Symposium Conference: International Trade in the Trump Era

On February 22, 2019, YJIL successfully hosted a one-day conference at Yale Law School entitled “International Trade in the Trump Era.” The conference corresponds to the series of Features Essays published as a part of our most recent Features Symposium on the same topic.

In addition to the Features Symposium contributors, we welcomed the following participants, who took part in a lively discussion before an engaged audience of Yale students:

  • The Honorable Timothy C. Stanceu, Chief Judge, U.S. Court of International Trade
  • The Honorable Gary S. Katzmann, Judge, U.S. Court of International Trade
  • Brian Bombassaro, International Trade Counsel, U.S. Senate Committee on Finance
  • Kelly Ann Shaw, Special Assistance to the President and Senior Director for International Trade, Investment and Development

Professors Gregory Shaffer and Chantal Thomas participated by video conference. We wish to thank all of the conference attendees for their participation. We are also grateful to the Yale Law School staff and the Oscar M. Ruebhausen Fund for generously sponsoring the event.

Please find the conference agenda attached.

Features Symposium: International Trade in the Trump Era

The international trade order is in crisis. Since the election of President Donald J. Trump, the United States has initiated—and escalated—a trade war with China, forced the renegotiation of the North American Free Trade Agreement (NAFTA), and threatened to upend the World Trade Organization (WTO) by blocking appointments (and re-appointments) to its Appellate Body. Protectionism is on the rise: reversing a longstanding political consensus, tariffs have once again emerged as a central issue in U.S. international trade policy.

What does this all mean? Where does it lead? Is the established order of international trade—underpinned by the WTO and multilateral trade agreements—on the verge of collapse? Or is it, as John Gerard Ruggie said of the “new protectionism” that arose in the 1970s, simply an indication that the existing order is adapting to new circumstances? The authors in this Features Symposium grapple with these difficult, and consequential, questions.

The Features Symposium is a new venture by YJIL Online. Its publication will be accompanied by an in-person event, to be held at Yale Law School, on February 22, 2019.

* Note: Some of these essays have been previously published on this page in unofficial, non-consecutively paginated form. Please use the official versions provided below.

Introduction
Kathleen Claussen & David Singh Grewal

The Trump Administration and the Future of the WTO
Rachel Brewster

Trade, Redistribution, and Imperial Presidency
Timothy Meyer

A World Trade Organization for Workers?
Joel P. Trachtman

A Tragedy in the Making? The Decline of Law and the Return of Power in International Trade Relations
Gregory Shaffer

Protectionism’s Many Faces
Andrew Lang

Old Wine in New Bottles? The Trade Rule of Law
Kathleen Claussen

A Research Agenda for Trade Policy Under the Trump Administration
David Singh Grewal

Trade and Development in an Era of Multipolarity and Reterritorialization
Chantal Thomas

The Vital Role of the WTO Appellate Body in Promoting the Rule of Law and International Cooperation: A Case Study
Padideh Ala’i

Epilogue
Trump Change: Unilateralism and the “Disruption Myth” in International Trade
Harold Hongju Koh


* Cover photo by Gage Skidmore. Source: Wikimedia Commons.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Forum: The ICC and Afghanistan – Time to End Impunity?

Written by Mehdi J. Hakimi*

Following the Taliban’s announcement of their annual spring offensive, violence has ratcheted up across Afghanistan. According to the UN Assistance Mission in Afghanistan (UNAMA), the Afghan conflict resulted in more than 10,000 civilian casualties in 2017 alone. The mounting atrocities in Afghanistan have finally prompted the International Criminal Court (“ICC” or the “Court”) to consider launching a formal investigation.

On November 20, 2017, Fatou Bensouda, the chief prosecutor of the ICC, requested judicial authorization to commence a formal investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003. The 181-page request (not including annexes) was submitted by Bensouda’s Office of the Prosecutor (OTP) to a three-judge panel in the ICC’s Pre-Trial Chamber (PTC). In its request, the OTP sought authorization to investigate alleged crimes committed by the Taliban and their affiliates, the Afghan National Security Forces (ANSF), and the U.S. military and the CIA. This essay surveys the OTP’s charges against these actors and provides preliminary reflections on the task before the Court.

The Taliban and Haqqani Network

The OTP attributes the bulk of the atrocities to the Taliban and their affiliated Haqqani Network, alleging that these two groups have committed the following crimes against humanity: murder; imprisonment or other severe deprivation of physical liberty; and persecution against any identifiable group or collectivity on political and gender grounds.[1] In addition, both groups are alleged to have committed the following war crimes: murder; intentionally directing attacks against the civilian population, humanitarian personnel, and protected objects; enlisting children under fifteen or using them in hostilities; and killing or wounding treacherously a combatant adversary.[2]

In its request, the OTP did not consider the conduct of other terrorist groups operating in Afghanistan, such as Daesh/Islamic State Khorasan Province (Daesh/ISKP). This is mainly due to the OTP’s limited powers during preliminary examination, the lower evidentiary threshold at the pre-investigative stage, and the ambiguous relationship between the Taliban and other terrorist groups.[3] For example, Daesh/ISKP claimed a recent attack in Kabul, but the U.S. military believed that the Taliban were the true authors of the attack. Similarly, the Taliban and Daesh seem to have acted in concert in the massacre of ethnic Hazara civilians in the Mirza Olang village of Sari Pul province in August 2017. As the OTP acknowledged, once the investigation is authorized, it will be necessary (and more feasible) to closely examine the violence perpetrated by these other groups and their links with the Taliban.

Perhaps the biggest omission in the OTP’s request is the crime against humanity of persecution against any identifiable group or collectivity on ethnic and religious grounds. In particular, the widespread and systematic attacks against the ethnic Hazara population, of largely Shia denomination, are conspicuously missing in the submission. Adding to their historical persecution, the Taliban and Daesh affiliated groups have launched an onslaught of attacks against Hazaras in both Afghanistan and Pakistan in recent years. Yet the OTP only cites one such attack—the killing of 11 people in the Khas Uruzgan district on June 24, 2010[4]—in charging the Taliban and affiliated armed groups with the crime against humanity of murder, not persecution on ethnic and religious grounds.

The absence of the additional charge from the OTP’s request, at least at this preliminary stage, may be due to the perceived politically sensitive nature of the issue. The Afghan government has not exactly taken a kind stance toward Hazaras. For instance, against the recommendation of an independent German engineering firm tasked with evaluating potential routes,  the government recently scrapped a plan to implement a major electricity project through the Hazara-populated regions. The government’s decision prompted a public outcry and protests in Kabul. The protests were attacked by terrorists reportedly affiliated with Daesh, resulting in approximately 500 civilian casualties, almost all of whom were Hazara. Despite the potential sensitivity of the issue, the omission of this charge from the OTP’s request does not preclude its examination once the PTC authorizes a formal investigation.[5] Given the preliminary nature of the pre-investigative stage, a formal investigation could—and should—be expanded to examine other potential crimes, including ethnicity and religion-based persecution.

Afghan National Security Forces

The OTP is also scrutinizing the role of the Afghan government in the conflict. The OTP alleges that the Afghan National Security Forces (ANSF) committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and sexual violence against conflict-related detainees.[6] The OTP accuses members of the National Directorate for Security (NDS) and the Afghan National Police (ANP) of perpetrating these Article 8 crimes on a large scale.

For these charges to continue, the Court must have jurisdiction over the case, and the case must be admissible. As a State Party to the Rome Statute, Afghanistan is subject to the Court’s jurisdiction for all crimes committed within its territory since May 1, 2003. With regard to admissibility, Article 17 of the Rome Statute stipulates that for a case to be admissible, (1) the State that would normally have jurisdiction must be “unwilling or unable genuinely to carry out the investigation or prosecution”; (2) any decision not to prosecute by the State must have “resulted from the unwillingness or inability of the State genuinely to prosecute”; (3) the defendant must not have been tried before; and (4) the case must be sufficiently grave.[7] The first three factors are sometimes referred to as the “complementarity” component of the admissibility test, while the fourth element forms the “gravity” component. The OTP argues that the case here satisfies all of the above criteria. It found that no national investigations or prosecutions have been conducted or are ongoing against those most responsible for the alleged crimes,[8] and that the gravity of the alleged conduct warrants prosecution.[9]

One obstacle to the Court’s exercise of authority is Afghanistan’s 2007 amnesty law, which pardons perpetrators of war crimes and crimes against humanity. [9] In its request, the OTP rightly criticizes the law of contributing to a culture of impunity within the country.[10] For example, the Afghan government invoked the amnesty law in its peace deal with Hezb-e-Islami, a previously terrorist-designated group led by the notorious warlord Gulbuddin Hekmatyar. After the government pardoned him, Hekmatyar was taken off the UN sanctions list, and his fighters have been released from prison—only to join the Taliban and resume fighting. Since returning to Kabul, Hekmatyar has sowed discord and even endorsed suicide attacks.

The ongoing peace process with the Taliban will further complicate the task of investigating the alleged crimes. Buoyed by the Hekmatyar deal, President Ghani has continued Karzai’s policy of wooing the Taliban, the group responsible for most of the alleged crimes. Ghani’s recent unilateral ceasefire with the Taliban resulted in thousands of insurgents pouring into major cities and even occupying areas in Kabul. Such “peace” deals with the Taliban—in which key stakeholders such as victim representatives and human rights groups are not given a voice—will inevitably pose major challenges to the OTP’s proposed investigations of the atrocities.

U.S. Armed Forces and the CIA

In addition to the Taliban and Afghan officials, in an unprecedented move, the OTP has proposed investigation of alleged war crimes by U.S. authorities. In particular, the PTC must decide whether to authorize investigation of the following alleged Article 8 crimes by the U.S. armed forces and the CIA: torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.[11] The alleged crimes include those committed in Afghanistan, as well as those committed in other States Parties that have a nexus to the Afghan conflict: Poland, Romania, and Lithuania. These alleged acts were committed against suspected Taliban and Al Qaeda detainees, primarily during the period from 2003 to 2004. Having deemed the alleged crimes sufficiently grave, the OTP has further contended that domestic investigations and proceedings by the United States have focused on the rank-and-file rather than those most responsible for the alleged crimes.[12]

So far, the U.S. government has argued that the ICC lacks jurisdiction over American nationals because the United States is not a party to the Rome Statute. However, pursuant to Article 12(2), the Court has jurisdiction over any crimes committed on the territory of Afghanistan since May 1, 2003, regardless of nationality. According to the former chief prosecutor of the ICC, a better argument might be based on the Status of Forces Agreement (SOFA) between the United States and Afghanistan, which could preclude the ICC from exercising jurisdiction over American nationals. But SOFA-based arguments, like the one raised by Michael Newton,[13] are also susceptible to challenges. This is because of at least four reasons:

First, such arguments typically fail to distinguish between the existence of jurisdiction and its exercise.[14] Broadly speaking, jurisdiction entails two distinct aspects: jurisdiction to prescribe and jurisdiction to enforce. Prescriptive jurisdiction, also known as legislative jurisdiction, refers to the state’s authority to assert the applicability of its laws to given conduct. Meanwhile, enforcement jurisdiction, also called executive jurisdiction, is the state’s right to enforce its laws through its investigative and coercive powers. Unlike enforcement jurisdiction, prescriptive jurisdiction can be extraterritorial.

Under Article 98(2) of the Rome Statute, certain international agreements, like the SOFA, may constrain the exercise of domestic enforcement jurisdiction by a State Party. However, such agreements do not extinguish a State Party’s plenary prescriptive jurisdiction.[15] Prescriptive jurisdiction is an inherent attribute of a state’s sovereignty—that is, the “exclusive competence of the State in regard to its own territory”[16]—and, as such, cannot be contracted out through the SOFA.

