In what amounts to a bombshell legal opinion, one of the top American constitutional law experts who also was the legal advisor to the Marshall Islands constitutional convention that wrote the nation’s constitution in the late 1970s, said the document requires a plebiscite for approval of any new Compact of Free Association agreement.
The 17-page legal opinion issued in late February by constitutional law expert and emeritus professor of Harvard University Laurence Tribe contends that approval by negotiators and Nitijela (parliament) is not enough to legally approve a Compact for the Republic of the Marshall Islands or RMI. The first Compact was endorsed by Marshallese voters in a plebiscite in 1983, but the second Compact, which went into effect in 2003, was approved only by the Nitijela (parliament). Tribe’s legal opinion is the first time in decades that the idea of a plebiscite to approve the Compact currently under negotiation has been mentioned.
“The text, structure, purposes, and history of the RMI Constitution lead powerfully to one conclusion: Approval by a majority of eligible RMI voters cast in a plebiscite throughout the Marshall Islands is required for the 2023 Compact of Free Association to take legal effect there,” said Tribe. He was the first Constitutional Convention’s American consultant who assisted in the drafting of many provisions of the Constitution and is today, at 81, known as one of the preeminent US constitutional law experts.
He was hired by Kwajalein Nitijela Member and Iroojlaplap (paramount chief) Michael Kabua to “provide my independent legal analysis of whether approval of the Compact of Free Association requires a plebiscite under the Constitution of the RMI.”
His conclusion: “The RMI Constitution should be read to make majority approval in a national plebiscite mandatory for any new Compact of Free Association…”
Tribe’s legal opinion adds a new dimension to a negotiating and approval process in which the RMI-U.S talks have stalled, highlighted by the internal dispute over the signing of a memorandum of understanding with the United States in January. Under the headline, “Discord in the CNC,” the Marshall Islands Journal reported in Friday’s edition the disarray of the Marshall Islands Compact Negotiation Committee, following many of its members repudiating the MOU signed by RMI Compact negotiator and Foreign Minister Kitlang Kabua and U.S Envoy for Compact negotiations Joseph Yun in Los Angeles in January.
Among other concerns that led the committee to refuse to endorse the Compact MOU is that while it purports to address the nuclear test legacy with funding — considered a line-in-the-sand issue for the Marshall Islands — it does not mention the word “nuclear” in the brief three-page text.
Tribe in his opinion makes the key point that a plebiscite could help to address both the “Full Faith and Credit” issue and the U.S dominance in the financial management group that oversees U.S Compact grants — both priority concerns of RMI negotiators, who have failed, to date, to gain traction on desired changes in the ongoing talks with the U.S.
“The issue of constitutionally required plebiscite approval of the Compact of Free Association also intersects importantly with an issue of current interest within the Nitijela and the political life of the Marshall Islands,” Tribe points out. “In November 2021, the Nitijela passed a resolution urging the RMI’s current Compact negotiation team to seek the restoration of the Full Faith and Credit Clause to the 2023 Compact.”
Moreover, Tribe says, “the requirement of approval by a plebiscite might prove to be one mechanism for impressing on those negotiating the terms of a new Compact the need for ensuring more nearly equal footing for the RMI and the U.S in the composition of the crucial Joint Economic Management and Financial Accountability Committee.”
In his legal opinion, Tribe says that Article XIII, Section 6 of the Constitution — the “Plebiscite Clause” — “cannot properly be limited simply to the first Compact of Free Association but must apply to any subsequent such Compact.”
Tribe says unequivocally: “The plebiscite requirement’s application cannot properly be evaded by the expedient of labeling a new Compact a mere ‘amendment’ of a preexisting Compact.”
Tribe comments that no genuinely democratic government would “shred parts of its founding Constitution by mere legislation coupled with the approval of what might be a highly transitory legislative majority in negotiation with a potentially overbearing foreign bargaining partner.”
An important point of the legal analysis reflects on the significance of the Full Faith and Credit provision of the first Compact, which for the Marshall Islands came into effect in October 1986. “This provision at least purported to guarantee that the United States would honor its financial obligations to the RMI through what would amount to a permanent appropriation, thereby ensuring that such obligations were not stuck in a cyclical process of congressional budgetary approval,” said Tribe. “However, the 2003 Compact removed this provision.”
Tribe continued: “Given the potential for the United States to significantly limit the economic assistance it affords to the Republic of the Marshall Islands in the Compact currently under negotiation, the Full Faith and Credit Clause has emerged as a key issue in the 2022-23 Compact negotiations. Members of the Nitijela have portrayed the call for the provision’s restoration as a move to reassert some of the RMI’s bargaining power against the United States.”
The spiraling deficit in the U.S. coupled with the U.S domestic political situation has implications for the RMI-U.S Compact. “At a time in the domestic politics of the United States when there is mounting concern that failure to raise the federal statutory debt ceiling might lead our nation for the first time in its history to put its full faith and credit in question in violation of Section 4 of the Fourteenth Amendment of the United States Constitution, this issue could have considerable saliency,” he said. “…Resistance by the U.S negotiators on behalf of the Biden administration to re-insert a Full Faith and Credit Clause in the Compact and thereby formally obligate the United States to meet its financial commitments to the RMI would be in stark tension with the administration’s insistence that Section 4 of the Fourteenth Amendment requires the United States Government to make good on all its payment promises regardless of what any statute or treaty might say.”
Tribe said the plebiscite requirement of the RMI Constitution is “entirely relevant” to the “ability of the RMI to insist that another nation keep its financial promises.”
He said his reading of the Plebiscite Clause is correct. But, he added, there is another consideration of significance lending further weight to the plebiscite requirement.
“In particular, when the Compact being contemplated is one with a nation whose own Constitution, in its absolutely crucial Civil War-ending Fourteenth Amendment, commits that nation to pay all its debts except those incurred in aid of the then-recent rebellion, not even willingness by the Nitijela to accept a Compact that deliberately omits a Full Faith and Credit Clause of the very sort that an earlier Compact with the United States included should suffice to bind the people of the Marshall Islands to that powerful associated nation without the consensus or at least widespread popular support that a plebiscite alone can guarantee,” he said. “It is at least conceivable that the steady erosion of the RMI’s bargaining power — akin to the erosion embodied in the earlier removal of the Full Faith and Credit Clause in the 2003 Compact — could be offset by reinvigorating the constitutional argument that a referendum is required if the new Compact now under negotiation is to become law,” Tribe said.
