Special Report

18 June 2018

Julian Aguon: ‘We cannot footnote our way to freedom’

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Guam human rights lawyer Julian Aguon ... "no better way to use the law than in defence of vulnerable communities – namely colonised and indigenous peoples, here in the Pacific but elsewhere too." Image: Katherine Mafnas
An interview with Guam's Blue Ocean human rights lawyer
18 June 2018

INTERVIEW: Sylvia C. Frain: The Pacific Media Centre's Dr Sylvia C. Frain talks to human rights lawyer Julian Aguon, who recently won a landmark case in the Guam Supreme Court upholding the separation of powers doctrine, on issues ranging from law school and social justice to indigenous peoples and the right of self-determination in Guam, West Papua and beyond.

The Pacific Media Centre’s Dr Sylvia C. Frain talks to human rights lawyer Julian Aguon, who recently won a landmark case in the Guam Supreme Court upholding the separation of powers doctrine, on issues ranging from law school and social justice to indigenous peoples and the right of self-determination in Guam, West Papua and beyond.

SF: Talk about law school. Did you like it? Do you have horror stories? Do you recommend it to others, to young people?
JA: It’s…complicated. When one enters that particular arena as a politicised person, it can be a bit difficult, logistically, to momentarily suspend reality as you know it and make like a blank slate. I mean, there is a kind of unspoken understanding, at least among the establishment professors, that the best kind of students are those who offer themselves up freely for the filling, like receptacles for the pouring in of conventional wisdom. Activists, on the other hand you know, often go to law school because we realise that the law is a particular kind of institution, or knowledge, around which some high walls have been built, at least in part to keep us out. The law is a skill set but also a vocabulary, even a weapon, so often deployed against those most in need of its protection. So for us the whole experience can be dicey. But if you’re lucky a light goes on. Once you get past the insularity of the universe that is law school, you realise you can use what you brought in with you. You know that the law is not neutral because it is always already a moving train, and you know you can’t be neutral on those things. Like any tool in human hands, it can be used for any end, for the amassing of private wealth and power, or for the greater common good. Once you get that, you’re good. You drop your shoulders and get to work.
SF: Well when you first went to law school, did you know you wanted to be a human rights lawyer?
JA: Yes. I could think of no better way to use the law than in defence of vulnerable communities – namely colonised and indigenous peoples, here in the Pacific but elsewhere too. Indigenous peoples, you know, are key. They have inherited worldviews that stretch so far back in time and space ... worldviews that predate the neoliberalist one bringing this planet to the brink of disaster. So they have part of the answer, indigenous peoples do, to the question of what to do to get us out of this mess we’ve made. Also they represent that subset of humankind most directly connected to the physical world, and are consequently the most vulnerable to the vandalism visited upon it. Ensuring their maximal legal protection, you know … ensuring that they’re able to thrive in their ancestral spaces, is urgent, one of the urgent tasks of our time.
SF: So you are now an attorney with your own firm? Can you tell us about that?
JA: That’s right. Yes, sorry. I live and work on Guam. I started Blue Ocean Law, a small firm that works to advance the rights of non-self-governing and indigenous peoples in the Pacific. We’ve worked with a range of clients on a host of issues, many of which have human rights components. We began mostly ... in Micronesia, but have grown. The attorneys I have the pleasure of working with are pretty incredible in their own right. There’s Julie Hunter, who has taken a lead role in our work in Melanesia, around the emerging extractive industry of deep sea mining, which threatens to adversely impact communities in the region. She also runs our internship programme, overseeing law student interns from Harvard, Stanford, Yale, UCLA [University of California Los Angeles], and UH [University of Hawai’i]. There’s also Clement Yow-Mulalap, who splits his time between New York and his home island, Yap. He specialises in international environmental law, particularly climate change, and is helping to develop our analytical framework on that front.  
SF: Yes I know you folks are doing a ton of work on deep sea mining. You had an article published last month in the Harvard Environmental Law Review on the subject, but also you had a report called “Resource Roulette.” Can you speak more about deep sea mining? Why is it important and what’s at stake for Pacific Islanders?
JA: So deep sea mining is this new extractive industry that’s proceeding around the world without sufficient safeguards, either for the environment or for the people most likely to be impacted by it. As we speak, corporations and countries alike are scrambling to secure rights to explore and exploit vast tracks of the international seabed. You know it’s even being called the new global gold rush. And the thing is most of it’s happening in the Pacific. Look, one Canadian company has already applied for exploration rights to over half a million square kilometres of the seafloor surrounding Papua New Guinea, Vanuatu, Tonga, the Solomon Islands, Fiji, and I believe also New Zealand. So it’s important because industry proponents are touting the whole thing as lucrative and low-risk, which it isn’t. We’ve talked to the people, you know? We’ve worked with community-based organisations in affected areas, who themselves have done real field work, on the ground, and are reporting a host of adverse impacts. The stories coming in paint a different picture.
SF: So most of your work is in Micronesia and Melanesia. Do you have any plans to expand to Polynesia too? I know you went to law school in Hawai’i.
JA: Well, technically, you could say my work as a law scholar, if not a practising attorney, already touches part of Polynesia. I authored the international law chapter in the recently released second edition of the legal treatise on Native Hawaiian rights, and before that I authored a piece I’m particularly proud of, entitled “The Commerce of Recognition (Buy One Ethos, Get One Free),” a rather ambitious law article on the viability of the three main redress regimes available under international law, normatively I mean, for the recovery of Hawai’ian independence.
SF: I'm sure you're asked this a lot but what’s been the most important case you've worked on? Which is the one you feel most passionate about?