Second, the Rome Statute’s structure suggests that the Court’s jurisdiction is not precluded by bilateral agreements like the SOFA. Article 98, on which Newton’s argument rests,[17] is located within Part XI of the Rome Statute, which addresses international cooperation, rather than Part II, which addresses jurisdiction.

Third, a distinction should be made between the ICC’s jurisdiction over the crime of aggression on the one hand, and the Court’s jurisdiction over war crimes and crimes against humanity on the other. While Article 15 bis (5) expressly excludes the Court’s jurisdiction over the crime of aggression committed by nationals of non-States Parties, the Rome Statute provides no such exclusion in respect of war crimes and crimes against humanity.[18]

Finally, other major international conventions provide similar criminal jurisdiction over nationals of non-States Parties. Examples include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Transnational Organized Crime.[19] For these reasons, the Court should not be in want of legal ammunition as it considers asserting jurisdiction over the United States.

Besides the substantive legal points, however, the OTP’s proposed investigation into U.S. conduct in Afghanistan also raises significant political and prudential questions. The Trump administration, known for its hostility toward international agreements and institutions, seems poised to adopt a particularly combative stance toward the ICC. Last year, now-National Security Advisor John Bolton condemned the OTP’s plan in this case, arguing that “the Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy.” Indeed, Bolton suggested, “[e]ven merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.” Recently, the United States also boycotted an informal UN Security Council meeting marking the Rome Statute’s twentieth anniversary. Such a decision is rare for a permanent member of the Council, and reflects the Trump administration’s particular disdain for the Court.

The Trump administration’s stance towards the Court represents a marked shift from the policy of strategic collaboration that prevailed during the second half of the Bush administration and under President Obama. It harkens back to—and builds upon—the United States’ historical antagonism with the Court. Back in 2002, when the Court was founded, Congress passed the American Service-Members’ Protection Act (ASMPA), a bill designed to limit cooperation with the Court. Meanwhile, the Bush administration tried to isolate the Court and prevent it from acquiring further legitimacy by not only “unsigning” the Rome Statute, but also entering into more than one hundred bilateral immunity accords with States Parties. These “Article 98 agreements” were designed to exempt Americans from ICC jurisdiction. (The SOFA with Afghanistan is one such agreement.)

This history and recent actions by the Trump administration suggest that the OTP will likely encounter significant resistance from U.S. authorities in its investigation (assuming that it is approved by the PTC).

Conclusion

Afghans anxiously await the ICC’s (likely affirmative) decision to authorize a formal investigation. Despite the difficulties the OTP encountered in reaching out to victims, the victim representations it received overwhelmingly support the investigation into war crimes and crimes against humanity in Afghanistan. Taking advantage of an increasingly feckless, and at times conniving, Afghan government, the Taliban and their affiliates continue to inflict bloodshed and suffering on the Afghan people. A formal investigation into the atrocities in Afghanistan is long overdue, and will be an uphill battle. But justice demands an emphatic answer to those who’ve grown accustomed to, and profited from, impunity—no more.

 


* Mehdi J. Hakimi is the executive director of the Rule of Law Program and lecturer-in-law at Stanford Law School. Mr. Hakimi was the former chair of the law department at the American University of Afghanistan.

[1] Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, Request for Authorisation of an Investigation Pursuant to Article 15, ¶ 72 (Nov. 20, 2017), at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF [hereinafter “OTP Request”]; Rome Statute of the International Criminal Court arts. 7(1)(a), (e), (h), opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].

[2] OTP Request, supra note 1, at ¶ 123; Rome Statute art. 8.

[3] See OTP Request, supra note 1, at ¶¶ 37, 62-63.

[4] Id. at ¶ 100.

[5] See, e.g., Situation in the Republic of Kenya, No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶¶ 74-75 (Mar. 31, 2010), at https://www.legal-tools.org/doc/f0caaf/pdf/ (“The Chamber also underlines that in the development of the proceedings the Prosecutor is neither bound by his submissions with regard to the different acts constituting crimes against humanity, nor by the incidents and persons identified in the annexes appended to the Prosecutor’s Response. . . .”).

[6] OTP Request, supra note 1, at ¶ 161.

[7] Rome Statute art. 17(1).

[8] OTP Request, supra note 1, at ¶¶ 269, 276.

[9] See id. at ¶¶ 337, 344.

[10] Id. at ¶ 5.

[11] Id. at ¶ 187.

[12] See id. at ¶¶ 299-300.

[13] See Michael A. Newton, How the International Criminal Court Threatens Treaty Norms, 49 Vand. J. Transnat’l L. 371, 405 (2016) (arguing that the SOFA between the United States and Afghanistan obviated the latter’s ability to delegate jurisdiction over U.S. nationals for crimes committed in its territory to the ICC).

[14] For analysis of the differences between the various aspects of state jurisdiction, see generally Roger O’Keefe, Response: “Quid,” Not “Quantum”: A Comment on “How the International Criminal Court Threatens Treaty Norms”, 49 Vand. J. Transnat’l L. 433, 435 (2016); Carsten Stahn, Response: The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton, 49 Vand. J. Transnat’l L. 443, 450 (2016). See also Roger O’Keefe, Universal Jurisdiction—Clarifying the Basic Concept, 2 J. Int’l Crim. Just. 735, 736-37 (2004).

[15] A state’s “title to exercise jurisdiction rests in its sovereignty.” SS Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19.

[16] Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).

[17] See Newton, supra note 13, at 391 (discussing the intent of Article 98).

[18] In full, Article 15 bis (5) states: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Rome Statute art. 15 bis.

[19] See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention against Transnational Organized Crime art. 15, Nov. 16, 2000, 2225 U.N.T.S. 209.

Forum: Reflections on a Potential Peace Treaty for the Korean Peninsula

Written by Jonathan Worboys* and Laura Edwards**

Introduction

The first half of 2018 saw a welcome de-escalation of tensions on the Korean Peninsula. In particular, two unprecedented events heightened the anticipation for an official end to the Korean War: the Inter-Korean Summit Meeting at Panmunjeom on April 27, 2018, and the Singapore Summit between the United States and North Korea on June 6, 2018.

These events have catalyzed discussions regarding the establishment of a lasting peace regime for the Korean Peninsula. Recognizing the express intentions of the parties to bring an official end to the Korean War, this article provides initial reflections on and outlines the international law implications of a potential peace treaty for the Korean Peninsula. Furthermore, because peace talks between North Korea, South Korea, and the United States are still in their early stages, this article seeks to highlight some of the critical questions for consideration as the parties try to move toward a fully-formed peace treaty.

What form would an agreement take? 

For the past sixty-five years, an armistice agreement has regulated hostilities on the Korean Peninsula. The agreement came into effect in 1953 after it was negotiated by military representatives from the two Koreas, China, and the United States, with the United States representing the United Nations Command.[1] Unlike a formal peace treaty, which officially terminates war, an armistice agreement simply “suspends military operations.”[2]

The Panmunjeom Declaration, signed on April 27, 2018,[3] outlines the intention of the two Koreas to turn the 1953 Armistice Agreement “into a peace treaty.[4] However, the recent joint statement released by President Donald Trump and North Korea’s Kim Jong Un at the Singapore Summit (Joint Kim-Trump Statement) does not refer specifically to the creation of a “peace treaty,” but rather to a “lasting and robust peace regime.”[5] While the term “treaty” typically denotes an agreement that is binding in international law, states may choose from an array of other instruments, such as a “Memorandum of Understanding,” “Convention,” or “Protocol,” to potentially create legally binding relations. Whether or not an agreement between states is designated a “treaty” is therefore a matter of substance, not just definition.

Although there appears to be some uncertainty about the exact description of the instrument in this case, we expect that the parties will enter into a treaty within the meaning of Article 2(1) of the Vienna Convention on the Law of Treaties (VCLT). Such a treaty would create rights and obligations that are enforceable under international law and potentially possess the endorsement of the UN Security Council as well. This is notwithstanding the fact that North Korea is not a party to the VCLT,[6] as Article 6 of the VCLT affirms that every state possesses the capacity to conclude treaties.

Who would be the parties to a peace treaty?

It is clear that both Koreas would need to be formal parties to the agreement in order to achieve lasting peace. The inclusion of both Koreas should not be treated as a foregone conclusion, however, as North Korea has attempted to exclude South Korea from a peace treaty with the United States on several previous occasions.[7] Nevertheless, both Koreas expressed their intention to work together at the April 2018 Inter-Korean Summit, as the two leaders agreed to convert the Korean Armistice Agreement into a full peace treaty. Subsequently, the parties expressly affirmed this commitment in the Panmunjeom Declaration.[8]

The Panmunjeom Declaration also perceives a direct role for both the United States and China in the peace talks, because it stipulates that the two Koreas will pursue trilateral meetings with the United States, or quadrilateral meetings with the United States and China.[9] Following the Singapore Summit on June 6, 2018, it became even clearer that the parties intend the United States to play a direct role in the peace process, including an eventual peace treaty. The United States has a significant stake in the peace process as well, since it hopes to see an end to North Korea’s nuclear weapons and ballistic missile programs, which pose a grave security threat to both the United States and to key allies in the region. However, as already highlighted, the Joint Kim-Trump Statement that was issued at the conclusion of the Singapore Summit does not make any express reference to a peace treaty per se, nor does it explicitly refer to the role of the United States in this regard.

A conceivable alternative is for the United States to simply endorse an inter-Korean peace treaty without itself becoming a treaty party.[10] The United States has a long history of acting as a witness to such inter-state agreements, including the Algiers Agreement between Eritrea and Ethiopia in 2000,[11] the Itamaraty Declaration of Peace between Ecuador and Peru in 1995,[12] and the Washington Declaration between Israel and Jordan in 1994.[13]

Commentators have also raised the possibility that any government that contributed armed forces to the United Nations Command (“contributing governments”) could have a legitimate claim to be party to a subsequent peace treaty.[14] At the moment, however, this option remains a remote possibility given that the two Koreas have identified only the United States (and possibly China) as legitimate negotiating partners for the peace talks. Since the Panmunjeon Declaration was signed, no contributing governments are known to have expressed an interest in expanding the number of treaty signatories at this time.

What are the possible legal implications of a peace treaty?

As with all inter-state peace agreements, a formal peace treaty is capable of being legally binding and would have the foremost effect of officially terminating the Korean War.[15] Assuming that the terms of the treaty are binding on the same parties to the 1953 Armistice Agreement, a peace treaty may also supersede the agreement by operation of law, or by making the latter obsolete.[16]

A formal peace treaty would also affect the tenuous legal and socio-legal frameworks that have developed since the 1953 Armistice Agreement was originally implemented. For instance, the peace treaty might also regulate the presence of foreign armed forces on the Korean Peninsula.[17] In The Case Concerning Armed Activities,[18] the International Court of Justice highlighted the importance of outlining a modus operandi for military presence in a peace treaty.[19] In particular,  a key issue of contention in the case was whether certain provisions of the Lusaka Ceasefire Agreement constituted consent by the Democratic Republic of the Congo to the presence of Ugandan troops in border areas.[20] Neither the Panmunjeom Declaration nor the Joint Kim-Trump Statement makes any reference to troop presence. However, with recent signs that the United States and South Korea plan to halt their joint military exercises, a modus operandi on troop presence may be an especially important consideration when negotiating a peace treaty in this case. [21]

Beyond use of force and military arrangements, twenty-first century peace treaties also frequently refer to obligations under international humanitarian law. Recent events have already highlighted two important issues relevant to international humanitarian law for a future Korean peace treaty: the return of POW/MIA remains[22] and the reunion of separated families.[23] To further ensure that these obligations are binding on the parties (and perhaps more importantly, observed in practice), the peace treaty may refer to the 1949 Geneva Conventions, which are the central international laws governing states’ actions in war.  Specifically, the peace treaty may cite Additional Protocols I[24] and II[25], which regulate POW/MIA remains and the reunion of separated families, respectively.

