Crafting an FCIL Research Niche (When You’re NOT an “FCIL Librarian”)

By Alyson Drake

worldCrafting an FCIL research niche when you’re not labeled as an “FCIL Librarian” is something I’ve been thinking about lately, particularly in light of my FCIL research course being cancelled this semester due to low registration numbers.  It got me thinking that teaching at a law school that doesn’t have many course offerings in the area of international law or many professors who are doing research in FCIL-related areas, it can take some active effort and some creativity to keep up my FCIL skills.  To be honest, I sometimes consider whether trying to keep some focus on FCIL-related work is even something I should do as my responsibilities expand in other areas.  Then I remember how much fun and how challenging I find FCIL research and remain determined to find some ways to stay connected to that interest area.  So I thought I’d provide a few tips on staying connected to FCIL librarianship without being an FCIL librarian.

  • Share your interest with others. I had an interest in FCIL librarianship right out of law school, as I’d spent several semesters and a summer in law school as a research assistant to one of the international law scholars at William & Mary.  Despite spending a significant amount of time conducting international law research (specifically international criminal law research) in law school, I didn’t feel qualified to apply for FCIL librarian positions out of law school, due to a lack of modern languages (Ancient Greek and Latin FTW!).  But, when I started my first law librarian job at the University of South Carolina, I made sure my colleagues were aware of my research interests.  This ultimately led to a number of opportunities, including being assigned to collection development in human rights law and international law; being assigned presentations in the area of international law; acting as the law library’s liaison to one of the law journals; and even just having students sent my way when other librarians received questions related to foreign or international law.

    This has carried over to my current position. When students are writing a journal comment on a matter of foreign or international law, they are sent my way.  I’ve also been assigned as the liaison to our few faculty members who do undertake international and foreign law projects occasionally.

  • Propose a course. This is something I was able to do at both South Carolina and at my current job at Texas Tech.  At South Carolina, with a full first year teaching schedule, it was a summer session course.  At Texas Tech, I taught it last spring to a wonderful group of students and now think it might be better off as an every-other-year course since we’re not an international-focused law school.  But I’m also considering ways I might partner with the few professors here that do teach in the area of international and foreign law, perhaps by persuading them that incorporating a research project into their courses can help their courses meet the formative assessment or experiential learning requirements required by the ABA.  There are always opportunities if you’re creative enough!  You could also present to student groups with an interest/relation to FCIL.
  • Get involved in FCIL-SIS. Joining the FCIL-SIS and getting involved helped give me a well-reasoned excuse (as if I needed one!) to stay abreast of development in FCIL librarianship.  Added bonus: the FCIL-SIS community will encourage you to get involved!  I’d been kind of lingering on the fringes of the group for a few years when I attended my first FCIL-SIS Business Meeting at AALL 2015.  Alison Shea basically said, “Hey! You should be the chair of the European Law Interest Group!”  Before the meeting concluded, I was.  Three years later, I co-chair the Publicity Committee, which allows me to keep my finger on the pulse of much of what’s going on in FCIL librarianship (and strongly encourage other newer librarians to get involved), and serve on the Advisory Board of the Index to Foreign Legal Periodicals. At first, it may seem intimidating to get involved with FCIL-SIS if you’re not labeled as an FCIL librarian (at least if you suffer from imposter syndrome like I sometimes do), but this group is comprised of librarians of every ilk, including a large number of people who not branded with an FCIL title.  Writing a blog post for DipLawMatic Dialogues is one easy way to get your feet wet, so please feel free to contact me if you’re interested!
  • Volunteer for FCIL-Related Opportunities As They Come Up. I will soon have two FCIL-related writing projects to my name. Both were just opportunities that passed me by that I grabbed onto.  The first, updating a GlobaLex article that was out of date, came along largely because of my first point, letting my then-boss, the author of the original article, know that I had an interest in international law.  When the time came for update, he was busy and asked if I’d be interested in completing it.  Yes, please!  The second is a bibliography project where they needed chapters on foreign, comparative, and international law.  I volunteered to do one or two of the chapters, and somehow ended up doing all three.  Both projects allowed me to indulge my interest in foreign and international law and learn some new things.

So, if you, like the former me, are lingering on the fringes, are just someone who has an interest in FCIL without it being a part of your everyday job, are unsure of where you might fit into this group, I encourage you to jump on in! The water’s fine. The people are nice. You’ll learn new things. And there are opportunities for you here regardless of your title.

From the Reference Desk

By Lora Johns

chimp

Image via Pixabay

Do chimpanzees have habeas corpus rights?

I admit I did not have a snappy response at the ready when I opened a patron’s email asking whether apes have “personhood rights,” accompanied by an NBC News article about an animal lawyer in New York. “I understand that two cases from Argentina — in 2014 and 2016 — have dealt with the rights of animals and whether habeas corpus can apply to them,” asked the patron. “Is there someone in the Library who can check Argentine legal materials to see if the decisions are available?”

