of a self-governing territory in free association with New Zealand. This arrangement was acknowledged by the UNGA, without reference to any possible future status of independence. The UNGA merely considered that in voting for self-government in free association with New Zealand, ‘the people of Niue have freely expressed their wishes and have exercised their right to self-determination’ and that therefore transmission of information in respect of Niue under Art. 73 (e) UN Charter by New Zealand in respect of Niue could cease (see UNGA Res 3285 [XXIX] [13 December 1974]).

45 Tokelau is still considered as a non-self-governing territory administered by New Zealand by the UNGA. In 2003, the General Fono, the national representative body of Tokelau, decided that Tokelau should aim towards self-government in free association with New Zealand. A draft constitution as the basis for the proposed act of self-determination, as well as the text of a draft treaty of free association between Tokelau and New Zealand, were elaborated and approved both by the General Fono and the New Zealand government in 2005. These two instruments (commonly referred to as Tokelau’s ‘self-determination package’) were the basis of two referenda on self-determination conducted under UN supervision in February 2006 and October 2007. Given that, in both cases, the required two-thirds majority was not reached, the status of the territory remained unchanged (see also generally Connell). Subsequently, the Tokelau and New Zealand governments agreed to postpone Tokelau’s efforts at self-determination for the foreseeable future. Most recently, UNGA Res 71/107 of 6 December 2016 again acknowledged:

the decision of the General Fono in 2008 that consideration of any future act of self-determination by Tokelau will be deferred and that New Zealand and Tokelau will devote renewed effort and attention to ensuring that essential services and infrastructure on the atolls of Tokelau are enhanced and strengthened, thereby ensuring an enhanced quality of life and opportunities for the people of Tokelau (at para. 1).

5. United Kingdom

(a) General Domestic Law Aspects

46 Under UK law, 14 territories are considered as overseas territories, namely i) Anguilla, ii) Bermuda, iii) the British Antarctic Territory, iv) the British Indian Ocean Territory (Chagos Islands) (see Diego Garcia [British Indian Ocean Territory]), v) the British Virgin Islands, vi) the Cayman Islands, vii) the Falkland Islands/Islas Malvinas, viii) Gibraltar, ix) Montserrat, x) Pitcairn, Henderson, Ducie and Oeno Islands, xi) St Helena, Ascension and Tristan da Cunha, xii) South Georgia and the South Sandwich Islands, xiii) the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus, and xiv) the Turks and Caicos Islands (see generally and in detail Hendry and Dickson). The ‘Crown Dependencies’, namely the Channel Islands and the Isle of Man, have never been colonies and are not considered as part of the UK but as self-governing dependencies of the Crown with their own directly elected legislative assemblies, administrative, fiscal, and legal systems and their own courts of law (Channel Islands and Isle of Man). Constitutionally, overseas territories are not a part of the UK. Their separate constitutions are laid down in Orders in Council, ie a form of legislation. The constitutions of the various overseas territories vary with regard to their establishment and degrees of responsibility for domestic matters. Moreover, the UK government may grant so-called ‘entrustments’ to an overseas territory which allow it to enter into external relations, eg with regional organizations (see Hendry and Dickson 257–61). Each overseas territory has a Governor or, in the case of the British Indian Ocean Territory, the British Antarctic Territory, and South Georgia and the South Sandwich Islands, a Commissioner as a representative of the UK. Most overseas territories’ constitutions reserve certain powers to the UK, including the power to instruct the governor in the exercise of his functions, to disallow overseas territories’ legislation, and to legislate in the form of a Prerogative Order in Council, a special form of legislation.

47 The basis of the contemporary relationship between the government of the UK and its overseas territories was initially elaborated in a White Paper published in 1999, entitled ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’. The British Overseas Territories Act 2002, which has established the designation ‘overseas territory’ with respect to the territories mentioned in Schedule 6 to the British Nationality Act 1981, governs ‘British overseas territories citizenship’. The House of Commons Foreign Affairs Committee elaborated on the 1999 White Paper in its 2008 report on overseas territories. Thus, the ‘partnership’ between the UK and its overseas territories was said to be based on four principles:

self-determination, with Britain willingly granting independence where it is requested and is an option; responsibilities on both sides, with Britain pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally, and in return expecting the highest standards of probity, law and order, good government and observance of Britain’s international commitments; the Overseas Territories exercising the greatest possible autonomy; and Britain providing continued financial help to the Overseas Territories that need it (House of Commons Foreign Affairs Committee ‘Overseas Territories: Seventh Report of Session 2007–08’ para. 12).

Pursuant to the 1999 White Paper, ‘a new political forum, the Overseas Territories Consultative Council’ (at para. 2.4) was set up to meet annually. It included ‘British Ministers and Chief Ministers and, where there was no ministerial system, elected members of Legislative Councils from the Overseas Territories’ (ibid) in order to discuss matters of common concern. The Consultative Council convened annually from 1999 until it was succeeded by the UK–Overseas Territories Joint Ministerial Council in 2012.

48 In 2012, the UK Foreign and Commonwealth Office presented a new White Paper concerning the British overseas territories which purported to ‘endorse and build on’ the outcomes of the 1999 White Paper (Foreign and Commonwealth Office ‘The Overseas Territories: Security, Success and Sustainability’ [June 2012]). The 2012 White Paper refers to the UK’s responsibilities with respect to its overseas territories, and notes that

[t]he UK Government’s fundamental responsibility and objective is to ensure the security and good governance of the Territories and their peoples. This responsibility flows from international law including the Charter of the United Nations. It also flows from our shared history and political commitment to the wellbeing of all British nationals. This requires us, among other things, to promote the political, economic, social and educational advancement of the people of the Territories, to ensure their just treatment and their protection against abuses, and to develop self-government and free political institutions in the Territories (at 13).

