[NEW] The International Place of Puerto Rico | the international 2017 – Vietnamnhanvan

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Puerto Rico’s heart is not American. It is Puerto Rican.

Puerto Rico has, for over a decade now, faced deep crisis. Sustained levels of emigration to the continental United States have resulted in millions in “forced exile,” the territory’s debt has ballooned to $72 billion, and its relationship to the United States remains unsettled. This Chapter offers an internationalist explanation of Puerto Rico’s troubled position, demonstrating through recent developments that Puerto Rico is in fact non-self-governing under international law, and explores the implications of this finding pursuant to the Charter of the United Nations and other applicable instruments.

This Chapter proceeds in three sections. Section A examines the 1953 adoption of U.N. General Assembly Resolution 748 removing Puerto Rico from the list of Non-Self-Governing Territories. It argues that the decision was ultimately mistaken — the United Nations misjudged the level of internal autonomy enjoyed by Puerto Rico — and that the gap between the label thrust upon the island and the facts on the ground has only grown, as measured by U.N. criteria. Section B uses case studies to demonstrate that Puerto Rico does not meet U.N. standards for self-governance. First, it argues that the extensive powers of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) Oversight Board are fundamentally incompatible with U.N. standards for self-government. Second, it explains that the federal government’s apparent power to impose capital punishment for federal crimes committed on the island is further evidence of significant interference in internal matters. Section C analyzes Puerto Rico’s potential remedies at the United Nations, as well as under other international legal instruments.

A. A Dream Denied at the United Nations

The nineteenth century was the age of empire; the twentieth, the age of decolonization. Colonialism, a contested concept, can be characterized as “a process in which one society endeavor[s] to rule and to transform another.” Its counterpart, self-determination, has been linked to governmental legitimacy and the prevention of international conflict, and was one of the United Nations’ foundational goals; indeed, the first article of the U.N. Charter describes self-determination as a fundamental right, and the concept is “universalized and internationalized” in a host of other international documents. At the United Nations, the international shepherd of the decolonization project, Puerto Rico was one of the first test cases for the standards to be applied in determining whether self-governance had been achieved.

Existing scholarship has already significantly contributed to historicizing events at United Nations Headquarters in 1953. In that year, Puerto Rico was removed from the organization’s list of Non-Self-Governing Territories, a designation that carried significant implications, both symbolic and legal, for the United States. While this Chapter will leave descriptions of the precise legal and political machinations around the decisionmaking at the United Nations to others, it merits highlighting that the United States made the case for Puerto Rico as a self-governing entity based on Public Law 600, which purported to enable the creation of a commonwealth relationship between the United States and Puerto Rico. Those representations did not, however, comply with U.N. requirements for self-governing status even in 1953. Over time, the gap between the designation — which has yielded considerable geopolitical benefits for the United States — and the reality of Puerto Rico’s legal and political status has grown.

1. The United Nations’ Standards for Self-Governance. — The precise criteria for determining self-governance at the United Nations date back to the 1953 Ad Hoc Committee, which drafted a list of thirty-four factors divided into three categories, each attempting to capture a different type of sovereignty. The first and third sets of factors were not relevant to Puerto Rico; they dealt with territories moving toward independence and territories that had become “an integral part of” the metropolitan country but freely associated with that country on an equal basis. It was the second set of factors — looking at continuing associations between territories and their former colonial powers, where the territory was not on the path to independence or some form of incorporation — that most clearly applied to Puerto Rico.

This association inquiry focused on the unencumbered exercise of the right to self-determination, the ability to determine international status, and the ability to control internal self-governance. For example, under “[g]eneral” factors, the inquiry looked to the territory’s freedom to choose “between several possibilities, including independence”; “to modify at any time [its] status [with the metropolitan country] through the expression of [its] will by democratic means”; and to “decide upon the future destiny of the Territory with due knowledge.” Also relevant were geographical considerations and the degree to which “[e]thnic and cultural considerations” separated the territory from the metropolitan country.

Moreover, under “[i]nternational status,” the inquiry considered “the power to enter freely into direct relations . . . with other governments and with international institutions and to negotiate, sign and ratify international instruments freely,” alongside “[t]he right of the metropolitan country or the Territory to change the political status of that Territory” based on claims or litigation by “another State.”

Finally, under “[i]nternal self-government,” the inquiry assessed the “[n]ature and measure of control or interference, if any, by the government of another State in respect of the internal government,” as well as “[p]articipation of the population”; whether the electoral system was “conducted without direct or indirect interference from a foreign government”; and the territory’s “[d]egree of autonomy in respect of economic, social and cultural affairs.”

Again, the factors set out standards for self-governance where a territory was not to attain full independence. These factors worked so well that — today, over sixty years later — they remain the standard for determining a territory’s political status, incorporated as the appropriate guiding criteria through subsequent U.N. resolution. The factors continue to be the closest thing in international law to a clear, concrete set of guidelines for evaluating claims to self-governance, making them a powerful analytical tool for understanding the implications of PROMESA and the potential federal imposition of the death penalty.

2. The Case from the U.S. Delegation. — The linchpin of the U.S. case presented to the United Nations to show Puerto Rican self-government in 1953 was the “compact” theory. The idea was that a “compact” had been formed with President Truman’s signing of Public Law 600 in 1950, which provided the legal basis for the holding of a Puerto Rican constitutional referendum on the Act itself. Once the referendum approved Public Law 600, the Puerto Rican legislature was empowered to assemble a constitutional convention “[t]o provide for the organization of a constitutional government by the people of Puerto Rico.” The elected convention delegates modeled the document, at least structurally, on the American Constitution, and the Puerto Rican people ratified the new constitution in March 1952.

Public Law 600 reads: “[F]ully recognizing the principle of government by consent, this Act is now adopted in the nature of a compact so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.” Moreover, the term “compact” (without “in the nature of”) was repeated in the joint resolution that ratified the new Puerto Rican constitution. At the United Nations, the U.S. delegation emphasized the compact’s bilateral nature, its terms changeable only “by common consent.” In a speech to the Committee on Information from Non-Self-Governing Territories, a U.S. delegate noted: “A compact . . . is far stronger than a treaty. A treaty . . . can be denounced by either side, whereas a compact cannot be denounced by either party unless it has the permission of the other.”

To bolster its case, the U.S. delegation referenced Mora v. Torres, decided earlier that year in the District Court of Puerto Rico. In an extensive discussion, Judge Benjamín Ortiz, an associate justice of the Puerto Rican supreme court sitting as acting U.S. district judge, had reformulated the basis for the applicability of the Fifth Amendment to Puerto Rico as stemming from the compact and what he perceived to be “the new relationship established between the United States and Puerto Rico under Public Law 600.” Judge Ortiz had remarked: “Under the new relationship now existing, Puerto Rico enjoys the total substance of self government and there is a plentitude of government by consent, which realities are incompatible with the previous status of Puerto Rico as a possession, dependency or territory.” No longer could the applicability of constitutional provisions be judged on Puerto Rico’s status as a possession; constitutional rights had to be considered in light of the substance of the agreement between Puerto Rico and the United States. The holding of the case was later affirmed by the First Circuit, which maintained that the Commonwealth was subject to “the applicable provisions of the [C]onstitution of the United States,” though the First Circuit reserved judgment on whether the right to due process originated in the Fifth or Fourteenth Amendment, and whether the Puerto Rican constitution was really a constitution or merely another organic act. At the United Nations, however, Mora was the basis for reassurances that the “bilateral compact . . . had been accepted by both [sides] and . . . in accordance with judicial decisions, could not be amended without common consent.”