At this stage, it is not yet clear whether a Korean peace treaty would also refer to general obligations under human rights law. To date, inter-state peace treaties have rarely featured general human rights commitments beyond the status of the party states’ nationals.[26] Nevertheless, given the particular nature of the human rights situation in North Korea, which has been identified by Human Rights Watch as “one of the world’s most repressive states,”[27] a peace treaty may provide an opportune moment to consider the role of human rights commitments in inter-state peace agreements.  Such obligations could, for example, commit North Korea to engaging more closely with the United Nations human rights mechanisms, possibly by taking action on the findings of the 2014 UN Commission of Inquiry Report. Other pertinent commitments may also include obligations to accept humanitarian aid, to take steps to release prisoners and detainees held for activities that should not be criminalized under international law (e.g. exercising free speech), and to put an end to the involuntary separation of families.

Finally, there remains the critical question of denuclearization in relation to a potential peace treaty. While both the Panmunjeom Declaration[28] and the Joint Kim-Trump Statement[29] refer to “complete denuclearization” of the Korean Peninsula, the complexities associated with achieving this goal are undoubtedly significant.

Although many factors relating to denuclearization and the peace process remain unsettled, a final peace treaty could conceivably refer to North Korea’s ratification of the Treaty on the Non-Proliferation of Nuclear Weapons and any legal obligations that may arise as a result. Leading up to the conclusion of a peace treaty, both sides could also consider working towards a performance-based plan for achieving denuclearization with the possibility of linking denuclearization to other issues of concern, such as the ratification of human rights treaties and the easing of UN Sanctions. Performance-based plans are not new to peace processes, with the most prominent example being the (unimplemented) Performance-based Roadmap to a Two-State Solution to the Israeli-Palestinian Conflict.[30]

Legal validity of a peace treaty and the question of breach.

The final consideration for a potential Korean peace treaty relates to the legal validity of the treaty and the question of breach. It is clear that all parties would be bound to observe their commitments under the peace treaty, in accordance with the principle of pacta sunt servanda.[31]

In order to ensure compliance, a future Korean peace treaty may also consider delegating verification and monitoring functions to members of the international community. Twenty-first century peace treaties frequently delegate such functions to the United Nations in the form of peacekeeping missions, but a growing number of agreements have delegated those duties to other interested parties as well. In the present context, it is likely that any monitoring or verification mission to North Korea would involve the International Atomic Energy Agency and the United Nations.

Regarding treaty breach, international law has clearly established that a breaching party accrues state responsibility. Furthermore, in the event of a treaty breach, the prohibition on the use of force under Article 2(4) of the UN Charter would remain unaffected.[32] In other words, a breach of the peace treaty could not, under any circumstances, lead to the use of force to ensure compliance with it.

Conclusion

This article has outlined some initial reflections on a potential peace treaty for the Korean Peninsula.

There is no doubt that the treaty we have contemplated here would have a profound impact on the international peace regime, with the potential of bringing stability to both the Korean Peninsula and the greater East Asia region. While the prospect of a peace treaty has only just begun to develop, this article highlights some preliminary considerations from an international law perspective, including the form of the agreement, the parties involved, possible legal implications, and the issue of breach.

First, with respect to form, any agreement would likely be a treaty within the meaning of Article 2(1) of the VLCT and international law would apply. Second, with respect to the parties, both Koreas, the United States, and China could all play a role as formal signatories, but there remains the possibility of a purely inter-Korean treaty. Third, as the discussion above outlined, there are several possible legal implications of a binding agreement, including the treaty’s foremost effect of terminating the Korean War and superseding the 1953 Armistice Agreement. The legal consequences of denuclearization, international humanitarian law, and human rights law also all ought to be considered and will undoubtedly be affected by an inter-state treaty.

Finally, all parties to the treaty would be legally obliged to respect their commitments in accordance with the principle of pacta sunt servanda. A breach of the treaty would likely entail state responsibility, but a breach could not, under any circumstances, justify the use of force to ensure compliance with the treaty.

 


Barrister and visiting lecturer in public international law at King’s College London, former Assistant Legal Adviser at the Foreign & Commonwealth Office.

** Legal consultant specializing in mediation, peace processes and government advisory work.

[1] Agreement Concerning a Military Armistice in Korea, July 27, 1953, T.I.A.S. No. 2782, 4 U.S.T. 234.

[2] Hague Convention (IV) Respecting the Laws and Customs of War on Land art. 36, Oct. 18, 1907, 36 Stat. 2227; Hague Convention (II) with Respect to the Laws and Customs of War on Land art. 36, July 29, 1899, 32 Stat. 1803.

[3] Panmunjeom Declaration for Peace, Prosperity and Unification of the Korean Peninsula, (Apr. 27, 2018), full text at http://english1.president.go.kr/BriefingSpeeches/Speeches/32 [hereinafter Panmunjeom Declaration].

[4] Id., art. 3(3).

[5] Joint Statement of President Donald J. Trump and Chairman Kim Jong Un at the Singapore Summit, para. 2 (June 6, 2018), full text at http://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-summit/ [hereinafter Joint Statement].

[6] Vienna Convention on the Law of Treaties art. 2(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331.

[7] Anthony DiFilippo, North Korea’s Denuclearization and a Peace Treaty, 7 North Korean Rev. 1, 7-8 (2011).

[8] Panmunjeom Declaration, supra note 3, art. 3(3).

[9] Id.

[10] Patrick M. Norton, NAPSNet Policy Forum Online #2 — Norton, “Ending the Korean Armistice,” Nautilus Inst. for Security & Sustainability: NAPSNet Pol. F. (Mar. 29, 1997), http://nautilus.org/napsnet/napsnet-policy-forum/napsnet-policy-forum-online-2-norton-ending-the-korean-armistice/.

[11] Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia (Algiers Agreement), Dec. 12, 2000, 40 I.L.M. 260.

[12] Declaración de paz de Itamaraty, Ecuador-Peru, Feb. 17, 1995, full text at http://peacemaker.un.org/ecuadorperu-itamaratydeclaration95.

[13] Washington Declaration, Jordan-Isr., July 25, 1994, full text at http://www.kinghussein.gov.jo/w-declaration.html.

[14] Norton, supra note 10.

[15] Martin Wählisch, Peace Settlements and the Prohibition of the Use of Force, in The Oxford Handbook of the Use of Force in International Law, 964 (Marc Weller ed., 2017).

[16] Norton, supra note 10; see also Vienna Convention on the Law of Treaties, supra note 6, art. 59.

[17] Wählisch, supra note 15, at 966.

[18] Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), Judgment, 2005 I.C.J. 168 (Dec. 19).

[19] Wählisch, supra note 15, at 966.

[20] Case Concerning Armed Activities on the Territory of the Congo, 2005 I.C.J. at 211.

[21] Reuters, US, South Korea Agree to Suspend Joint Military Exercise, Int’l Bus. Times (June 18, 2018), http://www.ibtimes.com/us-south-korea-agree-suspend-joint-military-exercise-2692215.

[22] Joint Statement, supra note 5, para. 4.

[23] Panmunjeom Declaration, supra note 3, art. 1(5).

[24] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 34, June 8, 1977, 1125 U.N.T.S. 3.

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol II) art. 4(3)(b), June 8, 1977, 1125 U.N.T.S. 609.

[26] See, e.g., Framework Agreement on the Status of Nationals of the Other State and Related Matters between Sudan and South Sudan, Sept. 27, 2012, full text at http://peacemaker.un.org/sudansouthsudan-framework-nationals2012.

[27] Human Rights in North Korea: June 2018 Briefing Paper, Human Rights Watch, http://www.hrw.org/news/2018/06/05/human-rights-north-korea.

[28] Panmunjeom Declaration, supra note 3, art. 3(4).

[29] Joint Statement, supra note 5, para. 3.

[30] A Performance-based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, Apr. 30, 2003, full text at http://2001-2009.state.gov/r/pa/prs/ps/2003/20062.htm.

[31] Wählisch, supra note 15, at 986.

[32] Id. at 976.

 

Book Review by Richard A. Falk: International Law in a Transcivilizational World by ONUMA Yasuaki

International Law in a Transcivilizational World by ONUMA Yasuaki, Cambridge University Press, 2017.

Reviewed by Richard A. Falk

On Civilizational Perspective

Professor ONUMA Yasuaki, long considered among the most eminent of international law scholars of our time, has made a clarion call in recent years for what he calls “a transcivilizational approach” to the study and appreciation of international law. Onuma san[*] is judicious in balancing the contributions of international law to a more humane world order against its limitations in regulating behavior from the perspective of peace, sustainability, and equity or justice. What Onuma san has given us in the book under review is a magisterial treatise that provides the best available pedagogic foundation currently available for the study of international law as a discipline. Although clearly written, it is demanding because of its jurisprudential sophistication, historically grounded doctrinal assessments, and comprehensive treatment of the major legal issues on the current global policy agenda.

A few years ago, in an apparent effort to reinforce his Japanese identity, Onuma san wrote to friends and colleagues, requesting that they address him as “ONUMA (or Onuma) san” in accord with Japanese protocol, and even if closely associated, refrain from the Western habit of calling friends by their first names, that is, “Yasuaki.” I suspect that this outstanding scholarly contribution is also an outgrowth of such a maturing of Onuma san’s psycho-political consciousness, resting on an insistence that the future legitimacy and effectiveness of international law will depend on whether it can overcome what Onuma san calls its West-centric bias and orientation.

For many years I worked rather closely with another leading, now deceased, Japanese scholar, Yoshikazu Sakamoto, in a multi-civilizational project, the World Order Models Project.[1]  What makes this reference relevant is that Sakamoto’s preoccupation, alone among the dozen or so participating scholars from around the world representing a wide range of legal traditions and policy priorities, was focused on “identity” as the prime world order challenge of the late twentieth-century post-colonial world. It makes me wonder now whether there is something about Japanese cultural sensitivity in the period since the end of World War II that seeks to find a distinctive path into the “lifeworld” (Habermas) that is authentically faithful to the Japanese national circumstance, yet (i) maintains its intellectual and emotional distance from the United States/Europe and China and (ii) possesses the transnational tools and accompanying outlook needed to solve the challenges facing what Onuma san calls “humankind,” which seems an apparent move in the direction of feminist political correctness, scrapping the more familiar terminology of “mankind.”

Onuma san appears somewhat anguished, not only by a keen awareness of the inherent “impossibility” of achieving a genuine transcivilizatonal approach, given the dominance of Euro-American civilization in the evolution of international law and world order, but also by his own intellectual formation. In his words, “I am just one of many modern persons whose intellectual personality has been constructed by modern European civilization.” He adds, “I am a hybrid being, only part of which is an Asian or Japanese” (p. 7). In another passage Onuma san, almost in a confessional idiom writes, “We are all children of Grotius, Kant and Marx, and therefore ‘Europeans’ in the figurative sense” (p. 13).[2]

He does modify this assertion by the observation that “contemporary members of humankind are also children of Buddha, Confucius, Mohammad, and many other non-Western thinkers.” (p. 13). I really do have some doubts about this unsubstantiated claim, which would seem to suggest that we are all, to some extent, transcivilizational without even realizing it. As a sympathetic reader, I find these non-Western influences hard to find either in Onuma san’s treatment of international law or in my own thinking about comparable issues. To be sure, there is presently a disposition toward humane solutions of global problems and the encouragement of peaceful approaches to international disputes and conflict situations, but such views seem similarly rooted in Western humanist traditions of thought and not necessarily a reflection the influence of non-Western philosophical wisdom.

