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"J"* * * [cJrimes against internationallaw are committed by men, not

by abstract entities, and only by punishing individuals who commitsuch crimes can the provisions of internationallaw be enforced"J24

Given the limitations noted above, U.S. courts' adjudication of theseclaims is consistent with international law. In light of the development ofinternational law since World War II, such adjudication is neither a"worldwide jurisdictional assault"125 nor an illicit interference with theexclusively "internal" affairs of other states. International law, itself,grants states universal jurisdiction over fundamental violations of itsnorms.Pe Also, one must remember that international law is an evolvingbody of law that has undergone tremendous changes in the past genera-tion. Indeed, tha tis perha ps the most profound significance of these cases:they confirm the binding character of core, human rights norms in contem-porary international law.

124. Blum/ Steinhardt at 68 and n. 67, citing Judgment of International Military Tribunals, 22Trial 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/).

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Marco Antonio Rigau

1. Reality, Values and Objectives

All work or effort to analize reality and to propose modifications tothat reality must necessarily have bases or foundations that may bearticulated and conscious, or inarticula ted and unconscious. Each personhas an intellectual, emotional and value formation. That formation will bedeterminative in the appreciation and the evaluation of the reality weanalize, which we diagnose and to which we make change and modifica-tion proposals. We must be aware of our biases and values in attempting toanalize 'and in 'proposing modifications to reality. No one succeeds en-tirely, but at least we must make the greatest effort.

Here, I will endeavor to analize the Puerto Rican reality as I perceive ittoday. In the evaluation of that reality, I intend to be as objective as I canwithin my own circumstances. Then, I will submit some change proposalsto the existing reality in Puerto Rico. In submitting these suggestions andprojects for the future, I do so thinking about the possibility that these maysomeday become a reality.

I do not reject the work of those who propose utopias. They also have arole in our world. Many times these serve as an ideal and starting-point forachievable proposals. Plato proposed an ideal, yet unachievable, Repub-lic. I have no quarrels with it. However, I simply intend to propose those

I. Lecture delivered at the Latin American Studies Association meeting in Boston, Mass, andthe Harvard Law School. October 24. 1986.

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

Ma ny times the utopias and the e motional and irrational proposalsallow a credibility to political leadership to obtain some degree of prom i-nence and of leadership itself. Hitler's movement was based on this foun-dation. The consequences for the world were, to say the least, not toogood, and the wounds are still healing.

The proposals for change and the ideological postures of "all ornothing" suffer from the same defect. By and large, they do not achieveanything. In a few ocassions, to succeed, they must impose themselves overthe rest, defeating instead of convincing, and making social living simplyasfixiating,

In my analysis of Puerto Rico I will be as fair as I can be. I must confessthat my proposals for the future of Puerto Rico incorporate my values andconvictions about the human being and life in society. To allow for nodoubt, I enumerate here the most fundamental of these:

I. The human and civil rights of all persons must be respected andprotected to the fullest possible in society. Each limitation to a human orcivil right must have such fundamental justifications that the state mustbear the burden of proof beyond a reasonable doubt. I have no interest inliving in or sponsoring a society that does not foster personal liberty in allits manifestations.

2. The State must provide for the material security of those who needassistance to survive or must develop economically to the maximumextent that the reality of the State and the society in question may allow. Iam not interested in sponsoring a society which is indifferent to the miseryand 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 theencouragement of private initiative for economic development. I have nointerest in a society where the State is the largest employer. That economicdependency on a sole employer is not healthy nor conducive to liberty andcreativity.

4. Those who exercise public power must be elected for a fixed term infree elections by all the citizens of that society. I respect the right of thepopular majority to choose who may govern. I am not interested in anydictatorship of any kind, neither of kings nor oflearned princes, nor of theproletariat.

5. I endorse the maximun degree possible of autonomy for PuertoRico. I am convinced that Puerto Rico must have all the powers that maybe necessary to guide its destiny, its life as a people and its economy. I amnot of the opinion of an "all or nothing" proposition. I have no quarrels

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with having all the powers. Work must be directed towards making itunnecessary to impose to the majority of the Puerto Rica n people what hasneither been requested nor supported by them. This is necessary to safe-guard 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 blerelations with the United States, its government and North Americansociety. Quite independently from the future development of Puerto Ricotoward the control of our destiny, the inescapable fact remains that thereare over two million citizens of Puerto Rican culture and extraction thatwill continue living in the United States. That nexus is permanent. Thebest values of North American society are loved by the Puerto Ricans.

7. The economic assistance of the United States can befundamental forthe development of a viable and vital economy in Puerto Rico. Access tothe United States market is important for our future. Moreover, close to acentury of sharing a living with the United States cannot be ignored. Theacquisition of our powers as a people need not be an act against the UnitedStates. This has been the mistake of some. It must be an act of PuertoRican affirmation, of growth, and not of hard feelings or resentments.

8. I favor the greatest degree of Puerto Rican interdependence with itsgeopolitical region, the Caribbean. We are an Antillian and Caribbeanpeople. 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 relationto Puerto Rico. Each Puerto Rican must do it, and so must NorthAmericans. The "lip service" paid by some" America ns"to their respect forthe will of the majority of the Puerto Rican people is simply not enough.The United States is an essential party to the decision- making process onthe future of Puerto Rico. Puerto Rico must come to terms with itself, butso must the United States. This must be done not in confidential memo-randa, but in public manifestations by the Congress and the President.