While the precise contours of “in the nature of a compact” were and continue to be heavily disputed, Public Law 600 was intended to signal an extension of self-government in Puerto Rico, even if it failed to transform the relationship between Congress and Puerto Rico. The Senate committee that reviewed the Act at the bill stage, for example, wrote a report that indicated approval premised, at least in part, on self-government being “embodied in the [U.N.] Charter,” so that Public Law 600’s “enactment would enhance the prestige of the United States in the eyes of the dependent peoples of the world.” The Washington Post declared that the law’s passing signaled an “effective riposte to Soviet yelpings about American imperialism”; the New York Times wrote that the United States was “disproving the Communist and Nationalist charges of ‘Yankee imperialism.’” Public Law 600 offered an “opportunity to respond to charges that Puerto Rico was a colony,” even as Congress reserved the question of whether it was actually limiting its powers over the island. Since then, the move has enabled the United States to court a narrative of postcolonialism while Puerto Rico sees important internal questions settled by U.S. courts and Congress. By delisting the island, the United States escaped accountability for some of the international norms it worked to create, allowing ongoing violations of Puerto Rican sovereignty without international condemnation.

Statements made by Puerto Rican government officials also indicated that the compact had currency on the island as a bilateral, consent-driven agreement (or that, at least, such was the case made to the general population). Puerto Rican members of the U.S. delegation to the United Nations “claimed that the jurisdiction of the Federal Government in Puerto Rico [was] based on a bilateral compact to which Puerto Rico [was] a party.” Puerto Rican Governor Luis Muñoz Marín declared that the commonwealth arrangement “[took] away from the very basis of the relationship [between Puerto Rico and the United States] the nature and onus of colonialism.” Similarly, he later stated: “[T]he last juridical vestiges of colonialism have been abolished in [our] relationship [with the United States]. . . . We are not . . . taking another step in self-government — this is self-government.”

Yet Washington floated sharply divergent legal opinions. At a congressional hearing on the potential approval of the Puerto Rican constitution, one of the law’s cosponsors confirmed that Congress continued to reserve plenary powers for itself. The Senate and House reports stated that the law “[will] not change Puerto Rico’s fundamental political, social, and economic relationship to the United States.” While testifying before Congress, Muñoz Marín remarked, “if the people of Puerto Rico . . . go crazy, Congress can always get around and legislate again.” At House hearings, Resident Commissioner Antonio Fernós-Isern commented that “the authority of the government of the United States . . . to legislate in case of need w[ill] always be there.” Fernós-Isern later noted that the law “w[ill] not change the status of the island of Puerto Rico relative to the United States . . . [and] w[ill] not alter the powers of sovereignty [of] the United States.” José Trías Monge, later chief justice of the Supreme Court of Puerto Rico and a “key player[]” in Public Law 600’s approval by the Puerto Rican referendum, described the hearings as “a harrowing ordeal and a tawdry record.”

The possibility that the compact was not transformative was disquieting to local independentistas, who expressed skepticism in legal memoranda and newspaper editorials. In fact, the notion that compact by mutual consent was a sham was so alarming to pro-independence nationalists that two sympathizers attempted an assassination of President Harry Truman months before the Puerto Rican referendum. Potentially confirming their fears, six decades later, within the context of the “narrow, historically focused question” of whether Puerto Rico was a separate sovereign for double jeopardy purposes, the U.S. Supreme Court concluded: “Congress conferred the authority to create the Puerto Rico constitution . . . . Congress [is] the original source of power for Puerto Rico’s prosecutors . . . . The island’s Constitution, significant though it is, does not break the chain.”

3. Skepticism at the United Nations. — The case for removing Puerto Rico from the list of Non-Self-Governing Territories encountered considerable resistance at the United Nations. As indicated by other historical works, such skepticism was merited; Public Law 600 had not brought about the legal and political changes presented to the United Nations.

The disjuncture was not lost upon several delegations. While in debate in the Committee on Information from Non-Self-Governing Territories, the delegate from India concluded that “the present status of Puerto Rico [does] not completely comply with any of the elements of an independent or fully self-governing state.” The Indian delegate went on to charge: “[L]egal logic in international law could reach but one conclusion: the degree of self-government . . . [does] not conform to the . . . list of factors . . . .” When the debate progressed to another U.N. body, Indonesia decided much the same: “Puerto Rico [cannot] be considered a territory whose people [have] attained a full measure of self-government.” Ukraine, likely driven by Cold War considerations, agreed that Puerto Rico “continued to be a United States colony.”

In the General Assembly, the Puerto Rico question prompted vigorous debate. While most of the battle was waged on procedural, not substantive, lines, the final vote was telling. The resolution approving the cessation of information about Puerto Rico passed with twenty-six votes in favor, sixteen against, and eighteen abstentions. That is, from sixty voting delegations in the General Assembly, only around forty-three percent voted in favor. It was, moreover, a vote for which the United States had “spared no effort to line up support.”

The distance between the representations made to support the removal of Puerto Rico from Article 73(e) and the island’s conditions was only further highlighted by subsequent work on decolonization at the United Nations. The specialized Committee on Decolonization was created in 1961 to monitor compliance with the Declaration on Decolonization. Despite its mandate, and two petitions from Cuba that the Committee examine Puerto Rico’s status, the Committee refused to consider the Puerto Rico question for the first decade of its existence. The United States, a member, objected to both petitions — the first time, on the basis that Puerto Rico’s status had been resolved in 1953, and the second time, tellingly, because consideration of the question would be “undue intervention in a United States domestic matter.” The Committee managed to place Puerto Rico on the agenda only after the United States had resigned as a participant; the Committee then issued multiple resolutions emphasizing “the inalienable right of the people of Puerto Rico to self-determination and independence.” In the 1980s, it twice recommended that the General Assembly place Puerto Rico on its agenda; the plan was defeated both times by the United States.

B. Case Studies in Puerto Rican Non-Self-Governance

The United States reaped a windfall by manipulating Public Law 600’s ambiguity to secure Puerto Rico’s delisting under the U.N. factors. To show that Puerto Rico should not remain delisted, this section will focus on two case studies: PROMESA and the death penalty. Case studies are appropriate under the case-sensitive analysis recommended by General Assembly Resolution 1541, which makes clear the United Nations’ concern with the arbitrary subordination of territories. A dominant state cannot have “substantial discretion[] to intervene in the reserved or internal affairs of the [a]ssociated [s]tate”; where it does, it runs afoul of U.N. standards for self-governance. These case studies confirm the substantial structural and legal power wielded by the U.S. legislature and courts over matters of great internal significance to Puerto Rico. PROMESA has enabled wide encroachment into the local government’s structural powers, while a federal unwillingness to consider Puerto Rico’s constitutional prohibition on capital punishment has overridden Puerto Rican discretion on a central political point.

