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]

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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).

IALL 2017 Recap: Global and Local Challenges to Refugee Protection

By Anne Burnett

Professor Silas Allard kicked off the Tuesday, October 24, 2017 programming at the IALL Conference with a timely presentation on the current challenges facing asylum seekers in the United States. He is the Associate Director of the Center for Law and Religion and Harold J. Berman Senior Fellow in Law and Religion at Emory University. With graduate degrees in law and religious ethics, his work focuses on issues of migration and human rights.

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Professor Silas Allard, Associate Director of the Center for Law and Religion and Harold J. Berman Fellow in Law and Religion, Emory University, gives his talk “Global and Local Challenges to Refugee Protection”

Prof. Allard addressed recent claims by Attorney General Jeff Sessions that the United States asylum application process is rampant with fraud and abuse. He provided a brief introduction to the “expedited removal” process whereby immigration officials rapidly deport undocumented non-citizens without a hearing. To avoid violating the non-refoulement obligations of the Refugee Convention of 1951, the United States allows non-citizens to seek access to the asylum claim process via a “credible fear review,” in which the immigration official conducts an interview to determine whether the applicant’s claim of fear is credible. It is this “credible review” process that the Attorney General claims is rife with fraud. He states that applicants are committing fraud by even applying for asylum under the credible fear standard because their fear is not legally sufficient.

The speaker then discussed displacement causes, such as climate change and gang violence, that the Refugee Convention does not specifically list. AG Sessions omits from the definition of a refugee the fear of persecution due to “membership of a particular social group,” which includes victims of domestic violence, the LGBTQ community, and, in some countries, gang activity. In fact, the AG considers the arguments by “smart attorneys” about gang recruitment and oppression, especially in Central America, to be abuse of the U.S. asylum process.

Prof. Allard provided some eye-opening statistics about related local challenges to refugees in the Atlanta area. Nationally, the percentage of successful asylum claims was 43%. The percentage changes dramatically depending on which immigration court hears the asylum claim. The percentage of asylum claims approved by the Atlanta Immigration Court in 2016 drew a gasp from the audience: 2%. Prof. Allard is particularly interested in the “judge factor” feeding into this startling statistic. He stated that one judge in the Atlanta court granted only 80 of 3,000+ asylum applications over a 6-year period. This same judge granted zero asylum applications from Guatemalans. When asked about these statistics, the judge stated that applicants in Georgia just do not have good claims. Prof. Allard pointed to a court watch program where observers found that the judges in the Atlanta Immigration Court exhibited disinterest and hostility to applicants. One judge analogized immigrants to a person coming to a house in a mask while waving a knife.

The presentation ended with Prof. Allard stating that the global challenge is also the local challenge: a narrow, legalistic interpretation of the Refugee Convention as manifested by both the Attorney General and by the judges in the Atlanta Immigration Court. He suggested that, while the Refugee Convention could be flexible and able to deal with the ever-changing causes of displacement, the global and local tendencies to focus on the narrow confines of the Convention indicate that perhaps we need a new international law framework to deal with newer challenges, such as climate change and gang violence.

During the Q&A session, an attendee who self-identified as an asylum grantee from a wealthy family stated that she had often wondered what role the socioeconomic status of an applicant plays in the outcome of an asylum application in the United States. Prof. Allard answered that applicants with sufficient funds and with experience navigating sophisticated procedures in their home countries are able to hire counsel, post bond, avoid detention, and navigate the process much more easily than those lacking these resources. While not a surprise, this answer brought a somber end to the session.

New FCIL Librarian Series: So Much to Learn and Do

By Jessica Pierucci

This is the first 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.

i_law_books_1I have officially been an FCIL librarian for nearly four months.  Diving in headfirst as a new FCIL librarian, and the first FCIL librarian at the UCI Law Library, I keep discovering how much more I want to learn and do in this position. This first post will cover some of the first major things I’ve done in this position as I become aware of everything I have to learn and start to bring my vision for the FCIL librarian role to life.