One feature of Onuma san’s approach that cuts across the grain of typical international law theorizing is his insistence on understanding present reality by adopting a historical approach to international legal doctrine and norms. Onuma san lets us know rather starkly that he has “learned far more from modern European works published from the sixteenth century to the early twentieth century than from post-World War II theories” (p. 13). He does not engage directly with contemporary international law theorizing in the course of his seven-hundred-plus page book, which is somewhat puzzling, since Onuma san’s perspective focuses on the impact of recent events, especially the collapse of European colonialism, followed by the international participation and economic growth of the non-West, especially of Asian countries.  Onuma san strongly believes that these altered material conditions in the character of international relations must make some fundamental adjustments to the nature of international law if it is to gain the global legitimacy required to be effective (p. 53).

Such a concern seems particularly timely in view of the helplessness of the international order to bring peace and stability to the Middle East or to overcome the legal nihilism of a new crop of political leaders, highlighted by the lawlessness of the Trump presidency.

Reflecting personally on such concerns, I realize that I am less hybrid than Onuma san, although I completely agree with his aspirational insistence on transcivilizational authenticity for both historical and practical reasons. I suspect that I am less hybrid because my Western embeddedness takes for granted questions of identity and perspective, which has led my critical energies to express themselves as an internal critic of Western civilization. I am sure that this non-self-consciousness, when it comes to civilizational identity, also follows from the way international law is studied in the United States and Europe, employing an ahistorical jurisprudence rooted in Western values and universalizing pretensions, as well as resting on similar conceptions of the international political context. Although I have been a critic of the way Western policymakers continue to manipulate international law to rationalize a belligerent foreign policy, I have not thought of these dangerous shortcomings as projections of civilizational values but rather as a matter of indulging an insatiable geopolitical appetite.[3]

Turning to substance, Onuma san’s treatment of international law is convincingly grounded in the sociopolitical realities of our time, making it hard to dissent from the lessons he draws. Onuma san places stress on the fact that ninety percent of the world’s peoples are non-Western, and that power relations are changing in ways that favor Asia and diminish the political and economic dominance of the West on a material level. Yet—and here is where Onuma san’s call for change in approach and content becomes most relevant—he anticipates (in a rather complex and somewhat confusing manner) that there will be a continued dominance of Western ideational influence, which he believes will persist deep into the twenty-first century, even in the likely event that China becomes the world’s largest economy. Whether Onuma’s prediction will hold in the event that Trump’s policy of relinquishing global leadership persists is quite uncertain.

Conceptualizing International Law

Onuma san is very clear about how he understands basic issues bearing on the nature and effectiveness of international law. He blames what he calls “domestic model thinking” for a frequent underestimation of the effectiveness and importance of international law to the maintenance of an orderly world. In effect, the weak institutionalization of authority and lack of enforcement capabilities overlook the degree to which State actors and a variety of non-State actors benefit from a stable normative environment that encourages compliance, reliability, and moderation. Onuma san makes the frequently overlooked point that violations of domestic law are common without drawing into question the reality of the legal order. We must learn to evaluate international law in relation to the specific functions it performs given its State-centric modes of operation.

Unlike domestic law, international law is less focused on regulating behavior than in a series of other undertakings that Onuma san enumerates as “prescriptive, adjudicative, justificatory, legitimating, communicative,  rule declaratory, and constructive (or constitutive)” (pp. 30, 585). These functions have more to do with the conduct of statecraft, civic activism, and policy planning than they do with governmental adherence to rules. In this vein, Onuma san is critical of the parallel tendency of international jurists to emphasize adjudication in their presentation of the field. This emphasis exaggerates the relevance that tribunals and judicial decisions have to the diverse modes by which international law fulfills its various functions.

Not surprisingly, Onuma san credits this more existentially-grounded appreciation of international law to his work outside the classroom and library, mentioning specifically his work as “a human rights activist and as an advisor to a member of the Japanese cabinet” (p. 8). In effect, Onuma san wants us to understand that it is in these non-judicial settings of advocacy and advising that the guidelines associated with international law often make their most significant contribution. What Onuma san proposes for the study of international law is a less academically oriented understanding and more of a practitioners’ viewpoint.

Again I am struck by the tensions between Onuma san’s erudition and reliance on political philosophy (especially, Hobbes, Kant, Machiavelli, Karl Schmitt, even Marx), as well as early modern juridical works (especially, Grotius), which stand in contrast to his experiential unbookish insistence on comprehending the scope and functioning of international law by contact with the doing rather than by parsing the nuances of doctrine as enunciated by the judges of the International Court of Justice or the elaborate pontifications of leading jurists. In a similar spirit, Onuma san downplays the constraining role of international law, particularly relating to the behavior of major States, insisting that if a legal system works well, disputes are generally avoided, and behavioral guidelines are invisibly respected as a matter of course or to satisfy national interests.

Another feature of Onuma san’s approach is the avoidance of idealism and legalism in his assessment of what to expect with respect to the links between international law and justice: “[T]he work of international law is in an irrational world where voices seeking justice are often ignored. It is sad to recognize such a reality, but one should not escape from it” (p. 28). In this spirit, which seems more in keeping with a variety of skeptical twentieth-century European thinkers than with a manifestation of non-Western thinking, Onuma san describes himself as “a pessimist in approach” whose advice is “to doubt everything, including one’s own sense, intuitions, premises, and understandings, based on his or her past study and experience”(pp. 28-29).[4]

There are many thoughtful reflections offered by Onuma san as to the development of international law over time—and particularly the emergence of the territorially-oriented European system of sovereign states and its globalization in the past several decades. This transformation of international law reflects both the success of the anti-colonial movement—the greatest pushback ever experienced by the West as a global system—and the essential acceptance of this European way of organizing international relations by the newly independent States of Asia and Africa. This erosion and extension of Euro-centricism has made international law “less imperialistic, racist, male-centric” and hence more globally legitimate (p. 85). At the same time, there is much more to be done in the ideational sphere to attain Onuma san’s transcivilizational goals. He is acutely aware that most writings on international law continue to be reflections predominantly of the Western mentality. This civilizational provincialism will not be overcome until “global discursive space” exhibits a greater responsiveness to the civilizational outlook of the new demographic and normative balances that are heavily weighted in favor of non-Western peoples.

Onuma san’s views here do encourage greater self-reflection and self-criticism by those of us who are representative of the West, and this is good. In some ironic sense, for this reason I find Onuma san’s treatise potentially more valuable for Western readers than for others. I suspect that the Asian scholarly community, especially after twenty years of anti-Western critiques asserting the relevance of “Asian values,” needs no coaching by Onuma san as to the desirability of a transcivilizational perspective.

I also find that some confusion surrounds the post-Cold geopolitical appropriation of human rights, narrowly understood in the West as civil and political rights and invoked as a pretext for military interventions in such non-Western countries as Afghanistan, Iraq, and Libya. In other words, in the post-colonial and post-Cold War world, the West has sought to retain its global role by claiming the high moral ground, creating an entitlement to override non-intervention and self-determination norms that are given priority by most non-Western states.

This development raises two relevant concerns. First, the West claims that the human rights discourse is transcivilizational in character, by its linkage of rights to the generic quality of being “human,” even though its formulations are beholden to Western liberalism. Secondly, the relevance of the continued Westernized dominance of force projection, a salient material reality largely under the aegis of the United States, seems not sufficiently appreciated by Onuma san in his long final chapter on the strenuous efforts of international law—as set forth most authoritatively in the UN Charter—to restrict recourse by States to force. It would appear that this central feature of the global security system raises some serious unanswered questions about the material decline of the West. We still live in a world where all debates and practice pertaining to intervention continue to be discussions about whether the West should intervene in the non-West, and never the reverse.[5]

A Concluding Assessment

There are thoughtful and analytically rigorous chapters on the main themes of international law, each of which warrants extensive comments beyond the limits of this review. In general, rather than a transcivilizational view, what I find more consistently present is an interpretation of the substance of international law from a global perspective that privileges the human interest, yet is restrained by Onuma san’s form of pessimistic realism that is sensitive to the primacy of a State-centric world order that rests on the interaction of egoistic national interests.

To illustrate the accelerating pace of history, Onuma san’s treatise was published before the world was gripped by a populist backlash in politics that has reversed prior democratizing trends. This has produced a surge of chauvinistic nationalisms and a series of elected leaders with autocratic governing styles in some of the world’s most influential countries, including Russia, India, Japan, Brazil, Turkey, and the United States. In addition, the worst nuclear crises in fifty years have threatened catastrophe on the Korean Peninsula as well as in the Middle East with respect to Iran. Beyond this, the Trump presidency has deprived the world of leadership with respect to major issues requiring global cooperation, such as climate change, global migration and treatment of refugees, and famine conditions in several countries. These issues call for what might be considered a meta-civilizational approach that addresses current global challenges on the basis of shared human interests. In my view, Onuma san provides the outlook and understanding that would encourage such enlightened behavior, but it is only presented as a sub-text and is perhaps overshadowed by the less substantiated claim that this treatise provides a transnationalized approach to international law traditions that still prevail under the ideational hegemony of the West despite its partial loss of materialist leverage due to the rise of the non-West.

Despite my quibbles here and there, this is a great book that deserves study by all those concerned about the past, present, and future of international law. Every serious student of the subject can hardly get along without meeting the various challenges posed and interpretations offered by Onuma san in the course of this all-encompassing treatise.

Onuma makes a stirring final appeal that is worth pondering: “International law is an indispensable means for people to realize the material and spiritual well-being of humanity. As such, people should constantly press national governments, international organizations, and other subjects to respect and abide by it” (p. 666). I find this kind of profession of faith in the importance of international law to be a compelling conclusion, including its unexplained yet resonant reference to “spiritual well-being.” This may be the most indispensable element of all!

 

[*] Professor ONUMA Yasuaki has requested that his name appear, in keeping with Japanese tradition, as ONUMA or Onuma san.

[1] See On the Creation of a Just World Order: Preferred Worlds for the 1990s (Saul H. Mendlovitz ed., 1975).

[2] Elsewhere, Onuma san suggests that his intellectual personality was also formed by Buddhist and Confucian thought operating on an “unconscious level” (p. 7). I am puzzled by what is meant in this regard with respect to the concrete pattern of opinions and judgments offered in the course of this most comprehensive study of international law.

[3] My own approach to these issues is most recently set forth in Richard Falk, Power Shift: On the New Global Order (2016).

[4] Perhaps, as a gesture to a transcivilizational approach, Onuma san concludes this line of thought with the following quotation of Confucius: “[I]t should be a pleasure to learn and review constantly and repeatedly” (p. 29). I read such advice as not an expression of pessimism or wisdom from the East but, on the contrary, the near-universal view that learning should be a satisfying lifelong activity that allows ideas and opinions to remain alive so long as they do not become dogma.

[5] This persistence of Western dominance in the security domain does not alter my belief that the unlearned lesson of the Vietnam War is the declining capacity of Western military superiority to control the political outcomes in non-Western contexts. For discussion, see Revisiting the Vietnam War: The Views and Interpretations of Richard Falk (Stefan Andersson ed., 2017).

Symposium: Puerto Rico and the Right of Accession

YJIL Forum is delighted to present this Symposium featuring four responses to Joseph Blocher and Mitu Gulati’s Puerto Rico and the Right of Accession, recently published in Volume 43.2 of the Yale Journal of International Law. YJIL Forum is sincerely grateful to Judge Gelpí, Professors Delaney & Ponsa-Kraus, Dean Shin, and Professor Morales for their thought-provoking responses.