The objectives are simple: to know our reality, not to deceive ourselvesnor allow ourselves to be deceived. To know our values. To design aprocess whereby a motherland which may conform to those values can beconstructed. Being deeply grateful to those who worked before, we mustsave 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 SanJuan, 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 thecriteria of those who have retained control over Puerto Rico. This was so"en tiempo de Espana (a commonly-used phrase in Puerto Rico whichrefers 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 lackof Puerto Rican initiatives and struggles for the best interests of PuertoRico. Puerto Rico and Puerto Ricans through the years have struggled toadvance our case vis a vis those of the metropoli. Notwithstanding thisfact, history proves that the grea t political, legal and economic processes inour 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 representa-

tion in the Parliament of Spain. Our first representative was RamonPower y Giralt. We are told since our grammar school history courses thathis appointment was a great political conquest for Puerto Ricans. This istrue, but only partly so. It must be added that somewhat earlier, a priest bythe name of Padre Manuel Hidalgo led an uprising in Mexico againstSpain to gain its independence. The same was done by Jose de San Martinand Bernardo O'Higgins in Chile and the South Cone of America. Bolivaralso led similar movements in various countries. Coincidences then be-come clear. Our political conquest in this respect was also an effort inSpain'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 thatthis was "an achievement for the Puerto Rican autonomist movement".Recognizing the value of the work performed by the autonomist leader-ship in 1897 and its then principal leader, Luis Munoz Rivera, saidachievement was due solely to the fact that our interests coincided withthose of Spain at that precise moment. Spain attempted to appease thefight for Cuban independence in 1897. Its last, tardy and failed attemptwas to grant both Cuba and Puerto Rico a Bill of Autonomy. Such a bIllwas granted to Spain's last two colonies in America. The Spanish-American War of 1898 turned said bill into dead letter when Puerto Ricowas invaded and occupied militarily by the United States in 1898.

Under the sovereignty of the United States, since 1898, history hasrepeated itself.

I. Contrary to what General Miles stated, Puerto Rico was not invadedand occupied by the United States because the latter wanted to bring toPuerto Rico the blessings of liberty and democracy. That was the first"lip-service" paid to us. The United States was really interested in Puerto

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Rico because of its strategic position and its geopolitical value. Its eco-nomic value, although always present, was of a secondary nature. That isthe reality; anything else is sheer fantasy.

2. The military government in Puerto Rico ([898-1900) as well as theForaker Act, first organic act approved by Congress for Puerto Rico, werepolitical-legal schemes to guarantee tbe total political, legal and economiccontrol of the United States over Puerto Rico and not the "blessings ofliberty and democracy". This first Organic Act did two things: a) itregulated the relations between the metropolis and the colony; and b) itformally organized a civil government for Puerto Rico. Pursuant to theForaker Act, the governor as well as the heads of the departments of theexecutive branch, the Executive Council (then the High Chamber) of TheLegislative Assembly and the Supreme Court Justices were all appointeddirectly by the President of the United States. Puerto Ricans could onlyelect the Chamber of Delegates (Low Cham ber) of the Legislative Assern-b.y, the municipal officials, and a Resident Commissioner to the Congressof the United States (House of Representatives) with only voice and novote.

3. The second organic act under the United States came, not bycoincidence, in 1917. The Jones Act which granted the United Statescitizenship to Puerto Ricans was approved shortly before the law requir-ing mandatory military service was approved and also shortly before theUnited States began sending fighting troops to World War I in Europe. Itwas no coincidence. The granting of citizenship went hand in hand withthe metropolitan interest to recruit soldiers for the World War.

That is the history of Puerto Rican "achievements" as a territory of theUnited States.

III. Puerto Rico and United States values and objetives

A most important position paper on the principal territories of theUnited States was made public in February, 1985. It was prepared by theNational Security and International Affairs Division of the United StatesGeneral Accounting Office ("GAO").

What is the GAO? What are the GAO reports? What does the February7, 1985 GAO Report "Issues Affecting United States Territory and InsularPolicy" say? How is it useful to Congress? How is it relevant to PuertoRico?

The General Accounting Office of the United States is the primary andmost important investigatory arm of Congress. It was created in 1921 bythe Budget and Accounting Act, to assist Congress in meeting its legisla-

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tive and oversight responsibilities. The GAO functions as an independentnon-political agency of the legislative branch. The head of the GAO is theComptroller General of the United States. He is appointed by the Presi-dent, with the advise and consent of the Senate, for a non-renewable termof 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 toassist Congress, its committees and members in carrying out their duties;to carry out legal, accounting, auditing and claim settlement functionswith respect to federal government programs and operations as assignedby Congress; and to make recommendations designed to provide for moreefficient and effective policy.

The GAO is more than a group .of accountants and lawyers in Wa-shington. It has at least a dozen important divisions at its main facilities inthe District of Columbia. It has also 15 regional offices and severaloverseas branches (the Latin American branch is located in Panama City,Panama). In addition to its accounting duties, the GAO it, for all practicalpurposes, the congressional intelligence agency. It provides intelligenceand policy recommendations to the U.S. Senate and House of Representa-tives, their committees and members. As required by law, the ComptrollerGeneral sends to Congress each month the GAO reports released or issuedat the request of Congress, and also those generated by the GAO on itsown initiative.