The news article my patron had included with his request dealt with a chimpanzee named Tommy, a former animal actor. His lawyer Steven Wise has been fighting since 2013 to have courts in New York recognize Tommy’s habeas corpus rights as a way to protect his right to proper treatment (Tommy had been beaten by trainers and living in a cage without sufficient enrichment).

Buried deep in the article was a reference to Judge María Alejandra Mauricio of Argentina who, in November 2016, ruled that a chimpanzee named Cecilia was a “nonhuman legal person” with “inherent rights.” Two years earlier, the same judge deemed that an orangutan named Sandra also had “personhood” rights. Both animals were transferred to a sanctuary in Brazil to live out their lives as autonomously as possible.

Armed only with the judge’s name, the two years, and the fact that the case occurred in Argentina, I went digging. Happily, the NBC article linked to a BBC article about Sandra (the orangutan), mentioning that she lived in the Buenos Aires zoo. It also mentioned the name of the legal group representing her – AFADA.

I speak and read Spanish, meaning I had an easier time navigating the thicket of legal documents than if I were armed only with Google Translate and a prayer. I first searched Google to see if any Spanish news sources had reported on the cases (and whether they would point me to the correct court). A contemporaneous article about Cecilia announced that she had won her case and been transferred to a sanctuary in Brazil. Another article described Sandra’s successful habeas case as “unprecedented on a worldwide level” and – very helpfully – mentioned the court where the ruling was made – Sala II of the Cámara de Casación Penal, a federal court that deals with extraordinary remedies. Yet another article described the cause of actionamparo– another excellent breadcrumb.

Having thus greatly expanded my arsenal, I found not only the 2014 and 2016 rulings, but a related 2015 ruling as well. The hint about the court made it very easy to find documents using Argentina’s Judicial Information System. Sure enough, the rulings gave a detailed explanation, complete with expert testimony, of the hardships Sandra and Cecilia had suffered in captivity and why the judge thought they were entitled to rights as nonhuman beings. Cecilia and Sandra will get to live out the rest of their lives in wildlife sanctuaries, free of cages and cruelty. The Nonhuman Rights Project has provided a translation of Cecilia’s winning judgment if you, like me, are fascinated and want to read more.

All in all, it looks like our simian cousins are enjoying increasing legal rights from Buenos Aires to New York.

Here are some helpful resources if you, too, find yourself researching Argentine law:

  • GlobaLex’s Argentina page provides a high-level overview of the Argentine court system. In essence, to research cases there, you should know at minimum where it originated geographically and the subject matter of the case.
  • Even if you don’t have all the information, the Judicial Information Center allows searches using some other criteria.
  • The website of Argentina’s court system, Poder Judicial de la Nacion, is a good source of legal documents if you already have some information to go on.
  • For non-Spanish speakers who use Chrome, the Google Translate Chrome plug-in makes it very easy to translate words and sentences just by highlighting them.
  • Learn about certain (fascinating!) legal mechanisms that exist in Argentina but not the U.S., including courts of cassation, which hear appeals but do not reexamine facts, only reviewing the law, and the action of amparo, an extraordinary remedy found in many Latin American jurisdictions that protects any basic individual right, implicit or explicit, that a person believes is being violated by another law.

Introducing…Beau Steenken as the January 2018 FCIL Librarian of the Month

Steenken

1. Where did you grow up? 

My family moved around a bit when I was small, but I lived in Memphis, TN, from 4th grade through high school.

2. Why did you select law librarianship as a career? 

I’ve always been a huge history nerd. While studying English history in college, I became interested in the law and legal history. There didn’t appear to be a whole lot of jobs in legal history, but I viewed law librarianship as a career that would also support my interests.

3. When did you develop an interest in foreign, comparative, and international law? 

It was an outgrowth of my history nerdiness. I took a legal class in law school at the University of Texas called the Emergence of Modern European Law. It inspired me to spend my third year of law school on an exchange program to the University of Nottingham, where I obtained an LL.M. in Public International Law. I mean, what is evidence of customary state practice other than history?

4. Who is your current employer? How long have  you worked there? 

I have worked at the University of Kentucky College of Law for just over seven years.

5. Do you speak any foreign languages? 

Speak, not so much. I can mostly read French, though I’m better at reading legal texts and formal writing than anything with informal language or slang. 

6. What is your most significant professional achievement? My duties include both FCIL work and general instruction, so I’ll include two achievements, one for each (mostly so I can work in a shameless plug). On the FCIL side, I successfully proposed and taught an upper level FCIL research course, which was a first for the University of Kentucky. In terms of general instruction, <shameless plug> I wrote a 1L Legal Research e-textbook with one of my colleagues that is available through CALI’s eLangdell press. If you find yourself in the market for a 1L research text, it’s called Sources of American Law: an Introduction to Legal Research, is completely free for students, and is published under a creative commons license, so you’d be able to modify it to suit your individual class needs. </shameless plug>

7. What is your biggest food weakness? 

Pretty much anything spicy. I don’t know that I would have survived my year in England if it weren’t for the presence of Indian restaurants to supplement the traditional British fare.