Comment on Blocher & Gulati’s “Puerto Rico and the Right of Accession”
Written by Gustavo A. Gelpí

Fantasy Island
Written by Erin F. Delaney and Christina D. Ponsa-Kraus

Group and Individual Rights in the Argument for Puerto Rican Accession
Written by Patrick S. Shin

Puerto Rican Identity and the Trouble with National Self-Determination: A Response to Joseph Blocher and Mitu Gulati’s “Puerto Rico and the Right of Accession”
Written by Daniel I. Morales

Comment on Blocher & Gulati’s “Puerto Rico and the Right of Accession”

Written by Gustavo A. Gelpí*

Is the U.S. Congress under a constitutional obligation to admit Puerto Rico as the fifty-first state of the Union if this is the ample preference of U.S. citizen voters therein?  Or if these voters favor another form of permanent union with the United States, is Congress required to allow for such arrangement?[1] Finally, can Congress override the overwhelming rejection of independence by the U.S. citizens in Puerto Rico[2] and instead expel the territory and grant its independence?  Professors Blocher and Gulati eloquently discuss these enigmas from domestic and international law perspectives and conclude that, as to domestic law, “the answers are not obvious” and pose a “difficult question.” In contrast, they explain, international law indeed suggests a legal right to self-determination. This comment builds upon examples included in Blocher and Gulati’s Article using judicial, congressional, and historical precedents, highlighting that any decision about Puerto Rico’s future must consider its impact on U.S. citizens residing in the Commonwealth.

Before proceeding, I feel compelled to address one particularly important matter: Puerto Ricans are natural-born U.S. citizens. This status as U.S. citizens is the backdrop to answering the questions posed by Blocher and Gulati.  Persons born in Puerto Rico have been U.S. citizens since 1917 by virtue of the Jones Act.[3]  Congress, however, replaced this statutory citizenship with natural-born citizenship, effective for all persons born in Puerto Rico, after January 13, 1941.[4]  Accordingly, persons born in the U.S. territory have enjoyed the same birthright citizenship as their stateside-born brethren for seventy-seven years.  Congress, in the exercise of its power over the territory it has now held for 120 years, must be cognizant of the portentous nature of such citizenship.[5]  This simply is not an instance of the United States possessing and/or controlling territory not populated nor governed by its own citizens.

Judicial Precedent

Professors Blocher and Gulati highlight the nefarious Insular Cases and the century-plus distinction between incorporated and unincorporated territories as proof that Congress can unilaterally decide Puerto Rico’s future. These cases are still the law of the land despite their imperialistic and racial underpinnings.[6]  If Puerto Rico remains unincorporated, Congress, as a matter of constitutional law, retains the seemingly limitless power to determine whether to maintain the territory’s status quo, admit it to the Union, call for some other political arrangement, or simply expel it. Recent Supreme Court jurisprudence appears to reaffirm this power. In 2016, in Puerto Rico v. Sanchez Valle, the Supreme Court held that, for purposes of the Double Jeopardy Clause, the territory’s sovereignty emanates from Congress.[7]  Despite not mentioning the Insular Cases, the majority opinion in Sanchez Valle quite arguably reaffirms Congress’ power to reshape Puerto Rico’s political destiny, stating that “Congress has broad latitude to develop innovative approaches to territorial governance . . . .”[8]

The authors highlight that there may be some constitutional limit to Congress’ territorial power over Puerto Rico.  In Boumediene v. Bush the Supreme Court, citing earlier precedent, recognized that the Insular Cases involved territories “with wholly dissimilar traditions and institutions” that Congress intended to govern “temporarily.”[9]  The Court further held that “it may well be that over time the ties between the United States and any of its unincorporated territories strengthen in ways that are of constitutional significance.”[10]  Certainly the Puerto Rico of 2018 is not a territory of dissimilar traditions; after 120 years of U.S. dominion, Congress has chiseled it into a de facto state.[11]  For example, Puerto Rico has an Article III federal court identical in jurisdiction, powers, and responsibilities to those in the States.[12]  No other non-state U.S. jurisdiction, except the District of Columbia, ever enjoyed an Article III court until admitted to the Union.[13]

The authors also sustain that Boumediene may support the proposition that the U.S. citizens of Puerto Rico have a constitutional right to control their political destiny in some way, thus limiting Congress’ power.  Boumediene, which was not cited in Sanchez Valle, states that “[a]bstaining from questions involving forward sovereignty and territorial governance is one thing.  To hold that the political branches have the power to switch the Constitution on and off at will is quite another.”[14]  On the one hand, Boumediene probably does not limit Congress’ territorial power to define a territory’s status, because the Court abstained from questions of sovereignty. On the other hand, Boumediene also implies that the power is limited by checks and balances, which allow the courts to ensure that Congress does not violate citizens’ constitutional rights. The result is that, absent further pronouncements by the Court, Congress’ power to define a territory’s status is not limited. Only its power over citizens inhabiting a territory is.

Congressional Precedent

The authors allude to Congress’ enactment of PROMESA shortly after the Supreme Court decided Sanchez Valle as proof that Congress can act unilaterally. They further state that opening the door to Chapter 9 of the Bankruptcy Code came at a “steep price” for Puerto Rico.[15]  From a strictly democratic perspective such is the reality.  By establishing an unelected Financial Oversight Board capable of overriding the elected Governor and Legislature,[16] PROMESA signals the very end of the republican form of government established when Congress approved Puerto Rico’s Constitution in 1952.[17]

PROMESA provides for a fiscal board that controls the territory’s finances.[18]  Intended as a blessing to save Puerto Rico from economic collapse, it indeed comes with a curse.  The federal statute de facto amends Puerto Rico’s Constitution. It makes the board an entity of the territorial government, rather than of the federal government,[19] and places the same above the two elected branches of local government, even sub silentio above the Puerto Rico Supreme Court, for purposes of fiscal actions.[20]  The members of the board are also appointed by the President without Senate confirmation and therefore not commissioned via a local appointment process.[21]  In practical terms, the laws and actions of Puerto Rico’s elected officials are subservient to the board.  While U.S. states could argue that this is an egregious violation of state sovereignty, for Puerto Rico it becomes a simple exercise of unfettered territorial power.[22]

Assuming that PROMESA withstands any constitutional challenge before the Supreme Court, it provides congressional precedent to further shape, in any way and form, the political destiny of Puerto Rico.  Lacking its once-certain political autonomy as a state-like entity, the territory remains at Congress’ whim.  While statehood or independence—or even a modification of the status quo within the territorial framework—are possible future paths with clear consequences, [23] Congress could instead continue to hold the island in perennial limbo as it has done for 120 years.  For example, Congress could incorporate Puerto Rico and not make it a state indefinitely—indeed, it took ninety-two years for the incorporated territory of Alaska to become a state.  Likewise, Congress could maintain the current commonwealth status without modifying it, or it could further strip the territory’s faculties, thus dialing back even more the powers it gave to the territory over the last century.

Historical Precedent

The authors point to the Philippines as historical precedent of unilaterally disposing of a territory via independence.  The once-U.S. territory was acquired from Spain along with Puerto Rico and Guam in 1898.  In 1916 Congress granted the Philippines autonomy.[24]  In 1935 it established the Commonwealth of the Philippines as a transition to independence.[25]  Finally, in 1946 the Philippines became an independent sovereign. At no point did the people of the Philippines vote for independence.[26]

Such precedent does not stand alone, and there is a more recent example.  In 1904 the United States acquired from Panama, via treaty, what would be known as the Canal Zone.[27]  This U.S. territory reverted to Panama after the two nations ratified another treaty in 1978.[28] Both the Philippines and Canal Zone evidence that Congress historically has not been shy about entirely abdicating its territorial as well citizenship and nationality powers over a territory when circumstances so warrant.  For example, once the Philippines became a sovereign nation, its citizens born therein no longer held U.S. national status.  Similarly, in the Canal Zone, upon returning the same to Panama, individuals subsequently born there would no longer be U.S. citizens. Absent statehood or a specific pronouncement by the Supreme Court, if Congress maintains or modifies the current commonwealth scheme, or opts for territorial secession, there is no guarantee that persons born in Puerto Rico after a specific date provided by statute will receive natural-born citizenship, statutory citizenship, or even U.S. national status.

Conclusion

I commend and applaud Professors Blocher and Gulati for preparing such an excellent and persuasive Article.  The piece demonstrates that there is likely no legal domestic impairment to the exercise of Congress’ territorial power to unilaterally determine Puerto Rico’s future political status or the citizenship rights of future generations unless the Supreme Court were to limit the power’s extent.  At the same time, the Article also accurately depicts the United States’ lack of adherence to the democratic principle of consent of the governed in its own territorial possessions.[30]  Again, such a scenario is even more appalling given the fact that an overwhelming majority of the inhabitants of Puerto Rico are natural-born United States citizens.[31]

 

* United States District Judge (2006-present) and author of The Constitutional Evolution of Puerto Rico and Other U.S. Territories 1898-Present (2017).

[1] See, e.g., Compact of Permanent Union between Puerto Rico and the United States: Report of the Ad Hoc Advisory Group on Puerto Rico (1975) (report and proposal by joint group appointed by the U.S. President and the Governor of Puerto Rico to study possible enhancements to Puerto Rico’s Commonwealth status); H.R. 11200 & 11201, 94th Cong. (1975) (proposing the Compact of Permanent Union between Puerto Rico and the United States, which ultimately failed in Congress).

[2] See Alexia Fernández Campbell, Puerto Rico’s Most Ambitious Push yet for Statehood, Explained, Vox (Jan. 11, 2018), https://www.vox.com/policy-and-politics/2018/1/11/15782544/puerto-rico-pushes-for-statehood-explained (“Puerto Rico’s two main political parties represent those who are in favor of statehood and those who want to remain a commonwealth. A smaller number of Puerto Ricans want full independence.”).

[3] Jones Act (Puerto Rico), ch. 145, 39 Stat. 951 (1917) (codified at 8 U.S.C. § 1402 (1952)).

[4] 8 U.S.C. § 1402 (1952).

[5] Persons born in Puerto Rico are not the only natural-born U.S. citizens residing therein. A significant number of natural-born U.S. citizens born in the States have also made the U.S. territory their home, as have many naturalized U.S. citizens. See Arnold H. Leibowitz, Defining Status 161-62 (1989).

[6] Boumediene v. Bush, 553 U.S. 723, 759 (2008) (“This century-old doctrine informs our analysis in the present matter.”).

[7] 136 S. Ct. 1863, 1876-77 (2016).

[8] Id. at 1876.

[9] 553 U.S. at 759 (citing Reid v. Covert, 354 U.S. 1, 14 (1957).

[10] Id. at 758.

[11] See Examining Bd. of Eng’rs v. Flores de Otero, 426 U.S. 572, 594 (1976) (“[T]he purpose of Congress in the 1950 and 1952 legislation was to accord to Puerto Rico the degree of autonomy and independence normally associated with States of the Union . . . .”).

[12] Id. at 595 n.26; see also Gustavo A. Gelpí, The 50th Anniversary of the District of Puerto Rico Article III Court, Fed. Law., July 2016, at 18, 33 (2016).

[13] Gelpí, supra note 12.

[14] 553 U.S. at 765.

[15] Joseph Blocher & Mitu Gulati, Puerto Rico and the Right of Accession, 43 Yale J. Int’l L. 201, 219 (2018).

[16] See 48 U.S.C.A. § 2141 (West 2016); Juan R. Torruella, Why Puerto Rico Does Not Need Further Experimentation with Its Future: A Reply to the Notion of “Territorial Federalism”, 131 Harv. L. Rev. F. 65, 94 (2018) (“The Board directs and sets schedules, by which the Governor prepares and submits fiscal plans required by the Act, and by which the Board approves, disapproves, or certifies such plans; but in the absence or default of such plans, the Board ‘in its sole discretion’ may develop said plans and submit them to the Governor and Legislature, whereupon they shall be ‘deemed approved by the Governor.’”).

[17] See Examining Bd. of Eng’rs, 426 U.S. at 594.

[18] Pub. L. No. 114-187, 130 Stat. 549 (2016) (codified at 48 U.S.C.A. §§ 2101–2241 (West 2017)).