The Chairman of the Senate Energy and Natural Resources Commit-tee, Senator James A. Me Clure, R-Idaho, requested from the GAO onMarch 25, 1983 a special study and report on U.S. policies towards itsterritories. (The Energy and Natural Resources Committee has jurisdic-tion in the Senate on "territorial possesions" of the United States). Thesame study was requested on June 20, 1983 by Rep. Morris K. Udall,D-Arizona, chairman of the House Interior and Insular Affairs Commit-tee. (This Committee has jurisdiction in the House over measures regard-ing U.S. "insular possesions"),

The GAO study was carried out under the supervision of Frank C.Conahan, Director of the National Security and International AffairsDivision of the GAO. It was conducted between June 1983 and April 1984at the different territorial governments, as well as at multiple federalagencies in Washington D.C. (i.e., the Departments of State, Defense,Treasury, Interior, etc.). White House officials, members of Congress andstaff from the committees also participated in the study.

Leaders of the territories, including the then Governor of each territoryand the Presidents of each Micronesian government, the U.S. Ambassa-dor for the Micronesia status negotia tions, and government and private

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sector representatives in each territory were also interviewed. The report,entitled "Issues Affecting U.S. Territory and Insular Policy", was releasedon February 7, 1985.

The introductory remarks of the report are as follows:

"The United States faces a complex set of policy issues with itsprincipal territories -American Samoa, Guam, the Northern MarianaIslands, the Virgin Islands, and Puerto Rico. The issues involve politi-cal, economic and organizational relationships between the federalgovernment and the territories in such areas as political status; treat-ment under federal policies, laws and programs; economic and financialassistance; and representation and oversight".

"GAO believes federal policy makers in the Congress and executivebranch will likely be challenged to further clarify policy towards theterritories ... "

The Report delighted some, and surprised others. Among those sur-prised was former Puerto Rican Governor Carlos Romero. Appendix VIof the Report is a letter by Romero dated November 28, 1984 (22 days afterhis defeat at the polls). The 14-page letter expresses then Gov. Romero'sreaction to the Report. In the last paragraph Romero files charges againstthe present United States government for promoting "separatists ", inPuerto Rico. The former governor claims that the Report "constitutes aninsult to our loyalty" and that it is:

"Federally sanctioned encouragement to radical elements whosegoal is to force Puerto Rico's separation from the United States againstthe will and the democratically expressed desire of the overwhelmingmajority of the Puerto Rican people".

What does the report say that affects the statehood leader so much tha tit provokes his harsh remarks towards the U.S. Government?

The Report finds that the new Compact of Free Association agreedupon between the United States Government and the people of the Repub-lic of the Marshall Islands (R MI) and the Federated States of Micronesia(FSM), from the trust territory in the Pacific, represents a new politicalrelationship by which they will enjoy their own sovereignty. Except fordefense and security matters, the new Free Associated States (FAS) willbe, according to the Compact of Free Association, largely independentand 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, includ-Ing Puerto Rico. Perhaps even more important, the concept of "state-

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'J'>'".

hood" is not conceived as a possibility to be considered by the U.S.government in the Report.

People who have up to now supported the statehood alternative forPuerto Rico and are aware and conscious of the emerging policy thatpromotes any alternative other that statehood, should be going through aprocess of dificult but necessary instrospection.

But "the writi ng is on the wall ". The Heritage Foundation policyproposal to the Reagan administration suggests such a course of actionduring President Reagan's second term. The white paper, published withthe title Mandate For Leadership l!: Continuing the Conservative Revolu-I ion, endorses (pp. 14I-147) thefollowing forthe United States territories:

1. Assistance for infrastructure, as investment to complete a basicinfrastructure program (instead of welfare assistance).

2. To make Puerto Rico an important element in the Caribbean BasinInitiative. To encourage the development of the Caribbean with transpor-tation, machinery and other resources from Puerto Rico.

3. A tax system with a separate schedule for source income in theterritories.

4. To eliminate unnecesary constrains of federal laws and regulationsin the territories.

5. To unify all agencies' responsibilities for offshore areas, includingprograms or other assistance to the Free Associated States.

6. To involve the territorial leaders in formulating and conductingforeign policy and tightening the relations between the territories and theirneighbors.

Those six were the basic recommendations to the Reagan Administra-tion by the conservative Heritage Foundation. The President-has beenquoted as saying that said recommendations (the Heritage Foundation's)have been very important and are used by him. Edwin Meese, counselor toPresident Reagan in his first term, and Attorney General in the secondterm, said that they "will be an important contribution to what happens tothis country (the United States) in the years ahead ".

The Compact of Free Association between the United States and theRepublic of the Marshall Islands and the Federated States of Micronesiawas finally approved and ratifield by Congress on January 14, 1986, aftermore 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 saidcompact 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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On the other side of this affair is the government of the Commonwealthof Puerto Rico. The administration that took office on January 2, 1985,stated in its platform the following: "on our side, we will not promotefundamental changes to the status in the next four years" (1985-1989). Theplatform of the Popular Democratic Party, the administration in officeduring the 1985-l98S term, nevertheless, has a saving clause. The platformstates that the fact the Popular Dernocracit Party will not promote funda-mental changes in the status "will not impede modifications in the laws andfederal regulations compatible with the Free Associated State",

What will the Popular Democratic Party Administration under Gov-ernor Rafael Hernandez Colon do if the proposals for modifica tions to theexisting commonwealth are initiated by the United States Government?