Before starting this position, I took advantage of opportunities to familiarize myself with FCIL research. In my prior role at the UCI Law Library, I took on a number of research projects requested by faculty on FCIL topics. I also joined groups where FCIL librarians congregate, such as FCIL-SIS and Int-Law, to start hearing the buzz from librarians worldwide. As time permitted, I also spent some time with background resources such as GlobaLex, Foreign Law Guide, ASIL ERG, law school created FCIL research guides, and books on FCIL research. All of this helped me prepare for my new role, but I knew I was only scratching the surface.

Just after my appointment as an FCIL librarian, I attended the 2017 AALL Annual Meeting in Austin, Texas. I attended every FCIL-related meeting or session I could find to kick start my entry into the field. Meeting FCIL librarians across the country, hearing about their work, and attending FCIL-focused sessions was a fantastic, whirlwind orientation. I learned about their experience teaching FCIL research, creating guides and reviews of FCIL resources, selecting resources, promoting the FCIL librarian community, and other endeavors. I left the conference further inspired to implement my vision for FCIL librarianship at the UCI Law Library. i_law_books_2

As soon as I returned from the conference, I put my inspiration to work. This fall semester, UCI Law welcomed the inaugural class of its L.L.M program. The program focuses on American Law and is designed primarily for lawyers trained outside United States. In anticipation of their arrival, I created a new research guide for international L.L.M. students. Along with a primer on legal research tools, the research guide provides an outline of key library services for students and information on materials developed specifically for international L.L.M. students. I then used this guide as part of a library orientation for the new students, which included discussion of the use and culture of law libraries at law schools in the United States.

I also started working with the law school’s Jessup International Law Moot Court team. My first step over the summer was to work with the team’s faculty advisor and the library’s head of collection development to ensure Jessup students would have access to foundational international law treatises and texts. At the beginning of the fall semester, the Jessup team requested a training on relevant legal research techniques. This was an exciting opportunity for me to dive into teaching public international law research. Preparing for this training afforded me time to become more familiar with a variety of print and online resources. This work informed my updates to the Jessup research guide. I very much enjoyed meeting with the Jessup team and look forward to working with Jessup students more this year and in the years to come.

I’m excited by the opportunities that already arose to use and grow the library’s FCIL services and for the future opportunities to develop this position. By the time this post is published, I’ll be in the midst of my first IALL Annual Course hosted this year in Atlanta, Georgia. I can’t wait to see what new inspiration this conference will bring!

The Emergence of LGBT Rights in International Human Rights Law: A Historical Inquiry

By Carlos Andrés Pagán

Are lesbian, gay, bisexual, and transgender (LGBT) rights “human rights”? If so, how and when did this inclusion take place?

lgbt international human rights lawSome non-governmental organizations (NGOs), such as Amnesty International, argue that LGBT rights are encompassed under human rights law.[1] On the other hand, organizations like the Organisation of Islamic Cooperation claim that LGBT issues “have no legal foundation in any international human rights instrument.”[2] Within the United Nations (U.N.) system, the issue of LGBT rights has been hotly debated.[3] The U.N. foundational documents themselves are broad and therefore susceptible to both interpretations. For example, the U.N. Charter encourages “respect for human rights and for fundamental freedoms for all without distinction.”[4] Similarly, the Universal Declaration of Human Rights (UDHR) states that: “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”[5]

On December 15, 2011, the United Nations Office for the High Commissioner for Human Rights (OHCHR) released its first report on the “human rights” of LGBT persons.[6] This report detailed the worldwide manifestations of discrimination based on sexual orientation. The publication of this report followed two historic developments at the U.N. First, in December 2008, sixty-six member nations signed onto a statement calling for the universal decriminalization of homosexuality and “to ensure that human rights violations based on sexual orientation or gender identity” are brought to justice.[7] Then, in June 2011, the first resolution recognizing “human rights violations based on sexual orientation and gender identity” was approved in the Human Rights Council by a vote of 23 in favor, 19 against, and 3 abstentions.[8] Notwithstanding this feat, the voting results reveal that a significant part of the international community disagreed with the resolution’s passing.