[19] 48 U.S.C.A. § 2121(c)(1) (West 2017).

[20] See id. §2141.

[21] Id. § 2121(e).

[22] Id. § 2121(b)(2) (“Congress enacts this Act pursuant to article IV, section 3 of the Constitution . . . which provides Congress the power to dispose of and make all needful rules and regulations for territories.”).

[23] As to the possibility of statehood, ninety-seven percent of those voting in the most recent plebiscite favored statehood. Frances Robles, Despite Vote in Favor, Puerto Rico Faces a Daunting Road Toward Statehood, N.Y. Times (June 12, 2017), https://nyti.ms/2tf9o5X. As for modifying the status quo, see Rafael Hernández-Colón, The Evolution of Democratic Governance Under the Territorial

Clause of the U.S. Constitution, 50 Suffolk U. L. Rev. 587, 617 (2017) (“These changes must prevent the denial of self-government embodied by PROMESA from happening again.”). Independence is possible but has historically lacked political support. See Fernández Campbell, supra note 2.

[24] Philippine Autonomy Act, ch. 416, 39 Stat. 545 (1916).

[25] Philippine Independence Act, ch. 86, 48 Stat. 456 (1934).

[26] Leibowitz, supra note 5, at 54 (“The 1934 act, in addition to the promise of independence, gave the Philippines the right to draft their own constitution. The constitution was to be voted upon but the question of independence itself, at the request of the Philippine authorities, was not submitted to a plebiscite.”).

[27] Convention Between the United States and the Republic of Panama for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans, Pan.-U.S., Nov. 18, 1903, 33 Stat. 2234.

[28] Panama Canal Treaty, Pan.-U.S., Sept. 7, 1977, T.I.A.S. No. 10,030 (entered into force Oct. 1, 1979).

[29] See Gonzales v. Williams, 192 U.S. 1, 12-13 (1904).

[30] See Hernández-Colón, supra note 23, at 616 (“After the significant harm Puerto Rico’s government will endure as a result of PROMESA, Puerto Rico’s relationship with the United States—based on the principle of consent of the governed—will have been jeopardized.”).

[31] See Torruella, supra note 16, at 97 (“Puerto Rico is populated by U.S. citizens, a not-inconsiderable fact to be kept in mind by those looking to further experiment with their destiny. . . . Why geographic location should make any difference or have any relevance to a determination of such a fundamental question as the rights to which a citizen is entitled defies any logic or valid legal principle . . . .”) (emphasis in original).

Fantasy Island

Written by Erin F. Delaney & Christina D. Ponsa-Kraus

When it comes to the status of Puerto Rico, sides have been staked out, factions formed, lines drawn.  For many decades, Puerto Ricans have been split three ways: roughly half advocates an improved version of the current “commonwealth” status; roughly half supports the island’s admission into the Union as the fifty-first state; and a tiny but vocal minority favors independence.  Yet by taking an unorthodox approach to the question of Puerto Rico’s future, Joseph Blocher and Mitu Gulati may have managed to find unexpected common ground.  With an intriguing and provocative set of arguments, they have made a welcome contribution to what has long looked like an intractable debate.

The authors argue that Puerto Rico’s status problem is ultimately a legal issue: one that sounds in the register of international law and the law of self-determination, even as it must be resolved in a manner consistent with domestic constitutional law.  And they suggest, boldly, that their analysis might lead to new obligations on the part of the United States.

The Article asks whether the United States could expel Puerto Rico, and concludes, based on the authors’ reading of international law, that it could not, “for almost exactly the same reasons that [international law] gives Puerto Rico a right to independence.” (Blocher & Gulati, p. 226).  But there’s more.  Not only could the United States not expel Puerto Rico, but on the contrary, it arguably has a legal obligation to allow Puerto Rico to become a state of the Union—at least under international law, and possibly even under U.S. constitutional law.

With that one-two punch, Blocher and Gulati could conceivably make everyone in Puerto Rico happy: the “commonwealthers,” whose greatest fear is expulsion; the “statehooders,” whose nightmare is rejection; and the independentistas, who dream of separation.

The authors first present their view of the relevant international law as updated by a law of self-determination for the twenty-first century.  They explain that, historically, international law recognized the right of sovereigns to control their borders, including by ceding portions of their territory.  And they correctly observe that the U.S. Supreme Court’s Insular Cases (1901) articulated the domestic constitutional version of this understanding.  But they persuasively contend that “it is implausible to think that this traditional rule” would hold sway today. (Blocher & Gulati, p. 225).  The principle of self-determination, which was initially applied to aid colonies seeking independence, cuts a broader swath now, they argue, and should be understood as limiting a nation’s effort to expel a territory.  Unilateral action by the central government against a territory or region would not be acceptable; consent from the territory’s residents would be required before expulsion.

The authors then apply their argument to the case of Puerto Rico.  They focus on Public Law 600: the most contested legal text in the island’s status debate.  A statute passed by the U.S. Congress in 1950, Public Law 600 authorized the adoption of a Puerto Rican constitution in these words: “[F]ully recognizing the principle of government by consent, this Act is now adopted in the nature of a compact so that the People of Puerto Rico may organize a government pursuant to a constitution of their own adoption” (Pub. L. 81-600, §1 (1950)) (emphasis added).  Ever since then, Puerto Ricans have argued over the meaning of the phrase “in the nature of a compact.”  Did the developments following the passage of Public Law 600—the adoption of the Constitution of Puerto Rico and, with it, the creation of the “Commonwealth of Puerto Rico”—transform Puerto Rico into a sovereign entity?  Were Puerto Rico and the United States now bound by a “compact” unalterable except by the mutual consent of the parties?  Or, even as it attained local self-government, did Puerto Rico remain a territory of the United States?  Was the island still governed by Congress under the Territory Clause of the U.S. Constitution and still subject to Congress’ plenary power, despite its enjoyment of substantial autonomy?

The stakes could not be higher.  If Puerto Rico is a separate sovereign, then Puerto Ricans have already realized the basic goals of self-determination and, pursuant to Public Law 600, have structured a binding, sovereign-to-sovereign bilateral union with their former imperial overlord.  On this view, perfecting Puerto Rico’s status merely requires addressing a few remaining flaws in the arrangement—for example, finding a way to compensate for the island’s continuing lack of representation in the federal government.  But if Puerto Rico remains a territory, then it remains a colony, and self-determination has not been achieved.  Decolonization requires either statehood or independence.  (Congress’ creation in 2016 of a Federal Oversight and Management Board (FOMB) to handle the island’s ongoing economic crisis has strained the former view nearly to the breaking point. After all, the FOMB, which is composed of members appointed by the federal government and wields broad powers, looks a lot like… well, an imperial overlord.  Even so, the view that Puerto Rico is a separate sovereign somehow still has its defenders.)

Commonwealthers hold the former view; statehooders and independentistas the latter.  And there they have stood, staring each other down, neither side blinking, for nearly seventy years—thus making what Blocher and Gulati do next so improbable, it is almost heroic.

Taking the right of independence for granted (that’s not the improbable part: we all take that for granted), the authors make the case against the United States’ right to expel Puerto Rico.  And they do so from both of the perspectives described above: “If the compact between Puerto Rico and the rest of the United States is akin to a treaty between separate sovereigns, one set of international rules applies,” they write.  But if Puerto Rico remains a territory, “a separate set applies.” (Blocher & Gulati, p. 220-21). On the former view, expulsion would require some sort of fault.  On the latter view, Puerto Rico’s colonial status precludes expulsion.  They also briefly analogize the compact to a “contract”; arguing that it should be read in light of international law principles and of Puerto Rico’s colonial history, they reach the same conclusion.   Drawing on this argument about expulsion, in its inverse they find a right to accession—that is, a right for Puerto Rico to become a state in the Union.  And they find additional support for this right in the domestic constitutional context.

Is it too good to be true?  Puerto Rico gets a prohibition on its unilateral expulsion, and a right to statehood, without relinquishing the right to independence?

Commonwealthers will pause to wonder how it is that interpreting their “compact” as a treaty could ever lead to a prohibition on expulsion.  A central tenet of what is known in Puerto Rico as the “compact theory” holds that the compact created pursuant to Public Law 600 is emphatically not a treaty, precisely because of what Blocher and Gulati themselves explain about treaties: ordinarily, sovereigns retain the right to withdraw from them and even, under certain circumstances, to expel other parties.  The commonwealthers’ insistence on the “compact” framing has always been intended to ensure that the United States could not unilaterally expel Puerto Rico.  (They simultaneously maintain that Puerto Rico would retain its right to independence—a double standard they’ve never fully theorized.)  Indeed, a faction of the pro-commonwealth Popular Democratic Party—the soberanistas—has in recent years begun to insist that if commonwealthers want to argue that Puerto Rico is truly sovereign, then they have to accept that the compact really is just a treaty, and that either party to it could withdraw.  But Blocher and Gulati contend that, in Puerto Rico’s case, expulsion would be precluded.  And if one finds their argument convincing, then the authors have given the commonwealthers something they have always lacked: a theory that reconciles Puerto Rico’s alleged sovereignty with the existence of a binding compact.

Statehooders, meanwhile, will puzzle over how something as desirable as a right to statehood could follow from something as undesirable as a defense of the “compact.”  To them, the compact is a trap: if it really were binding, it would relegate Puerto Rico to a permanent second-class status—a union with the United States without voting representation in the federal government.  Such a status could not vindicate the goals of self-determination.  And thus, statehooders have argued that Congress has an obligation to provide for a process of self-determination that includes only those alternatives that would truly decolonize Puerto Rico: either statehood or independence.  Yet even if statehood were to prevail in such a process, it would not guarantee admission.  Once again, though, if one is persuaded by Blocher and Gulati, the authors have improbably managed to eliminate one of the most daunting obstacles to statehood: namely, Congress’ right to reject Puerto Rico.  And if they are right, then the compact is no longer a trap, because it simultaneously protects Puerto Rico from unilateral expulsion and confers upon Puerto Rico a right to statehood.

The independentistas, meanwhile, haven’t lost anything.  According to Blocher and Gulati, Puerto Rico would still have the right to independence.  The independentistas’ problem isn’t that international law does not recognize Puerto Rico’s right to separate from the United States; their problem is that almost no one in Puerto Rico wants to.  Then again, who knows?  If the authors persuade enough people that the United States is bound to Puerto Rico by a compact that not only prevents it from expelling the island but also confers upon the island a right to statehood, then maybe the reality will begin to sink in that Puerto Rico will never, no, really, never, ever be independent, and in quixotic defiance, Puerto Ricans will begin to turn away from the United States and embrace the idea of independence. Or not.  But it is tempting to fantasize, inspired by Blocher and Gulati’s invitation to imagine the impossible for Puerto Rico.

Putting aside whether one finds Blocher and Gulati’s arguments convincing, they have pulled off an unusual, if not unprecedented, feat. They have reframed Public Law 600 in a way that permits common ground and, upon that ground, they have built an argument that empowers Puerto Rico in its struggle for self-determination. In so doing, they offer support to all of the status positions on the island.

It does seem too good to be true.  Yet to say so is not to say anything Blocher and Gulati do not already know. As they sagely acknowledge with respect to the U.S. Constitution (though it may be said with equal confidence about international law), the value of a legal argument need not lie in whether one could successfully litigate it.  Legal arguments have moral and rhetorical power in a situation like this one, where resolution will come not in a courtroom, but in the larger political arena.

In the end, Blocher and Gulati show us that consensus might be found where no one has thought to look.  They have also taken on another received wisdom: the bedrock assumption that no matter what happens, nothing can happen unless the United States wants it to.  Taking a sledgehammer to that bedrock, they refuse to accept as given the notion that the United States has unilateral power to dictate Puerto Rico’s political fate.  Truth, it is said, is a matter of the imagination.