It seems that there is a possible initiative bycertain sectors in Washing-ton on Puerto Rico and other territories associated with or under UnitedStates rule. Several items give a more precise picture: (I) The changes tha twere proposed to Section 936 of the Internal Revenue Code (Section 936of the Internal Revenue Code, basically speaking, exempts from U.S.taxation the income tha taU .S. co rporation receives from its operations inPuerto Rico). The tax revision of 1986 made some minor changes to saidsection 936 because of its possible use in the development of twin plants inthe Caribbean basin, a plan that was considered essential for the nationalsecurity of the U.S. in the region.

(2) The General Accounting Office Report, mentioned above (theReport that suggests Free Association as a policy to be considered for allterritories).

(3) The White House-authorized article in the New York Times, in1985, on an alleged contingency plan for nuclear weapons in Puerto Rico.That article, together with a very important report on the subject by theBar Associa tion of Puerto Rico, has crea ted collective awareness in PuertoRico on the issue of defense and its relevance to the relationship betweenPuerto Rico and the United States.

(4) the several proposals in Congress to cut more programs of welfareassistance and benefits.

(5) the precedent established by the Compact of Free Associationbetween the United States and the Republic of the Marshall Islands andthe Federal States of Micronesia.

(6) the U.S. District Court for the District of Puerto Rico decision tha tPuerto Rico is a "secondary border" of the United States.

Some years ago the former head of the Office of Puerto Rico inWashington during Governor Hernandez Colon's first term (1973-76),how a United States federal judge in Connecticut, Jose Cabranes wrote anarticle in Foreign Policy on Puerto Rico with a very suggestive title:

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"Puerto Rico: Out of the Colonial Closet". There is a real possibility thatthe United States and Puerto Rico will come out of the closet. For the firsttime in many years there is a chance that the United States, Congress andthe President, will speak straight, loud and clear on Puerto Rico to thepeople of Puerto Rico. No more lip service of promising support for themajority will of the people of Puerto Rico. What is needed now, ashopefully seems to be the emerging situation, is that the United Statesgovernment-Congress and the President-express an honest position aboutits relationship with Puerto Rico. Only then can the people of Puerto Ricoexpress a more informed opinion about their future. This United Statesinitiative is needed to provide Puerto Rico with the opportunity to talkwith the United States outside of the closet and to negotiate outside ofdark rooms.

IV. Free association in Micronesia and Puerto Rico'

A. Micronesia's Autonomy

The tip of the iceberegjust emerged. The compact of Free Associationentered into by the United States, the Republic of the Marshall Islands andthe Federated States of Micronesia became news in 1985.

The new political, economic and legal relationship -"status"- wasagreed upon by the representative governments of both archipielagos, Itwas strongly endorsed by both the Democratic Carter Administration andlater by Republican President Reagan, the State Department, the Na-tional Security Cou ncil and the U.S. Senate. When it reached the House ofRepresentatives the Compact got mixed reactions and ran into someobstacles. (San Juan Star -April 18, p. 14; April 22, p. 14).

Why? Apparently, some members of the House were ha ving problemswith the Compact of Free Association because of the political, economic,tax and other benefits assured by the agreement to the U.S. territoriessince 1947. Some felt that "the deal was too good to be true".

The one and only member from Alaska in the United States House ofRepresentatives, the ranking Republican congressman on the HouseCommittee of Interior and Insular Affairs, Don Young, said of theCompact:

"Alaska wouldhave opted for free association rather than statehoodif these same relative benefits would have been available".

Alaska's long and arduous fight for statehood was won nine decadesafter the day in 1867 when Senator Charles Summer dedicated the terri-

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tory to future statehood. Congress approved statehood for Alaska in 1958.Twenty-two years later, by 1980, Alaskans began to question whetherstatehood was a good idea after all. (Pierce & Hagastrom, The Book ofAmerica, 1983 Page 859).

The introspective remark of the only Congressman from Alaska (formore than 13 years, since he was first elected on March 6, 1973) Republi-can Don Young, should motivate at least some of his fellow Republicansin Puerto Rico to try to do some honest thinking and soul searchingthemselves.

The day after the remark of the ranking Republican was reported inPuerto Rico by the San Juan Star, the ranking columnist for El Mundonewspaper, Jorge Javariz, maybe understanding the meaning of it all, saidin his "Trasfondo " of April 19, 1985 that:

"Micronesia really would have with the UnitedStates a Free Associ-ation like the one that has been proposed bythemore liberal wing of thePopular 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 Yap, Ponape andKosrae of the Federal States of Micronesia.

The more than 2, 100 islands in the Pacific known as Micronesia werecaptured from Japan by the United States in World War II. Since then,according to the former United States ambassador to the United Nationsduring the last years of the Carter administration, Donald Me Henry, theUnited States has faced a dilemma:' how to reconcile the principles ofself-government and self-determination with'the control of Micronesia forsecurity 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 wasin the Marianas, on the island of Saipan, that Japanese Admiral ChuichiNogurno was defeated. Nogumo, who had led the attack on Pearl Harbor,cornmited suicide after he confirmed that the United States assault hadsucceeded in a battle where Japan lost close to 30,000 men. Sai pan becamea CIA base in 1948, one year after Micronesia became a Trust Territory ofthe United States.