1. The Broken Promise of PROMESA. — Puerto Rico’s long-running financial crisis has been well documented, and its need for restructuring alternatives clear. Its economic troubles began in 2006, when the end of attractive tax exemptions for U.S. manufacturers led to the implosion of the island’s manufacturing sector. Economic activity stalled, decreasing by at least fourteen percent by late 2015, and public debt mushroomed to $72 billion. Excluded from seeking bankruptcy relief through Chapter 9, and prevented from legislating its own restructuring regime in Puerto Rico v. Franklin California Tax-Free Trust on preemption grounds, Puerto Rico had no real choice but to turn to Congress to find a solution to its fiscal crisis.

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Congress replied with PROMESA, a statute that created an Oversight Board that has been accused of “bring[ing] to mind the days of Theodore Roosevelt.” Under PROMESA, the Board has extensive powers to bind Puerto Rico’s government, and is not subject to Puerto Rican control or oversight. The arrangement speaks directly to an exceedingly intrusive relationship with Puerto Rico’s internal government, and thereby runs squarely counter to the U.N. factors weighing the “[n]ature and measure of control or interference, if any, by the government of another State in respect of . . . internal government,” as well as to the consideration of the “[d]egree of autonomy in respect of economic, social and cultural affairs, as illustrated by the degree of freedom from economic pressure.” An examination of the Oversight Board’s structure, however, drives home how far the Act allows the Board to intervene in internal matters on the island.

The Board has, first, considerable control over the governor, the head of the island’s executive branch under Article IV of the Puerto Rican constitution. At its sole discretion, the Board can require that the governor provide budgets, or monthly or quarterly reports, of any “covered territorial instrumentality as [it] determines to be necessary.” The Board can ask any Puerto Rican government official for any information that it deems necessary to carry out its responsibilities, and has “direct access to [any necessary] information systems.”

The Board is also responsible for approving the required “Fiscal Plans,” which cover all substantive aspects of fiscal planning on the island. It must approve the territory’s public budget, which must be deemed “compliant” with the Board’s fiscal priorities. If a budget is noncompliant, or cash flows are below what the Board hoped, the Board can “institute automatic hiring freezes,” or “prohibit the covered territorial instrumentality from entering into any contract or engaging in any financial or other transactions, unless . . . previously approved by the Oversight Board.”

Another provision authorizes the expedited approval, at the Board’s discretion, of “Critical Projects,” which can include ventures that “improve performance of energy infrastructure and overall energy efficiency,” or that “contribute to transitioning to privatized generation capacities in Puerto Rico.” The section has already stirred concerns that it might enable the sale of public parks.

These are incredibly broad powers, cutting to the heart of governance. Yet the Board is also clearly a direct instrumentality of U.S. federal power — an instrumentality of the dominant state. Its members are appointed by the President, without the advice and consent of the U.S. Senate, mostly from a list of individuals submitted by majority and minority leaders in the U.S. Congress. The Puerto Rican governor can sit on the Board only ex officio, without voting rights. Puerto Rico’s former governor, Alejandro García Padilla, has said that the Oversight Board is “not consistent with . . . basic democratic principles.” The Board convenes, notably, in New York City.

If the factors’ concern for the independence of internal territorial government is to be meaningful, PROMESA’s sweeping, invasive powers must run afoul of that independence. Consider again the factor on “[n]ature and measure of control or interference . . . by the government of another State.” With its near-total power over the island’s purse strings, the Board can influence nearly any area of policymaking in Puerto Rico. As an “outside agency,” it has direct and significant control over the governor and, through him or her, the executive branch. The Board also undercuts any autonomy Puerto Rico had “in respect of economic [and] social . . . affairs,” and Board members might even be characterized as falling into the factors’ illustrative case — “a foreign minority group which, by virtue of the help of a foreign Power, has acquired a privileged economic status prejudicial to the general economic interest of the people of the Territory.” As the Board meets, 1600 miles from San Juan, islanders fear the closures of schools and hospitals, as well as deep cuts to government pensions.

2. “The Death Penalty Shall Not Exist.” — The death penalty inspires special controversy, involving profoundly normative (and thus often cultural, social, and political) assessments of the value of life and of the role of the state in mediating conflicts between the proper scope of justice and the justified use of violence. Since 1952, Puerto Rico’s constitution has answered these questions by prohibiting the death penalty — a position that puts Puerto Rico in agreement with a large and growing number of nations, but not with the U.S. federal government. U.S. courts have, in turn, insisted on the applicability of the federal death penalty to Puerto Rico. This insistence plainly undercuts Puerto Rico’s “autonomy in respect of . . . social and cultural affairs.”

It is difficult to imagine a more textually straightforward prohibition — the Puerto Rican constitution reads, simply: “The death penalty shall not exist.” The provision dates to the constitution’s ratification in the island-wide referendum in 1952 referenced above; it is the same constitution that had to undergo approval by Congress to be operative. The constitutional prohibition was heavily influenced by the Universal Declaration of Human Rights, which wound its way into the Puerto Rican constitutional project through a report from the Commission of the Bill of Rights emphasizing that “[t]he Bill of Rights establishes immediately from the onset the principle that the death penalty shall never exist in Puerto Rico.”

In Puerto Rico, the death penalty had been abolished by statute in 1929, and the last execution on the island occurred in 1927, so that approximately twenty-five years had elapsed between the constitution’s ratification and the last state-sanctioned execution in Puerto Rico. Another forty-eight would go by before the unavailability of capital punishment on the island was challenged by federal authorities.

The issue arose under the Federal Death Penalty Act of 1994 (FDPA), which authorizes use of the death penalty in federal cases involving specified offenses. While the Act is otherwise silent on its applicability to Puerto Rico, the Puerto Rican Federal Relations Act (PRFRA) specifies that “[t]he statutory laws of the United States not locally inapplicable . . . shall have the same force and effect in Puerto Rico as in the United States.” While the meaning of “not locally inapplicable” has been heavily litigated, little consensus exists on its scope.

The matter came to a head in United States v. Acosta Martinez. The conflict had been brewing for some time — pursuant to an understanding between federal prosecutors and local authorities, “the Puerto Rico U.S. Attorney’s Office ha[d] submitted the largest number of potential death penalty cases (59) of any of the 94 federal districts since . . . 1995.” When finally asked to determine the applicability of the death penalty to Puerto Rico, the district court firmly held that it could not be imposed on the island, emphasizing the exceptional nature of death and the particularly deeply held opposition the death penalty inspired. Judge Casellas noted the “fundamental principle that death is different,” “unique in its total irrevocability.” He emphasized that the prohibition “stands as an expression of the will of the Puerto Rican people,” conveying “the people of Puerto Rico’s firm cultural, moral and religious convictions against the death penalty.” He concluded that the “culture, traditions and values [of Puerto Rico] are repugnant to the death penalty.”