Group and Individual Rights in the Argument for Puerto Rican Accession

Written by Patrick S. Shin

Introduction

In Puerto Rico and the Right of Accession, Joseph Blocher and Mitu Gulati highlight various ways in which Puerto Rico’s sui generis—and uncertain—relationship with the United States impairs Puerto Ricans’ political standing. Blocher and Gulati claim that “the people of Puerto Rico[] . . . have a legal right to determine their own futures vis-à-vis their colonial powers”[1] and that “Puerto Ricans should have the ultimate say in whether to be more closely associated with the United States.”[2] Blocher and Gulati set forth persuasive arguments for why Puerto Rico’s status quo as an unincorporated territory is not sustainable as a matter of international law, constitutional theory, or politics.

What the authors make less clear, however, is the nature of the particular entitlements that Puerto Ricans could seek to assert in moving toward a more permanent resolution. Specifically, Blocher and Gulati do not explicitly distinguish between the various rights that Puerto Ricans have as a group and those that they have as individuals. This essay examines the distinction between group rights and individual rights in relation to disputes about Puerto Rico’s status.

In general, group rights—sometimes called collective rights—are rights that are held jointly by a group of people. Group rights are exercised or waived by the group as a whole. By contrast, individual rights are held severally by each member of the group. The mere fact that a right is held by someone in virtue of his or her group membership does not make it a “group right” in the relevant sense. A right may be individual in nature even if it is held incident to group membership.[3]  

A potential source of confusion is that group and individual rights need not be mutually exclusive. A person may hold an individual right to something and yet also be a member of a group that holds a collective right to that same thing. Political rights, for example, may attach to both individuals and groups consisting of those same individuals. Arguably, this is also the case with Blocher and Gulati’s articulated “right of Puerto Rican accession.”

Distinguishing Group and Individual Rights: An Example

Before turning to the specifics of the Puerto Rico context, a hypothetical may help illustrate how a single political process can encompass both group and individual rights. Suppose a city has a tradition of holding a parade every Columbus Day. The city has a policy that grants every high school in the area the right to send a student marching band to perform in the parade. However, in recognition of the moral controversies surrounding this holiday, the policy further provides that each high school’s participation must be approved by the school’s student body.

In describing the rights created by the Columbus Day parade policy, we might say that the policy gives high school students a right to decide whether or not to participate in the parade. This is surely true. But, upon reflection, we can readily notice that this “right” has both an individual and a group component.

If Rydell High is one of the schools covered by the Columbus Day parade policy, we might say that Rydell has a right to send its marching band to the parade. This is a group right held by Rydell in that only the school as a whole can decide whether to send its band or not. No individual student holds this right. On the other hand, if Rydell’s school policies give every member of the student body the right to vote on whether to participate in the parade, this right is an individual one, because it is held and exercised by each individual student. Note that the student right to vote in this scenario is individual even though it is fully dependent on the student’s membership in Rydell’s student body. Finally, we might observe that if Rydell’s student body were to vote against sending its band to the parade, no individual Rydell student could then assert a right to participate in it. This is because the right to participate in the parade is a group right held (and waived) by Rydell High, rather than an individual right that can be asserted by any individual student.

The lessons of this example are that the seemingly simple notion of a right to participate can consist of a combination of group and individual rights that should not be elided and that carefully distinguishing among these rights is necessary to understand who holds them and can validly assert them.

A Taxonomy of Puerto Rican Group and Individual Rights

Analyzing the rights relevant to the Puerto Rico problem is further complicated by the fact that Puerto Ricans are members of two groups that are pertinent to our discussion. On the one hand, they are residents and citizens of the Commonwealth of Puerto Rico. On the other hand, they are also citizens of the United States. Thus, assuming that membership in each of these polities implicates both group and individual rights, we can identify at least four potential sets of rights that are relevant to Puerto Ricans’ ability to determine the territory’s status relative to the United States: (1) the group rights of Puerto Ricans as a people; (2) the individual rights of Puerto Ricans held in virtue of their status as residents and citizens of Puerto Rico; (3) the group rights of Puerto Ricans as citizens of the United States; (4) and the individual rights of Puerto Ricans held in virtue of their U.S. citizenship.

Group Rights of Puerto Ricans as a People.

To the extent that Puerto Ricans can be regarded as a people or polity, they may have a group or collective right to self-determination.[4] The sources of this right may include Puerto Rico’s compact with the United States (“the 1952 Compact”), or principles of international law.[5] For example, the right to self-determination is clearly a group right insofar as no individual person can lay claim to Puerto Rican statehood or independence. Rather, it is the people of Puerto Rico who may decide collectively which status to pursue.

Individual Rights of Puerto Ricans qua Puerto Ricans.

The group right to self-determination held by Puerto Ricans as a people presupposes some method for aggregating or consolidating the judgment of individuals into a single expression of will. In other words, the “will of the people of Puerto Rico” operates as a function of the wills of individual Puerto Ricans. That function is presumably defined by the Puerto Rican Constitution. If this is correct, then every Puerto Rican has an individual right, guaranteed by the Commonwealth’s own Constitution, to vote for (or otherwise register) his or her political preference with regard to Puerto Rico’s status vis-à-vis the United States. In short, every Puerto Rican has an individual right to participate in the Puerto Rican people’s exercise of their group right to self-determination.

Individual Rights of Puerto Ricans qua U.S. Citizens.

As Blocher and Gulati explain, the Jones Act of 1917 conferred U.S. citizenship on Puerto Ricans,[6] and a subsequent statute provided that all Puerto Ricans born in the territory after January 13, 1941, would have the status of natural-born U.S. citizens.[7] U.S. citizenship status is held by individual persons, not Puerto Ricans as a group, even though their citizenship status may be attributable to their membership in that group. Thus, the rights that attach to this status are individual rights. These rights are determined by applicable federal law, including the U.S. Constitution.

Group Rights of Puerto Rican U.S. Citizens.

Although not explicitly discussed by Blocher and Gulati, it is conceivable that Puerto Ricans hold—or may come to hold—certain collective rights that are unique to Puerto Rican U.S. citizens. For example, setting aside the question of whether any such right exists in current law, one might argue that Puerto Rican U.S. citizens should have a group right to certain forms of representation in U.S. politics. Thus, one might argue that Puerto Ricans hold not only a group right to self-determination qua Puerto Ricans, but also a group right qua Puerto Rican U.S. citizens to participate in any U.S. process that might determine the territory’s status. That is to say, U.S. citizens who are Puerto Ricans arguably should have a collective right to participate in any decision of the United States that would determine the future status of Puerto Rico. This right would be distinct from Puerto Ricans’ group right to self-determination qua Puerto Ricans insofar as the latter right pertains to the decision of the Puerto Rican people to commit themselves to a chosen political status with respect to the United States.

Implications

The foregoing differential analysis is primarily meant to clarify the distinctions among the four categories of rights identified, rather than to establish the existence of any particular rights within those categories. The basic point is that some of Blocher and Gulati’s claims—such as “the people of Puerto Rico . . . have a legal right to determine their own futures,”[8] or “Puerto Ricans should be seen as legally entitled to decide their status for themselves”[9]—can be interpreted in multiple ways. First, such claims might refer either to individual or collective rights. Second, they might involve entitlements relating to political decisions of Puerto Rico, or to political decisions of the United States.

Observing and maintaining these distinctions is crucial, because each category of rights has a different legal foundation. The individual rights of Puerto Ricans qua Puerto Ricans will primarily depend on the Puerto Rican Constitution and international law. Meanwhile, the collective rights of the Puerto Rican people may have their strongest basis in agreements between Puerto Rico and the United States, and perhaps in principles of international law as well. But the individual and group rights of Puerto Ricans qua U.S. citizens will depend on federal statutory and constitutional law.

Clarifying the particular right under discussion helps to avoid conflating divergent legal frameworks when evaluating contested claims about that right. In the particular context of Blocher and Gulati’s theory of accession, paying attention to these differing frameworks may help reveal potential gaps in the authors’ argument. For example, the authors draw on principles of international law to conclude that “Puerto Ricans should have the ultimate say in whether to be more closely associated with the United States.”[10] International law arguably provides the basis for the group right of Puerto Ricans as a people to determine their own political status. What international law-based arguments cannot do, however, is establish that denying accession would infringe upon the individual (and perhaps group) rights of Puerto Ricans as U.S. citizens. More is needed.

It is important to recognize the distinctions among the various group and individual rights of Puerto Rican U.S. citizens, but we should also be attentive to the possibility that some of these distinct rights could be mutually reinforcing. One set of rights might even entail another. For example, consider the claim, attributed by Blocher and Gulati to President Donald Trump, that Puerto Ricans, as “[U.S.] citizens, should be entitled to determine for themselves their political status.”[11] Among other things, this statement suggests a chain of inference leading from Puerto Ricans’ individual rights as U.S. citizens to a group right—deriving from their U.S. citizenship—to determine the political status of the territory. Building the links in this chain of inference would require careful analysis and application of the principles that give content to individual rights of citizenship, such as equal protection, due process, and guarantees of political participation. The specifics of such a project are outside the scope of this essay. But what I am suggesting is that the strongest argument for a group right of Puerto Rican accession may be one that is forged from the individual rights of Puerto Rican U.S. citizens.

 

[1] Joseph Blocher & Mitu Gulati, Puerto Rico and the Right of Accession, 43 Yale J. Int’l L. 201, 205 (2018).

[2] Id. at 207.

[3] See generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 45-46 (1995) (discussing the ambiguity of “collective rights” and differentiating between group-differentiated rights accorded to individual members of the group versus the group as a whole); Group Rights, The Stanford Encyclopedia of Philosophy Archive (Edward N. Zalta et al. eds., 2016), http://plato.stanford.edu/archives/sum2016/entries/rights-group/.

[4] See Kymlicka, supra note 3, at 27-30 (discussing the self-government rights afforded to national minorities).

[5] Id. at 27 (noting national minorities’ limited right to self-determination under international law).

[6] Blocher & Gulati, supra note 1, at 211.

[7] 8 U.S.C. § 1402 (2012).

[8] Blocher & Gulati, supra note 1, at 205.

[9] Id. at 234 (quoting Rogers M. Smith, The Bitter Roots of Puerto Rican Citizenship, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution 373, 385 (Christina Duffy Burnett & Burke Marshall eds., 2001)).

[10] Id. at 207.

[11] Id. at 236.

Puerto Rican Identity and the Trouble with National Self-Determination: A Response to Joseph Blocher and Mitu Gulati’s Puerto Rico and the Right of Accession

Written by Daniel I. Morales

With Puerto Rico and the Right of Accession, Blocher and Gulati have performed a legal magic trick. They have turned Puerto Rico’s centuries-old history as an imperial plaything into grounds for its possession of an awesome right: to become the fifty-first state, if its residents so choose. That the United States has taken every possible legal opportunity to hold Puerto Rico at a distance from the mainland, the authors urge, is precisely the reason why equity requires that the island be allowed to come closer—indeed, insinuate itself into—the American Union.

Some might find fault in the tricky sequence of legal pirouettes that Blocher and Gulati must turn to pull off their argument. These readers might think: if the right of accession were so synonymous with legality, it would not take so many complex contortions to get there. I am not one of those people. For me, the fancy footwork underscores the way that laws touching upon sovereignty—a kind of sacral, pre-modern legal category[1]—look so unlike what democracies think of as law and so much more like tools of subjugation and tyranny.[2] The way that Blocher and Gulati manage, like legal alchemists, to turn laws designed to ensure that colonies were not too burdensome to their looters into legal gold for a colonized people is nearly miraculous.