From 1946 to 1958 the UnitedStates carried out a horrendous nucleartesting program on Bikini and Enewetok, the northern atolls of theMarshall Islands. The continuing effects of radioactive contamination arestill very much at issue in the Marshalls.

Twenty-three nuclear tests in Bikini have left a legacy of cancer,

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leukemia, thyroid problems, miscarriages and other human suffering. Thevery first H-bomb was tested there. In 1946, the inhabitants were evacu-ated. In the Sixties, the United States agreed to clean up Bikini in ordertoallow them to return home. Some believe now that the cleanup was done ina haphazard manner and the Bikinians are now suing the United Statesgovernment for several hundred million dollars.

During a la-year period (1948-1958), 43 nuclear blasts were made inEnewetok , whose inhabitants were evacuated in 1948 to a smaller island,Ujelang. They survived there for 30 years. Because of their limited resour-ces, they almost faced starvation, becoming dependent on USDA food. In1976 Congress appropriated $104 million for a.cleanup operation by theDefense Nuclear Agency. The contaminated waste contains, among othersubstances, radioactive plutonium a cancer-causing agent active for some240,000 years. In 1980 some returned to Enewetok. Despite serious reser-vations, the United States governme~~ allowed them to return to theirancestral la nds.

Also in the Marshalls is Kwajalem, which is used as a target for testmissibles fired from California. The new proposed MX missiles are alsoplanned to be tested there. The 3,000 Americans on Kwajalem enjoya golfcourse, swimming pools, free movies and full sport facilities. The Marshal-lese have no access to any of it. Tourists are banned from Kwajalem.

In 1954, the biggest hydrogen bomb was exploded in Bikini andcreated a 35 kilometer-high cloud that dropped radioactive white dust onthe island of Rongelap about five hours after the blast. Two days later thepopulation was evacuated. They experienced all the symptoms of radia-tion exposure soon after. The U.S. allowed them to return to the stillhighly-contaminated Rongelap. ",1'

A report for the Atomic Energy Commission says that "the group ofirradiated Marsha llese people offer a most valuable source of data onhuman beings who have sustained injury from all possible modes ofexposure". A Marshallese congressman, Ataji Balos, has gone to theextreme position of accusing the U.S. government of consciosly allowingthe residents of the islands to be exposed, in order to study the effects ofradiation on human beings. (Stanley; David; South Pacific Handbook,1982, Pages 441-449). All of the above might help us understand the factthan the suicide rate in the islands of Micronesia is one of the highest in theworld, twice that of the U.S.

After all the suffering inflicted upon the people of Micronesia by theJapanese and the Americans, the best compact possible is not. goodenough. The Compact negotiated and agreed-to provides a legal frame-work for the people of Micronesia to develop political and economicstructures that will serve their best interest for years to come.

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B. The Micronesia Compact

During World War II, the United States occupied Micronesia. TheUnited Nations designated the 2,100 islands to the U11ited States as a TrustTerritory in 1947, one of the eleven established around the world. It wasthe only one designated a "Strategic Trust", meaning that the UnitedStates could establish military and intelligence bases there and also con-duct nuclear tests.

After 28 years of very slow constitutional development in the trustterritory, two of the four entities in Micronesia, The Marshall Islands andThe Federal States of Micronesia, have agreed to enter into a Compact ofFree 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 DefenseRelations, and IV. General Provisions. This last one includes matters likethe approval process for the Compact, Dispute Resolutions concerningthe Compact, and the possible Termination of the Compact.

What does the Compact of Free Association provide for? Some of themore important clauses are:

The preamble of the Compact establishes clearly that the new relation-ship 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 wasformally 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 orlaw". That is the formal op'inion of Ambassador Peter Rosemblatt, whowas the U.S. President's personal representative for Micronesian StatusNegotiations from August 1977 to March 1981. (VII Brooklyn Journal ofInternational Law, Page 173 (1981 )).

The Compact itself states that, without prejudice of the effects of theCompact under international law, it has "the force and effect" of a statuteunder the laws of the United States. (Sec. 471 (c)).

The preamble recognizes that the peoples of the Trust Territory haveand retain their sovereignty, their sovereign right to self-determinationand their inherent right to adopt and amend their own Constitution. TheCompact provides for a process to enter into the Compact, to amend theCompact and, if desired, to terminate the compact. The difference betweenthis and the existing situation in Puerto Rico is notable. The FederalRelations Law, the Congressional statute that established the legal rela-tionship between the United States and Puerto Rico, does not provide a

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

At the outset, the compact states that the peoples of the MarshallIslands and the Federated States of Micronesia are self-governing (Section111). It is so mentioned in an official United Nations publication. (SeeDecolonization, No. 16, July 1980 -Issue dedicated to Trust Territory ofPacific Islands- Page 28).

The governments of the Marshall Islands and the Federated States ofMicronesia will have the legal capacity to conduct foreign affairs in theirown name and right (Sec. 121 (a». They will only have specific limitations.

