A Response to David Zaring

by Susan Franck

First, I would like to thank David Zaring again for his comments on my essay: Empiricism and International Law: Insights for Investment Treaty Dispute Resolution. I was deeply humbled to read David’s thoughts about both the utility of the essay and the direction of my current research. David’s comments, however, raise a variety of issues worthy of a bit deeper exploration.

I wholeheartedly agree that empirical work in international law is decidedly not déclassé. As a proud alumna of the University of Minnesota Law School, I had the privilege of taking classes with Bob Hudec. I have profound respect for Hudec’s empirical exploration of international trade dispute settlement system and have been grateful to see others continue the empirical exploration of international economic law in the trade context. Perhaps more selfishly, as my research has developed, I have found myself wishing that Hudec was still with us so that I could benefit from his methodological insights related to the analysis of international economic dispute resolution. I would nevertheless hope that Hudec would have been pleased the development of empirical methodologies to areas of international law outside of the trade context. The work of junior scholars such as Oona Hathaway, Elena Baylis, Bill Burke-White, and Melissa Waters spring immediately to mind although there are certainly others engaging in research. In the meantime, I will look forward to hearing the remarks of David Trubek and my co-panelist Juscelino Colares at the forthcoming Society of International Economic Law as they both have critical observations about Hudec’s legacy to empirical assessment of international economic law phenomena.

David also makes an interesting point about how research in international investment law might evolve in the future. I am sympathetic to the reference to Wright & Miller’s recent exploration of content analyses and the value of using rigorous social science methodology to study the content of judicial decisions. No doubt this literature, and its underlying methodological rigor, will aid the evolution of methodological approaches involving the analysis of investment treaty arbitration awards. As the essay also suggests, there are other critical methodological approaches that could be likewise as this area evolves. For example, provided that scholars are sufficiently transparent in the description and analysis of their quantitative research, meta-analysis may be possible. As discussed eloquently in Jeremy Blumenthal’s article Meta-Analysis: A Primer for Legal Scholars, meta-analysis can synthesize empirical analysis across studies in order to summarize the research and identify variables influencing the findings of particular research. These additional methodological approaches only scratch the surface of potential ways to develop international law empiricism. One might even imagine – much like social science counterparts – the development of research methodologists, who are dedicated to the exploration and improvement of empirical methodologies, as a type of international law sub-specialty. But my suspicion is these last two evolutionary advances may be years in the offing.

Finally, in providing the cautionary observation about the need for training, David observes that inter-disciplinary collaboration can help bridge the methodological divide by providing much needed skills in this regard. I decidedly agree with David about the value that collaboration brings on the methodological side and offer two counter-points.

First, there are also practical benefits to be garnered from collaboration beyond methodological insights. Chief among these benefits is: sleep. Empirical research, while rewarding, can take time. The development of datasets can be labor intensive – even with the help of able research assistants (and I have been profoundly blessed in that department with the assistance of Melanie Neely and Jenna Perkins). Working in collaboration with others means that some of the most laborious aspects of empirical research – namely data collection – can be shared. In other words, it means that you are less likely to be sleep deprived and able to work more effectively. (And yes, there is empirical literature in related contexts to back up this claim.) Sharing of such tasks may also mean, provided proper research protocols related to inter-coder reliability are followed, that the reliability of data collection may be enhanced. It also means that research methodology choices can be considered with a view to considering multiple perspectives; and as none of us is perfect, the use of group-think to develop research and analysis can be invaluable. Collaboration also creates research efficiencies. For example, those with an expertise in or aptitude for the creation of graphs, tables and charts can develop them readily. I may, however, say this given my own graduate coursework at the University of Nebraska Law and Psychology JD/PhD program with Cal Garbin on multivariate research design and data analysis (see here and here) and the learning curve I have experienced in the creation of graphs during my work for Cal this summer.

The second counterpoint suggests that there may be a gap to fill within legal education. More particularly, while there are benefits to collaborating in an inter-disciplinary manner, one wonders whether such collaboration may be even more fruitful if legal scholars had access – for example in law school – to methodological classes to provide basic training. There are certainly useful programs for professors such as the Northwestern/WashU “bootcamp” or programs for quantitative methods at the University of Michigan, University of Essex or the European Consortium for Political Research’s program at the University of Ljubljana. Nevertheless, the essay explores the unique benefit of systematically providing the next generation of research assistants, lawyers and law professors with training in the law school context. Some law schools, such as Berkeley, Cornell, Harvard, Illinois, Leiden University, Northwestern, Penn, Stanford, University of Chicago, Vanderbilt, Washington University, and Yale have classes related to the empirical methods and the law (and apologies for the lack of a complete list in this regard for other law schools with separate courses focused on empirical methods). A casebook with an accessible teacher’s manual, such as the one being developed by faculty at the University of Illinois, goes a long way to filling this particular gap in U.S. legal training. I understand Empirical Methods in Law (Aspen, forthcoming), written by Bob Lawless, Jennifer Robbennolt and Tom Ulen, should be available for Fall 2009; and based upon the draft chapters I have seen, I am looking forward to getting my copy.