In recent years, those who argue in favor of the inclusion of LGBT rights as human rights allude to or make explicit reference to the UDHR[9] and/or prevailing international law.[10] Yet for any advocate wishing to argue that LGBT rights are encapsulated in the UDHR or any other international document, the most salient question is how these rights were conceived when those documents were composed or when they began to be frequently invoked and relied on.

Where did the notion of LGBT rights emerge as human rights? What was the UDHR framers’ position on LGBT rights and what was the broader debate on this issue in the drafting commission? Did the activity of LGBT activists influence the work of the commission? If not, when did LGBT activists begin to prioritize lobbying international organizations? In order to address these questions, a historical enquiry into the origins of international human rights law is necessary.

To my knowledge, there has been no systematic study conducted on the history of LGBT international human rights. I trace back this lacuna to at least three causes. First, the field of LGBT legal scholarship is relatively new, and therefore comparatively small. Second, when scholars have addressed these rights, they have typically examined their development only at the national level.[11] Finally, the “novelty” of these rights has led scholars to focus on recent history.[12] In a nutshell, legal scholars have generally not critically engaged with the full historical background.

Henkin, et al., assert that “the major human rights treaties and most national constitutions were adopted prior to the emergence of LGBT rights consciousness or advocacy movements” and partly due to this “the treaties do not expressly mention homosexuality, sexual orientation, or gender identity and some provisions (such as the right to marry) refer to men and women.”[13] Yet at the same time, these scholars point out that these “treaties include numerous provisions relevant to LGBT individuals, including not only privacy and equality but also the right to life, freedom from arbitrary arrest, the right to health, and freedom of association.” Likewise, they observe that the “treaties also leave undefined concepts such as discrimination on the basis of “sex” and “other status” that may be applicable to sexual orientation and gender identity issues.”[14]

In 1870, German writer Karl Heinrich Ulrichs wrote about uniting “urnings” (homosexuals) to champion their human rights. [15] In 1897, Doctor Magnus Hirschfeld founded the Wissenschaftlich-humanitäres Komitee (Scientific-Humanitarian Committee), which is considered Germany’s – and the world’s – first gay rights organization.[16] The Committee had three goals: to repeal a provision of the German Criminal Code that criminalized homosexual acts, “to enlighten public attitude about homosexuality and homosexuals, and to interest homosexuals in their struggles for their rights.”[17] In 1919, German writer Friedrich Radszuweit took over Vereinigung Freunde und Freundinnen, a Berlin-based homosexual club. In May 1922, he renamed it to Bund für Menschenrecht (Alliance for Human Rights). By 1929 the Alliance would boast 48,000 members.[18] From 1923 to 1933, the organization published a bimonthly periodical called Blätter für Menschenrecht (Bulletin for Human Rights).[19]

In 1912, Jacob Schorer, a Dutch lawyer, founded the Dutch Scientific Humanitarian Committee (NWHK), affiliated with Hirschfeld’s movement. Schorer’s organization interests lay “in the human rights aspect, the ability to be who you are without damaging the self-determination of others.”[20] Likewise, the earliest known U.S. gay movement, the Society for Human Rights, was inspired by the Scientific-Humanitarian Committee and founded in 1924. It is noteworthy that they sought to coin the term Human Rights into its name.[21]

In Switzerland, the Damen-Club Amicitia started publishing a magazine called Freundschafts-Banner (Friendship Banner), whose name was changed in 1937 to Menschenrecht (Human Rights). It repeatedly called “for equal laws and equal application of prevailing laws for heterosexuals and homosexuals, writing in 1947, for example, ‘It is for us only a matter of the same human rights! Not special rights, but the same!”[22]