8. What song makes you want to get up and sing/dance? 

Tobacco Island by Flogging Molly

9. What ability or skill do you most wish you had (that you don’t have already)? 

coding/programming

10. Aside from the basic necessities, what is one thing you can’t go a day without? 

That depends. Does coffee count as a basic necessity?

11. Anything else you would like to share with us?

Yes, I’m chairing the Teaching FCIL IG this year, so if you teach an FCIL class and have a syllabus, assignment, rubric, or any other teaching material you would be willing to share, please email it to me to put into our database. I know all the syllabi in the database were extremely helpful when I was designing my course! My email is beau.steenken@uky.edu.

New FCIL Librarian Series: Conferencing and Reading…and Researching, Of Course

By Jessica Pierucci

This is the second in a series of posts documenting my first year as a foreign, comparative, and international law (FCIL) librarian. I started in this newly-created role at the UCI Law Library in July 2017. The aim of this series is to document my year in the hope of inspiring aspiring FCIL librarians to join the field (and hopefully not scaring them away!) by discussing one librarian’s experience entering the field.

Happy New Year! To start off 2018, this post will cover three developments during the last few months of 2017: the IALL Annual Course, the start of my self-styled “course” in FCIL research, and a chance to truly test my skills.

IALL Annual Course

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Sculpture outside the Center for Civil and Human Rights in Atlanta, Georgia. Photo courtesy of Jessica Pierucci.

Although this is an AALL blog, I would be remiss if I didn’t dedicate part of this post to singing the praises of the International Association of Law Libraries (IALL) Annual Course in Atlanta, Georgia, which I attended right after writing my first post in this series.

This conference was a fantastic experience all around. The truly thought-provoking speakers, museum and library tours, and chances to socialize and network with librarians from around the world were a wonderful blend of professional development opportunities.

Given that this year’s conference was in the United States, the programming was focused on U.S. law and history. This was a fascinating opportunity to think about the international perspective on U.S. law and discuss topics of domestic and international interest, particularly how the U.S. is viewed globally and to what degree the U.S is or is not promoting civil and human rights at home and abroad. I hope to attend future IALL conferences abroad to learn about the host countries’ and regions’ legal systems directly from their local practitioners and researchers. I would highly recommend this conference to any new FCIL librarian.

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The setting for the IALL Annual Dinner at the Fernbank Museum of Natural History. Note the dinosaurs!  Photo courtesy of Jessica Pierucci.

Becoming a self-taught FCIL librarian

I returned from this conference inspired by the energy of my new colleagues and excited to spend more time in my self-study as to how to be an FCIL librarian from the ground up. From my background reading,[1] I understand that FCIL librarians made a concerted push in the 1990s to train the next generation of FCIL librarians through a series of institutes and resulting publications.[2] Since then, there has been scattered attempts to create something similar, but, as far as I am aware, nothing yet has fully come to fruition.[3] (Someone please correct me if I’m wrong!)

The structured materials from the 1990s are certainly a helpful primer on the work of an FCIL librarian, but don’t reflect the ever-ubiquitous use of the internet and other information technology in legal research. To fill this gap, I am developing my own self-styled “course” in FCIL librarianship, which augments earlier works with recent materials, and am making my way through this course between my other responsibilities at the library.

The course has primarily taken the form of reading a bunch of articles,[4] select books, and taking time to practice what I’m learning along the way. I’ve found two books, in particular, to be invaluable resources: International and Foreign Legal Research: A Coursebook and Public International Law in a Nutshell. I have a number of other books on deck for my studies in 2018, including International Legal Research in a Nutshell and The IALL International Handbook of Legal Information Management. I’m also looking forward to a deeper dive into the major international law treatises on my Jessup Guide.

If you have any recommendations for other foundational readings, I’d love to hear from you. Please leave a comment or feel free to reach out to me directly. I plan to share a list of resources for new FCIL librarians as part of my final post in this series.

Testing my skills

While finalizing this post, I was contacted for some in-depth legislative history research for multiple laws of a Spanish-speaking country. I was delighted to have the chance to really put my training to the test. I turned to research guides on the country’s legal system, dusted off my Spanish language skills, and was ultimately able to find resources addressing each of the questions asked. I had so much fun testing myself with this project and learning a lot about the history of one country’s laws in the process. I can’t wait to continue my self-styled FCIL course and I look forward to all the new research questions I’ll encounter in 2018!

[1] The Education Committee of the AALL FCIL-SIS compiled a helpful list of background reading. Education Committee, Articles Considering a Career in FCIL Law Librarianship, AALL, https://www.aallnet.org/sections/fcil/cmtesgroups/Education (last visited Dec. 20, 2017).