The foreign affairs capacity includes, among others, the law of thesea-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 theircommercial, diplomatic, consular, economic, trade, banking, postal, civilaviation, communications, and cultural relations. This capacity includesnegotiation for' developmental loans and grants and the conclusion ofarrangements 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 andright, treaties and other international agreements with governments, re-gional and international organizations. (Sec. 121 (c).

The government of the United States shall support mutually agreed-upon applications for membership in regional or international organiza-tions. (See 122). ..;"

At the request of the Marshall Islands or the Federated States ofMicronesia, the U.S. shall extend consular assistance to them. This meansthat the Marshall Islands and the Federated States of Micronesia can usethe embassies and consular offices of the U.S. throughout the world. (Sec.126).

The governments of the Marshall Islands and the Federated States ofMicronesia will have full authority and responsibility to regulate theirrespective domestic and foreign communica tions, with the exceptions ofthe international frequency and satellite communications that will remainunder U.S. jurisdiction. The U.S. can also operate the necessary defenseresponsibilities (Sees. 131 132).

The citizens of the Marshall Islands and the Federated States ofMicronesia can enter the U.S. for employment. The sections on immigra-tion, in a reciprocal way, establish the U.S. citizens' right to enter theMarshall Islands and the Federated States of Micronesia on a noridiscrim-

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inatory basis. (Sec. 141). (While the people of the Marianas' are U.S.citizens, the people of the Marshall Islands and the Federated States ofMicronesia are not. This, however, does not preclude the possibility andlegal validity of a Freely Associated State).

The Marshall Islands and the Federated States of Micronesia aregetting a much better deal that has been obtained by Puerto Rico. Not onlythat, they are receiving much more than what Puerto Rico ever asked.

C. The Option of an Eco170111ic Compact

);;

Dependency is the best way to describe the economic situation of theMarshall Islands and the Federated States of Micronesia today. It is ironictl.at the United Nations Trusteeship Agreement was, in theory, designedto ach ieve·the opposite. Article 6 of the 1947 U. N. Trusteeship Agreementbinds the U.S. to "promote the economic advancement and self-sufficiency of the inhabitants, and to this end shall regulate the use ofnatural 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. Anyother interest has been secondary and of little priority. Like all colonialpowers (past and present and, most likely, future, also) the U.S. has actedonly when, and if, its national interest, as interpreted by the powerbrokersat any given time, requires action.

In Micronesia, the people were lured away from their subsistencelifestyle and became dependent on the U.S. for their modern needs. Afterreaching the stage of almost total dependency, the people agreed toconditions otherwise unacceptable so as to maintain the artificially createdstandard 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 moreefficient in expenditures.

The Compact of Free Association of the Marshall Islands, the Feder-ated States of Micronesia and the United States arrives at a new economicrelationship. The dependency-creating aspects of federal programs will bereplaced by money assistance that will allow the Marshall Islands and theFederated States of Micronesia to develop. They will continue to need aidand 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 Compactmay be discontinued by mutual agreement.

If we consider that in 1983 the U.S. gave six countries in CentralAmerica a total of $ 132 million in foreign aid, the assistance providedunder the Compact is considerable. (U.S. State Department, Sustaining aConsist 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, 8million; EI Salvador, 5.2 million; Honduras 4.3 million; Costa Rica, 2.6million, Panama 2.2 million; and Belize, 175.000) The population of theMarshall Islands and the Federated States of Micronesia is slighty morethan 110,000 people.

Why should the U.S. pay such sums? "We underlook to help theMicronesians, 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 McHenrysaid: "Micronesia's importance in 1975 remains as it has been since 1945:the area must be denied to any hostile power". (McHenry, MicronesiaTrust Betrayed, 1975, Page 84). A professor of international relations atthe nearby University of Guam says: " ...the United States intends tomaintain sufficient influence to guarantee it the option of building militarybases, 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 asfollows:

The U.S. will provide direct grants to the Freely Associated State toassist in its efforts to achieve economic development, capital improve-ments and government operations. Some grants are for specific purposes,while others are unrestricted. The Marshall Islands and the FederatedStates of Micronesia are required to spend at least 40 percent on develop-ment (Sec. 211).

The Compact also allows for the extension of several programs andservices of the U.S. government, such as the Weather Service, FederalEmergency Management Agency, Postal Service and Federal AviationAdministration. The U.S. will also make available education and healthcare programs (see. 221).

The Marshall Islands and the Federated States of Micronesia will notbe part of the. customs territory of the U.S. (Sec. 214). This·will allow themto determine their own customs policies, tariffs and duties. Nevertheless,products from the Marshall Islands and the Federated States of Microne-sia will have duty-free access to the U.S. market if less than 50 percent of a

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product's final value is derived from foreign sources (Sections 242 and243).

The U.S. dollar will be legal tender in the Marshall Islands and theFederated States of Micronesia. (Sec. 2S I). It is a wise decision to use astrong currency like the dollar, instead of a Micronesian currency. Someindependent countries, i.e., Panama, do the same.

Citizens and corporations of the freely associaced states shall be ex-empted 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 withtax benefits conferred on investors in U.S. territories (Armstrong, Arthur,"Strategic Underpinnings of the Legal Regime of Free Association"; VIIBrooklyn Journal of International Law, Page 219, 1981).

Section 255 of the Compact makes applicable to the Freely Associa tedStates the benefits of Section 936 of the Internal Revenue Code ofthe U.S.