JA: That would have to be Davis v. Guam, a case I’m litigating at the moment. The case threatens to effectively deny the native inhabitants of Guam from exercising their fundamental right of self-determination in accordance with law. Davis is a case that reaches the heights of cynicism. At bottom, the legal argument constructed there is that virtually any American who moves to the American colony of Guam is legally entitled to cast a vote in the island’s long-awaited self-determination plebiscite. To deny any such person the vote, the argument goes, is unconstitutional race-based discrimination violative of, among others, the Fourteenth and Fifteenth Amendments. This case is not only counter-historical, it's absurd. Decolonisation is a remedy for the colonised. Not those who hail squarely from the coloniser. Not only that but the challenged classification itself is not a racial one in the first place. This case is … I mean, it pains me more than the others because I see it as the latest distortion of an already deeply distorted equal protection jurisprudence that seems ever more concerned with protecting only those not actually in need of protection.
SF: The case is about self-determination?

JA: Right.
SF: So your bio says you’re a UN-recognised expert in self-determination. I was wondering if you would, or could you just explain what the right of self-determination is?
JA: Under international law, self-determination is the right of peoples to be free ... from colonisation, alien subjection and domination. Traditionally, the right has been understood as namely applying to colonized and occupied peoples, though the content of the right has been filled out progressively over time, with new fact patterns emerging which have stretched the right beyond its initial scope, like South African apartheid. No norm of international law comes close to matching the liberatory heft of self-determination. It is singularly responsible for the liberation of literally hundreds of millions of human beings. It is also the promise that stirs the hearts of those whose homelands remain on the UN list of non-self-governing territories, like my own, Guam.
SF: But aren’t there colonies not on the UN list that also have the right of self-determination?

JA: Absolutely. West Papua, perhaps because of the ... well, the bloodshed, is the first example that comes to mind. There is no doubt in any international lawyer’s mind that the people of West Papua have the right of self-determination, and that that colony should be formally, and immediately, slated for an act of decolonisation. Despite Indonesia’s claims to the contrary, in no universe was the infamous 1969 plebiscite a valid exercise of self-determination. And let’s not, you know, be confused here. The legal status of West Papua, or any colony for that matter, is determined by international law, not the list. The situation in West Papua is … just so acutely troubling because of what we know ... that the denial of self-determination is but one of many forms of state-sanctioned violence. Our sisters and brothers there are suffering horrendously.
SF: As you know, I've spent time here on Guam, doing research, meeting people. One of the things you hear when you interview people about Guam's colonial status is the argument that Guam can't be that colonised because Congress allowed Guam to create its own laws. How do you respond to that?
JA: Guam may enact its own laws, but you see, those laws may be undone by Congress. Per the terms of the Organic Act of Guam of 1950, in Title 48 of the US Code, the laws of Guam are subject, as is the entire government of Guam itself, to complete defeasance by Congress. As they say, what Congress giveth, Congress can taketh away. This is the lynchpin of the colonial relationship. To be sure, I’m being somewhat simplistic, but I think there’s something to that, actually. I think too many scholars are lost looking for life everlasting at the end of an elaborate footnote. We cannot footnote our way to freedom. But anyway there are times, usually times of crises, when the evidence of our colonial condition is just too plain to deny, when the truth just sits there in the scorching sun. Like Puerto Rico after Hurricane Maria. These national moments of reckoning burn our illusion.
SF: On that note, what do you think about the Pacific? When you look out at the Blue Continent, as you like to call it, what gives you hope?
JA: Vanuatu ... Vanuatu is leading us. In some pretty significant ways, Vanuatu has emerged as a leader among our nations. From its consistent showing of solidarity with the people of West Papua to its principled, precautionary stance on deep sea mining, Vanuatu has been shining a light for others to follow. Also, the Marshall Islands has given the world several reasons to smile. From leading global climate change negotiations to taking on the nuclear nine in the ICJ, the Marshallese are punching way above their weight. And that is something. They keep proving the point that smallness is a state of mind. Lastly, you know, well I guess, is just the people themselves. There is such a breadth of beauty in our communities. I mean, Papua New Guinea alone, what range! One need only see a Highlands headdress to know what I’m talking about, to be reminded of the beauty and variety of this region, to want to fight for it.

More information:
Blue Ocean Law
Broadening common heritage: Addressing gaps in the deep sea mining regulatory regime - Harvard Environmental Law Review
Blue Ocean Law/Pacific Network on Globalisation “Resource Roulette” report

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Julian Aguon: ‘We cannot footnote our way to freedom’

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The Pacific Media Centre - TE AMOKURA - at AUT University has a strategic focus on Māori, Pasifika and ethnic diversity media and community development.