[2] See, e.g., Introducing…Lyonette Louis-Jacques as the October 2015 FCIL Librarian of the Month, DipILawMatic Dialogues (Oct. 2, 2015), https://fcilsis.wordpress.com/2015/10/02/introducing-lyonette-louis-jacques-as-the-october-2015-fcil-librarian-of-the-month/; Neel Kant Agrawal. Training in FCIL Librarianship for Tomorrow, 105 Law Libr. J. 199, 207 (2013), http://www.aallnet.org/mm/Publications/llj/LLJ-Archives/Vol-105/no-2/2013-9.pdf.aspx.

[3] Mary Rumsey, Foreign and International Law Librarianship, 25 Legal Reference Services Q., no. 2/3, 2006, at 73, 83, https://doi.org/10.1300/J113v25n02_03.

[4] See, e.g., Neel Kant Agrawal. Training in FCIL Librarianship for Tomorrow, 105 Law Libr. J. 199, 226-29 (2013), http://www.aallnet.org/mm/Publications/llj/LLJ-Archives/Vol-105/no-2/2013-9.pdf.aspx.

Celebrating DipLawMatic Dialogues in 2017: Top ’17 of 2017!

happynewyear
2017 was a wonderful year for DipLawMatic Dialogues! In July 2017, after an engaging meeting at AALL 2017, we solicited a team of old and new bloggers to bring content to our readers on a weekly basis.

A few stats of note:

  • 72 posts were published in 2017, our most ever!
  • November 2017 was our most-read month ever, with over 2,000 views!
  • 2017 was our most-read year since the blog was introduced, up 53% in readership from 2016–12,545 views total!

Thanks to our bloggers and our readers, and please keep coming back every Tuesday in 2018 as we have more wonderful content coming your way!

Revisit our top 17 most-read posts published in ’17:

  1. Cuba 101: It’s Complicated, by Julienne Grant
  2. AALL 2017 Recap: Social Media Use in Law Libraries: Learn from Our Successes and Failures, by Caitlin Hunter
  3. Organizing and Participating in the “Open Access to Legal Knowledge in Africa” Workshop in Uganda, by Heather Casey
  4. Teaching Foreign & International Legal Research–From the Beginning, by Beau Steenken
  5. The Emergence of LGBT Rights in International Human Rights Law: A Historical Inquiry, by Carlos Andrés Pagán
  6. New FCIL Librarian Series: So Much to Learn and Do, by Jessica Pierucci
  7. Spain Fractured: Some Thoughts on the Catalonian Crisis, by Julienne Grant
  8. Teaching Foreign Customary Law: Tips and Tricks, by Susan Gualtier
  9. Report from Chicago: Americans Take to the Streets for Human Rights, by Julienne Grant
  10. Baby Steps: Building a Legal Vocabulary in French and Spanish by Visiting the Children’s Portals of Legislative Websites from Selected Foreign Jurisdictions, by Katherine Orth
  11. Revisiting Puerto Rico’s Political Status: The Puerto Rico v. Sanchez Valle Case and Its Implication in Contemporary International Law, by Carlos Andrés Pagán
  12. IALL 2017 Recap: Global and Local Challenges to Refugee Protection, by Anne Burnett
  13. Taking Stock: A Mid-Semester Progress Report on Foreign Language Study, by Katherine Orth
  14. AALL 2017 Recap: Authors of the Mexican Law and Legal Research Guide Win the Reynolds & Flores Publication Award, by Loren Turner
  15. IFLA WLIC 2017 Conference Recap, by Charles Bjork
  16. AALL 2017 Recap: Cuban Law and Legal Research: A Snapshot During the Deshielo, by Caitlin Hunter
  17. ASIL 2017 Recap: International Law and the Trump Administration: National and International Security, by Loren Turner

Please follow FCIL-SIS on Twitter @DipLawMat to see all of our latest posts! Inspired to write for DipLawMatic Dialogues? Contact me at alyson.drake@ttu.edu.

Go Forth and Conquer! Some Final Thoughts about Studying French and Spanish in the Service of Greater FCIL Search and Retrieval Proficiency

By Katherine Orth

In my previous post in the Acquiring Foreign Languages series, I shared some advice about making time to study a foreign language, developing an effective study routine, and preparing for Foreign Language Proficiency Exams.  In the final post of this series, I return to my original FCIL research focus: documenting my self-set learning objectives, progress and takeaways.

My Objective and Goals

In an earlier post in the series, I wrote the following:

I aim to achieve bibliographic proficiency in French and Spanish by the end of this semester.  I’ll fulfill my objective if I can attain four self-set goals:

  1. To comfortably browse French-language and Spanish-language websites containing FCIL resources,
  2. To comfortably construct search queries in these websites,
  3. To be reasonably confident that my search queries have returned relevant results, and
  4. To comfortably “read” (get the gist of) primary law and secondary source material.”

End-of-Semester Reflection

I’m well on the way to meeting my objective of bibliographic proficiency in French and Spanish, provided that I maintain a consistent study schedule.  However, I was very naïve in setting essentially a four-month timeframe to accomplish this objective.  My revised timeframe?  To achieve reading proficiency in both languages by this time next year.

