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against internationallaw are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of internationallaw be enforced"J24 Given the limitations noted above, U.S. courts' adjudication of these claims is consistent with international law. In light of the development of international law since World War II, such adjudication is neither a "worldwide jurisdictional assault"125 nor an illicit interference with the exclusively "internal" affairs of other states. International law, itself, grants states universal jurisdiction over fundamental violations of its norms.Pe Also, one must remember that international law is an evolving body of law that has undergone tremendous changes in the past generation. Indeed, tha tis perha ps the most profound significance of these cases: they confirm the binding character of core, human rights norms in contemporary international law.

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Marco Antonio 1. Reality, Values and Objectives

Rigau

124. Blum/ Steinhardt at 68 and n. 67, citing Judgment of International Military Tribunals, 22 Trial of the Major War Criminals Before the International Military Tribunal. Proceedings 411. 465-66 (1948). reprinted in 41 Am J Inl'1 L 172.220-21 (1947). 125. Hanoch Tel-Oren v. Libyan Arab Republic. 517 F Supp 542. 550 (D DC 1981). 126. United States v. James-Robinson, 515 F Supp 1340 (SD Fla 198/).

All work or effort to analize reality and to propose modifications to that reality must necessarily have bases or foundations that may be articulated and conscious, or inarticula ted and unconscious. Each person has an intellectual, emotional and value formation. That formation will be determinative in the appreciation and the evaluation of the reality we analize, which we diagnose and to which we make change and modification proposals. We must be aware of our biases and values in attempting to analize 'and in 'proposing modifications to reality. No one succeeds entirely, but at least we must make the greatest effort. Here, I will endeavor to analize the Puerto Rican reality as I perceive it today. In the evaluation of that reality, I intend to be as objective as I can within own circumstances. Then, I will submit some change proposals to the existing reality in Puerto Rico. In submitting these suggestions and projects for the future, I do so thinking about the possibility that these may someday become a reality. I do not reject the work of those who propose utopias. They also have a role in our world. Many times these serve as an ideal and starting-point for achievable proposals. Plato proposed an ideal, yet unachievable, Republic. I have no quarrels with it. However, I simply intend to propose those

my

I. Lecture delivered at the Latin American Studies the Harvard Law School. October 24. 1986.

Association

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things that our generation can begin and achieve. The following tions will each. in turn, be responsible for their own agenda.

genera-

Ma ny times the utopias and the e motional and irrational proposals allow a credibility to political leadership to obtain some degree of prom inence and of leadership itself. Hitler's movement was based on this foundation. The consequences for the world were, to say the least, not too good, and the wounds are still healing. The proposals for change and the ideological postures of "all or nothing" suffer from the same defect. By and large, they do not achieve anything. In a few ocassions, to succeed, they must impose themselves over the rest, defeating instead of convincing, and making social living simply

asfixiating,
In my analysis of Puerto Rico I will be as fair as I can be. I must confess that my proposals for the future of Puerto Rico incorporate my values and convictions about the human being and life in society. To allow for no doubt, I enumerate here the most fundamental of these: I. The human and civil rights of all persons must be respected and protected to the fullest possible in society. Each limitation to a human or civil right must have such fundamental justifications that the state must bear the burden of proof beyond a reasonable doubt. I have no interest in living in or sponsoring a society that does not foster personal liberty in all its manifestations. 2. The State must provide for the material security of those who need assistance to survive or must develop economically to the maximum extent that the reality of the State and the society in question may allow. I am not interested in sponsoring a society which is indifferent to the misery and the needs of those who li,ve in it. 3. The State and the government must function as the "spark-plug" that generates the development and the well-being of society. I endorse the encouragement of private initiative for economic development. I have no interest in a society where the State is the largest employer. That economic dependency on a sole employer is not healthy nor conducive to liberty and creativity. 4. Those who exercise public power must be elected for a fixed term in free elections by all the citizens of that society. I respect the right of the popular majority to choose who may govern. I am not interested in any dictatorship of any kind, neither of kings nor oflearned princes, nor of the proletariat. 5. I endorse the maximun degree possible of autonomy for Puerto Rico. I am convinced that Puerto Rico must have all the powers that may be necessary to guide its destiny, its life as a people and its economy. I am not of the opinion of an "all or nothing" proposition. I have no quarrels

with having all the powers. Work must be directed towards making it unnecessary to impose to the majority of the Puerto Rica n people what has neither been requested nor supported by them. This is necessary to safeguard the respect for democracy and to avoid the germ of totalitarianism, which would be contrary to other fundamental values. 6. Insofar as Puerto Rico, 1fa VOl' the strengthening of the best possi ble relations with the United States, its government and North American society. Quite independently from the future development of Puerto Rico toward the control of our destiny, the inescapable fact remains that there are over two million citizens of Puerto Rican culture and extraction that will continue living in the United States. That nexus is permanent. The best values of North American society are loved by the Puerto Ricans. 7. The economic assistance of the United States can befundamental for the development of a viable and vital economy in Puerto Rico. Access to the United States market is important for our future. Moreover, close to a century of sharing a living with the United States cannot be ignored. The acquisition of our powers as a people need not be an act against the United States. This has been the mistake of some. It must be an act of Puerto Rican affirmation, of growth, and not of hard feelings or resentments. 8. I favor the greatest degree of Puerto Rican interdependence with its geopolitical region, the Caribbean. We are an Antillian and Caribbean people. The development of our Caribbean life is vital for the future of all. I have made clear my political values, in general as well as, in relation to Puerto Rico. Each Puerto Rican must do it, and so must North Americans. The "lip service" paid by some" America ns"to their respect for the will of the majority of the Puerto Rican people is simply not enough. The U nited States is an essential party to the decisionmaking process on the future of Puerto Rico. Puerto Rico must come to terms with itself, but so must the United States. This must be done not in confidential memoranda, but in public manifestations by the Congress and the President. The objectives are simple: to know our reality, not to deceive ourselves nor allow ourselves to be deceived. To know our values. To design a process whereby a motherland which may conform to those values can be constructed. Being deeply grateful to those who worked before, we must save our inheritance, and leave over to our childen an even better society.