In 1949, the Shakespeare Club, another Dutch gay organization, originally founded in 1946, changed its name to Cultuur en Ontspanningscentrum and based its policy on the UDHR.[23] Likewise, it has been noted that the Kredsen af 1948, Denmark’s first gay organization, was founded in response to the UDHR.[24] A Swedish branch of Kredsen af 1948 was formed in 1949 and a Norwegian branch in 1950.[25]

In 1951, the first International Congress for Sexual Equality saw fit to send a telegram to the U.N. demanding equal rights for homosexual minorities.[26] Based on “the Principles of the United Nations laid down in the Rights of Man,” the “findings of modern psychological, biological and medical research,” and “mankind’s greater awareness of social injustice”, the Congress members called on the U.N. to “initiate steps towards granting [the] status of human, social and legal equality to homosexual minorities throughout the world.”[27]

Arcadie, the first French homophile organization, founded in 1954, “consistently championed a liberal humanist agenda founded upon a discourse of universal human rights and institutionalized tolerance”.[28] Interestingly, gay rights’ discussions within Amnesty International were taking place as early as 1974[29]— three years before the organization received the Nobel Peace Prize and before the start of the period called the “breakthrough of human rights.”[30]

What are we to make of these early developments? What influence or relation, if any, did these movements and others exert over international human rights law?

Much has been written about LGBT rights. But much remains to be done. A historical examination of the efforts to include LGBT within human rights law is not only a necessary chapter in the story of LGBT rights but also a prerequisite for current debates about the status of these rights in human rights law. The issue of LGBT rights is very much alive today, ranging from decriminalizing LGBT relationships to guaranteeing marriage equality. Worldwide, people are detained and imprisoned solely because of their homosexuality—including those individuals prosecuted for having sex in circumstances that would not be criminal for heterosexuals or for their gender identity.

Assessing the relation of LGBT rights and human rights, both historically and in terms of how these concepts have involved in international law, could be an extremely valuable resource to understand the challenges that LGBT people face today in the international community. Exploring how advocates concerned with LGBT rights have chosen to frame their struggles in human rights terms, and vice versa, is of great normative value.

 

[1]Amnesty International, http://www.amnestyusa.org/our-work/issues/lgbt-rights/about-lgbt-human-rights (last visited March. 5, 2016) (arguing that human rights abuses based on sexual orientation or gender can include, among others, the infliction of torture and cruel, inhuman and degrading treatment; arbitrary detention on grounds of identity or beliefs; the restriction of freedom of association; and the denial of the basic rights of due process).

[2] Zamir Akram, Delegate of Pakistan and Representative behalf of the Organization of the Islamic Conference, Remarks at the March 2012 Meeting of the U.N. Humans Right Council, (March 7, 2012).

[3] Are LGBT rights human rights? Recent developments at the United Nations, Psychol. Int’l, June 2012

[4] U.N. Charter art. 3, ¶ 3.

[5] G.A. Res. 217 (III) A, art. 2, Universal Declaration of Human Rights (Dec. 10, 1948).

[6] Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation, Report of the United Nations Office for the High Commissioner for Human Rights, U.N. Doc. A/HRC/19/41 (2011).

[7] U.N. General Assembly, Statement on Human Rights, Sexual Orientation and Gender Identity (Dec. 18 2008) (available at: http://www.refworld.org/docid/49997ae312.html) (accessed 22 April 2016). The representative of Syria, on behalf of 57 member nations, introduced an alternative statement. The statement, rejected the introduction of the “so-called” notions of sexual orientation and gender identity and expressed that the creation of these new rights seriously undermine “the entire international human rights framework”. As of April 2016, 96 member nations have joined the declaration in favor of LGBT rights while 54 still opposed it.

[8] Human Rights Council Res. 17/19, U.N. Doc. A/HRC/RES/17/19 (June 17, 2011).