Ultimately, if we are willing to take on the challenge, we are at the first step of a journey of empirical assessment of investment treaty dispute resolution. There are inevitably places where we can grow and develop in collaboration or consultation with others. And that, at least in my view, is certainly a worthy undertaking.

Empirical Research And International Economic Law: A Comment on Susan Franck’s Essay

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania]

Susan Franck’s essay makes the case for more empirical research in international economic law; a project that she has pursued – I might venture to say that she owns an important part of the field, given the unique and comprehensive data on investment arbitrations that she has collected and continues to analyze – in her other work. It is worth noting both how precise and how important Susan’s recommendations are. First, when I think about empirical research in international economic relations more generally (and here I should clear my throat apologetically – I’m not an empirical scholar except in a rather mild sense, but primarily a reader of some of that work), I think of the big picture claims made by some applied economists – Andrew Rose’s claim that membership in the WTO doesn’t lead to growth, for example, and the endless debates over whether NAFTA or bilateral investment treaties have been good or bad for their signatories. Susan cites a number of examples of these in her essay.

What is underdeveloped is empirical research on the law part of international economic law, specifically the litigation part. There is so much we don’t know about what happens when investments disputes are subject to arbitrations, but that hasn’t stopped people like Bolivia’s president Evo Morales making consequential decisions based on their priors about what the process will mean.

So that’s why I say Susan’s empirical claims are precise – she thinks we need a new perspective on what happens in actual litigation, which is arguably both the signal offer of an investment or trade treaty and its most lawyerly manifestation. And it makes sense to recommend that assumptions like those of Morales be tested.

I will also commend her essay for giving us a bit of an intellectual history of the place of empiricism in international law … which I think she would say comes largely from the increasing empiricism of international relations scholarship and the increasing popularity of ELS. She also offers outline of one way to pursue empirics in international legal research, which is all to the good.

This is already a long post, but I’d like to do three more things in it: 1. Note that there increasingly is empiricism in international legal scholarship, 2. Urge a bit of caution on the part of would-be empiricists, and 3. Speculate about some empirical research that might be particularly worth reading in the future.

1. The sort of work that Susan urges is, I agree, unnecessarily rare, but it is not déclassé. It has a worthy past and increasingly vibrant future. Robert Hudec, after all, kept track of WTO decisions, and Simon Lester and Kara Leitner continue to build on his work. John Yoo and Eric Posner have made empirical claims about effective international tribunals that occasioned a useful response by Anne-Marie Slaughter and Larry Helfer. And so on.

2. Cutting edge empirical work is technical – increasingly so – and takes training. Disciplinary barriers are often higher than you think. Pick up a copy of the American Political Science Review and Quarterly Journal of Economics and give them a casual read if you think you might disagree. I am, as I have said, no empiricist, but my sense is that legal scholars are often best-served by co-authoring if they feel the urge to do empirical work and by training themselves to read empirical papers (no easy task!) as a prelude to pursuing empirical work.

3. A couple of predictions about the future. Careful event studies might be useful evidence in determining whether and which international legal institutions matter. Ron Wright and Marc Miller have noted the growing prevalence of content analyses in legal research, and, done well, it seems to me that they are a natural complement to doctrinal work (it’s often hard getting enough observations to make that useful, though).

Empiricism and International Law: Insights for Investment Treaty Dispute Resolution

by Susan Franck

[Professor Susan Franck is Associate Professor of Law, Washington & Lee University School of Law. Please find her SSRN author page here.]

First, I want to take the opportunity to thank the editors of the Virginia Journal of International Law and Opinio Juris for an opportunity to discuss my recent essay, Empiricism and International Law: Insights for Investment Treaty Dispute Resolution. I would also like to thank David Zaring in advance for commenting on the essay. I look forward to a thoughtful and provocative discussion.

This essay develops ideas implicit in the work of certain international law, international relations and empirical legal scholars – namely that there are areas of international law deserving of and ripe for empirical analysis. More particularly, the use of empirical methodologies can create new facts, offer different perspectives and promote a more nuanced analysis of international law phenomena.

The potential benefits of such an epistemological approach are easily understood in the context of international investment law and dispute resolution.

The President of Bolivia, Evo Morales, has suggested that the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) is an international organization where no country, except perhaps the US, will ever win. The International Herald Tribune quotes Morales as saying “Governments in Latin America and I think all over the world never win the cases. The transnationals always win”. Although this assertion was used to justify Bolivia’s withdrawal from ICSID, quantitative data flatly contradicts Morales’ allegation.