II.

The Puerto Rican and the United States reality

Since Spain and Columbus arrived in Puerto Rico on November 19, 1493 and Juan Ponce de Leon came in 1508 to colonize the Island of San Juan, our history, the Puerto Rican history, has been one of se rvice to the
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best interests or the national history of the metropolis, according to the criteria of those who have retained control over Puerto Rico. This was so "en tiempo de Espana (a commonly-used phrase in Puerto Rico which refers to the old times and which literally means "in the times of Spain") and has continued under the sovereignty of the United States. This should in no way be construed to mean that there has been a lack of Puerto Rican initiatives and struggles for the best interests of Puerto Rico. Puerto Rico and Puerto Ricans through the years have struggled to advance our case vis a vis those of the metropoli. Notwithstanding this fact, history proves that the grea t political, legal and economic processes in our history have responded to the needs of Spain and the United States, respectively. A few examples will suffice. 1. The Spanish Constitution of 1812 granted Puerto Rico representation in the Parliament of Spain. Our first representative was Ramon Power y Giralt. We are told since our grammar school history courses that his appointment was a great political conquest for Puerto Ricans. This is true, but only partly so. It must be added that somewhat earlier, a priest by the name of Padre Manuel Hidalgo led an uprising in Mexico against Spain to gain its independence. The same was done by Jose de San Martin and Bernardo O'Higgins in Chile and the South Cone of America. Bolivar also led similar movements in various countries. Coincidences then become clear. Our political conquest in this respect was also an effort in Spain's interest to tardily tend to its colonies in the Americas. 2. By the end of the Spanish dominion, we are told and have often read, that in 1897 Puerto Rico obtained a Bill of Autonomy from Spain and that this was "an achievement for the Puerto Rican autonomist movement". Recognizing the value of the work performed by the autonomist leadership in 1897 and its then principal leader, Luis Munoz Rivera, said achievement was due solely to the fact that our interests coincided with those of Spain at that precise moment. Spain attempted to appease the fight for Cuban independence in 1897. Its last, tardy and failed attempt was to grant both Cuba and Puerto Rico a Bill of Autonomy. Such a bIll was granted to Spain's last two colonies in America. The SpanishAmerican War of 1898 turned said bill into dead letter when Puerto Rico was invaded and occupied militarily by the United States in 1898. Under the sovereignty of the United States, since 1898, history has repeated itself. I. Contrary to what General Miles stated, Puerto Rico was not invaded and occupied by the United States because the latter wanted to bring to Puerto Rico the blessings of liberty and democracy. That was the first "lip-service" paid to us. The United States was really interested in Puerto Rico because of its strategic position and its geopolitical value. Its economic value, although always present, was of a secondary nature. That is the reality; anything else is sheer fantasy. 2. The military government in Puerto Rico ([898-1900) as well as the Foraker Act, first organic act approved by Congress for Puerto Rico, were political-legal schemes to guarantee tbe total political, legal and economic control of the United States over Puerto Rico and not the "blessings of liberty and democracy". This first Organic Act did two things: a) it regulated the relations between the metropolis and the colony; and b) it formally organized a civil government for Puerto Rico. Pursuant to the Foraker Act, the governor as well as the heads of the departments of the executive branch, the Executive Council (then the High Chamber) of The Legislative Assembly and the Supreme Court Justices were all appointed directly by the President of the United States. Puerto Ricans could only elect the Chamber of Delegates (Low Cham ber) of the Legislative Assernb.y, the municipal officials, and a Resident Commissioner to the Congress of the United States (House of Representatives) with only voice and no vote. 3. The second organic act under the United States came, not by coincidence, in 1917. The Jones Act which granted the United States citizenship to Puerto Ricans was approved shortly before the law requiring mandatory military service was approved and also shortly before the United States began sending fighting troops to World War I in Europe. It was no coincidence. The granting of citizenship went hand in hand with the metropolitan interest to recruit soldiers for the World War. That is the history of Puerto Rican "achievements" as a territory of the United States.

III.

Puerto Rico and United States values and objetives

A most important position paper on the principal territories of the United States was made public in February, 1985. It was prepared by the National Security and International Affairs Division of the United States General Accounting Office ("GAO"). What is the GAO? What are the GAO reports? What does the February 7, 1985 GAO Report "Issues Affecting United States Territory and Insular Policy" say? How is it useful to Congress? How is it relevant to Puerto Rico? The General Accounting Office of the United States is the primary and most important investigatory arm of Congress. It was created in 1921 by the Budget and Accounting Act, to assist Congress in meeting its legisla-

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tive and oversight responsibilities. The G AO functions as an independent non-political agency of the legislative branch. The head of the GAO is the Comptroller General of the United States. He is appointed by the President, with the advise and consent of the Senate, for a non-renewable term of 15 years. The scope of activities of the GAO has been extended by several laws. Today, the General Accounting Office has the basic, formal functions to assist Congress, its committees and members in carrying out their duties; to carry out legal, accounting, auditing and claim settlement functions with respect to federal government programs and operations as assigned by Congress; and to make recommendations designed to provide for more efficient and effective policy. The GAO is more than a group .of accountants and lawyers in Washington. It has at least a dozen important divisions at its main facilities in the District of Columbia. It has also 15 regional offices and several overseas branches (the Latin American branch is located in Panama City, Panama). In addition to its accounting duties, the GAO it, for all practical purposes, the congressional intelligence agency. It provides intelligence and policy recommendations to the U.S. Senate and House of Representatives, their committees and members. As required by law, the Comptroller General sends to Congress each month the GAO reports released or issued at the request of Congress, and also those generated by the GAO on its own initiative. The Chairman of the Senate Energy and Natural Resources Committee, Senator James A. Me Clure, R-Idaho, requested from the GAO on March 25, 1983 a special study and report on U.S. policies towards its territories. (The Energy and Natural Resources Committee has jurisdiction in the Senate on "territorial possesions" of the United States). The same study was requested on June 20, 1983 by Rep. Morris K. Udall, D-Arizona, chairman of the House Interior and Insular Affairs Committee. (This Committee has jurisdiction in the House over measures regarding U.S. "insular possesions"), The GAO study was carried out under the supervision of Frank C. Conahan, Director of the National Security and International Affairs Division of the GAO. It was conducted between June 1983 and April 1984 at the different territorial governments, as well as at multiple federal agencies in Washington D.C. (i.e., the Departments of State, Defense, Treasury, Interior, etc.). White House officials, members of Congress and staff from the committees also participated in the study. Leaders of the territories, including the then Governor of each territory and the Presidents of each Micronesian government, the U.S. Ambassador for the Micronesia status negotia tions, and government and private 124