The First Circuit Court of Appeals, however, reversed, holding the death penalty applicable. It based its holding on a finding of congressional intent to apply substantive statutes defining federal crimes and their punishments to Puerto Rico. Such a result, the court argued, did not flout Puerto Rican sovereignty, but rather reflected a congressional choice to “simply retain[] federal power over federal crimes.” The court analogized the limits of the Puerto Rican constitution to those of state constitutions, reaffirming the ultimate power of Congress: “Puerto Rico is not alone in its abhorrence of the death penalty. Some twelve states join it in its views. But those state constitutions also do not trump federal criminal law when Congress intends otherwise.” Arguments made by the defendants and amici were dismissed as “political . . . , not . . . legal.”

The Court of Appeals’ decision provoked an outcry in Puerto Rico, leading to protests and a statement from the Puerto Rican Bar Association President, Arturo Luis Dávila Toro, that “[w]e don’t believe in capital punishment, and they are trying to impose it on us.” Papers cited local politicians calling the decision “a betrayal of the island’s autonomy, culture and law, in particular its Constitution.” The issue was defused only when, on remand, the jury acquitted the Acosta Martinez defendants because of a lack of evidence.

The outrage on the island was well founded. The First Circuit’s assertion that the Puerto Rican constitution was meant to apply only to local crimes is hard to square with the stark language in the Puerto Rican Constitution: “The death penalty shall not exist.” The most natural reading of the text is not that capital punishment will not apply to Puerto Rican crimes — but rather that capital punishment will not exist on the island. PRFRA’s plain meaning indicates that federal law applies unless it is inappropriate under local law. While the First Circuit (and, moreover, the Supreme Court) has treated an inquiry into local inapplicability as a matter of congressional intent, that inquiry seems to be at odds with PRFRA’s creation of “significantly enhanced powers of self-government and autonomy” for Puerto Rico.

The First Circuit decision’s analogy to state constitutions, moreover, drew a false equivalency. Consider Michigan, a committed anti–death penalty jurisdiction and the first and only state to include a ban on capital punishment in its constitution. As a state, Michigan benefits from a host of “procedural safeguards inherent in the structure of the federal system” that Puerto Rico lacks; in the parlance of Resolution 742, Michigan, like the other states, falls within the third set of factors, and enjoys “[l]egislative representation” and “[c]onstitutional considerations” that protect its political and legal rights.

By contrast, recall the second set of U.N. factors for self-government, which focus on the “nature and measure of control or interference, if any, by the government of another state with respect to internal government.” Retaining the power to override another state’s constitutional prescription is a marked interference with internal government. It infringes upon the island’s jurisdiction on a constitutional matter of uniquely weighty social and cultural importance. It speaks, again, to a territory that cannot meaningfully exercise separate self-government.

C. The Implications of Non-Self-Governance

This Chapter is, again, not the first piece to charge that Puerto Rico is, in effect, a U.S. colony. Grounding the argument in a distinctly internationalist framework, however, provides a lens for understanding the classification’s concrete and normative implications — implications that may be significant, both for the United States and the island, on a global scale.

1. International and Domestic Political Consequences. — The first and perhaps most obvious consequence to follow from recognition of Puerto Rico as a Non-Self-Governing Territory would be the resumption of the Article 73(e) reporting requirement. These reports must be prepared for the Secretary-General on an annual basis, and must contain “information relating to the economic, social and educational conditions in the Territor[y].” A report on Puerto Rico would be meaningful not only for the logistical burden inherent in preparing a yearly dispatch, but also because it would provide a public forum in which figures relating to “economic, social and educational conditions” could be scrutinized. Such a report could include figures indicating that Puerto Rico currently spends more money servicing its debt than it does funding education or health, that at least 150 public schools have closed, and that approximately 3000 doctors have emigrated, statistics that amount to a humanitarian crisis. Such reports must also contain “the fullest possible information on political and constitutional developments in the Territories concerned,” potentially forcing transparency on developments like PROMESA. Article 73(e) reports, moreover, form the basis of the working papers elaborated by the Special Committee. These working papers, in turn, inform the content of the Special Committee’s annual meeting and of the reports it subsequently sends to the General Assembly, where they are available for review by the body’s 193 constituent states. Between April 2015 and March 2016, for example, Article 73(e) reports shaped the content of thirty-three press releases and a working paper on each of the seventeen current Non-Self-Governing Territories, materials that were disseminated to the wider public through radio, television, and U.N. websites. Wider promulgation of conditions on the island, especially when framed in terms of non-self-governance, could become a vehicle for higher visibility and pressure to reform the relationship between the United States and Puerto Rico.

Falling within the remit of the Special Committee on Decolonization would bring other benefits too. It would allow the Committee to invite representatives from Puerto Rico to its annual regional seminar, linking local activists with a global network of experts and technocrats. It would also empower the Committee to “facilitate[] Territory-specific decolonization processes under way” and to organize fact-finding missions to the territory under review.

Beyond providing repeat access to a high-profile forum, however, the resumption of 73(e) reporting would generate embarrassment. The United States presents itself as a postcolonial power, and the recognition of a domestic American colony like Puerto Rico would have consequences for the deployment of American moral authority globally, especially at a moment when the United States’s world image has become increasingly fragile. International reputational capital is significant in a number of ways, affecting cooperation on matters like the “extradition of criminals [and] the allocation of troops for a military intervention” and impacting the ability to form and direct moral coalitions. While the precise influence of reputation on compliance and cooperation is heavily contested within the academic literature, “[d]iscussions of reputation in international law seem to be in universal agreement that states want a ‘cooperative’ reputation.”

The United Nations’ list of Non-Self-Governing Territories already includes U.S. possessions — namely, the United States Virgin Islands, American Samoa, and Guam. But Puerto Rico is unique in its size — it has a population of approximately three and a half million people, in addition to the over five million Puerto Ricans who reside on the mainland — and in its sheer distinctiveness, both of which would make its reincorporation into the list particularly notable. The U.N. factors, after all, incorporate consideration of the “[e]xtent to which the populations are of different race, language or religion or have a distinct cultural heritage . . . distinguishing them from the peoples of the country with which they freely associate themselves.” Uniquely among the territories, Puerto Rico operates in a working language other than English, with one Census survey finding that 95.3% of Puerto Ricans speak a language other than English at home, amongst which 81.2% speak English less fluently than “very well.” These indicators would make recognition of Puerto Rico’s relationship as colonial especially discomfiting, though that hardly forecloses making similar critiques on behalf of places like Guam or American Samoa as well.