..Moreover, it provides that if these benefits are amended, modified orrepealed, such provisions shall continue in effect for the Marshall Islandsand the Federated States of Micronesia for a period of two years, in orderto allow enough time for the U.S. and the Freely Associated States "tonegotia te an Agreement which shall provide benefits su bstantively equi-valent to those which were obtained under such provisions". Perhaps it isno coincidence that officials in the White House told the N PP mayor ofPonce, Jose Dapena, that the Reagan administration would defer chang-ing Section 936 of the Internal Reven ue Code following the same two-yearperiod. (Star, April 30, 1985, pag 2).

It seems that the options we are facing are: the benefits of Section 936achieved with a compact of free association with economic growth, versusdependence (food stamps, etc.) without 936. The Commonwealth ofPuerto Rico and other U.S. territories soon could be facing a dear cutdecision: economic assistance and tax benefits for investors (the 936benefits), to encourage a less dependent and more self-sufficient economy,or the continuation of the dependency created by federal programs now ineffect, without the benefits provided in Section 936. Perhaps, the UnitedStates has already made up its mind.

.. 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, theFederated States of Micronesia and the United States, with the U.S.retaining "full authority" for security and defense matters.

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The report by the U.S. General Accounting Office of Feb. 7, 1985entitled "Issues Affecting U.S. Territory and Insular Policy" states clearlythat: "Free Association is distinguished from independence by the relianceof one state on another for security and defense" (Pag. 19).

Even in the Puerto Rican Associated Republic that political analystJuan Manuel Garcia Passalacqua predicted for Oct. 12, 1992, raising theeyebrows of many, the U.S. will retain responsibility and authority forsecurity 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) governmentrepresentatives, 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 notintend to negotiate decision-making authority concerning security anddefense matters. Thus, the central issue, the crux of the matter, becomesthe content of the security and defense provisions of the Compact. ,j

The Compact agreed-to by the Marshall Islands, the Federated States :of Micronesia and the United States provides for security and defense, asfollows:

The U.S. will have full authority and responsibility for security anddefense matters in or relating to the Marshall Islands and the FederatedStates of Micronesia. (Sec. 311).

This authority and responsibility includes the obligation to defend theMarshall Islands and the Federated States of Micronesia from attack orthreats, the option to foreclose access to the Marshall Islands or theFederated States of Micronesia by any third country's military areas and ...

I. ~;. 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 forconsultations and conducting government business (Sec. 151). The pre-mises of such representative offices shall be as inviolable as that of adiplomatic mission. The designated representative of the governmentsshall be immune from civil and criminal process (Sec. 152).

The U.S. Marshall Islands and the Federated States of Micronesiapledge to protect the Micronesian environment (Sec. 161). For the pur- :poses of the National Enviromental Policy Act, U.S. activities in theMarshall Islands and the Federated States of Micronesia may bring forthactions 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 Statesshall cease (Sec. 171).

The governments of the Freely Associated States and the governmentof the U.S. shall be immune from the jurisdiction of the courts of eachother. (Sec. 174).

There is a provision for a separate agreement on extradition and lawenforcement. (Sec. 175).

The U.S. confirms that it shall act in accorda nee with international la win the exercise of authority and responsibility for security and defense(Sec. 31 I (c»).

The governments of the Marshall Islands and the Federated States ofMicronesia shall be afforded, "on an expeditious basis", the opportunityto "raise its (their) concerns" with the U.S. secretaries of State and De-fense, "personally", regarding any determination made on defense orsecurity matters (Sec. 3 I 3).

The U.S. shall not, in the Marshall Islands or the Federated States ofMicronesia, test or dispose of any nuclear weapons or radioactive mate-rial, or discharge any toxic chemical or biological weapon or materialwhich would be haz.ardous to public health or safety. (Sec. 314 (aj).

Other than "for transit", "overflight purposes" during time of nationalemergency declared by the President of the United States, a state of wardeclared by Congress, or as necessary to defend against actual or impend-ing armed attack, the U.S. shall not store in the freely associated states anytoxic chemical weapon, radioactive material or toxic chemical-material.(Sec. 314 (b»).

Specific arrangements for the use by the U.S. of military areas aridfacilities are set forth in separate agreements which shall come into effectsimultaneously. (Sec. 32 I).

The Republic of the Marshall Islands and the Federated States ofMicronesia can file claims, with the U.S. or with any other country, fordamages, and can petition for redress of any losses which could arise out ofany armed conflict. (Sec. 353 (bj),

The Security and Defense Clauses are the delica te ones. One of the fourentities of the Trust Territory, the Republic of Belau (or Palau), has, so far,refused to enter into the agreement or Compact of Free Association. Itvoted in three separate referenda to keep nuclear weapons and militarybases 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 ofwar.

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E. Approval and Termination of the Compact

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Prior to formal negotiatIOns, usually, there is a prenegotiations orinformal process. Achieving internal agreement among a\l the U.S. de par-taments and agencies with interests in Micronesia was complex. (Rosernb-latt, Peter R., VII Brooklyn Journal of International Law 175, 1981). It isalways so. Effective participation in the "informal" process is as impor-tant, and sometimes even more so, than participation in the formal drama.

The Compact of Free Association agreed-upon by the FederatedStates of Micronesia, the Marshall Islands and the United States is theproduct of delicate and lengthy negotiations -informal and formal- formore than a decade.