sector representatives in each territory were also interviewed. entitled "Issues Affecting U.S. Territory and Insular Policy", on February 7, 1985. The introductory remarks of the report are as follows:

The report, was released

"The United States faces a complex set of policy issues with its principal territories -American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands, and Puerto Rico. The issues involve political, economic and organizational relationships between the federal government and the territories in such areas as political status; treatment under federal policies, laws and programs; economic and financial assistance; and representation and oversight". "GAO believes federal policy makers in the Congress and executive branch will likely be challenged to further clarify policy towards the territories ... " The Report delighted some, and surprised others. Among those surprised was former Puerto Rican Governor Carlos Romero. Appendix VI of the Report is a letter by Romero dated November 28, 1984 (22 days after his defeat at the polls). The 14-page letter expresses then Gov. Romero's reaction to the Report. In the last paragraph Romero files charges against the present United States government for promoting "separatists ", in Puerto Rico. The former governor claims that the Report "constitutes an insult to our loyalty" and that it is: "Federally sanctioned encouragement to radical elements whose goal is to force Puerto Rico's separation from the United States against the will and the democratically expressed desire of the overwhelming majority of the Puerto Rican people". What does the report say that affects the statehood leader so much tha t it provokes his harsh remarks towards the U.S. Government? The Report finds that the new Compact of Free Association agreed upon between the United States Government and the people of the Republic of the Marshall Islands (R MI) and the Federated States of Micronesia (FSM), from the trust territory in the Pacific, represents a new political relationship by which they will enjoy their own sovereignty. Except for defense and security matters, the new Free Associated States (FAS) will be, according to the Compact of Free Association, largely independent and self-govern ing. The GAO Report implies in many ways that this new policy, Free ~ssociation, should be considered by the U.S. for all its territories, includIng Puerto Rico. Perhaps even more important, the concept of "state125

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hood" is not conceived as a possibility government in the Report.

to be considered

by the U.S.

People who have up to now supported the statehood alternative for Puerto Rico and are aware and conscious of the emerging policy that promotes any alternative other that statehood, should be going through a process of dificult but necessary instrospection. But "the writi ng is on the wall ". The Heritage Foundation policy proposal to the Reagan administration suggests such a course of action during President Reagan's second term. The white paper, published with the title Mandate For Leadership l!: Continuing the Conservative RevoluI ion, endorses (pp. 14 I-147) thefollowing forthe United States territories: 1. Assistance for infrastructure, as investment to complete a basic infrastructure program (instead of welfare assistance).

2. To make Puerto Rico Initiative. To encourage the tation, machinery and other 3. A tax system with a territories.
4. To eliminate in the territories. 5. To unify all programs or other 6. To involve foreign policy and neighbors.

an important element in the Caribbean Basin development of the Caribbean with transporresources from Puerto Rico. separate schedule for source income in the constrains of federal laws and regulations :1 ,;j
I

unnecesary

agencies' responsibilities for offshore areas, including assistance to the Free Associated States. the territorial leaders in formulating and conducting tightening the relations between the territories and their

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On the other side of this affair is the government of the Commonwealth of Puerto Rico. The administration that took office on January 2, 1985, stated in its platform the following: "on our side, we will not promote fundamental changes to the status in the next four years" (1985-1989). The platform of the Popular Democratic Party, the administration in office during the 1985-l98S term, nevertheless, has a saving clause. The platform states that the fact the Popular Dernocracit Party will not promote fundamental changes in the status "will not impede modifications in the laws and federal regulations compatible with the Free Associated State", What will the Popular Democratic Party Administration under Governor Rafael Hernandez Colon do if the proposals for modifica tions to the existing commonwealth are initiated by the United States Government? It seems that there is a possible initiative bycertain sectors in Washington on Puerto Rico and other territories associated with or under United States rule. Several items give a more precise picture: (I) The changes tha t were proposed to Section 936 of the Internal Revenue Code (Section 936 of the Internal Revenue Code, basically speaking, exempts from U.S. taxation the income tha taU .S. co rporation receives from its operations in Puerto Rico). The tax revision of 1986 made some minor changes to said section 936 because of its possible use in the development of twin plants in the Caribbean basin, a plan that was considered essential for the national security of the U.S. in the region. (2) The General Accounting Office Report, mentioned above (the Report that suggests Free Association as a policy to be considered for all territories). (3) The White House-authorized article in the New York Times, in 1985, on an alleged contingency plan for nuclear weapons in Puerto Rico. That article, together with a very important report on the subject by the Bar Associa tion of Puerto Rico, has crea ted collective awareness in Puerto Rico on the issue of defense and its relevance to the relationship between Puerto Rico and the United States. (4) the several proposals in Congress to cut more programs of welfare assistance and benefits. (5) the precedent established by the Compact of Free Association between the United States and the Republic of the Marshall Islands and the Federal States of Micronesia. (6) the U.S. District Court for the District of Puerto Rico decision tha t Puerto Rico is a "secondary border" of the United States. Some years ago the former head of the Office of Puerto Rico in Washington during Governor Hernandez Colon's first term (1973-76), how a United States federal judge in Connecticut, Jose Cabranes wrote an article in Foreign Policy on Puerto Rico with a very suggestive title: 127

'J'>'".