There is instructive precedent for relisting dependent jurisdictions without the dominant power’s consent. When French Polynesia was added again in 2013, the French Ambassador to the United Nations boycotted the General Assembly, and the French Ministry of Foreign Affairs decried the decision as “a flagrant interference.” But for French Polynesia, reinscription brought with it annual scrutiny by the Special Committee on Decolonization and opened other venues for international attention. New Caledonia, for example, successfully campaigned to be readded to the list in 1986, and later invited the Special Committee to host its regional seminar on decolonization in its capital in 2010. At the time, French Polynesia, which had yet to be re-recognized as non-self-governing, had its would-be representative to the meeting refused entry. Even if U.N. attention “does little to change the reality on the ground,” access to an international forum can provide leverage with which to negotiate the terms of a constitutional referendum (which New Caledonia may hold before 2019). In addition, under international law, representations made in such fora can later bind the dominant power.

Lastly, reinscription could be impactful in the same way that countries’ decisions to join international human rights instruments can be impactful, especially in transitional regimes. Professor Beth Simmons has argued that, in moments of political transition, treaty ratification increases the “political and legal resources stakeholders can bring to bear in . . . realiz[ing] treaty rights,” leading to improved outcomes. Applied to Puerto Rico’s case, this theory would predict that even a symbolic change, like being redesignated as a Non-Self-Governing Territory, might embolden pro-democracy activists and re-energize the local conversation around Puerto Rico’s future. Access to the Special Committee, then, is a politically and normatively valuable goal.

2. Ultimate Responsibility for the Debt. — Recognizing Puerto Rico as a Non-Self-Governing Territory may also have implications for its debt. In particular, Puerto Rico’s debt may qualify as odious, a designation that would give the island’s government reason to contest the enforceability of the debt in the first place.

The doctrine of odious debt, appropriately enough, is traditionally dated to the United States’ refusal to assume the debts of territories gained after the Spanish-American War — territories that included Puerto Rico, Cuba, the Philippines, and Guam. Spain argued that “the United States would only become responsible for debts that were lawfully contracted by Spain as the legitimate sovereign of Cuba, and only for those debts that either benefited Cuba or were . . . local.” The episode was influential on Professor Alexander Sack, who formally articulated a basis for odious debt in 1927. The doctrine continues to evolve, with scholars arguing that it incorporates notions of sovereignty, development and democracy, and human rights.

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There is at least a colorable argument that Puerto Rico’s debts do not benefit the population and that creditors like hedge funds knowingly engaged in precarious lending in the years following the beginning of Puerto Rico’s economic crisis in 2005. The argument grows stronger if one accepts the potential relevance of the ongoing human rights crisis on the island and the claim that the island’s colonial status has worsened its debt. Even the conceivable applicability of odious-debt doctrine — a doctrine usually contemplated in the context of transitional justice and dictatorial regimes — should give readers pause.

Additionally, while Puerto Rico’s general obligation bonds remain guaranteed by the Puerto Rican Constitution’s explicit debt-repayment clause, if Puerto Rico were recognized as non-self-governing and under Congress’s plenary powers, an argument could be made that Congress itself should be liable for the island’s massive public debt.

3. New Pressure on the United States Through Treaties. — Lastly, reinscription may have implications for a number of international treaties that the United States has signed or ratified, as well as for other international obligations. For example, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) contain identical self-determination provisions, calling upon “State[] Parties . . . , including those [responsible] for the administration of Non-Self-Governing . . . Territories . . . [to] promote the realization of the right of self-determination.” Similarly, the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples exhorts that “[i]mmediate steps shall be taken, in . . . Non-Self-Governing Territories . . . , to transfer all powers to the peoples of those territories.”

While the argument that the administration of the death penalty is illegal under international law is far from conclusive, there may be reason to believe that the U.S.-driven implementation of the death penalty in Puerto Rico contravenes the ICCPR, and so that it is an especially egregious imposition of power. The ICCPR, to which the United States is a signatory, includes the right to a fair trial in capital punishment cases, which the United Nations Human Rights Committee has interpreted to require “translation or interpretation into one’s own language.” Uniquely among federal jurisdictions, however, federal law requires that federal trials in Puerto Rico be conducted in English, a language spoken fluently by only a distinct minority of Puerto Ricans. The language issue has also arisen in the context of the Sixth Amendment jury right, with at least one academic concluding that “the state of linguistic colonialism presently existing between the United States and the Commonwealth of Puerto Rico is legally and morally untenable.” If the death penalty were forcibly reintroduced to Puerto Rico through federal courthouses, then, an argument exists that the use of English would represent a violation of international standards for procedural fairness in capital punishment proceedings, at least as set forth in the ICCPR.

Even if direct enforcement of a number of treaties were not possible because they are not self-executing, their content provides a potentially powerful rhetorical device that can be parlayed at the Special Committee and then at the General Assembly. Additionally, treaty content may be considered evidence of an emerging norm of customary international law, which may have “independent and binding juridical status.” Judge Torruella’s spirited dissent in Igartúa-De La Rosa v. United States provides one model for how customary international law might be incorporated into domestic jurisprudence. Thus, acknowledgment of Puerto Rico as non-self-governing could enhance its political and legal leverage as it grapples for political autonomy.

D. Conclusion

This Chapter has attempted to rebuild the case for determining that Puerto Rico has been and remains a Non-Self-Governing Territory under U.N. criteria. In doing so, it has revisited historical debates and attempted to show that Puerto Rico is even further from true self-governance today than it was in 1953. Acknowledging the reality of Puerto Rico’s current political status would bring meaningful consequences in several ways. It would open a legitimate path for the island’s decolonization by providing improved access to international legal fora, and may influence the way the United States handles Puerto Rico’s public debts and its own international obligations. It would also, however, enable a frank conversation about Puerto Rico’s place in the American political order, and remind us of the role that international law may yet play in shining a light on territorial holdings in the twenty-first century.

Recommended Citation:
Developments in the Law — The U.S. Territories, 130 Harv. L. Rev. 1616, 1656 (2017).

[Update] America and the Liberal International Order | the international 2017 – Vietnamnhanvan

In a year of upset political apple carts, none were rattled harder, or lost more fruit, than traditional notions of American foreign policy. Donald Trump shocked a lot of people over a lot of issues. But no anti-Trump Republican economists orchestrated elaborate letters, with hundreds of signatories, to swear they would never serve in a Trump administration. No dissident Republican trade negotiators ostentatiously switched parties and vowed to support Trump’s opponent. Nor did Republican immigration experts flood the cable networks to renounce and denounce their party’s nominee.

Yet all of the above—and more—happened with respect to foreign policy. The specific reasons why Republican foreign policy operatives chose to denounce Trump’s plans may never be clear. We shall instead explore what we think they had in mind.

Nearly all opponents of President Trump’s foreign policy, from conservatives and Republicans to liberals and Democrats, claim to speak up for the “liberal international order.” A word may have been different here or there (e.g., “world order”) but the basic charge was always the same. Whether voiced by Fareed Zakaria and Yascha Mounk on the left, Walter Russell Mead in the center, Eliot Cohen and Robert Zoellick on the right, or Robert Kagan on the once-right-now-left, the consensus was clear: Trump threatens the international liberal order.

Guarding the Liberal International Order

Sticklers may notice two problems with this argument. First, while a few critics hung their anti-Trumpism on the peg of “temperament,” most preferred to charge Trump with policy recklessness—yet then went on to insist that Trump had no policies at all. We shall leave this objection aside as excusable political hyperbole.