[9] In a Human Rights Day address to the United Nations in Geneva, Switzerland on Dec. 6, 2011, then-United States Secretary of State Hillary Clinton stated that one of the remaining human rights challenges before the world today is guaranteeing the equality and dignity of members of the LGBT community. She spoke of this “invisible minority,” whose “human rights are still denied in too many parts of the world,” and called for greater protection of LGBT persons. She asserted that gay rights and human rights are not distinct and referred to the UDHR as a foundational U.N. document guaranteeing LGBT rights as human rights. See Hillary R. Clinton, Secretary, United States Department of State, Remarks in Recognition of International Human Rights Day (Dec. 8, 2011).

[10] Addressing the U.N. Humans Right Council, U.N. Secretary-General Ban-Ki moon stated: “We see a pattern of violence and discrimination directed at people just because they are gay, lesbian, bisexual or transgender. There is widespread bias at jobs, schools and hospitals, and appalling violent attacks, including sexual assault. People have been imprisoned, tortured, even killed. This is a monumental tragedy for those affected — and a stain on our collective conscience. It is also a violation of international law. You, as members of the Human Rights Council, must respond. To those who are lesbian, gay, bisexual or transgender, let me say: You are not alone. Your struggle for an end to violence and discrimination is a shared struggle. Any attack on you is an attack on the universal values the United Nations and I have sworn to defend and uphold. Today, I stand with you, and I call upon all countries and people to stand with you, too.” See Ban-Ki moon, U.N. Secretary-General, Address at the March 2012 Meeting of the Human Rights Council, U.N. Doc. SG/SM/14145-HRC/13, (March 7, 2012).

[11] Julie Mertus, The Rejection of Human Rights Framings: The Case of LGBT Advocacy in the US, 29 Hum. Rts. Q. 1036 (2007).

[12] Julie Mertus, Applying the Gatekeeper Model of Human Rights Activism: The U.S.-Based Movement for LGBT Rights, in The International Struggle for New Human Rights 52 (Clifford Bob ed., 2009).

[13] Louis Henkin et al., Human rights 1208 (2009).

[14] Id.

[15] Jonathan Ned Katz, Gay American History: Lesbians and Gay Men in the U.S.A. 385 (1976). See also Karl Heinrich Ulrichs, Araxes: a Call to Free the Nature of the Urning from Penal Law (Michael Lombardi trans., 1981) (1870) (“The Urning [homosexual], too, is a person. He, too, therefore, has inalienable rights. His sexual orientation is a right established by nature. Legislators have no right to veto nature; no right to persecute nature in the course of its work; no right to torture living creatures who are subject to those drives nature gave them. The Urning is also a citizen. He, too, has civil rights; and according to these rights, the state has certain duties to fulfill as well. The state does not have the right to act on whimsy or for the sheer love of persecution. The state is not authorized, as in the past, to treat Urnings as outside the pale of the law. The prohibition of the expression of the sex drive, i.e., between consenting adults in private, lies outside the legal sphere. All grounds for legal prosecution are lacking in this case. Legislators are hindered from doing this by human rights and the principle of the constitutional state”).

[16] Strongly influenced by Ulrich’s work, the Committee was active until its disbandment by the Nazis in 1933. For nearly 25 years, the Committee published scientific and cultural studies of homosexuality. Hirschfeld also founded the World League for Sexual Reform, which held several congresses on the topic: Berlin (1921), Copenhagen (1928), London (1929), Vienna (1930), and Brno (1932). See Ralf Dose, The World League for Sexual Reform: Some Possible Approaches, 12.1 J. Hist. Sexuality 1 (2003).

[17] Paul Russell, The Gay 100: A Ranking of the Most Influential Gay Men and Lesbians, Past and Present 16 (2002)

[18] Laurence Senelick, The Homosexual Theatre Movement in the Weimar Republic, 49 Theatre Survey 5, 22 (2008).