Those six were the basic recommendations to the Reagan Administration by the conservative Heritage Foundation. The President-has been quoted as saying that said recommendations (the Heritage Foundation's) have been very important and are used by him. Edwin Meese, counselor to President Reagan in his first term, and Attorney General in the second term, said that they "will be an important contribution to what happens to this country (the United States) in the years ahead ". The Compact of Free Association between the United States and the Republic of the Marshall Islands and the Federated States of Micronesia was finally approved and ratifield by Congress on January 14, 1986, after more than sixteen (16) years of negotiations. Some people in Puerto Rico paid close attention to the hearings in the; Interior and Insular Affairs Committee of the House of Representatives during the two years prior to its final ratification. We believe that said compact of Free Association of the Pacific Islands can establish a prece-, dent that can be applied or be of value to the larger Puerto Rican; archipielago in the Caribbean.

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"Puerto Rico: Out of the Colonial Closet". There is a real possibility that the United States and Puerto Rico will come out of the closet. For the first time in many years there is a chance that the United States, Congress and the President, will speak straight, loud and clear on Puerto Rico to the people of Puerto Rico. No more lip service of promising support for the majority will of the people of Puerto Rico. What is needed now, as hopefully seems to be the emerging situation, is that the United States government-Congress and the President-express an honest position about its relationship with Puerto Rico. Only then can the people of Puerto Rico express a more informed opinion about their future. This United States initiative is needed to provide Puerto Rico with the opportunity to talk with the United States outside of the closet and to negotiate outside of dark rooms.

tory to future statehood. Congress approved statehood for Alaska in 1958. Twenty-two years later, by 1980, Alaskans began to question whether statehood was a good idea after all. (Pierce & Hagastrom, The Book of America, 1983 Page 859). The introspective remark of the only Congressman from Alaska (for more than 13 years, since he was first elected on March 6, 1973) Republican Don Young, should motivate at least some of his fellow Republicans in Puerto Rico to try to do some honest thinking and soul searching themselves. The day after the remark of the ranking Republican was reported in Puerto Rico by the San Juan Star, the ranking columnist for El Mundo newspaper, Jorge Javariz, maybe understanding the meaning of it all, said in his "Trasfondo " of April 19, 1985 that: "Micronesia really would have with the United States a Free Association like the one that has been proposed bythe more liberal wing of the Popular Party in Puerto Rico". (Javariz also dedicated his April 22, 1985 column to this matter) It has not been an altogether easy path for the people of the more than one thousand (1,000) Marshall Island and the states of Ya p, Ponape and Kosrae of the Federal States of Micronesia. The more than 2, 100 islands in the Pacific known as Micronesia were captured from Japan by the United States in World War II. Since then, according to the former United States ambassador to the United Nations during the last years of the Carter administration, Donald Me Henry, the United States has faced a dilemma:' how to reconcile the principles of self-government and self-determination with'the control of Micronesia for security and defense purposes. (Mc Henry, Micronesia Trust Betrayed, 1975, Page 2). Micronesia is divided geographically in three different archipelagos: the Marshall Islands, the Caroline Islands and the Marina Islands. It was in the Marianas, on the island of Saipan, that Japanese Admiral Chuichi Nogurno was defeated. Nogumo, who had led the attack on Pearl Harbor, cornmited suicide after he confirmed that the United States assault had succeeded in a battle where Japan lost close to 30,000 men. Sai pan became a CIA base in 1948, one year after Micronesia became a Trust Territory of the United States. From 1946 to 1958 the UnitedStates carried out a horrendous nuclear testing program on Bikini and Enewetok, the northern atolls of the Marshall Islands. The continuing effects of radioactive contamination are still very much at issue in the Marshalls. Twenty-three nuclear tests in Bikini have left a legacy of cancer, 129

IV. Free association A. Micronesia's

in Micronesia and Puerto Rico'

Autonomy

The tip of the iceberegjust emerged. The compact of Free Association entered into by the United States, the Republic of the Marshall Islands and the Federated States of Micronesia became news in 1985. The new political, economic and legal relationship -"status"was agreed upon by the representative governments of both archipielagos, It was strongly endorsed by both the Democratic Carter Administration and later by Republican President Reagan, the State Department, the National Security Cou ncil and the U.S. Senate. When it reached the House of Representatives the Compact got mixed reactions and ran into some obstacles. (San Juan Star -April 18, p. 14; April 22, p. 14). Why? Apparently, some members of the House were ha ving problems with the Compact of Free Association because of the political, economic, tax and other benefits assured by the agreement to the U.S. territories since 1947. Some felt that "the deal was too good to be true". The one and only member from Alaska in the United States House of Representatives, the ranking Republican congressman on the House Committee of Interior and Insular Affairs, Don Young, said of the Compact: "Alaska would have opted for free association rather than statehood if these same relative benefits would have been available". Alaska's long and arduous fight for statehood was won nine decades after the day in 1867 when Senator Charles Summer dedicated the terri128