The 2012 White Paper also highlighted three ‘practical policy goals’ deriving from the Paper’s overall strategy in respect of the British overseas territories (by reference to the government’s strategy on overseas territories as announced to Parliament on 14 September 2011). The three stated ‘policy goals’ are:

(i) to strengthen the engagement and interaction between the UK and the Territories; (ii) to work with Territories to strengthen good governance arrangements, public financial management and economic planning where this is necessary; and (iii) to improve the quality and range of support available to the Territories (at 16).

Other than outlining ‘policy goals’ and ‘priorities for action’, the 2012 White Paper also emphasized the requirement of a ‘partnership between the UK Government and Territory Governments’. This partnership finds its most high-level expression in the ‘Joint Ministerial Council’—described as the ‘highest forum for political dialogue and consultation between UK and elected Leaders and Representatives of the Overseas Territories for the purposes of providing leadership and promoting cooperation in areas of mutual interest’ (see Foreign and Commonwealth Office ‘UK–Overseas Territories Joint Ministerial Council’ fn 2).

(b) International Law Aspects

49 Originally, the UK had transmitted information to the UNGA concerning Barbados, Bermuda, British Guiana, British Honduras, Fiji, Gambia, Gibraltar, the Leeward Islands, Mauritius, St Lucia, and Zanzibar Protectorate and declared its intention of transmitting information on Aden (Colony and Protectorate), the Bahamas, Basutoland, Bechuanaland Protectorate, Brunei, Cyprus, Dominica, the Falkland Islands, the Gold Coast (Colony and Protectorate), Grenada, Hong Kong, Jamaica, Kenya (Colony and Protectorate), the Malayan Union, Malta, Nigeria, North Borneo, Northern Rhodesia, Nyasaland, St Helena and Dependencies, St Vincent, Sarawak, the Seychelles, Sierra Leone, Singapore, Swaziland, Trinidad and Tobago, the Uganda Protectorate, and the High Commission Territories of the Western Pacific (Gilbert and Ellice Islands Colony, British Solomon Islands Protectorate, Pitcairn Islands) (UNGA Res 66 [I]). Additionally, the British Somaliland Protectorate, Oman (Sultanate of Muscat and Oman), the New Hebrides (condominium with France), Anguilla, the British Virgin Islands, parts of the British Indian Ocean Territory (Chagos Archipelago, including Diego Garcia), the Cayman Islands, Montserrat, and the Turks & Caicos Islands were considered as non-self-governing territories. The remaining territories of the UK recognized as ‘non-self-governing’ by the UNGA are Anguilla, the British Virgin Islands, the Cayman Islands, Montserrat, the Turks and Caicos Islands, Bermuda, the Falkland Islands, Gibraltar, St Helena and Dependencies, and the Pitcairn Islands. All of these territories as well as the British Indian Ocean Territory (Diego Garcia), the British Antarctic Territory, the Sovereign Base Areas in Cyprus, as well as South Georgia and the South Sandwich Islands are considered British overseas territories. The planned withdrawal of the United Kingdom from the European Union, which was announced in 2017 on the basis of a referendum that took place in June 2016, has prompted discussions over the future status of those of the UK’s ‘overseas territories’ currently associated in some way with the EU.

50 The UK’s general stance towards the UN Decolonization Committee was expressed in the above-mentioned 2012 White Paper, which notes as follows:

The UK believes that the UN’s Decolonisation Committee (the C24) no longer has a relevant role to play in respect of our Territories. The British Territories on the Committee’s list have a large measure of internal self-government and have all chosen to retain their link to the UK. In the UK’s view, all our Territories should have been delisted a long time ago. Nevertheless, given that some Members of the UN wish to retain the Committee, some democratically elected Territory representatives wish to present their own positions directly to the Committee, and to the Fourth Committee of the General Assembly, at annual meetings of these Committees. The UK Government will continue to support this and these Territories’ right to determine their own futures (Foreign and Commonwealth Office ‘The Overseas Territories: Security, Success and Sustainability’ [June 2012] 84).
Further details on the UK position with respect to the international law aspects of its overseas territories were reflected in several statements and submissions presented by the UK in the UN context, such as, eg, the Foreign and Commonwealth Office’s paper submitted to a Regional Seminar organized under the auspices of the Decolonization Committee in 2008. Therein, the UK generally considered ‘the existence of the Special Committee of 24 and the list of Non-Self-Governing Territories to be outdated and…that none of its Overseas Territories should remain on the list’ (see Pacific Regional Seminar 2). Moreover,

[w]hile the United Kingdom consider[ed] all proposals for constitutional development and change put forward by the Territories, it has also made clear to the Territories during the negotiations that, while the Territory chooses to remain British, the United Kingdom needs to retain sufficient powers to discharge its responsibilities for good governance, defence, external relations, and to meet contingent liabilities and fulfil international obligations applying to the Territories (Pacific Regional Seminar 2).

With regard to the political status of its territories in relation to the UK, the latter pointed out that the

concept of free association, as defined by the General Assembly, would mean that the Territory itself would draw up its Constitution free from United Kingdom involvement. The United Kingdom would retain all responsibility for the Territory, but would not be able to ensure that it had the powers necessary to meet its responsibilities for the Territories. This is not a position the United Kingdom is willing to put itself in. General Assembly resolution 1541 (XV) is not legally binding. Furthermore, the United Kingdom did not vote in favour of the resolution. It believes that the guiding principles for the relationship with the Territory should draw on the Charter of the United Nations. This states, inter alia, that an administering Power shall take due account of the political aspirations of the peoples of its Territories, and assist them in the progressive development of their free political institutions according to the particular circumstances of each Territory and its peoples and their varying stages of advancement. The United Kingdom places the utmost importance on these fundamental principles, which are at the heart of the constitutional review process. The United Nations Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970), which elaborates the principle of self-determination, also makes clear that there is an option for the peoples of a Territory in addition to those set out in resolution 1541. It says that the establishment of a sovereign and independent State, free association or integration with an independent 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 (Pacific Regional Seminar 5–6).