But my main interest in this piece lies a bit further back in the logical chain. I want to take time here to critically reflect on the idea of national self-determination. The expulsion/accession conflict the authors pose can instead be framed as a conflict within the right to self-determination. By avoiding this framing, perhaps strategically, the authors undersell the force of the right that Puerto Rico has accrued. The right of accession does not just allow Puerto Rico to fully realize its own right to self-determination; it grants Puerto Rico the right to trump the most powerful nation on earth’s right to self-determination. The right of accession effectively forces the United States to embrace Puerto Rico, when that is precisely what it has not wanted to do for over a century. It is important to see the conflict this way because doing so helps to clarify why the right of accession will be so hard to effectuate in practice. The hold of an ingrained American entitlement to self-determine partially explains why the U.S. Supreme Court continues to prop-up the Insular Cases and why it is impossible to imagine the Court ever permitting the right of accession to be justiciable. Allowing the right of accession to be vindicated in court runs into the concrete wall of the American people’s righteous right to their self-determination.

Reframing the issue as a conflict within the right to self-determination also gets at the dark side of national self-determination. The concept requires a national self; a coherent, intergenerational “people” that merits the right to rule over territory for being a distinct people.[3] Possession of a determined national “self” also entails the right to exclude others from the national territory for not being the right kind of people. (Puerto Ricans, among many others,[4] have long been considered not the right kind of people.) This construction of intergenerational peoples with rights to rule has lately metastasized into white nationalism in the United States, and anti-Muslim and anti-immigrant hysteria all over the rich West. As someone who is critical of a nation’s right to exclude peaceful newcomers (i.e., to regulate immigration),[5] I worry about the way that Blocher and Gulati’s argument might shore up this broader system of national identity-based sovereign power, even as it provides a kind of justice for Puerto Rico. The Right to Accession paints self-determination as an emancipatory legal regime, but its effects on the world run in both directions. Self-determination enslaves some just as it liberates others.

In Puerto Rico’s case, these concerns are somewhat heightened because the long-lived peculiarity of Puerto Rico’s political status has allowed it to fashion a national identity that is rooted in geography and, at the same time, transcend it. For achieving this, Puerto Rican identity is a cutting-edge model for post-national identity formation. Yet that special, resilient identity is threatened by the resolution of Puerto Rico’s political limbo. (I should mention now that I speak from personal experience; my family has lived in Puerto Rico for centuries.) And while the material costs of maintaining that identity have escalated steeply in the last decades—and have become tragic in the wake of Hurricane Maria—the relative lack of momentum on the island for a shift in status one way or the other for so many decades suggests that maintaining this identity, one forged of an odd mix of citizenship and colonialism, has been of paramount concern to the people of Puerto Rico over the last half century. The maintenance of this hybrid identity was valuable enough to stymie the creation of broad-based social movements to normalize Puerto Rico’s status. Thus, the loss of this highly-valued liminal identity in accession or independence, self-determined or not, is worth reckoning with.[6]

Another way to look at the political history of Puerto Rico is to see that Puerto Ricans, for all the horrible colonial heartache and pain, have enjoyed a unique kind of human freedom. A freedom that we might wish for others to enjoy—though without the material and political hardships that have accompanied it in Puerto Rico’s case. The combination of U.S. citizenship for individual Puerto Ricans with quasi-colonial/quasi-independent political status for the island has allowed Puerto Ricans to fashion and live out a kind of rooted bi-national identity that has permitted many Puerto Ricans[7] to live free of the kind of rigid, dangerous fictions of national desert and identity that, for instance, have lately haunted many American whites.

Let me specify: Puerto Ricans are not Puerto Rican-American. They are Puerto Rican and American; they are both things in both Puerto Rico and the continental United States. Many Puerto Ricans can and do shuffle fluently between both worlds and embody them both wherever they are. They can do this and live this bi-national life without going to a consular officer to ask permission. That Puerto Rico is “foreign in a domestic sense”—however incoherent that seems to the American legal audience—has allowed Puerto Ricans to create multiple overlapping yet distinct sites of belonging and community with different geographic locations that can be traversed at a whim (or really, a few hours of plane travel) without any State involvement.[8]

For most immigrants, leaving their country of origin means that they can never quite return; they leave something behind and become something else. Even if they go back, they are not “the same.” Yet with Puerto Ricans, whether one lives on the island or the mainland, one is always, in a sense, living out a coherent Puerto Rican identity. Living in the United States is not living in exile or as an émigré. Puerto Ricans are not expatriates when they live in the U.S., and they do not (unlike, say, Cubans) generally think of themselves that way. To live on the mainland represented, prior to recent troubles, a choice to be Puerto Rican in the United States, even if one does so principally for financial reasons. To live on the island is a choice to be Puerto Rican in Puerto Rico even at a significant cost to earnings. The Puerto Rican “nation” is bi-national, bi-lingual, and different-by-degrees depending on whether you live on the island or on the mainland, or even where you live on the mainland.

Puerto Ricans, then, live inside a national identity that is more pliant and portable than most, but still provides the “good” things we get from national identity: a sense of rootedness in a distinct and rich cultural tradition tied to a place. The combination of citizenship rights in “immigration” with second-class political status on the island helped to hold this identity together. Second-class political status helped Puerto Rico preserve its culture and language by making it less desirable to mainland Americans. Free access to the mainland has helped millions of Puerto Ricans realize the horizons of their talents in the world’s most developed economy, while allowing them to easily maintain robust ties to the island.

The way that Puerto Rican identity wears its improvisational flexibility on its sleeve, offers a lesson to the world. All national identities are equally made-up, and would be equally plastic if we let them be. All modern “nations” are human inventions that are sustained through the human imagination. Anthropologist Benedict Anderson famously showed that nation-states and the “peoples” that populate them are historically contingent constructions—“imagined communities.”[9] Emergent technologies like the newspaper, along with the advent of empire and the perfection of the bureaucratic capacity to administer it, combined to help people imagine themselves as part of distinctive communities that transcended the village and were tied to (far larger) territory and borders. Ultimately, these newly imagined communities—nation-states—cut themselves off from their empires for a host of reasons, but one historically contingent one was that imperial bureaucrats sitting in the metropole (say, Madrid) didn’t want to treat colonial administrators (say, in Lima) as if they had the same status as the metropolitans did.[10] So the put-upon colonial administrators doing the imperial grunt work in the hinterlands turned against empire and towards independence, making up “nations” of former colonies along the way. Together with many other factors, these histories and technologies conspired to create a great wave of “nation”-building that began with the U.S. Revolutionary War and spread to Europe, the Caribbean, Latin America, and Africa. This long tidal wave of national self-determination, Anderson emphasizes, required the fashioning of a coherent and distinctive national self to determine.[11]

Seen in this framework, Puerto Rico presents a case of arrested development. It has a sense of national identity, since there is a meaningful imagined community of Puerto Ricans with a distinctive culture, but that national identity has never been transformed into a nation-state. Puerto Rico is pre-modern and cutting-edge. Its political arrangement is imperial, while its national identity is novel and perhaps a portent of things to come.

Resolving Puerto Rico’s political status would effectively annihilate the powerful and productive novelty of Puerto Rican identity. Rather than continuing to live in multiple identities and domains, the perfection of Puerto Rican political status into a U.S. state, or a nation-state, will mean Puerto Ricans will be Puerto Ricans or Americans (or hyphenated Americans), and not both at once. The erasure of this possibility for living out this kind of identity highlights my longstanding concern with national self-determination: self-determination ought to be an individual, rather than a collective, right. Following political theorist Jacqueline Stevens, a global State system most conducive to human flourishing would dissolve borders for purposes of human exclusion but leave them intact for purposes of all other aspects of governance. This would allow for territorial States without exclusive peoples or nations. In such a world, each individual human would have the power to determine for themselves as to what geographic context or contexts that person prefers to belong. Territorial States would still retain their cultural distinctiveness because, in a world of radical choice of citizenship, States would attract people that share their vision of the good life. Every person could enjoy the privileges of self-fashioning that many Puerto Ricans have accidentally enjoyed. Blocher and Gulati’s vision of emancipation is firmly rooted in the Westphalian system (as it must be to gain any practical traction in the medium term), but Puerto Ricans’ lived lives actually point past that system to new possibilities.

Puerto Ricans have learned to live successfully, fruitfully, and happily without some of the comforting fictions with which most humans live—and in conditions of relative domination and material deprivation. Puerto Ricans know in the range of skin tones and hair textures within nuclear families that race is a fiction. We know through a rootedness in the United States and in Puerto Rico that a nation is something people make together and that it can shift locations as preferences and circumstances change. The way in which Puerto Rican culture is both rich and rooted in soil, made and remade as the hurricanes—literal and political—blow, is an example of creative identity work that should be emulated. I hope this way of being pluralist and multiple can serve as an inspiration for new modes of living and being in an increasingly complex and riven world. For the truth is that we are all Puerto Rican in some sense. If we try, we have the power to live happily in multiple domains and in multiple identities in multiple territories because we are all more than one thing.[12] Puerto Ricans had to learn long ago to be comfortable in ambiguity. That comfort is valuable because ambiguity is reality. The hard lines drawn by State borders, identities, and races are always more permeable and unstable than they appear on maps.

None of this is to say that Puerto Rico should not resolve its status as its residents see fit. I agree wholeheartedly with Blocher and Gulati that Puerto Ricans have the right to become part of the United States if they want to. I only wish to point out that a wonderful, productive, and powerful form of identity that is worth emulating has emerged from Puerto Rico’s “intermediate state of ambiguous existence for an indefinite period.”[13] That form of living may need to give way for powerful material reasons, but we shouldn’t forget the lost art of being Puerto Rican, should it no longer be lived out. The best aspects of it are a model for a new kind of human freedom.

 

[1] See, e.g., Paul Kahn, Sacred Violence: Torture, Terror, and Sovereignty (2008).

[2] See generally Daniel I. Morales, “Illegal” Migration is Speech, 92 Ind. L.J. 735 (2017).

[3] For criticism of nationalism and the intergenerational quality of nationalism, see Jacqueline Stevens, States Without Nations: Citizenship for Mortals (2009).

[4] U.S. immigration law established its modern form to effect a return of the United States to its old northern European racial stock. See Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 65-75 (2004). Immigration history is riddled with racism, particularly with the idea that certain races are not assimilable or will undermine the might of the American nation. See, e.g., id.; Jean Pfaelzer Driven Out: The Forgotten War Against Chinese Americans 303-08 (2007).

[5] See, e.g., Morales, supra note 2; Daniel I. Morales, Undocumented Migrants as New (and Peaceful) American Revolutionaries, 12 Duke J. Const. L. & Pub. Pol’y 135 (2016).

[6] See Osamudia R. James, Valuing Identity, 102 Minn. L. Rev. 127, 178 (2017), for a similar argument about how black identity is threatened by efforts to pull African Americans into mainstream locations and settings for their material benefit.

[7] I understand the dangers of generalizing about questions of identity. I am speaking as a Puerto Rican and not for all Puerto Ricans, but my existence within that identity does, I hope, give me some generalizable insights through which to speak about these issues.

[8] I note of course that the ability to perfect this bi-national belonging is tied intimately with social class, racial presentation, and other factors that affect the degree to which encompassing this version of Puerto Rican identity is possible. Still, it’s important to note that in comparison to other modes of transnational life, the privileges of citizenship granted to all Puerto Ricans make it radically simpler for even those of modest means to live out this bi-national identity.

[9] See generally Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (3d ed. 2006).

[10] Id. at 58-65.

[11] See generally id.

[12] Note here I focus on a political group’s duty to create the conditions that would allow individuals to embrace this pluralist identity.  In the here and now, pluralism is made difficult to impossible for many because of racism and other forms of prejudice, and as a result the choice to embrace a single identity over other, perhaps hybrid, possibilities, can be rational self-protective and fulfilling.

[13] Downes v. Bidwell, 182 U.S. 244, 372 (1901) (Fuller, C.J., dissenting).