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leukemia, thyroid problems, miscarriages and other human suffering. The very first H-bomb was tested there. In 1946, the inhabitants were evacuated. In the Sixties, the United States agreed to clean up Bikini in orderto allow them to return home. Some believe now that the cleanup was done in a haphazard manner and the Bikinians are now suing the United States government for several hundred million dollars. During a la-year period (1948-1958), 43 nuclear blasts were made in Enewetok , whose inhabitants were evacuated in 1948 to a smaller island, Ujelang. They survived there for 30 years. Because of their limited resources, they almost faced starvation, becoming dependent on USDA food. In 1976 Congress appropriated $104 million for a. cleanup operation by the Defense Nuclear Agency. The contaminated waste contains, among other substances, radioactive plutonium a cancer-causing agent active for some 240,000 years. In 1980 some returned to Enewetok. Despite serious reservations, the United States governme~~ allowed them to return to their ancestral la nds. Also in the Marshalls is Kwajalem, which is used as a target for test missibles fired from California. The new proposed MX missiles are also planned to be tested there. The 3,000 Americans on Kwajalem enjoya golf course, swimming pools, free movies and full sport facilities. The Marshallese have no access to any of it. Tourists are banned from Kwajalem. In 1954, the biggest hydrogen bomb was exploded in Bikini and created a 35 kilometer-high cloud that dropped radioactive white dust on the island of Rongelap about five hours after the blast. Two days later the population was evacuated. They experienced all the symptoms of radiation exposure soon after. The U.S. allowed them to return to the still highly-contaminated Rongelap. ",1' A report for the Atomic Energy Commission says that "the group of irradiated Marsha llese people offer a most valuable source of data on human beings who have sustained injury from all possible modes of exposure". A Marshallese congressman, Ataji Balos, has gone to the extreme position of accusing the U.S. government of consciosly allowing the residents of the islands to be exposed, in order to study the effects of radiation on human beings. (Stanley; David; South Pacific Handbook, 1982, Pages 441-449). All of the above might help us understand the fact than the suicide rate in the islands of Micronesia is one of the highest in the world, twice that of the U.S. After all the suffering inflicted upon the people of Micronesia by the Japanese and the Americans, the best compact possible is not. good enough. The Compact negotiated and agreed-to provides a legal framework for the people of Micronesia to develop political and economic structures that will serve their best interest for years to come. 130

B. The Micronesia Compact During World War II, the United States occupied Micronesia. The United Nations designated the 2,100 islands to the U11ied States as a Trust t Territory in 1947, one of the eleven established around the world. It was the only one designated a "Strategic Trust", meaning that the United States could establish military and intelligence bases there and also conduct nuclear tests. After 28 years of very slow constitutional development in the trust territory, two of the four entities in Micronesia, The Marshall Islands and The Federal States of Micronesia, have agreed to enter into a Compact of Free Association with the United States. The Compact comprises a preamble and four titles or parts, to wit: 1. Government Relations; II. Economic Relations, III. Security and Defense Relations, and IV. General Provisions. This last one includes matters like the approval process for the Compact, Dispute Resolutions concerning the Compact, and the possible Termination of the Compact. What does the Compact of Free Association provide for? Some of the more important clauses are: The preamble of the Compact establishes clearly that the new relationship is the product of an agreement on a government-to-government basis. It is a Compact, not "in the nature of a Compact"as was the case with U.S. Public Law 600 of 1950 when the Commonwealth of Puerto Rico was formally organized in the early fifties (1950- I952). The Compact of Free Association will, "after approval by Congress, constitute both an international agreement and a United States statute or law". That is the formal op'inion of Ambassador Peter Rosemblatt, who was the U.S. President's personal representative for Micronesian Status Negotiations from August 1977 to March 1981. (VII Brooklyn Journal of International Law, Page 173 (1981 )). The Compact itself states that, without prejudice of the effects of the Compact under international la w, it has "the force and effect" of a statute under the laws of the United States. (Sec. 471 (c)). The preamble recognizes that the peoples of the Trust Territory have and retain their sovereignty, their sovereign right to self-determination and their inherent right to adopt and amend their own Constitution. The Compact provides for a process to enter into the Compact, to amend the Compact and, if desired, to terminate the compact. The difference between this and the existing situation in Puerto Rico is notable. The Federal Relations Law, the Congressional statute that established the legal relationship between the United States and Puerto Rico, does not provide a 131

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mechanism for amendments to the "Compact" of the Commonwealth Puerto Rico or for the termination of the relationship.

of

At the outset, the compact states that the peoples of the Marshall Islands and the Federated States of Micronesia are self-governing (Section 111). It is so mentioned in an official United Nations publication. (See Decolonization, No. 16, July 1980 -Issue dedicated to Trust Territory of Pacific IslandsPage 28). The governments of the Marshall Islands and the Federated States of Micronesia will have the legal capacity to conduct foreign affairs in their own name and right (Sec. 121 (a. They will only have specific limitations. The foreign affairs capacity includes, among others, the law of the sea-so important for islands,marine resources matters, harvesting, conservation, exploration or exploitation ofliving and non-living (e.q. oil) resources from the sea, seabed, or subsoil as provided by international law. (Sec. 121 (b) (I). . ... The Freely Associated States will have the capacity to conduct their commercial, diplomatic, consular, economic, trade, banking, postal, civil aviation, communications, and cultural relations. This capacity includes negotiation for' developmental loans and grants and the conclusion of arrangements with governments of other countries, intergovernmental, regional and international organizations. (See 121 (b) (cj). They will have the legal capacity to enter into, in their own name and right, treaties and other international agreements with governments, regional and international organizations. (Sec. 121 (c). The government of the United States shall support mutually agreedupon applications for membership in regional or international organizations. (See 122). ..;" At the request of the Marshall Islands or the Federated States of Micronesia, the U.S. shall extend consular assistance to them. This means that the Marshall Islands and the Federated States of Micronesia can use the embassies and consular offices of the U.S. throughout the world. (Sec. 126). The governments of the Marshall Islands and the Federated States of Micronesia will have full authority and responsibility to regulate their respective domestic and foreign communica tions, with the exceptions of the international frequency and satellite communications that will remain under U.S. jurisdiction. The U.S. can also operate the necessary defense responsibilities (Sees. 131 132). The citizens of the Marshall Islands and the Federated States of Micronesia can enter the U.S. for employment. The sections on immigration, in a reciprocal way, establish the U.S. citizens' right to enter the Marshall Islands and the Federated States of Micronesia on a noridiscrim132

inatory basis. (Sec. 141). (While the people of the Marianas' are U.S. citizens, the people of the Marshall Islands and the Federated States of Micronesia are not. This, however, does not preclude the possibility and legal validity of a Freely Associated State). The Marshall Islands and the Federated States of Micronesia are getting a much better deal that has been obtained by Puerto Rico. Not only that, they are receiving much more than what Puerto Rico ever asked.