I had mixed results in meeting my four goals.  I can honestly say that I only truly accomplished the first goal.  Successful browsing – even in a foreign language – is greatly aided by conventional design elements in a search portal’s layout and functionality.  Using tried-and-true search strategy – via the banner, tabs, sidebars or site map – combined with familiar search tools like filters for date or content type, one can successfully browse content even with a limited foreign language vocabulary.

For the second goal, a researcher needs to draw on a range of FCIL-related vocabulary in order to create advanced search queries.  I found this easiest to do within various United Nations search portals.  An early task reading Security Council resolutions in French and Spanish equipped me with commonly-used vocabulary describing legal and institutional procedure.  It was sometimes difficult to follow the phrasing and grammar of UNSC resolutions, but those long sentences were full of procedural vocabulary and always cited to the relevant authority.

Of the four goals, I struggled the most to meet the third one.  I tested the waters of FCIL search in French and Spanish by using research questions made available through the FCIL-SIS Syllabi and Course Materials Database.  I selected questions that had model answers so that I could check my work against them.  But to my chagrin, I sometimes had to look at the model answers before devising my own.  When it came time for me to write a post about searching for FCIL resources, I ruefully considered titling the post, “How to Succeed in Finding Foreign Law Without Really Trying!”

The fourth goal required the most time and patience.  My standard procedure was to read a text online and write down the words I didn’t know to look up later.  But when my patience wore thin, I would highlight swathes of text and copy/paste it into Google Translate.

In an effort to stick with the original text as written by members of the international law and policymaking community, I bookmarked every dual- or multi-language secondary source that I encountered, such as the Canada Gazette, available in PDF form with English and French text on the same page.  Also, the search portals of United Nations entities have banner options designed to make toggling between English- and foreign-language content easy.

One of my favorite strategies turned out to be reading short press releases in French and Spanish issued by intergovernmental organizations on topical areas of interest to me.  Press releases provided general context for the specific laws of foreign jurisdictions, if and when I chose to explore them further.  I rotated sites regularly – currently, I’m reading press releases issued by the International Maritime Organization.

In Closing . . .

I made many efforts over the course of the semester to gradually build my comfort level with whatever stage of French and Spanish reading proficiency I happened to be in.  Some of my efforts became habits.  By far, the best habit I developed was to keep an FCIL notebook.  This notebook served a dual purpose: as a research log where I noted strategies and tips, and as a daily record documenting my pride and frustration with the foreign language acquisition process.  Re-reading my small successes (“Understood ALL of the sentences about legislative process in Argentina!”) helped to make up for my embarrassing setbacks (“Note to self: the specific “la Gaceta” that I found refers to the Electoral Gazette, NOT to the Official Gazette referenced in the assignment!  Wasted time – ugh!”)

The first item on my new year’s resolutions list is to continue down the long and winding road of bibliographic proficiency in French and Spanish, setting accountability benchmarks for myself on a monthly basis.  If you have any questions or comments about this blog series, my research tasks, or foreign language acquisition in general, please feel free to contact me.

Best wishes to you all in 2018!

 

[Editors’ Note: We would like to extend our immense gratitude to Katherine for her wonderful series on foreign language acquisition.  It was her volunteering to write for us twice a month that allowed us to meet our goal of one post a week from September through December.  We hope that you’ve enjoyed following along on her mission to French and Spanish proficiency as much as we have!]

Revisiting Puerto Rico’s Political Status: The Puerto Rico v. Sánchez Valle Case and its Implication in Contemporary International Law

By Carlos Andrés Pagán

Recently, Prof. Philip Alston, the United Nations Special Rapporteur on extreme poverty and human rights, visited Puerto Rico to assess the island’s situation after the passing of Hurricane María.[1] Some hope, that as result of the Rapporteur’s historical visit, a discussion on Puerto Rico’s political status might make its way to the U.N. General Assembly’s agenda, especially after the recent decision of the Supreme Court of the United States (SCOTUS) in Puerto Rico v. Sanchez Valle.[2]

puerto-rico-location-map[1] (1).jpg

In the above case, decided last year, a six-justice majority of the Court determined that the Commonwealth of Puerto Rico[3] and the federal government are not separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.[4] As a result, SCOTUS concluded that Puerto Rico is still only a U.S. territory—a non-sovereign with limited authority over its affairs and still subject to Congress’s plenary powers under the “Territory Clause” of the U.S. Constitution.[5] The Court’s opinion raised many questions and concerns, both domestically and abroad, about the political relationship between the U.S. and Puerto Rico. Within the boundaries of international law, one of the issues the U.S. now needs to explain to the international community is why it has maintained a territory lacking meaningful self-government for over six decades, in apparent violation of Article 73 of the U.N. Charter.

The adoption and ratification of U.N. Charter created many obligations for Member States. One of those obligations pertains to territories, administered by a Member, whose peoples have not yet attained a full measure of self-government. Specifically, Article 73e of the Charter of the United Nations requires any country in charge of a non-self governing territory to transmit information to the U.N. periodically on the political and economic conditions prevailing in that territory. At the time of its adoption,[6] in the case of the U.S., its responsibilities included informing on American Samoa, Hawaii, Guam, the Panama Canal Zone, Puerto Rico, Trust Territory of the Pacific Islands, and the United States Virgin Islands.

