Volume 43, Issue 2

Written by Joseph Blocher & Mitu Gulati

On June 11, 2017, Puerto Rico held a referendum regarding its legal status. Although the circumstances were complex and turnout was very low, ninety-seven percent of ballots favored statehood over independence or the status quo. The federal government, however, has financial and political reasons to resist such a preference. Puerto Rico would bring with it not only a massive, unpayable debt, but also the potential to swing the balance of partisan power in Congress. The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions: Could Congress expel Puerto Rico by giving it “independence” against its will? Conversely, do the people of Puerto Rico have a right of “accession” to statehood? The answers are not obvious. International law, we argue, suggests that the people of Puerto Rico have a legal right to determine their own status vis-à-vis the mainland. Whether domestic law protects the same right to self-determination is a more difficult question.


Written by Lea Brilmayer

International mass claims commissions (“IMCCs”), a relatively recent phenomenon, test the effective limits of international adjudication. They are large, administratively unwieldy, expensive to operate, and tasked with assignments that are extraordinarily difficult to carry out with any hope of accuracy. How successful they are—and what they are successful at—is still an open question. As ad hoc tribunals, IMCCs are simultaneously established by the parties and also dependent on the international community for support. While formation of such commissions seems motivated most immediately by claimants’ private interest in compensation, IMCCs’ functioning cannot be appreciated without reference to three additional interests of the community as a whole: deterrence, retribution, and closure. Out of these interests, the most important are likely to be compensation and closure; unfortunately, the two are often in tension with one another.

This tension is illustrated by a comparison of the enforcement of three different IMCCs’ awards. The Iran-U.S. Claims Tribunal (IUSCT), the United Nations Compensation Commission (UNCC), and the Eritrea-Ethiopia Claims Commission (EECC) have all been justly congratulated for resolving large numbers of legal claims under difficult circumstances. In one notable respect, however, the first two IMCCs were successful and the third was not: in the IUSCT and UNCC, compensation was ultimately received by the injured parties; at the EECC, the awards were never paid.

The reasons relate to differences in the way that the instruments creating the three IMCCs were drafted. Reading between the lines, the expectations of the relevant parties—that is, the defendant States as well as the injured individuals—were very different. The IUSCT and UNCC were set up in ways that ensured payment to the injured parties; the EECC was set up in a way that made such individualized payment nearly impossible.

This result is puzzling. In one case (the EECC), the parties—with the active involvement of the international community—apparently dedicated years of effort and millions of dollars to establish an adjudicative body that, after determining certain claims to be meritorious, actually left those claimants worse off than if there had been no commission at all. Moreover, the international actors that had deeply urged adjudication on the parties did not, in practice, seem to care whether the awards would ever be paid.

In retrospect, however, this result seems to have been perfectly predictable. The explanation is that compensation, paradoxically, may not be the only reason—or, for some actors, the strongest reason—for establishing a mass claims commission; the more salient purpose, from the point of view of the international community, is likely to be closure.


Written by Kathleen Claussen

The first commercial treaty concluded by the United States began as a diary entry by John Adams. Nearly two and a half centuries later, the United States and international trade law have come a long way, but the uniqueness of trade lawmaking persists. Then, as now and in the future, U.S. trade law has been and will be heavily influenced by the balance of power between Congress and the Executive. This Article argues that the carefully choreographed procedure for negotiating free trade agreements has contributed to a type of path dependence with respect to the text of those agreements to the detriment of U.S. interests. The recent failure of the Trans-Pacific Partnership Agreement demonstrates this point: much of the agreement language copied prior agreements that were already subject to considerable criticism. Because that language tracked congressionally prescribed negotiating objectives, negotiators felt obliged to recycle it. This single modelling, driven by the bi-branch shared-power construct unique to trade, is under challenge on the eve of the NAFTA 2.0. While standardized language may have utility in certain spheres of international contract, the efficiency gains in international trade agreements do not outweigh an interest to reconsider text and standards where possible. This Article seeks to explain through traditional international relations theories the “default modelling” that occurs in the design of trade law instruments and proposes an under-explored explanation, one that is contrary to the consensus on U.S. foreign relations law more generally: in trade, Congress has assumed a role as principal and the Executive acts as its agent.


Written by Adam H. Bradlow

This Note provides the first account of how private investors and domestic communities can intentionally and systematically use the Investor-State Dispute Settlement (ISDS) regime to vindicate human rights claims. It offers a strategic roadmap for social impact bondholders and domestic actors to advance human rights by rooting their ISDS claims in three legal concepts: indirect expropriation, fair and equitable treatment, and the Tokios Tokelés doctrine.

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.


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


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.


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).