C. The Option

of an Eco170111ic Compact

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Dependency is the best way to describe the economic situation of the Marshall Islands and the Federated States of Micronesia today. It is ironic tl.at the United Nations Trusteeship Agreement was, in theory, designed to ach ievethe opposite. Article 6 of the 1947 U. N. Trusteeship Agreement binds the U.S. to "promote the economic advancement and selfsufficiency of the inhabitants, and to this end shall regulate the use of natural resources, encourage the development of fisheries, agriculture, and industries". Up to now, the United States has been interested, in all honesty, in the Micronesia Archipielago only for security and defense purposes. Any other interest has been secondary and of little priority. Like all colonial powers (past and present and, most likely, future, also) the U.S. has acted only when, and if, its national interest, as interpreted by the powerbrokers at any given time, requires action. In Micronesia, the people were lured away from their subsistence lifestyle and became dependent on the U.S. for their modern needs. After reaching the stage of almost total dependency, the people agreed to conditions otherwise unacceptable so as to maintain the artificially created standard of living. (Stanley, David; South Pacific Handbook, 1982; Page 452). But as time passes, the opportunity for change arrives. Obviously, the U.S. economy is not the same as it was in the late Forties, Fifties or Sixties. When the U.S. balance of payments is negative, and the deficit of the U.S. budget increases, even security and defense, supposedly, have to be more efficient in expenditures. The Compact of Free Association of the Marshall Islands, the Federated States of Micronesia and the United States arrives at a new economic relationship. The dependency-creating aspects of federal programs will be replaced by money assistance that will allow the Marshall Islands and the Federated States of Micronesia to develop. They will continue to need aid and will obtain $100 million anually during the first five years and a little

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less during each of the next 10years. At the end of I5 years, the Compact may be discontinued by mutual agreement. If we consider that in 1983 the U.S. gave six countries in Central America a total of $ 132 million in foreign aid, the assistance provided under the Compact is considerable. (U.S. State Department, Sustaining a Consist ent Policy in Central America, April 1985). These six nations, which are in an area closer to the U.S. and experience political turmoil, have a combined population of more than 22 million people (Guatemala, 8 million; EI Salvador, 5.2 million; Honduras 4.3 million; Costa Rica, 2.6 million, Panama 2.2 million; and Belize, 175.000) The population of the Marshall Islands and the Federated States of Micronesia is slighty more than 110,000 people. Why should the U.S. pay such sums? "We underlook to help the Micronesians, and we still have the moral obligation. We also need them. We can't let the islands fall into enemy hands again", said a U.S. official (U.S. News & World Report, Oct. 15, 1984, Page 81). Former U.S. Ambassador to the United Nations Donald McHenry said: "Micronesia's importance in 1975 remains as it has been since 1945: the area must be denied to any hostile power". (McHenry, Micronesia Trust Betrayed, 1975, Page 84). A professor of international relations at the nearby University of Guam says: " ...the United States intends to maintain sufficient influence to guarantee it the option of building military bases, to direct economic growth and dominate seas around the islands". (Gale, Roger, The Americanization of Micronesia, 1979, Page 17). Some specifics of the Compact in the area of economic relations are as follows: The U.S. will provide direct grants to the Freely Associated State to assist in its efforts to achieve economic development, capital improvements and government operations. Some grants are for specific purposes, while others are unrestricted. The Marshall Islands and the Federated States of Micronesia are required to spend at least 40 percent on development (Sec. 211). The Compact also allows for the extension of several programs and services of the U.S. government, such as the Weather Service, Federal Emergency Management Agency, Postal Service and Federal Aviation Administration. The U.S. will also make available education and health care programs (see. 221). The Marshall Islands and the Federated States of Micronesia will not be part of the. customs territory of the U.S. (Sec. 214). Thiswill allow them to determine their own customs policies, tariffs and duties. Nevertheless, products from the Marshall Islands and the Federated States of Micronesia will have duty-free access to the U.S. market if less than 50 percent of a 134

product's final value is derived from foreign sources (Sections 242 and 243). The U.S. dollar will be legal tender in the Marshall Islands and the Federated States of Micronesia. (Sec. 2S I). It is a wise decision to use a strong currency like the dollar, instead of a Micronesian currency. Some independent countries, i.e., Panama, do the same. Citizens and corporations of the freely associaced states shall be exempted from income taxes imposed by the U.S. (Sec. 253). The Compact contains tax provisions designed to encourage U.S. investment in the freely associated states in a way that is consistent with tax benefits conferred on investors in U.S. territories (Armstrong, Arthur, "Strategic Underpinnings of the Legal Regime of Free Association"; VII Brooklyn Journal of International Law, Page 219, 1981). Section 255 of the Compact makes applicable to the Freely Associa ted States the benefits of Section 936 of the Internal Revenue Code ofthe U.S. ..Moreover, it provides that if these benefits are amended, modified or repealed, such provisions shall continue in effect for the Marshall Islands and the Federated States of Micronesia for a period of two years, in order to allow enough time for the U.S. and the Freely Associated States "to negotia te an Agreement which shall provide benefits su bstantively equivalent to those which were obtained under such provisions". Perhaps it is no coincidence that officials in the White House told the N PP mayor of Ponce, Jose Dapena, that the Reagan administration would defer changing Section 936 of the Internal Reven ue Code following the same two-year period. (Star, April 30, 1985, pag 2). It seems that the options we are facing are: the benefits of Section 936 achieved with a compact of free association with economic growth, versus dependence (food stamps, etc.) without 936. The Commonwealth of Puerto Rico and other U.S. territories soon could be facing a dear cut decision: economic assistance and tax benefits for investors (the 936 benefits), to encourage a less dependent and more self-sufficient economy, or the continuation of the dependency created by federal programs now in effect, without the benefits provided in Section 936. Perhaps, the United States has already made up its mind.