Furthermore, in 1948, during its third session, the General Assembly adopted Resolution 222, titled Cessation of the Transmission of Information under the Article 73e of the Charter.[7] This resolution required Member States to inform the U.N. Secretary General, within six months, of any change in the constitutional position and status of a non-self governing territory as a result of which the responsible Government concerned thought it unnecessary to continue sending information with respect to that territory under Article 73e.

The discussions regarding the Commonwealth of Puerto Rico’s case at the U.N. occurred before three bodies: the Committee on Information on Non-Self-Governing Territories, the Fourth Committee, and the General Assembly.[8] From the start, there was considerable objection, both as to whether Puerto Rico had ceased being a colony and about the desirability of discontinuing receiving information under article 73e of the U.N. Charter in this case.[9] The debate concentrated on the meaning of the new Commonwealth status and whether its attainment brought a fundamental change to Puerto Rico’s colonial status. When the discussions about Puerto Rico’s case finally reached the General Assembly, opposition to the proposal that information on Puerto Rico should cease under Article 73e was still noticeably high.[10]

On November 27, 1953, the General Assembly approved by a vote of 26 in favor of the U.S. position, 16 against, and 18 abstentions, Resolution 748 (VIII), that the transmission of information on Puerto Rico under article 73e should cease. The resolution stated that, “the people of the Commonwealth, by expressing their will in a free and democratic way, have achieved a new constitutional status.” In the resolution, the General Assembly recognized that:

in the framework of their Constitution and their compact agreed upon with United States of America, the people of Puerto Rico have been vested with attributes of political sovereignty which clearly identify the status of the self-government attained by the Puerto Rican people as that of an autonomous political entity.[11]

Due to these developments, the General Assembly concluded that Article 73 of the U.N. Charter no longer applied to Puerto Rico. Notably interesting is that, in paragraph 9 of Resolution 748 (VIII), the Assembly expressed its assurance that “due regard would be paid in the eventuality that either of the parties to the mutually agreed association might desire any change in the terms” of their new association.

The same day that the U.N. General Assembly removed Puerto Rico from the list of non-self-governing territories, it also approved Resolution 742.[12] Resolution 742 enumerated the factors that should be taken into account in determining whether a territory is non-self governing, or in other words, whether a territory’s people have not yet attained a full measure of self-government. José Trías Monge stated that “the Puerto Rican case had just been decided and was not analyzed in the light of this list.”[13]  The resolution states that “the manner which territories can become fully self-governing is primarily through the attainment of independence” but also provides that territories could achieve self-government “by association with another State or group of States if done freely and on the basis of absolute equality.” The resolution also sets forth the constitutional framework of the central authority with regard to the territory associated by treaty or bilateral agreement. These include: (i) whether constitutional guarantees extend equally to the associated territory; (ii) whether there are powers that are constitutionally reserved to the territory or to the central authority; and (iii) whether there is a provision for the equal participation of the territory in any changes in the constitutional system of the State. Resolution 742 further noted that the territory should be free to modify its associated status through the expression of the associated will of the people by democratic means.

On December 14, 1960, the General Assembly approved Resolution 1514 (XV), also known as the Declaration on the Granting of Independence to Colonial Countries and People, which declared the inalienable right of all peoples to independence and called for an unconditional end to colonialism in the world.[14] The resolution was adopted by a vote of 89-0, with nine abstentions–including that of the United States. One day after, on December 15, 1960, the General Assembly adopted Resolution 1541 (XV).[15] In the latter, the General Assembly further defined the three alternatives in which a non-self governing territory can achieve full measure of self-government: independence, free association with an independent State,[16] and integration with an independent State.

In 1961, the General Assembly established a committee to monitor the implementation of Resolution 1514 (XV). The committee, popularly known as the Decolonization Committee or Committee of Twenty-Four, is also a successor to the former Committee on Information from Non-Self-Governing Territories, with which it was merged in 1963. On August 18, 1972, said committee passed a resolution introduced by Iraq recognizing “the inalienable right of the people of Puerto Rico to self-determination and independence in accordance with General Assembly resolution 1514 (XV) of 14 December 1960”.[17]  The committee resolved to ask its Working Group to look into the procedure that should be followed for the resolution to be complied with.[18] The vote was 12-0, with ten abstentions. From 1973 to 1977 the Decolonization Committee approved annual resolutions “reaffirming ‘the inalienable right of the people of Puerto Rico to self-determination and independence,’ requesting that the United States abstain from taking any steps to impede the exercise of such rights, and deciding to keep the matter under permanent review”.[19]