51 In its more recent communications with the UN, the UK has invoked its newly announced strategy relating to its overseas territories (based on the 2012 White Paper), has reiterated the strategy’s main practical implications, and has been informing the UNGA’s Fourth Committee about the various communiqués agreed at the annually meeting UK–Overseas Territories Joint Ministerial Council (eg by reference to the 2016 communiqué adopted at the Fifth Meeting of the Overseas Territories Joint Ministerial Council, see UNGA ‘Bermuda: Working Paper Prepared by the Secretariat’ [7 February 2017] 14). One of the recurring themes expressed in the communiqués of the UK–Overseas Territories Joint Ministerial Councils in recent years has been the question of extending important treaties, particularly in the field of anti-corruption and human rights, to the ‘overseas territories’ (see eg Foreign and Commonwealth Office ‘UK–Overseas Territories Joint Ministerial Council’ [2016] paras 9–10). Thus, in the 2016 communiqué, the Ministers stated as follows:

We welcomed the extension to Anguilla and Cayman this year of the UN Convention for the Elimination of Discrimination Against Women. We agreed to work together to achieve progress in the extension of core Human Rights conventions where these have not been extended and to conduct a review of reservations against core UN human rights treaties ahead of the UN Periodic Review of the UK in Geneva in 2017. We committed to working together to further develop the capability of Territories’ National Human Rights Institutions, in line with international standards set out in the Paris Principles, and to promote understanding of our shared international human rights obligations (ibid, para. 10).

52 The case of the Chagos Islands (the BIOT), whose native population was removed by the British Government between 1968 and 1973, and sovereignty over which is disputed between the United Kingdom and Mauritius, also raises important issues of international law, in particular relating to the legal status of the BIOT under UN law and international law more generally, the rights of the Chagossian population under various laws, and finally the disputed sovereignty over the Islands. Although not inscribed in the UN’s list of ‘non-self-governing’ territories, it has been argued that ‘the [British Indian Ocean Territory] constitutes a non-self-governing territory [both] pursuant to Chapter XI of the UN Charter and for the wider purposes of international law’ (see Allen 1). While the British Government accepts that it ‘undertook that it will cede sovereignty to Mauritius once the BIOT is no longer required for defence purposes’, its rights and obligations have been the subject to extensive litigation, both domestically and internationally (see eg House of Commons (UK) Library (J Lunn); Chagos Marine Protected Area Arbitration, Mauritius v United Kingdom [Final Award] PCA [18 March 2015] ICGJ 486). Moreover, on 22 June 2017, the UNGA requested an Advisory Opinion from the ICJ ‘on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965’ (see UNGA Res 71/292 [22 June 2017]).

53 With respect to Anguilla, following preparatory work by a ‘Constitutional and Electoral Reform Commission’ in the 2000s (see UNGA Res 64/104 B (II) [19 January 2010] para. 1; Constitutional and Electoral Reform Commission (Anguilla) [2006]), preparations for a new constitution for Anguilla have been progressing since 2010. Following a first draft text presented in 2012, a new ‘Constitutional and Electoral Reform Committee’ was established in September 2015 by the Anguillian government. In 2016, a new draft constitution as well as other reform measures were first presented (see the subsequent Report of the Constitutional and Electoral Reform Committee (Anguilla) [2017]). However, engaging the public in this reform process seems to have remained a challenge (see UNGA ‘Anguilla: Working Paper Prepared by the Secretariat’ [26 January 2017] 4–5). Most recently the UN therefore again welcomed ‘the preparations made for a new constitution, and urged that constitutional discussions with the administering Power, including public consultations, be concluded as soon as possible’ (UNGA Res 71/109 [27 December 2016] para. 4).

54 As to Bermuda, the UNGA has repeatedly called for renewed public engagement in the territory on the question of independence by reference to the 2005 Report of the ‘Bermuda Independence Commission’ (most recently in UNGA Res 71/110 [27 December 2016] para. 4). The Commission had been established as a result of a 1995 referendum on independence in which, on a turnout of 58.8 per cent of eligible voters, 73.6 per cent voted against independence (see UNGA ‘Bermuda: Working Paper Prepared by the Secretariat’ [9 February 2012] para. 5). The 2005 Report of the Bermuda Independence Commission had emphasized that ‘[r]acial divisions in Bermuda have, in significant measure, played out in support for, or opposition to, independence and the method to be used to ascertain the wishes of the population’ (ibid para. 7). Moreover, the 2017 draft UNGA Resolution on Bermuda welcomed the March 2017 ‘extension by the administering Power to Bermuda of the Convention on the Elimination of All Forms of Discrimination against Women’ (see Draft Resolution submitted by the Chair ‘Question of Bermuda’ [19 June 2017] para. 6).

55 In relation to the British Virgin Islands, the UNGA has in recent years regularly invoked the Constitution of the British Virgin Islands of 2007, and has called for ‘greater responsibility [to be accorded] to the territorial Government for the effective implementation of the Constitution and increased levels of education relating to constitutional matters’ (most recently in UNGA Res 71/111 [27 December 2016] para. 4). Recent UN Secretariat Working Papers on the British Virgin Islands also highlighted the position of the territory’s representatives towards the UK and their expectations towards the UNGA’s Fourth Committee. Thus, referring in 2016 to statements made in 2012 and 2013, respectively, by representatives of the British Virgin Islands, the UN Secretariat recalled that

the representative of the British Virgin Islands stated that the Territory’s position was to maintain its current relationship with the administering Power, built on mutual respect and a mature partnership, as the Territory continued to grow. Furthermore, … the representative of the British Virgin Islands stated that, in his view, the Special Political and Decolonization Committee (Fourth Committee) should set specific achievable goals, taking into account the particularities of each territory, in order to further advance the decolonization process in all the territories (UNGA ‘British Virgin Islands: Working Paper Prepared by the Secretariat’ [12 February 2016] para. 5).