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D. Security and Defense in the Compact

The Compact of Free Association, upon ratification by the U.S. Congress, will organize the relationship between the Marshall Islands, the Federated States of Micronesia and the United States, with the U.S. retaining "full authority" for security and defense matters. 135

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The report by the U.S. General Accounting Office of Feb. 7, 1985 entitled "Issues Affecting U.S. Territory and Insular Policy" states clearly that: "Free Association is distinguished from independence by the reliance of one state on another for security and defense" (Pag. 19). Even in the Puerto Rican Associated Republic that political analyst Juan Manuel Garcia Passalacqua predicted for Oct. 12, 1992, raising the eyebrows of many, the U.S. will retain responsibility and authority for security and defense matters. (El Nuevo Dia , April 23, 1985). It seems that the U.S. is willing to negotiate: I) U.S. citizenship, 2) military conscription, 3) immigration, 4) foreign affairs, 5) government representatives, 6) the judiciary, 7) constitutions, 8) federal taxation, 9) U.S. domestic programs, 10) economic assistance, II) foreign aid, 12) trade, 13) customs, 14) shipping, 15) air routes, 16) communications, 17) export-import policies. However, the U.S. Defense Department does not intend to negotiate decision-making authority concerning security and defense matters. Thus, the central issue, the crux of the matter, becomes the content of the security and defense provisions of the Compact. The Compact agreed-to by the Marshall Islands, the Federated States : of Micronesia and the United States provides for security and defense, as follows: The U.S. will have full authority and responsibility for security and defense matters in or relating to the Marshall Islands and the Federated States of Micronesia. (Sec. 311). This authority and responsibility includes the obligation to defend the Marshall Islands and the Federated States of Micronesia from attack or threats, the option to foreclose access to the Marshall Islands or the Federated States of Micronesia by any third country's military areas and ... facilities subject to separate agreements with the Marshall Islands and the'"'' Federated States of Micronesia. (Sec. 311 (bj), The terms of the Compact permit dual and reciprocal citizenship (i.e., that of the U.S. and the one of the free associated state). The U.S. government and the Freely Associated States may have :,;, representative offices in each other's capital cities and other locations for consultations and conducting government business (Sec. 151). The premises of such representative offices shall be as inviolable as that of a diplomatic mission. The designated representative of the governments shall be immune from civil and criminal process (Sec. 152). The U.S. Marshall Islands and the Federated States of Micronesia pledge to protect the Micronesian environment (Sec. 161). For the pur- : poses of the National Enviromental Policy Act, U.S. activities in the Marshall Islands and the Federated States of Micronesia may bring forth actions in the U.S. federal courts in the U.S. (as there will be no federal

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courts in the Marshall Islands or in the Federated States of Micronesia) for judicial review of U.S. activities. (Sec. 161 and 162). Except as specifica lly provided in t he Compact or a related agreement, the application of all the laws of the U.S. to the Freely Associated States shall cease (Sec. 171). The governments of the Freely Associated States and the government of the U.S. shall be immune from the jurisdiction of the courts of each other. (Sec. 174). There is a provision for a separate agreement on extradition and law enforcement. (Sec. 175). The U.S. confirms that it shall act in accorda nee with international la w in the exercise of authority and responsibility for security and defense (Sec. 31 I (c). The governments of the Marshall Islands and the Federated States of Micronesia shall be afforded, "on an expeditious basis", the opportunity to "raise its (their) concerns" with the U.S. secretaries of State and Defense, "personally", regarding any determination made on defense or security matters (Sec. 3 I 3). The U.S. shall not, in the Marshall Islands or the Federated States of Micronesia, test or dispose of any nuclear weapons or radioactive material, or discharge any toxic chemical or biological weapon or material which would be haz.ardous to public health or safety. (Sec. 314 (aj). Other than "for transit", "overflight purposes" during time of national emergency declared by the President of the United States, a state of war declared by Congress, or as necessary to defend against actual or impending armed attack, the U. S. shall not store in the freely associated states any toxic chemical weapon, radioactive material or toxic chemical-material. (Sec. 314 (b). Specific arrangements for the use by the U.S. of military areas arid facilities are set forth in separate agreements which shall come into effect simultaneously. (Sec. 32 I). The Republic of the Marshall Islands and the Federated States of Micronesia can file claims, with the U.S. or with any other country, for damages, and can petition for redress of any losses which could arise out of any armed conflict. (Sec. 353 (bj), The Security and Defense Clauses are the delica te ones. One of the four entities of the Trust Territory, the Republic of Belau (or Palau), has, so far, refused to enter into the agreement or Compact of Free Association. It voted in three separate referenda to keep nuclear weapons and military bases out of Belau. The people of Belau believe, due to prior experience, that military bases on their islands lead to death and destruction in time of war.