The second problem is much greater: why is it that no one quite got around to saying what, exactly, the “liberal international order” is? One must therefore infer a definition from their complaints, and I shall try to do so fairly, the goal being to understand these writers as they understand themselves.

In ideological terms, the liberal international order (hereafter “LIO”) is the post–World War II consensus among the victorious great powers (excluding the Soviet Union, and later mainland China) on (in descending order of consensus) security, trade, and internal political arrangements. In more concrete terms, it is the constellation of institutions built to further that consensus: the United Nations, NATO, the European Union, and other, later entrants such as the World Bank.

Celebrants of the LIO seem to think that no explanation of its utility or value is necessary. Affirmation is enough because its goodness is self-evident. Trump’s implicit questioning of that order therefore sounds blasphemous. And clerics tend to confront blasphemy not with patient clarification but with strident denunciation.

That the foreign policy establishment of the United States is a kind of priesthood is not necessarily a bad thing. Priests can be useful. Aristotle identifies the priestly function as one of six elements vital to his best regime. More to the point, in every regime, strategy is determined and diplomacy is conducted by an elite. Thinkers and doers from Plato to Machiavelli to the American Founders saw no way around this reality and no reason to find it unjust or worrisome.

Yet the arrangement becomes a problem when the elite forgets or at least can no longer articulate the original rationale for the policies it still advocates. That is the situation American foreign policy has faced since the end of the Cold War, if not before—a situation Trump pointed out in often pungent language.

With respect to foreign policy, the restatement of seemingly obvious truths is salutary for two fundamental reasons. First, many Americans do not necessarily know what our interests or strategy are. Restating the basics is often the only way to make clear certain truths that may not possess inherent clarity, and to connect perfectly clear truths with other, more obscure truths.

Second, the priesthood sometimes protects its status by muddying the simple and clear, and pretending that the complex is clear and obvious—but only to themselves. Restating key elements of foreign policy is therefore essential to wider participation in political discourse. The foreign policy priesthood looks down on such restatements as “simplistic.” But it is important to understand that they will look down on any heterodox analysis—simplistic or complex, old or new, factually detailed or broad-brush—and they will dismiss these analyses in seemingly contradictory terms. This one is too detailed, stuck “in the weeds,” and misses the forest for the trees, while that one is too vague and high-level and lacks specifics. The only common thread is that the priesthood is protecting its guild.

And make no mistake: the foreign policy establishment is very much a guild. This fact is true in the prosaic sense. The priesthood operates and draws income from the LIO’s constituent institutions. It’s also true in the higher sense that the language and ideas of the LIO are the intellectual framework of all foreign policy discussion—the water in which fish do not know they swim.

The Trifocal Lens of American Foreign Policy

The original rationale for the LIO was the same as the original rationale for every major successful framework for American foreign policy. Those who advocated for it and built it did so because they thought it would best protect our security and interests at that time. What was different—and unprecedented—is that in 1945, America found itself not just a major economic power or even a military great power, but a superpower. This was not a position the American elite who fought and won the Second World War sought. It was an unexpected, and to many unwelcome, fruit of victory. Soldiers wanted to go home. Families wanted their men back. Civilians wanted an end to privation and sacrifice. The nation as a whole wanted to lay down a burden that most had not wanted to take up. To speak anachronistically, they wanted a “return to normalcy.”

But those Walter Isaacson and Evan Thomas called “Wise Men” believed that the question—What now?—required an unprecedented answer because of the unprecedented situation. If isolationism had served American interests in the past, they calculated, it would not do so in the foreseeable future. But to fully understand their logic, one must understand that they saw American interests in terms essentially no different from the views of the American Founders.

Once, as a young man looking to get a rise out of people, I stated that America’s proper foreign policy objectives were to avoid becoming poor, contemptible, or dead. As an older man with experience in the national security bureaucracy, I naturally blush at that recollection and today recognize the advantages of stating things in the positive: America’s national interests are to pursue and promote prosperity, prestige, and peace. This formulation may seem simplistic, but these obvious goals have too often been forgotten by the defenders of the status quo, who have confused means for ends.

More specifically, America should seek to further its economic interests as a commercial republic and to maintain and increase the American people’s standard of living and the American nation’s aggregate wealth. This in turn enables us to do great things—such as building massive and complex infrastructure projects, maintaining a strong and cutting-edge military, putting a man on the moon, and so forth.

We should also seek to maintain our standing in the world, our alliances with friends, and the fear and respect of enemies, to make possible or at least easier whatever it is that we want to do in the world. Contempt and respect are abstract and insubstantial but highly relevant to the pursuit of the other two goals. Avoiding poverty, getting and staying rich, and avoiding death by deterring or, if necessary, winning wars, require or are greatly aided by high standing in the eyes of other nations.


Though here stated last, the first priority of every state is to protect its own safety and the safety of its citizens. Traditionally or historically, this has meant preventing invasion, conquest, enslavement, even destruction, or else at a lesser level raids, sackings, and the like. Today one would have to add terrorism and nuclear attack—categories, alas, perhaps not exclusive.

Unusually, the United States, for much of its history, has not faced existential threats. Raids and sackings were common on the frontier, but did not threaten the nation’s very life. Since expelling the British, U.S. territory has been invaded only once, in 1814, and raided once, in 1916. Since then, we have suffered two mass casualty attacks on American territory. Not bad for 240 years.

The reason for this impressive record is of course our enviable location: protected by two vast oceans and sharing borders with only two nations, both mostly peaceful (Pancho Villa and drug cartels aside).

For Americans it is thus a much simpler matter to avoid death than it is for most other nations. Yet we should not be too confident on this score. Invasion by a hostile power, while extremely improbable, is not impossible. It has been contemplated and planned before, though the practicality of occupying the country is probably out of reach of any power today. Thankfully, our circumstances insulate us from many of the consequences of strategic folly.

Death, then, is far more likely to come at the hands of terrorists, or perhaps a nuclear attack by a foreign power, presumably the result of tensions arising from some other crisis somewhere ratcheting out of control.


Contempt and its opposite, prestige, are elusive qualities in international politics. Yet everyone knows them when they see them. When the Iranians seized ten American sailors in January 2016, and held them hostage for propaganda photos, those sailors—and our entire country—were being treated with contempt. Being insulted like this and passively accepting the insult increases the contempt felt for us by other nations. This was of course but a small example. A graver example is the contempt engendered by fighting two of the world’s weakest and poorest countries for a decade and not being able to win—and, worse, winning and then casually throwing the victory away. Pointless apologies, gratuitous insults to allies and friends, failure to honor commitments, transparent groveling to enemies—these rub salt in the open wound of contempt. Perhaps the largest contributor to contempt, however, is a general sense of decline. Nations palpably on the way down tend to earn the contempt of other nations in spades.

Prestige, by contrast, is engendered by strength, wealth, and the sense of being a rising (or at least stable) rather than a declining power. It is made firm by one thing above all: victory.