56 With regard to the Cayman Islands, the UNGA has in recent years regularly referred to the 2009 Constitution of the Cayman Islands and has stressed ‘the importance of the work of the Constitutional Commission, including its work on human rights education’ (see most recently in UNGA Res 71/112 [27 December 2016] para. 4). Recent UN Secretariat Working Papers on the Cayman Islands have further highlighted the work of the ‘Cayman Islands Review Committee’, which issued a report in 2011. The UN Secretariat noted that

[a]mong the central issues raised during the consultative exercise [leading up to this report] was a desire to achieve more local autonomy, while at the same time establishing a relationship that allowed for sustained support from the United Kingdom—for instance, in case of pressure from the international financial community (UNGA, ‘Cayman Islands: Working Paper Prepared by the Secretariat’ [31 January 2017] para. 5).

57 As to the Falkland Islands and Gibraltar, the question of self-determination was largely overshadowed by the respective territorial disputes. In the wake of the June 2016 EU membership referendum in the UK, the future relationship of Gibraltar with the EU, and with Spain, has become more significant. Thus, the most recent UN Secretariat Working Paper on Gibraltar recalled statements by the representative of Spain calling on the UK to ‘open negotiations on a joint sovereignty agreement to ensure that the provisions of the European Union treaties would continue to apply to Gibraltar’ (UNGA ‘Gibraltar: Working Paper Prepared by the Secretariat’ [7 March 2017] para. 52). Thus, the Working Paper recalled that:

In the light of the recent United Kingdom vote to leave the European Union, Spain was … renewing its offer with a sense of urgency. Under the European treaties, Brexit would also imply the exit of Gibraltar, marking a radical shift in the Territory’s relationship with Spain and entailing significant consequences for Gibraltar, whose economic model was based on full participation in the European Union internal market, and for the adjacent Spanish district of Campo de Gibraltar, whose economy was closely interconnected with the Territory’s given the major presence of Spanish workers in Gibraltar itself (ibid para. 51).
However, it was also reported by the UN Secretariat that the UK had stated that ‘no sovereignty-related talks can be entered into without the consent of Gibraltar, nor can [the UK] enter into a process of sovereignty negotiations with which Gibraltar is not content’ (ibid para. 55).

58 In relation to Montserrat, the UNGA has in recent years repeatedly ‘recalled’ the 2011 Constitution of Montserrat and recognized the work of the territory’s government in implementing it (see most recently in UNGA Res 71/114 [28 December 2016] para. 4). Recent UN Secretariat Working Papers on Montserrat also have highlighted the position of the Territory’s representatives towards the UK and the Decolonization Committee. Thus, referring in 2016 to a statement made in 2012 by the then–Premier of Montserrat, the Secretariat recalled that

[according to the then–Premier] Montserrat was a fully internally self-governing Territory where all executive decisions were made by the local Cabinet of Ministers. … [T]here was no public interest whatsoever in separating from the United Kingdom. The continuing relationship with the United Kingdom was one made by free choice and the people of the island did not see themselves as being a colonized people. [The then–Premier] recommended that the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples remove Montserrat from its decolonization discussions (UNGA ‘Montserrat: Working Paper Prepared by the Secretariat’ [27 January 2017] para. 5).

59 With regard to Pitcairn, the UNGA has in recent years regularly welcomed ‘all efforts by the administering Power and the territorial Government that would further devolve operational responsibilities to the Territory, with a view to gradually expanding self-government’ (see most recently UNGA Res 71/115 [28 December 2016] para. 4; see also Eshleman).

60 Considering St Helena, the UNGA has in recent years regularly stressed the importance of the territory’s 2009 Constitution. In 2013, a public consultation process aimed at considering ‘minor adjustments’ to the 2009 Constitution began. A March 2013 consultative poll showed that a majority favour no change to the current constitution. As the UNGA recently recalled, July 2013 marked the first ‘general election based on one constituency’ in St Helena. The UNGA has in recent years also regularly requested the UK and ‘relevant international organizations to continue to support the efforts of the territorial Government to address the socioeconomic development challenges of the Territory’ (see UNGA Res 71/116 [28 December 2016] para. 6). Moreover, the 2017 draft UNGA Resolution on St Helena welcomed the March 2017 ‘extension by the administering Power to Saint Helena of the Convention on the Elimination of All Forms of Discrimination against Women’ (see Draft Resolution submitted by the Chair ‘Question of Saint Helena’ [19 June 2017] para. 5).

61 The Turks and Caicos Islands experienced a constitutional crisis in the wake of allegations of widespread corruption on the islands and the imposition by the UK of a new constitution for the Territory in 2011. In the period from August 2009 to November 2012, the territory’s Governor worked under ‘interim constitutional arrangements with an advisory council and a consultative forum’ and with ‘extended powers’ (UNGA ‘Turks and Caicos Islands: Working Paper Prepared by the Secretariat’ [15 February 2017] para. 7). In response, the UNGA had previously called for the ‘restoration of constitutional arrangements providing for representative democracy through elected territorial Government as soon as possible’ (see eg UNGA Res 66/89 B.X para. 2). Following the end of the interim administration and new elections in late 2012, a series of consultations and the work of a Constitutional Review Committee culminated in a set of recommendations that were ‘passed by the House of Assembly in January 2015 … and … forwarded to the Government of the United Kingdom for its consideration’ (UNGA ‘Turks and Caicos Islands: Working Paper Prepared by the Secretariat’ [15 February 2017] para. 14). As the most recent Secretariat Working Paper on the Turks and Caicos Islands notes:

According to the administering Power, after careful consideration, the Government of the United Kingdom did not accept those recommendations on the grounds that the current Constitution was key to ensuring that the Turks and Caicos Islands continued to meet internationally recognized standards of good governance, the rule of law and sound financial management. … In April 2016, then Governor Peter Beckingham reportedly stated that if the people of an overseas territory wished to consider the possibility of independence, the United Kingdom would not stand in the way of a referendum. He also stated that it would be for the people of the Turks and Caicos Islands to make up their own minds about whether the benefits of the relationship with the United Kingdom, including education, access to Europe, support for government institutions and security, outweighed the advantages of becoming an independent country (ibid paras 14–15).