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E. Approval and Termination

of the Compact

Prior to formal negotiatIOns, usually, there is a prenegotiations or informal process. Achieving internal agreement among a\l the U.S. de partaments and agencies with interests in Micronesia was complex. (Rosernblatt, Peter R., VII Brooklyn Journal of International Law 175, 1981). It is always so. Effective participation in the "informal" process is as important, and sometimes even more so, than participation in the formal drama. The Compact of Free Association agreed-upon by the Federated States of Micronesia, the Marshall Islands and the United States is the product of delicate and lengthy negotiations -informal and formal- for more than a decade. The Compact was signed by the representatives of the Federated States of Micronesia, and by the United States on Oct. 1, 1982. As to the Marshall Islands, it was signed by them and the United States on June 25, 1983. The last Title of the Compact (Title Four-General Provisions) provides for approval and effective date, dispute resolutions, amendment process, possible termination of the Compact, and related matters. They are explained herein. The Compact will come into effect after completion of a\l of the following: I. Approval by the Marshall Islands and the Federated States of Micronesia, in accordance with its constitutional processes, 2. Conduct of a plebiscite; and 3. Approval by the United States, in accordance with its constitutional processes. (SEc. 411). The Compact requires that the plebiscite mentioned above be conducted, in order to determine the free and voluntary choice of the peoples of the Trust Territory through informed and democratic proc1sses. (Sec. 412). The Compact received the approval of the Marshall Islands and the Federated States of Micronesia and was endorsed in the required plebiscite. . Tn its t 983 annual report to the United Nations on the Trust Territory of the Pacific, the United States stated that the Federated States of Micronesia and the Marshall Islands favored, by an absolute majority, the status of free association. On March 30, 1984, President Reagan transmitted to the Congress, for its approval, the Compact of Free Association. (See: "Trust Territory of the Pacific Islands", Working paper prepared by the Secretariat of the United Nations for the DecoIonization committee, June 11,1984, Pages 20-21). After the Compact takes effect, disputes will most probably arise concerning the interpretation and applications. The governments that are

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parties to the Compact shall confer pro mtly upo n the request of any party, and they shall make a good-faith effort to resolve disputes among themselves. (Sees. 421-422). If a dispute cannot be resolved within 90 days of written notification, either party to the dispute may refer it to arbitration, as provided by the Compact. (Sec. 423) It is important to notice a difference between the system just described and the present dispute reso lution system applicable to the Commonwea.lth of Puerto Rico. In Puerto Rico, the U.S. judiciary is the arbiter. The Compact of Free Association provides for the creation and establishment of an Arbitration Board to decide disputes. Its decisions shall be binding upon the two parties. Members of the Arbitration Board are to be appointed by the two governments in each case. (Sec. 424). The Compart can be terminated in any of three ways: I. By mutual agreement of the Marshall Islands and the United S ta tes, or of the Federated States of Micronesia and the United States; 2. By the United States in relation to the Marshall Islands or the Federated States of Micronesia, subject to certain provisions, mainly of economic assistance, and security and defense, which will remain in full force for 15 years, in any case; 3. By the Marshall Islands if the people of the freely associated states vote in a properly administered plebiscite to terminate the relationship established in the Compact. (Sees. 441-443). Should termination occur, provision of the Compact shall continue in full force on mutually-agreed terms for a specific number of years. (Sees. 451-454). The Compact also requires that the United States and the Marshall Islands or the Federated States of Micronesia, as appropiate, shall conclude II related agreements. (Sec. 4(2). The agreements are: (I) and (2) telecommunications services, (3) extradition, muTtial assistance in law enforcement matters and penal sanctions, (4) compensation to citizens of the Marshall Islands and Federated States of Micronesia for loss of property and persons due to nuclear testing, (5) services and programs of weather service, postal service, federal emergency management, a nd the Federal Aviation Administration, (6) property of the United States in the Marshall Islands and the Federated States of Micronesia, (7) and (8) military use and operating rights of the government of the United States in the Marshall Islands and the Federated States of Micronesia, (9) SOFA +-Status of Forces Agreement, ([0) and (11) friendship, cooperation and mutual security. The Compact provides that related agreements shall come into effect and shall survive in accordance with t heir own terms. They are, of course, as important as the compact itself. The Compact of Free Association has already attained an awareness in

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certai n sectors of the United States and Puerto Rico of the need to study it as a preceden t for future developments. The experience of the negotiation of the Compact of Free Association in Micronesia will be an important point of reference for the United States in the future negotiations with the Commonwealth of Puerto Rico and other territories. They can also be a model for Puerto Rico. Negotiations must be conducted with Puerto Ricans in good faith, if a positive result is expected. We look forward to them.

LA APORTACION DE TRIAS A LA HlSTORIOGRAFIA CONSTlTUCIONAL ESBOZO CRITlCO DE LA HISTORIA CONSTlTUCIONAL DE PUERTO

RICOI

Dedicado a la Lcda. Lizabeth Lipsett Campagne. Carmelo Delgado Cintron? La aportacion que hace el Doctor Jose Trias Monge ala historiografia es de fundamental importancia. Su Historia Constitucianal de Puerto Rico.' en cuatro gruesos volumenes, se ha convertido en una obra indispensable para entender nuestra compleja historia nacional. El libro es un estudio multiple e innovador, cuidadosamente meditado, investigado con sosiego y rigurosidad durante muchos afios y escrito con claridad y sobriedad. En el, Trias nos demuestra sus profundos conocimientos y meditaciones de las corrientes historicas,

y a 10s estudios de Derecho Puertorriquefios

.....,

l. Leido Tarnbien
'1

por el autor se expreso

el 25 de septiernbre Roberto

Constitucional de Puerto Rico en la Escuela

el Honorable

de 1984 en el acto de recepcion del libro His/aria de Der echo de la Universidad de Puerto Rico. Sanchez Vilella. EI autor ha afiadido notas al calee y

una extensa bibliografia comentada para la presente publicacion. 2. EI autor es Profesor en la Escuela de Derecho de la Universidad de Puerto Rico donde ensefia Historia del Derecho Puertorriquefio; Historia del Der echo Constitucional Puertorriquefio y " Derecho y Literatura ", Es Profesor de la Escuela Graduada de Historia. Maestrfa de Historia, Facultad de Humanidades y tam bien en la Facultad de Derecho de la Universidad Cat61ica de Puerto Rico. Ta rnbie n ocupa el cargo de Director de la Biblioteca de Derecho de la Universidad de Puerto Rico. Ex Presidente de la Fund acion Puertorriquefia de las Humanidades. Durante catorce afios fue Director de la Revista del Colegio de Abogados de Puerto Rico. 3. Jose Trias Monge, Historia Constitucional de Puerto Rico, Rio Piedras, Editorial Universitaria, Cuatro Tomes: Volumen I, 1980: Volumen II, 1981; Volu rnen III, 1982; Volumen IV, 1983.

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