Contempt matters in international politics for two principal reasons. First, being held in contempt increases the probability of the other two bad outcomes, death and poverty. A nation held in contempt will have a more difficult time making and maintaining alliances. It will be at a disadvantage in negotiations. It will more likely be probed, tested, needled, aggravated—in part because the offenders can, in part because they want to see how much they can get away with. War—death—is a possible result. A nation held in contempt is likely to have less influence in regions vital to its national and commercial interests. Formal and informal relationships will form in indifference to or even opposition to those interests. A shrinking of that nation’s commercial prospects—making it harder to import necessary resources and limiting its export markets—is likely to result in relative poverty.

The opposite accrues, across the board, for nations that are respected and (yes) even a little bit feared. As an evil but not stupid man once put it, “When people see a strong horse and a weak horse, by nature, they will like the strong horse.” Too much fear can be a problem, though. Recall Thucydides on the cause of the Peloponnesian War: “And the truest quarrel, though least in speech, I conceive to be the growth of the Athenian power; which putting the Lacedaemonians into fear necessitated the war.” A delicate balance is therefore always required, which means prudence is always required.

The second reason contempt and prestige matter has to do with the effects on the soul of patriotism and national pride. People like to be a part of something greater than themselves. This emphatically includes their nation. Patriotism is thus a natural phenomenon. It is satisfied best when people feel that their nation is strong, or at least not weak. This does not mean that satisfaction is possible only if one is a citizen or subject of a great power. It does mean, however, that the soul suffers when one feels that one is part of a declining or benighted nation.


A related aspect of prestige is the fate and health not just of one’s nation but one’s civilization, religion, or “sect” (in the Machiavellian sense of overarching cultural, linguistic, ethnic, religious, “civilizational” framework). Western ennui today stems partly from the sense that our “sect” is going down. Similarly, our enemies’ exuberance stems partly from the sense that, at long last, theirs is going back up.

Contempt and prestige also attach to how and how well a nation treats the other nations within its sect. Rome, for instance, lost a great deal of prestige by refusing aid to Saguntum when that city was besieged by Hannibal, the act which opened the Second Punic War. This refusal was seen as a contemptible betrayal—which had repercussions far beyond the expected consequence of one ally refusing to honor its commitments to another. The effect is similar to the feeling engendered in third parties when they observe one relative or family member abandon or refuse to help another in distress.

Such natural feelings are hard to acknowledge today when “all men are created equal” is taken to such absurd lengths that it is considered immoral to prefer one’s fellow citizens to strangers on the opposite side of the world. One observer has accurately noted that a key criterion of modern liberal “virtue” is how indifferent or even contemptuous one is of one’s own and how strongly one prefers the “other.” The further your loyalties leap, the better person you are. This cosmopolitan orientation is not, however, the natural or “default” state of mankind but rather emerges only in prosperous, altruistic, high-trust, late-stage (corrupt) societies. Most men, most of the time, favor people who are part of their communities and prefer to help them when they can.

This feeling also extends to political systems, if a little less viscerally. We feel a kinship to other democratic states and a distaste (at least) for nondemocratic states. We may support authoritarian regimes against a much worse alternative but we never feel terribly good doing so, and many among us will always object.

In global ideological struggles, there is a sense that your “team” either has momentum or does not. American prestige was damaged by standing idle as democracy was crushed in other countries during the Cold War, for example. The Chinese and the Russians today feel the same way about their systems, whatever one wishes to call them. All of this energy contributes to national, civilizational, and “systemic” prestige, which in turn encourages other powers, players, and bystanders to “bandwagon”: to join or at least follow what they perceive to be the winning side. As noted, “when people see a strong horse and a weak horse, by nature, they will like the strong horse.”


If avoiding death is our most obvious national interest and avoiding contempt the least, avoiding poverty is somewhere in the middle. Yet it is especially important for a commercial republic. Unlike the necessity of avoiding death, seeking prosperity is more akin to a choice. It’s not essential that we be rich, but we want to be rich. Riches are not a core vital interest of republics. Lycurgus famously banned luxury from Sparta. Early Rome was quite austere. Two millennia later, Machiavelli argued that the best republics “keep the public rich and the citizens poor” while Montesquieu made a forceful case for republican poverty.

Yet Montesquieu made an even more forceful case for commercial republicanism as a vent for men’s industry and ambition. On this specific issue, America clearly chose the path of commercial republicanism. We chose Athens over Sparta, Carthage over Rome, London over Geneva. Having made that choice, we elevated prosperity to a national interest. It is built into the character of our people; there’s no turning away from it now.

Our commercial relations around the globe are thus matters of national security. We need to prevent the formation of cartels or, if and where we cannot, undermine their effectiveness. We need to prevent hostile powers from dominating regions with high concentrations of strategic resources, or exerting undue influence on potential trading partners. We also need to ensure that our own exporters are permitted access to foreign markets, and that our trade policies advance our own economic interests.

The Post-1945 Liberal International Order

When the liberal international order was born in 1945, it served the purposes of American peace, prestige, and prosperity well. Now more than seventy years later, times and circumstances have changed. Let us first consider the context of 1945. In terms of our survival, America’s security appeared virtually unassailable. It had participated in the defeat of the Axis powers. Its armed forces occupied nations half a globe away in both directions, adding a strong military buffer to the protection of the oceans. Yet in the Soviet Union we faced a stronger potential adversary than any in our history. To deter and contain it, we would need not just a strong military but also a strong network of alliances.

Our prosperity might have seemed unassailable at that moment: the United States controlled 50% of global GDP. Yet, as a commercial republic, our economic health depended on that of our trade partners. You can’t sell to the broke. Hence it was in our interest to devise new international economic arrangements to revive the shattered economies of Western Europe and Northeast Asia.

Our prestige was unquestionably at its peak. But it was also precarious. We could easily have thrown it all away by forsaking allies, abandoning countries we had bled to liberate, and acquiescing to further Soviet expansionism. Hence remaining engaged, even increasing our engagement, was in the national interest.

In 1945 and the years that followed, all three of our core national interests were well served by the creation and maintenance of the LIO. The LIO was not an end, but a means to preordained ends. Its contemporary defenders have forgotten—or never quite understood—this aspect of the LIO. They treat the LIO as the end, as the sempiternal embodiment of American interests, when in fact its creation was a response to the challenges of a particular time. Are those challenges permanent and unchanging? Some may persist, but the world looks a lot different today than it did in 1945. So why must the instruments of American foreign policy be preserved in amber?

Are our three core national interests still served by the LIO? For the most part, they are—with important exceptions that require correction. But sometime around the end of the Cold War, the LIO acquired a logic of its own that demands the preservation of its every aspect without reference to America’s basic interests. Reorienting American foreign policy does not require abandonment of LIO institutions in toto, but neither does it prevent intelligent reform. It certainly does not require its continued expansion into the establishment of a universal and homogeneous state, as some imagine.

Reforming the Liberal International Order

How best to remain safe, rich, and respected? Let us consider the ways in which the LIO might be reformed.