[19] Florence Tamagne, A History of Homosexuality in Europe, Vol. I & II: Berlin, London, Paris 1919-1939 75 (2007).

[20] Bert Boelaars, Urgency and Strategy: Homosexual Men and Women in the First Half the of the Twentieth Century, in Urgency Required Gay and Lesbian Rights are Human Rights 10 (Ireen Dubel & André Hielkema eds., 2010).

[21] St. Sukie de la Croix, Chicago Whispers: A History of LGBT Chicago before Stonewall 75 (2012).

[22] Hubert Kennedy, The Ideal Gay Man: The Story of Der Kreis 215 (1999).

[23] Who’s Who in Contemporary Gay and Lesbian History Vol.2: From World War II to the Present Day 124 (Robert Aldrich & Garry Wotherspoon eds., 2000).

[24] Jason Pierceson, Sexual Minorities and Politics: An Introduction 157 (2016).

[25] Id.

[26] Leila J. Rupp, Professor, University of California–Santa Barbara, American Historical Association conference: Transnational Homophile Organizing: The International Committee for Sexual Equality (Jan. 2011). See also COC, Report of the First International Congress for Sexual Equality (1951), 2.19.038, box 158.

[27] Id. at 2.  See also Telegramm an die UNO, 7 Der Kreis 1 (1951).

[28] Keith Harvey, Intercultural Movements: American Gay in French Translation 29 (2003).

[29] Sexual Orientation and the AI Mandate, Luxembourg Section, for 1982 ICM, AI Index: 21/01/82 in Stephen Hopgood, Keepers of the Flame: Understanding Amnesty International 116 (2006).

[30] See Samuel Moyn, The Last Utopia: Human Rights in History 4, 222 (2012).

Announcement: FCIL-SIS (Informal) Book Discussion Group at AALL Annual Meeting

By Dan Wade

disarray_0The FCIL-SIS Book Discussion Group will meet at the Annual Meeting on Monday between 12:15 and 2:00p.m. We are gathering at the AALL Annual Meeting Registration Desk at 12:15p.m.

The book under discussion this year is A World in Disarray, by Richard Haass (New York: Penguin, 2017). Haass has been President of the Council of Foreign Relations since 2003. After graduating from Oberlin and receiving his M.Phil and D.Phil from Oxford, Haass worked for the Department of State and the Department of Defense. Between 2001 and 2003 he served the George W. Bush Administration by assuming the dual role of Director of Policy Planning at the State Department, where he became a close adviser to Secretary of State Colin Powell, and United States Special Envoy for Northern Ireland, for which he received the Department of State’s Distinguished Service Award. The book under discussion is Haass’ twelfth book, and it very much follows the line of thinking set out in probably his best known work, The Reluctant Sheriff,  in which he writes, “what will prove crucial is the ability of the United States to persuade others to adopt and abide by its preferences—and the will and ability of the United States to act as sheriff, to mobilize itself and others to insist on them when resistance emerges.” (p.44). In the present book he mellows some and invokes the principle of sovereign obligation, where a state works towards meeting the interests of other states. In the final chapter he addresses the issue of our country in disarray. (No, it is not about Donald Trump’s foreign policy.) Here he calls for more military spending. You can imagine how that analysis sits with this Connecticut Yankee and ordained minister (emeritus) of a historic peace church, e.g., Friends and Mennonites. The book does have value. I thought the discussion of R2P and United States debt were two of the high points.

I believe our group will be smaller this year, and if you are interested in foreign policy, world order, and international relations, please feel free to join us, even if you haven’t read the book. I will reserve a couple of extra places at the lunch table.

Cuban Law and Legal Research: A Snapshot During the Deshielo (Congelado?) – Monday, July 17, 2017, 9:45 a.m., Austin Convention Center, Room 18AB

By Julienne Grant

IMG_9721 (003)“The history of the United States and Cuba encompass[es] revolution and conflict, struggle and sacrifice, retribution and now reconciliation. It is time now for us to leave the past behind. It is time for us to look forward to the future together.”