In its most recent resolution on the Turks and Caicos Islands, the UNGA again

[r]eiterate[d] its support for the full restoration of democracy in the Territory and for the work of the Constitutional Review Committee in that regard, and note[d] the efforts of the administering Power to restore good governance, including through the introduction in 2011 of a new constitution and the holding of elections in November 2012, and sound financial management in the Territory (UNGA Res 71/117 [28 December 2016] para. 4).

6. United States of America

(a) General Domestic Law Aspects

62 The US generally designates its overseas territories as ‘insular areas’ and US law gives these areas distinct statuses. US insular areas include all areas of the US that are not part of a US state or a US federal district. Under US law, insular areas therefore include territories designated as a commonwealth, possession, or territory. Under US law, the categorization of a territory as ‘incorporated’ or ‘unincorporated’ is of great significance (on the legal and historical background of this categorization, which developed in judicial practice, and on insular areas in general, see, eg, Reporter [Harvard Law Review]; Neuman and Brown-Nagin [eds]; Lawson and Seidman [2004]; Lawson and Seidman [2011]; Horey; Morrison; Ramos; Day and Kopper; Cepeda Derieux; Laughlin Jr; Burnett; Van Dyke; Torruella; Katz; Price; Chandler; Sparrow; Krakoff). In very general terms, unincorporated territories are those for which the US Congress has only made some parts of the US Constitution applicable. A further categorization distinguishes ‘organized’ from ‘unorganized’ territories. Unorganized territories are those for which the US Congress has not enacted an organic act, ie a constitutional framework. Of the three US overseas territories deemed ‘non-self-governing’ by the UNGA, American Samoa is considered both ‘unincorporated’ and ‘unorganized’. The US Virgin Islands and Guam, while organized, are also unincorporated. Puerto Rico and the Northern Mariana Islands have a distinct, commonwealth, status—but are likewise deemed unincorporated. The commonwealth status of Puerto Rico is illustrated in the 2011 Report of the President’s Task Force on Puerto Rico, which notes that on the basis of the US Constitution and the Puerto Rican Federal Relations Act

[n]ational government matters, such as currency, defense, foreign relations, and interstate commerce, are within the jurisdiction of the Federal Government. Local government is run by a popularly elected governor and a bicameral legislature. Puerto Rico is represented in the U.S. Congress by the Resident Commissioner, who is elected by the people of Puerto Rico every 4 years and serves in the House of Representatives as a nonvoting member. The policy of the Federal executive branch has long been that Puerto Rico’s status should be decided by the people of Puerto Rico. … Nevertheless, if a change of status is chosen by the people of the Puerto Rico, such a choice must be implemented through legislation enacted by Congress and signed by the President (President of the United States ‘Report by the President’s Task Force on Puerto Rico’s Status’ [March 2011] 18).

A number of other smaller insular areas exist (comprising the so-called US Minor Outlying Islands), but they do not have a permanent population or a local government. In addition, the US maintains relations with the Marshall Islands, the Federated States of Micronesia, and Palau as freely associated States.

(b) International Law Aspects

63 The US had originally transmitted information to the UNGA concerning Alaska, American Samoa, Guam, Hawaii, the Panama Canal Zone, Puerto Rico, and the Virgin Islands (UNGA Res 66 [I]). The Panama Canal Zone was eventually transferred to Panama (Panama Canal). Moreover, under the UN Trusteeship System, parts of the Trust Territory of the Pacific Island have eventually gained independence as the Federated States of Micronesia (1990), the Republic of the Marshall Islands (1990), and, as the last trusteeship territory, Palau (1994). All three became UN members. The Northern Mariana Islands (in 1990) were likewise considered to have freely exercised their right to self-determination (UNSC Res 683 [1990]) and have opted for free association with the United States as the US Commonwealth of the Northern Mariana Islands. After Alaska and Hawaii were incorporated as, respectively, the 49th and 50th states of the US, the UNGA (UNGA Res 1469 [XIV] [12 December 1959]) acknowledged that ‘the people of Alaska and Hawaii have effectively exercised their right to self-determination and have freely chosen their present status’ (at 37) and attained ‘a full measure of self-government’ (ibid), and consequently that they would no longer be considered as non-self-governing and the transmission of information in respect of Alaska and Hawaii under Art. 73 (e) UN Charter could cease (on ‘the claim for the continuing existence of the Hawaiian Kingdom as an independent State under international law’, see Dumberry; see also Larsen v Hawaiian Kingdom [Award] PCA [5 February 2001]).

64 At present, the United States Virgin Islands, American Samoa, and Guam remain non-self-governing as understood by the UNGA. These islands, as well as Puerto Rico, the US Commonwealth of the Northern Mariana Islands, and a number of other islands (Baker Island, Howland Island, Jarvis Island, the Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, the Palmyra Atoll, and Wake Island) may generally be considered as overseas territories of the United States, but are partly subject to sovereignty disputes.

65 In general, the position of the US government on the status of those of its insular areas designated as non-self-governing by the UN was, as in previous years, reflected in the most recent reports by the UN Secretary-General on American Samoa, the US Virgin Islands, and Guam. Thus, the US considered the status of its overseas territories regarding their political relations with the federal government to be:

an internal United States issue, and not one that came within the purview of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. … [T]he Special Committee had no authority to alter in any way the relationship between the United States and those territories and had no mandate to engage the United States in negotiations on their status (UNGA ‘Guam: Working Paper Prepared by the Secretariat’ [15 February 2017] para. 46).
However, the United States also recognized its obligation under the UN Charter to provide relevant information about US ‘overseas territories’ to the UN Decolonization Committee (ibid para. 46). Moreover, the US reiterated—with respect to the United States Virgin Islands, American Samoa, and Guam—that ‘it is the policy of the administering Power that the territories have three distinct options for exercising self-determination: continued territorial status, statehood or independence’ (ibid para. 47).