In 1980, the General Assembly held a special commemorative meeting on the occasion of the twentieth anniversary of the Declaration on the Granting of Independence to Colonial Countries and People, where the body adopted a Plan of Action reasserting its commitment for the complete eradication of colonialism around the world.[20] The resolution declared that the continuation of colonialism in all its forms and manifestations was incompatible with the U.N. Charter, Resolution 1514 (XV), and the general principles of international law. The resolution requested all nations to provide assistance to the peoples “under colonial domination in their struggle to exercise their right to self-determination”.[21]

Following these events, in 1981, the Decolonization Committee approved a resolution recommending for the first time since Puerto Rico was removed from the list of non self-governing territories in 1953 that the issue be again debated in the General Assembly.[22] In 1982, the Committee approved a similar recommendation. Although the United States was able to defeat both proposals at the General Assembly, the voting results showed that, even back then, a significant part of the international community understood that the topic should be addressed. [23]

Over the past four decades, the Decolonization Committee has agreed on more than thirty-five resolutions and decisions on Puerto Rico.  In the most recent one, dated June 19, 2017, the Decolonization Committee unanimously approved a resolution that called again on the U.S. “to assume its responsibility to expedite a process that would allow the people of the island to fully exercise their inalienable right to self-determination….”[24] Likewise, the resolution requests that “the General Assembly consider the question of Puerto Rico comprehensively” and decide on this issue as soon as possible.[25] The Committee also decided to keep the question of Puerto Rico under continuous review.

Without doubt, SCOTUS’ decision in Puerto Rico v. Sánchez Valle further underscores the island’s colonial status, which has been denounced for decades by both advocates of Puerto Rican independence and statehood and legal scholars. While explaining why Puerto Rico’s relationship to the U.S. is colonial, Judge Juan R. Torruella alluded to UNESCO’s Dictionary of Social Sciences that defines “colony” as “a territory, subordinate in various ways— political, cultural or economic — to a more developed country. Supreme legislative power and much of the administration rest[s] with the controlling country, which [is] usually of a different ethnic group from the colony.”[26] Explaining why the Territory Clause of the U.S. Constitution cannot be the legal framework for exercising control over Puerto Rico, Judge Torruella states that “such powers amount to the establishment of a colonial relationship in that, [at] a minimum, the United States exercises supreme legislative power over the island” while at the same time “depriving its inhabitants of all national suffrage right with regard to Congress and the national executive branch.”[27]

In my own view, the most outstanding trait that highlights Puerto Rico’s colonial status is the notion that the U.S. government has the power to alter or revoke unilaterally the Commonwealth’s constitution. This clearly hinders the democratic will that the Puerto Rican people expressed in 1952 when they approved their constitution. Moreover, it purports to show that even for local affairs or internal self-government, the ultimate source of authority is the U.S. Government, not the people of Puerto Rico. Likewise, the fact that the U.S. Congress can legislate unilaterally on a wide array of issues that affect Puerto Ricans, without requesting their consent, amounts to an unequivocal colonial relationship.

In addition to being a breach of international law, Puerto Rico’s case should be resolved because it is also widely accepted that the U.S.’s current treatment of Puerto Rico’s status violates human rights. Carlos Gorrín Peralta states that “international consensus (opinio juris) has evolved to characterize the right of self-determination as a fundamental, collective human right that must be respected by all states, even those not signatories to international instruments.”[28]

Prior to the development of Puerto Rico v. Sánchez Valle, for almost four decades, there has been consensus at the Decolonization Committee that Puerto Rico’s political status does not satisfy the criteria set in Resolution 1514 (XV). In other words, a significant part of the international community also understands that the Commonwealth of Puerto Rico still lacks political sovereignty, further undermining the validity of Resolution 748 (VIII). Given this understanding, it seems safe to conclude that the removal of Puerto Rico from the list of non-self-governing territories under Article 73e of the U.N. Charter was not an appropriate judgment. The ambiguity surrounding Puerto Rico’s political status at the time of delisting in 1953 almost thwarted the approval of Resolution 748 (VIII). Considering the General Assembly’s increasing aversion towards neocolonialism, Roger S. Clark has stated that “[i]t is extremely doubtful that a case similar to the Puerto Rico one would be resolved in the same manner today.”[29]

The Court’s opinion in Puerto Rico v. Sánchez Valle has several immediate implications. First, the U.S. government should acknowledge that it was not proper to cease transmitting information of Puerto Rico under article 73e of the U.N. Accordingly, the U.S. should resume transmitting information on the island to the General Assembly. Secondly, the U.S. should immediately initiate a process to achieve a full measure of self-government for Puerto Rico—one that will get rid of all vestiges of colonialism. The United States should comply with international law and eradicate colonialism within its own borders or should be prepare to be subject to strong condemnation by the international community. Ultimately, the United States should avoid the possibility that the U.N. General Assembly declare Puerto Rico one of the world’s last remaining colonies.