-President Barack Obama, March 22, 2016, Havana, Cuba

 

“Therefore, effective immediately, I am canceling the last administration’s completely one-sided deal with Cuba.” 

-President Donald J. Trump, June 16, 2017, Miami, Florida

 

“Again, the United States Government resorts to coercive methods of the past, adopting measures to intensify the blockade, in force since February 1962, which not only causes damage and deprivation to the Cuban people and constitutes an undeniable obstacle to the development of our economy, but also affects the sovereignty and interests of other countries, inciting international rejection.” (Julienne E. Grant, translation)

-Declaration of the Revolutionary Government, June 16, 2017, Havana, Cuba

 

When I drafted a proposal last fall for an AALL program on Cuba, I envisioned a continuation of the dramatic deshielo (thaw) of relations between the U.S. and Cuba. Specifically, I assumed there would be a progression of the rapprochement that former President Obama alluded to in his speech in Havana on March 22, 2016.  What I didn’t foresee while crafting the program were the most recent proclamations by President Trump and the Cuban government.  Trump’s June 16th announcement in Miami that backtracks some of the previous administration’s initiatives has halted the thaw a bit. As such, this program is perhaps more appropriately a snapshot during the deshielo congelado (frozen thaw). However U.S.-Cuba relations can now be characterized, though, Cuba is on the cusp of dramatic changes, and it’s a hot topic.

Please join Dr. Marisol Florén-Romero (Florida International University), Teresa Miguel-Stearns (Yale), and me (Loyola University Chicago) as we first explore this enigmatic jurisdiction from a law librarian’s perspective. Our program will include a brief overview of the somewhat unwieldly nomenclature of Cuban law, as well as a short assessment of English-language sources that can provide insight into Cuba’s legal landscape. In addition, Teresa will offer a quick summary of her experience purchasing legal materials in Havana last year.  Accompanying the program is a useful 26-page handout that will be available for download.

Our featured speaker, however, is Professor Jorge R. Piñon, whose talk is titled “Cuba Business Scenarios:  Challenges and Opportunities,” certainly a timely topic in what is an extremely fluid political and economic environment.   Professor Piñon is the Interim Director of The University of Texas at Austin, Center for International Energy & Environmental Policy, and the Director of its Latin America & Caribbean Energy Program.

Professor Piñon is also recognized as an expert on Cuba’s energy sector, as well as on the island’s future economic transitional challenges and opportunities.  He is an advisor and a member of the Cuba Task Force at The Brookings Institution and co-author of “Cuba’s Energy Future: Strategic Approaches to Cooperation,” Brookings Institution Press, 2010.

Hope to see you on Monday for what is sure to be a lively, engaging, and enlightening hour!

 

The Social Responsibilities Special Interest Section Carbon Offset Project: Making a Difference in Global Climate Change

By Erin Gow

As the AALL 2017 conference approaches and you mark your calendars for all the great FCIL related sessions and events taking place in Austin this year, why not take a moment to consider contributing to the Social Responsibilities Special Interest Section Carbon Offset Project? This is a great opportunity to come together with librarians from other sections across AALL to make an international difference.

Climate change is a truly global issue, with international laws and treaties addressing a range of environmental issues that must be tackled beyond the borders of any single nation. This year the SR-SIS is providing an opportunity for everyone to make a difference to the international crisis of climate change by making a donation of just $6 to offset the carbon impact of travelling to the 2017 AALL conference. In addition to making a difference by offsetting carbon emissions, this year’s project also has a direct impact on the lives of people in Uganda, by providing cook stoves that are safer and cleaner than the toxic fires many families currently have to rely on to cook their meals. Visit www.aallnet.org/sections/sr/projects/Travel-Offset-Project.html to find out more about the project and to make a donation.

SR-SIS