66 With respect to Puerto Rico, in 1953, the UNGA (UNGA Res 748 [VIII] [27 November 1953]) recognized that when choosing their new constitutional and international status, the people of the commonwealth of Puerto Rico had effectively exercised their right to self-determination (ibid para. 4). Likewise, it recognized that they ‘have been invested with attributes of political sovereignty which clearly identify the status of self-government attained by the Puerto Rican people as that of an autonomous political entity’ (ibid para. 5). While considering that transmission of information concerning Puerto Rico by the US pursuant to Art. 73 (e) UN Charter could cease, the UNGA expressed its expectation that:

due regard will be paid to the will of both the Puerto Rican and American peoples in the conduct of their relations under their present legal statute, and also in the eventuality that either of the parties to the mutually agreed association may desire any change in the terms of this association (ibid para. 9).
Subsequently, the arrangement between the US and Puerto Rico was considered unsatisfactory to a certain extent. Consequently, Puerto Rico was reinstated as a territory subject to consideration by the Decolonization Committee in 1972, even if it is not considered as a non-self-governing territory by the UNGA (see Pastor 581; Reisman 47; Congressional Research Service [2017, Garrett] 18). The Decolonization Committee has regularly published reports on Puerto Rico (see eg UNGA ‘Report Prepared by the Rapporteur of the Special Committee, Bashar Ja’afari [Syrian Arab Republic]’ UN Doc A/AC.109/2017/L.13 [16 January 2017]). Some have questioned the current absence of Puerto Rico from the UN’s list of non-self-governing territories (ibid para. 16) and one legal commentator has recently argued that the removal of Puerto Rico from the list of non-self-governing territories in 1953 was ‘likely erroneous’ and moreover, that ‘Puerto Rico remains a Non-Self-Governing Territory under UN law’ (Reporter [Harvard Law Review] 1621).

67 Puerto Rico is the largest ‘overseas territory’ discussed in this entry, with an estimated population of 3.6 million in 2014 (see Congressional Research Service [2016, Austin] 20). As a recent report of the US Congressional Research Service notes, Puerto Rico today ‘is both deeply integrated into American society and insulated from it’ (Congressional Research Service [2017, Garrett] 2). A series of referenda, most recently in June 2017, have been held in Puerto Rico with the aim of determining the future status of the territory. These have been accompanied by several legislative proposals in the US Congress concerning Puerto Rico’s status. In this context, the legal debate on the future status of Puerto Rico in the US has been framed in terms of two possibly incompatible ideas. On the one hand, there is the idea that the Puerto Rican population should decide on the future status of their country autonomously. Thus, as the 2011 Report by the President’s Task Force on Puerto Rico’s Status noted:

It has long been the policy of the Federal executive branch that Puerto Ricans should determine for themselves the future status of the Island [with ‘the permissible status options includ[ing] Statehood, Independence, Free Association, and Commonwealth’]. The Task Force recognizes that the people of Puerto Rico may decide to express their will with respect to status through a plebiscite, constitutional convention, or other means (President of the US ‘Report by the President’s Task Force on Puerto Rico’s Status’ [March 2011] 23).

On the other hand, the idea that Congress is the ultimate decision-maker in respect of Puerto Rico is likewise a central theme of the legal debate on this issue in the US. For example, as a recent Congressional Research Service Report finds, ‘[i]f Congress chose to alter Puerto Rico’s political status, it could do so through statute regardless of whether a plebiscite were held or what sentiment such a vote revealed’ (Congressional Research Report [2017, Garrett] 1; see also President of the United States ‘Report by the President’s Task Force on Puerto Rico’s Status’ [March 2011] 18). The question of Congressional power with respect to Puerto Rico was also raised in a recent US Supreme Court case, Puerto Rico v Sanchez Valle, which concerned the question whether Puerto Rico and the US were barred from successively prosecuting a single person for the same conduct under equivalent criminal laws by virtue of the Double Jeopardy Clause (see Puerto Rico v Sanchez Valle Supreme Court of the United States [2016] 136 SCt 1863, 1884). The Majority Opinion, delivered by Justice Kagan, emphasized the role of Congress as the ‘original source of power’ in relation to Puerto Rico, noting as follows:

Congress, in Public Law 600, authorized Puerto Rico’s constitution-making process in the first instance, and Congress, in later legislation, both amended the draft charter and gave it the indispensable stamp of approval. Put simply, Congress conferred the authority to create the Puerto Rico Constitution, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors—as it is for the Federal Government’s. The island’s Constitution, significant though it is, does not break the chain (ibid 1867).

In contrast, the Dissenting Opinion filed by Justice Breyer and joined by Justice Sotomayor pointed to ‘Puerto Rico itself, its people, and its constitution’ as the source of the law at issue in the case, noting as follows:

This history of statutes, language, organic acts, traditions, statements, and other actions, taken by all three branches of the Federal Government and by Puerto Rico, convinces me that the United States has entered into a compact one of the terms of which is that the ‘source’ of Puerto Rico’s criminal law ceased to be the US Congress and became Puerto Rico itself, its people, and its constitution. The evidence of that grant of authority is far stronger than the evidence of congressional silence that led this Court to conclude that Indian tribes maintained a similar sovereign authority (ibid 1884).

In the wake of the June 2017 plebiscite, in which 97.2 per cent of Puerto Rican voters chose ‘statehood’ (ie membership of the US as a US federal state), the issue of Puerto Rico’s future status has become more urgent, even as this status—despite renewed attention from the US Congress, legal scholars, and the UN—remains rather uncertain.

68 Since the mid-2000s, several initiatives to revise the Constitution of American Samoa and alter the extent of local self-governance have been attempted. However, the proposed amendments to the Constitution following a Constitutional Convention in 2010 were rejected in the general elections in 2010. A further constitutional referendum in November 2014 was also rejected by voters. Despite the failure of these constitutional amendments to convince voters, the UN Secretariat has reported that an American Samoan representative had recently observed a renewed willingness on the part of the American Samoan population to take ‘the next step in entertaining serious discussion about’ the future political status of American Samoa (UNGA ‘American Samoa: Working Paper Prepared by the Secretariat’ [10 February 2017] para. 15). Moreover, the UNGA has in recent years regularly welcomed the role of the US in supporting work on the future political status of American Samoa. Thus, in its 2016 resolution on American Samoa, the UNGA again

[w]elcome[d] the work of the territorial Government with respect to moving forward on political status, local autonomy and self-governance issues with a view to making political and economic progress, and also welcome[d] the establishment in April 2016 of the Office of Political Status, Constitutional Review and Federal Relations (UNGA Res 71/108 [27 December 2016] para. 4).