Given these recent developments, inaction by the U.N. General Assembly can no longer be justified. This is no longer a matter of domestic dispute; this a grave breach of international law that for too long has persisted with impunity. The U.N. has a significant role to play in Puerto Rico’s process towards achieving self-determination. As previously noted, the creation of the U.N. helped speed the progress of decolonization around the world. Since its establishment, more than 80 former colonies have gained their independence. Puerto Rico’s case should be addressed during the next session of the General Assembly and a resolution should be submitted to rescind Resolution 748 (VIII) or, at the very least, demand compliance with it. Paragraph 9 of Resolution 748 (VIII), discussed earlier, assured the international community that due regard would be paid if the United States or Puerto Rico desired any change in the terms of their association. There is no doubt that the current state of affairs is well beyond the point of change and that the terms of political association have eroded significantly since 1953. In view of this, the General Assembly should express itself strongly and energetically in favor of a complete decolonization process for Puerto Rico.

The decolonization process could take up to a couple of years but the General Assembly should express a desire that Puerto Rico gets full self-government before the present decade is over. Such urgency on behalf of the U.N. would strongly express the undesirability of the current political arrangement. With luck, the Special Rapporteur’s visit to Puerto Rico sets in motion this process, which has long been overdue in the U.N. General Assembly.

[1] Press Release, Office of the United Nations High Commissioner for Human Rights, UN expert on extreme poverty and human rights to visit USA, one of the wealthiest countries in the world (Nov. 29, 2017), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22465&LangID=E
[2] 136 S. Decolonization posterCt. 1863.
[3] The 1950’s were a landmark decade for relations between Puerto Rico and the U.S. This period heralded the institutionalization of an arrangement called the Estado Libre Asociado de Puerto Rico (the ELA)—in English, the Commonwealth of Puerto Rico.  It all started in 1950 when Congress enacted Public Law 81–600, authorizing Puerto Rico to hold a constitutional convention.  Pursuant to this, in 1952, the people of Puerto Rico ratified a constitution establishing a republican form of government for the island. After being approved by Congress and the President in July 1952 and thus given force under federal law, the new constitution went into effect on July 25th, 1952. See Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico 7 (2001).
[4] U.S. Const. amend. V. “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”
[5] U.S. Const. art. IV, § 3, cl. 2. “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state”(emphasis added).
[6] G.A. Res. 66 (I), (Dec. 14, 1946).
[7] G.A. Res. 222 (III), (Nov. 3 1948).
[8] José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World 122 (1997).
[9] Id.
[10] Id. at 123.
[11] G.A. Res. 748 (VIII), (Nov. 27, 1953).
[12] G.A. Res. 742 (VIII), (Nov. 27, 1953).
[13] Supra, note 8, at 136.
[14] G.A. Res. 1514 (XV), (Dec. 14, 1960). The resolution declared that the “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights” and is “an impediment to the promotion of world peace and cooperation”; that all people have the right to self-determination and “by virtue of that right they freely determine their political status”; that the lack of preparation in the political, economic, social, or educational fields should not serve as a pretext for denying independence; that immediate steps shall be taken to transfer all powers to all territories that had not yet attained their independence “in order to enable them to enjoy complete independence and freedom”; and that all states should strictly observe the provisions of the Charter, the Universal Declaration of Human Rights and the present resolution  on the basis of equality, respect for the sovereign rights of all peoples and nonintervention in their internal affairs.
[15] G.A. Res. 1541(XV), (Dec. 15, 1960).
[16] Principle VII of Resolution 1541’s annex established the criteria for achieving the status of free association: “(a) Free association should be the result of a free and voluntary choice by the peoples of the territory involved expressed through informed and democratic processes. It should be one which respects the individuality and cultural characteristics of the territory and its peoples, and retain for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes. (b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon (emphasis added).”
[17] U.N. Docs. A/AC.109/PV.942 (August 26, 1972).
[18] Supra note 8, at 138.
[19] Id.
[20] Id. at 139.
[21] G.A. Res. 35/118 (Dec. 11, 1980).
[22] Supra note 8, at 139.
[23] The Committee 1982’s recommendation was defeated by a vote of 70-30, with forty-three abstentions. Id.
[24] Special Comm. on Decolonization Press Release, Special Committee Approves Text Calling on United States to Expedite Puerto Rico’s Self-Determination Process, Welcomes Release of Long-Time Independence Activist (June 19, 2017).
[25] Special Comm. on Decolonization, U.N. Doc. A/AC.109/2017/L.12 (2017).
[26] Colony, A Dictionary of Social Sciences 102 (Julius Gould & William Kolb eds., 1964).
[27] Juan R. Torruella, The Insular Cases: A Declaration of their Bankruptcy and My Harvard Pronouncement, in Reconsidering the Insular Cases: The Past and the Future of the American Empire 74 (Gerald Neuman & Tomiko Brown-Nagin eds., 2015).
[28] Carlos I. Gorrín Peralta, Puerto Rico and the United States at the Crossroads, in Reconsidering the Insular Cases: The Past and the Future of the American Empire, supra note 42, at 200.
[29] Roger S. Clark, “Self-Determination and Free Association: Should the United States Terminate the Pacific Islands Trust?,” 21 Harv. Int’l L.J. 1, 46 (1980).