First, our trade policy is in obvious need of reform. The LIO elevates “free trade”—really, phonebook-thick agreements that regulate every aspect of trade, mostly to America’s disadvantage—to holy writ. It does so for political reasons as well as ideological ones, such as the often-inappropriate invocation of David Ricardo. The office of the United States Trade Representative (USTR) has been composed entirely of true believers in the free trade doctrine for several decades. But the world economy has changed significantly since 1945, to state the obvious. In certain cases, at least, the conditions underlying that period’s commercial policy orientation (and the theoretical impulses behind it) no longer apply. The Trump administration is right to be skeptical of free trade ideology and to revisit trade policy based on core interests and commercial realities.

We could also be more sensible about our alliance structure. NATO is far from irrelevant today, but it could surely be made more relevant. Certainly, decades of joint exercise, interoperability rules, interchangeable weapons systems, and the like should not be tossed aside lightly, especially among countries with long histories of deep bonds and common interests. But it is reasonable to ask: What is the alliance for once its original purpose has evaporated? If it can be reformed to better address the threats of our time—terrorism, mass illegal migration—all to the good.

We must also ask: Why is it in our strategic interest to push that alliance’s borders ever outward? What do we gain by pledging American blood to defend places where it would take us a 48-hour airlift to mount a forlorn defense with one regiment? In what way does committing to impossible things enhance prestige?

The case for continued expansion of the LIO seems feeble indeed and has recently been taken to absurd extremes. One school of thought—let us call them the “neocons”—holds that since democracy is “our team,” and that team’s overall health improves when its prospects are expanding, then surely it is in our interest to democratize the world. No?

No. That is to say: America would likely be better off if the world were more democratic than it is, given that democracy correlates highly with friendliness or at least non-opposition to American interests, whereas “authoritarianism” (or, to be more precise, “tyranny”) correlates highly with opposition and even hostility to American interests. But in some regions, democracy also correlates highly with instability, which breeds war and chaos that are antithetical to American interests. In others, the rhetoric and mechanism of democracy are used—one man, one vote, once—to squelch robust democracy and impose a tyranny worse than what preceded the “democracy.”

Sticking with the LIO’s original context between 1945 and 1989, its first purpose was to preserve democracy where it already existed and was under threat, either by foreign conquest or foreign-directed internal subversion. Second, it was to restore democracy to “captive nations” whose liberty had been seized by a foreign power. Third, it was to develop democracy (gradually) in countries with substantial economies, deep reserves of human capital, and civil intuitions capable of serving as soil in which democracy could grow. Never did it mean imposition of democracy—much less suggest this imposition was a vital American interest.

Democracy is a precarious flower. It will not grow just anywhere. There are a great many patches of land we could easily seize that are nonetheless fit for growing only cacti or weeds. If we see the democratic flower struggling to bloom in a place where and at a time when we have the capacity to water it, and it is in our interest to do so, by all means we should consider it. But the fact that America has a “team interest” in the success or non-failure of democracy does not mean that we have an interest in trying to impose democracy in places where it is almost certain to fail. In fact, the opposite is true, because glaring failures undermine our prestige.

I would ask careful readers to please note that, for all the criticism of the foreign policy establishment, nothing here has specifically criticized the LIO per se. It served our interests well in the times and places for which it was built. It remains superior to most alternatives, including paleo-isolationism and neocon overreach. Confusion may arise from the implicit conflation of the LIO with the latter. It is not an outrageous error to make, precisely because the neocons have expended a lot of effort since the end of the Cold War to meld the two in the public mind, beginning with the so-called Wolfowitz Doctrine strategy paper drafted in the Pentagon in 1992 and continuing in 2014 with Robert Kagan’s New Republic think piece “Superpowers Don’t Get to Retire.”

The very phrase “liberal international order” hints at the problem. It is at least a better term than President George H. W. Bush’s “new world order,” for the simple reason that the LIO has never prevailed over the entire world and never had a chance to. The failure to see this limit was, it seems, the core mistake of America’s post–Cold War foreign policy. The establishment thought it could take a system built (more or less) for the OECD or the Rich Nations Club and make it work everywhere. That was never possible and still isn’t. The “liberal international order” is thus better termed the “liberal rich-country order” or—if you prefer foreign policy jargon—the “liberal functioning-core order.”

Even if one were to assert that America’s national interest is to build and maintain a liberal order in every corner of the globe (which it isn’t), we would still face the thorny problem that America lacks the means to do so. We have to choose. What do we choose and on what basis?

In sum, the reach of “liberal international order”—while mostly beneficial to American interests—is in practice a lot smaller than the whole world. Even when created in 1945–1950, it was never intended to encompass the globe. It was built to protect the interests of America and its non-Communist friends in Europe and Asia and (in an update to the Monroe Doctrine) keep Communism out of the Western Hemisphere. The Middle East was added later, in stages, as Anglo-French hegemony collapsed after Suez, as the original Western-friendly Arab kings fell, and as the West (and the United States especially) became net oil importers. The attempt, beginning in 1991–92, to extend that order over the whole world was a case of American eyes being much bigger than our stomachs (or teeth), a confusion of ideology and interests. In fact, however, such expansion was never necessary to core American interests—peace, prosperity, prestige.

The uncertainty of the present moment does not derive primarily from President Trump’s supposed disregard for the fundamentals of the liberal international order. On the contrary, the uncertainty arises from a growing awareness of the disconnect between the instrumental policies of that order and its overriding purpose. In restoring a sense of the core objectives behind the LIO’s institutions, Trump actually shows a greater regard for it. These institutions will survive only if prudently amended to serve their essential purposes and meet their members’ needs.

Trump’s campaign was driven by the basic awareness of ordinary citizens that American peace, prestige, and prosperity were not being served by our foreign policy. Among the many reasons to be hopeful about President Trump’s foreign policy is that he seems to understand that correcting the errors of the neo-interventionists does not require adopting those of the paleo-isolationists.

While orienting foreign policy around American peace, prestige, and prosperity still leaves room for disagreements in policy formation, focusing on the ends rather than the means marks a dramatic change in the way our diplomats see things. The quicker we make that change, the quicker we will find clarity in strengthening the institutions that make the American people safe, respected, and wealthy—and the quicker we can reform those that do not.

This article originally appeared in American Affairs Volume I, Number 1 (Spring 2017): 113–25.

Dota 2 WTF Moments The International 7 Special Edition

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Dota 2 WTF Moments The International 7 Special Edition

Match 32 HIGHLIGHTS | Eliminator | Team Abu Dhabi vs Bangla Tigers | Day 14 | Abu Dhabi T10 Season 5

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Match 32 HIGHLIGHTS | Eliminator | Team Abu Dhabi vs Bangla Tigers | Day 14 | Abu Dhabi T10 Season 5

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True Sight : The International 2017 Finals

TRUE SIGHT is a documentary series that takes you behind the scenes of the journeys of professional Dota 2 teams. This episode follows Team Liquid and Newbee through the grand finals at The International 2017. Pressure builds as the two teams compete for the grand prize of $10.9 million, the largest in eSports history.

True Sight : The International 2017 Finals

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