The UNGA has in recent years also taken note of Tuaua v United States US Court of Appeals for the District of Columbia Circuit (2016) 788 F3d 300, a US domestic case building on the precedents established in the Insular Cases, which raised the question of whether the citizenship clause of the Fourteenth Amendment to the Constitution of the US extended to American Samoa (see most recently UNGA ‘Draft Resolution Submitted by the Chair: Question of American Samoa’ [20 June 2017] 3). The original Memorandum Opinion by the US District Court for the District of Columbia (Judge Richard J Leon), which was upheld in 2015 by the US Court of Appeals for the District of Columbia, held that constitutional citizenship by birth did not apply in unincorporated territories such as American Samoa and that therefore the plaintiffs could not claim birthright citizenship under the citizenship clause of the Fourteenth Amendment of the US Constitution (see Tuaua v United States US District Court for the District of Columbia [2013] 951 FSupp2d 88; see also UNGA ‘American Samoa: Working Paper Prepared by the Secretariat’ [10 February 2017] para. 9). On 13 June 2016, the US Supreme Court denied the petition for a writ of certiorari in this case. As the UN Secretariat’s 2016 Working Paper on American Samoa notes, both the US and American Samoan governments ‘intervened in opposition to the lawsuit, arguing that the citizenship status of the people of American Samoan [sic] was a matter for the people to resolve through political processes’ (ibid para. 9). The history, context, and implications of Tuaua v United States have been subject to significant scholarly and interest-group commentary in recent years. As one scholarly commentator noted:

The gift and the curse of the Insular Cases is their establishment of ‘diversity in governing regimes.’ Historically, the doctrine allowed for colonial domination by Congress of the United States’ imperial acquisitions, because it deprived territorial residents of the individual rights guaranteed to other Americans. In another, more enlightened age, that same framework may prove flexible enough to safeguard the political diversity the residents of the territories demand and deserve. Tuaua suggests that the mainstream view in the courts, if not yet in the academy, is that we are well on our way there (with further references, Reporter [Harvard Law Review] 1703).

69 With respect to Guam, efforts at changing the political and legal status of Guam have been attempted continuously during the last decades. The territory’s local economy is heavily dependent on tourism, as well as the very significant American military presence there. Another major issue relating to Guam has been the presence and rights of the indigenous Chamorro population, which makes up 37.4 per cent of Guam’s total population according to the 2010 census, and whose members live both on Guam and the Commonwealth of the Northern Mariana Islands. Although a self-determination plebiscite that had been prepared by the Guam Election Commission since 2000 was to be held in 2016, the plebiscite process was interrupted. As the 2017 UN Secretariat’s Working Paper on Guam notes, Guam’s Commission on Decolonization ‘voted not to move forward with plans to hold a plebiscite in the general election of November 2016, citing the need for time to conduct a fair and comprehensive education campaign’ (UNGA ‘Guam: Working Paper Prepared by the Secretariat’ [15 February 2017] para. 8). While the UNGA has welcomed recent efforts aimed at promoting the process towards a future plebiscite on self-determination in Guam, a March 2017 ruling of the United States District Court of Guam, in Davis v Guam, has raised questions over the position of the Chamorro population in the context of Guam’s future self-determination discussion (see eg UNGA ‘Draft resolution submitted by the Chair: Question of Guam’ UN Doc A/AC.109/2017/L.18 (19 June 2017) 3). After a 2015 Opinion of the US Court of Appeals for the Ninth Circuit rejected the District Court of Guam‘s earlier finding that the plaintiff in the case lacked standing and that the claims brought were unripe (see Davis v Guam US Court of Appeals for the Ninth Circuit [2015] 785 F3d 1311), the latter decided in March 2017 that limiting a plebiscite on self-determination to native inhabitants, as had been planned, was unconstitutional (see Davis v Guam US District Court for the District of Guam [8 March 2017] No CV 11-00035, 2017 WL 930825) (an appeal against this decision was filed with the US Court of Appeals for the Ninth Circuit on 14 April 2017); on the analogous issue but in the context of the Commonwealth of the Northern Mariana Islands, see Davis v Commonwealth Election Comm’n US Court of Appeals for the Ninth Circuit [2016] 844 F3d 1087, 1089).

70 With respect to the US Virgin Islands, repeated efforts at providing the Islands with a constitution have been attempted in recent decades. The most recent drive towards a new constitution began in 2009, when the Fifth Constitutional Convention adopted a draft constitution. This draft constitution was forwarded to the US government, which in 2010 requested the territory to consider the US’s objections to the draft text. The US President had submitted the proposed Constitution to Congress on 26 February 2010 while simultaneously endorsing the critical conclusions reached by the US Department of Justice, which found that several features of the proposed constitution ‘warranted analysis and comment’ (for a summary, see UNGA ‘United States Virgin Islands: Working Paper Prepared by the Secretariat’ [6 February 2017] para. 6). The US Congress then considered the proposed constitution and proposed a reconsideration and revision of the proposal so that ‘provisions inconsistent with the Constitution and Federal law’ could be corrected (see Revision to Proposed Constitution for United States Virgin Islands, PL 111-194 [30 June 2010] 124 Stat 1309). Subsequently, in 2012, the Governor of the US Virgin Islands established a so-called ‘Fifth Revision Convention’ (by Act No 7386). This Convention, however, failed to accomplish its mandate of ratifying or approving by ‘no later than 31 October [2012] and by a two-thirds majority vote of all the delegates, the final revised draft constitution consistent with the nine issues identified by the Government of the United States’ (see UNGA ‘United States Virgin Islands: Working Paper Prepared by the Secretariat’ [6 February 2017] para. 7). Although the UNGA has in recent years regularly commended ‘the proposal of a draft constitution emanating from the Territory in 2009, as a result of the work of the United States Virgin Islands Fifth Constitutional Convention’ (see most recently in UNGA Res 71/118 [11 January 2017] para. 4), the future of the constitution-making process in the US Virgin Islands currently remains rather uncertain. As the UN Secretariat’s 2017 Working Paper on the US Virgin Islands notes:

[Pursuant to Act No 7386,] [i]n case of the non-adoption of the text, both the Fifth Constitutional Convention and the Fifth Revision Convention would be dissolved and the Legislature of the United States Virgin Islands would have full authority to address the Territory’s constitution. As reported in previous working papers, however, the outcome of the Fifth Revision Convention was surrounded by controversy and has continued to remain unclear. In January 2013, in his State of the Territory address, the Governor expressed the hope that the Territory would find ‘the means and courage that will lead us from the Organic Act to a Virgin Islands constitution’. … According to the administering Power, in March 2016, the Office of Insular Affairs of the Department of the Interior awarded the University of the Virgin Islands $250,000 to establish the Office of Self-Determination and Constitutional Development. The Office works with the Centennial Commemoration Commission … and other stakeholders across the territory to address the issue of self-determination. Major duties and responsibilities include political status and constitutional education, research and development, universal public education and complementing activities of the Commission’ (ibid paras 7–8).

7. European Union ‘Overseas Countries and Territories’

71 Generally, EU law distinguishes between ‘outermost regions’ and ‘overseas countries and territories’ (see also European Community and Union, Association of Overseas Countries and Territories). The former are a part of the respective Member State’s territory. However, EU law nevertheless acknowledges the specific circumstances of such ‘outermost regions’ as Art. 349 TFEU provides that the Council shall ‘adopt specific measures aimed, in particular, at laying down the conditions of application of the Treaties to those regions, including common policies.’ In contrast, ‘overseas countries and territories’ (‘OCTs’) are considered as generally outside the ambit of EU law. The relationship between these areas and EU law is broadly described in the preamble of the TFEU, which stresses the intention of the Member States

to confirm the solidarity which binds Europe and the overseas countries and desir[e] to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations.

Part Four of the TFEU, entitled ‘Association of the Overseas Countries and Territories’, provides general provisions as well as territorial exceptions to govern the relationship between the ‘non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom’ as listed in Annex II. In practice, the relationship between the various overseas territories belonging to EU Member States and EU law has been further specified in a number of secondary legislative acts, and has been developed in judicial practice (see generally Kochenov [ed] [2011]; Kochenov [2012]; Ziller; Murray; see also Ioannides and Tymowski 15–29).

72 Since 2014, a new Overseas Association Decision (‘OAD’) has served as the framework for the association of the OCTs with the EU (see Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territories with the European Union). It provides for cooperation between the EU and the OCTs on a comprehensive set of themes, including trade and trade-related questions. The OAD envisages regular ‘dialogues’ and ‘trilateral consultations’ as well as ‘working parties’, all chaired by the European Commission, which also provides their secretariat (see Art. 14 OAD).

73 The 2013 OAD has generally been viewed as the basis for a ‘modernization’ of the association of the OCTs with the EU. In contrast, the announced withdrawal of the UK from the EU following the June 2016 referendum on EU membership has prompted reflection within some of the affected UK overseas territories about the future of this relationship (see eg Clegg). The issue has also been acknowledged in a 2016 communiqué of the UK–Overseas Territories Joint Ministerial Council, in which the Ministers committed themselves to ‘future engagement’ on the issue ‘through the creation of the UK–Overseas Territories Joint Ministerial Council on European Negotiations’ (UK–Overseas Territories Joint Ministerial Council para. 4). The 2016 communiqué also emphasized that:

[t]he UK Government is clear that the [EU membership] referendum result does not change the UK Government’s position on sovereignty over the Territories. The UK reaffirmed that while the UK remains a member of the EU, current EU funding arrangements continue unchanged and clarified that where Territories are eligible for EU funds that have been covered by assurances from Her Majesty’s Treasury, those guarantees will extend to the Territories (ibid para. 4).

F. Evaluation

74 Overseas territories are marked by their diversity. From a legal perspective, this diversity is visible in a variety of constitutional arrangements, ranging from near independence to complete integration into the respective metropolitan State as well as the classification by the UNGA of some overseas territories as non-self-governing. The variety of overseas territories therefore renders any generalization of limited value. However, from an international law perspective, overseas territories can pose a number of intriguing problems in connection with the application of the principle of self-determination; with respect to the rights of indigenous peoples who inhabit or have inhabited particular overseas territories; with respect to the right to development; with respect to overseas territories’ membership of or participation in the work of international organizations; with regard to the conclusion and territorial scope of application of treaties; with respect to attribution under the law of State responsibility; with respect to various rights and obligations relating to territory and maritime zones under both treaty and customary international law; with respect to questions of state succession, as well as more generally with respect to any other applicable right or obligation under international law pertaining to such territories and to their inhabitants, as groups or as individuals. The EU’s developing policy of association with its ‘overseas countries and territories’ adds another layer to the legal questions concerning overseas territories with respect to those overseas territories associated in some way with an EU Member State. Additionally, the variety of constitutional arrangements affecting overseas territories reveals the manifold interactions between domestic and international law. For inhabited territories, it may be concluded that due to the generally respected right to self-government in most overseas territories, the interdependence characterizing international relations today and the rise of international and regional organizations also involving sub-State units, the question of decolonization through full independence has, to a large extent, become less of an issue, but remains of some political and legal significance in a number of overseas territories. Strategic interests and historical links make overseas territories valuable to their metropolitan States but also create challenges with respect to governance and responsibility. Finally, it is clear that the history of most overseas territories is closely related to colonialism and decolonization. This colonial legacy has affected the international and domestic legal status of many ‘overseas territories’ and their inhabitants. It has further contributed to the principal challenge of socio-economic development faced by most overseas territories, a challenge further amplified by the small size and remoteness of many overseas territories.

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