The Compact was signed by the representatives of the Federated Statesof Micronesia, and by the United States on Oct. 1, 1982. As to theMarshall 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 ex-plained herein.

The Compact will come into effect after completion of a\l of thefollowing: I. Approval by the Marshall Islands and the Federated Statesof Micronesia, in accordance with its constitutional processes, 2. Conductof a plebiscite; and 3. Approval by the United States, in accordance with itsconstitutional processes. (SEc. 411).

The Compact requires that the plebiscite mentioned above be con-ducted, in order to determine the free and voluntary choice of the peoplesof 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 requiredplebiscite. .

Tn its t 983 annual report to the United Nations on the Trust Territoryof the Pacific, the United States stated that the Federated States ofMicronesia and the Marshall Islands favored, by an absolute majority, thestatus of free association. On March 30, 1984, President Reagan transmit-ted to the Congress, for its approval, the Compact of Free Association.(See: "Trust Territory of the Pacific Islands", Working paper prepared bythe Secretariat of the United Nations for the DecoIonization committee,June 11,1984, Pages 20-21).

After the Compact takes effect, disputes will most probably ariseconcerning 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 them-selves. (Sees. 421-422). If a dispute cannot be resolved within 90 days ofwritten notification, either party to the dispute may refer it to arbitration,as provided by the Compact. (Sec. 423) It is important to notice a differ-ence between the system just described and the present dispute reso lutionsystem 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 estab-lishment of an Arbitration Board to decide disputes. Its decisions shall bebinding upon the two parties. Members of the Arbitration Board are to beappointed by the two governments in each case. (Sec. 424).

The Compart can be terminated in any of three ways: I. By mutualagreement of the Marshall Islands and the United Sta tes, or of the Feder-ated States of Micronesia and the United States; 2. By the United States inrelation to the Marshall Islands or the Federated States of Micronesia,subject to certain provisions, mainly of economic assistance, and securityand defense, which will remain in full force for 15 years, in any case; 3. Bythe Marshall Islands if the people of the freely associated states vote in aproperly administered plebiscite to terminate the relationship establishedin the Compact. (Sees. 441-443).

Should termination occur, provision of the Compact shall continue infull force on mutually-agreed terms for a specific number of years. (Sees.451-454).

The Compact also requires that the United States and the MarshallIslands or the Federated States of Micronesia, as appropiate, shall con-clude II related agreements. (Sec. 4(2). The agreements are: (I) and (2)telecommunications services, (3) extradition, muTtial assistance in lawenforcement matters and penal sanctions, (4) compensation to citizens ofthe Marshall Islands and Federated States of Micronesia for loss ofproperty and persons due to nuclear testing, (5) services and programs ofweather service, postal service, federal emergency management, and theFederal Aviation Administration, (6) property of the United States in theMarshall Islands and the Federated States of Micronesia, (7) and (8)military use and operating rights of the government of the United States inthe Marshall Islands and the Federated States of Micronesia, (9) SOFA+-Status of Forces Agreement, ([0) and (11) friendship, cooperation andmutual security.

The Compact provides that related agreements shall come into effectand 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 itas a preceden t for future developments. The experience of the negotiationof the Compact of Free Association in Micronesia will be an importantpoint of reference for the United States in the future negotiations with theCommonwealth of Puerto Rico and other territories. They can also be amodel for Puerto Rico. Negotiations must be conducted with PuertoRicans in good faith, if a positive result is expected. We look forward tothem.

.....,

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LA APORTACION DE TRIAS A LAHlSTORIOGRAFIA CONSTlTUCIONAL

ESBOZO CRITlCO DE LAHISTORIA CONSTlTUCIONAL DE PUERTO RICOI

Dedicado a la Lcda. Lizabeth Lipsett Campagne.

Carmelo Delgado Cintron?

La aportacion que hace el Doctor Jose Trias Monge ala historiografiay a 10sestudios de Derecho Puertorriquefios es de fundamental importan-cia. Su Historia Constitucianal de Puerto Rico.' en cuatro gruesos volu-menes, se ha convertido en una obra indispensable para entender nuestracompleja historia nacional. El libro es un estudio multiple e innovador,cuidadosamente meditado, investigado con sosiego y rigurosidad durantemuchos afios y escrito con claridad y sobriedad. En el, Trias nos demuestrasus profundos conocimientos y meditaciones de las corrientes historicas,

l. Leido por el autor el 25 de septiernbre de 1984 en el acto de recepcion del libro His/ariaConstitucional de Puerto Rico en la Escuela de Der echo de la Universidad de Puerto Rico.Tarnbien se expreso el Honorable Roberto Sanchez Vilella. EI autor ha afiadido notas al calee yuna extensa bibliografia comentada para la presente publicacion.2. EI autor es Profesor en la Escuela de Derecho de la Universidad de Puerto Rico donde ensefiaHistoria 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 dePuerto Rico. Ta rnbie n ocupa el cargo de Director de la Biblioteca de Derecho de la Universidadde Puerto Rico. Ex Presidente de la Fund acion Puertorriquefia de las Humanidades. Durantecatorce 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 Universi-taria, Cuatro Tomes: Volumen I, 1980: Volumen II, 1981; Volu rnen III, 1982; Volumen IV,1983.

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