Recently, an Executive Order was passed to mandate a nationwide election on May 1st, 2020 to amend Palau’s national constitution, particularly the language used in defining the country’s boundaries.
The amendment will seek to make the language used in demarcating Palau’s boundary more general and allowing for the specifics to be set by law. “Putting something in the constitution makes it final. But these issues are still growing and developing. We don’t want to freeze in our tracks, we want to keep up with the times, for the good of Palau.”
According to the initial findings of the Political Education Committee, even though Palau is much older than the Law of the Sea, the Republic of Palau and the United Nation’s Law of the Sea were nearly the same age. The text of the Palau Constitution was agreed to in 1981 and Palau became independent in 1994. The text of the Law of the Sea was agreed to in 1982 and it became effective in 1994.
When Palau was writing its constitution, the United Nations was writing the law of the sea. Palau’s founders were paying attention to both documents at the same time. They were both extremely important legal frameworks for Palau.
One of the most controversial issues in the Law of the Sea was the idea of “archipelagic states,” meaning states that considered their islands together, as a group, instead of individually. Island states around the world, including Palau, wanted to see “archipelagic states” recognized under the Law of the Sea.
There was opposition, however. Major powers including the UK, US, Britain, Australia, and China were strongly opposed to Archipelagic States. Palau was getting a lot of pressure, so it had to take a side. It took a side by declaring “archipelagic baselines” in the constitution.
Baselines do not need to be in a constitution, and Palau is one of the few countries to have them in its constitution. But Palau made its point.
Unfortunately, when the Law of the Sea was agreed one year after the Palau constitution, the rules for “archipelagic baselines” were different than what Palau had just finalized in the Constitution. From 1982 until the 2nd Constitutional Convention, the two most important laws for the Republic – Palau’s Constitution and the UN Convention on the Law of the Sea – were in conflict.
The 2nd Constitutional Convention fixed this problem. Unfortunately, it fixed it too well. The baselines written in the 26th Amendment do fit with the Law of the Sea. However, they are more strict than they need to be. Palau could have claimed more territory.
This was partly due to confusing advice Palau received from a UN expert and partly because the Law of the Sea is so young and still developing.
Additionally, technology is also still developing. Even though Palau used the best measurement techniques on the best maps, satellite maps are better. Today, we can already see problems from the old measurements.
The proposal now is to amend the constitution to correct those errors, and to make sure we are not limiting ourselves. As the international law continues to develop year after year, it becomes clearer that Palau can get more if we make some edits.
The issues around the international law of the sea is evolving and for Palau to stay up-to-date and ensure it gains the most, it must be flexible.The best way to do that is to put the baselines in a statute instead of the constitution. This way they can be amended or updated as necessary.