Meanwhile, a March 2008 story in the Financial Times, referred to investment treaty arbitration awards involving: (1) “hundreds of millions of dollars in compensation,” (2) a claim by Mobil for “billions of dollars,” and (3) Bolivia’s “loss” in a case against Bechtel. Empirical information aids the contextualization of these claims. It is useful to consider that: (1) the average value of awards in one study was in the order of US$10 million, (2) the difference between amounts claimed and awarded was in the order of US$333 million, and (3) Bolivia’s “loss” at the jurisdictional phase actually resulted in a settlement where the investors dropped their claims and were paid nothing. Meanwhile, issues related to international economic law – particularly trade and investment – are becoming a focal point for politicians and the public.

Against this backdrop, this essay does three things to consider the potential integration of empirical methodologies into the analysis of international investment law and dispute resolution.

First, it explores the historical relationship with international law and empirical methods. Acknowledging the re-integration of international relations and international law as well as the increased appreciation for empirical legal studies in domestic law contexts, the essay suggests that the mutual interest in empirical methodologies – broadly defined – could be developed further. For example, this might involve international lawyers drawing upon the methodological debates and insights from the empirical legal scholars and adapting them to analyze international law phenomenon; likewise, empirical legal scholars can gain new areas of research that may provide a useful counterpoint to study of domestic (whether in the U.S. or broad) legal phenomenon.

Second, the essay adopts Professor Korobkin’s definition of empiricism and argues for a broad understanding of empirical methodologies in international investment law. The essay posits that quantitative, qualitative and mixed methods may all be usefully applied to the analysis of investment treaty dispute resolution and encourages debate on how different methodologies might be suitable for different research questions.

Third, the essay argues that the benefits of using empirical methodologies outweigh the costs and suggests five steps for developing an empirically infused research agenda in investment treaty dispute resolution. These steps may include, but not be limited to: (1) building research capacity, (2) obtaining data, (3) designing research methodology, (4) conducting research, analyzing the results, and contextualizing the findings properly, and (5) disseminating the results to stakeholders for consideration.

As befits an essay, it concludes on a note designed to spark conversation as much as it is to articulate a particular position. In particular, the essay argues that while empirical methodologies may not work for every research area or question, the use empirical methodologies can infuse international investment law with information to inform normative choices. Particularly for investment dispute resolution, systematically gathered and properly analyzed empirical data can correct misperceptions about existing dispute resolution processes, permit considered analysis of legal issues affecting the public, and could – for example – facilitate informed decisions about the negotiation and revision of investment treaties.

Particularly in the United States, Latin American countries such as Ecuador and even in Norway, there is a hot political dialogue about the proper terms of investment treaties. The issue is sufficiently compelling that the American Society of International Law’s International Economic Law Interest Group is going to be hosting a conference in November 2008 to discuss the intersection between the political dimensions of the debates about trade and investment. (A previous Opinio Juris post is here, and the call for papers is here.) Given this context, there is particular utility in examining what opportunities there might be to infuse scholarship with empirical methodologies to generate information that can form part of a dialogue to promote a more informed discourse on international investment law.

It is too early to know whether the approach I recommend will provide utility in the long run. There are inevitable challenges and practicalities that will be difficult to ignore that we might discuss here in greater detail. Nevertheless, I do believe that there is tangible, potentially useful research that can be done with relative inconvenience in the short term. These small, foundational projects can form the basis for replicating, developing and converging research in the hopes of ultimately creating a more dynamic and informed tapestry of international investment law. And after all, if we do not at least try, we will never know what might have been.

A Response to Galit Sarfaty

by Martin Totaro

Sarfaty’s reply addresses a fundamental problem with conflating norms with binding legal rights. In my article, I argue that the classification of a potential human right—like participatory development—may be seen as operating on a continuum. On one end of the continuum exists a norm. On the other end exists a rule of customary international law. As a norm “crystallizes,” it has the potential to move along the continuum toward attaining recognition as legal right. My article suggests that, while the norm/law continuum is fluid and dynamic, the current requirements of CIL mandate that an international human rights norm not be viewed as an international human rights law until states and major intergovernmental organizations like the World Bank consistently practice participatory development out of a sense of legal obligation.

Sarfaty responds by correctly noting that “it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation.” As Andrew Guzman and others have pointed out, one reason for this difficulty is that major international actors talk and act, but do they really “think?” If not, then we are left with studying what these actors say and do to understand whether these actions are taken out of a sense of legal obligation. With respect to participatory development, that means looking at how the World Bank and its biggest donor engage in the practice of participatory development.

The examples I provide demonstrate that the World Bank has been slowly internalizing some version of a participatory development norm. The Bank has devoted a large number of resources in an attempt to practice (or, at a minimum, to have the appearance of practicing) participatory development. Sarfaty, however, challenges my choice of internalization examples because “project-level participation is a better indicator of whether the norm of participatory development has been internalized.”

I think Sarfaty must be correct. I also think that her critique tends to support two of my points.

First, while the participatory development norm has been slowly crystallizing within the Bank, that process is neither complete nor certain to achieve full internalization. The World Bank has set up bureaucratic structures to support participation by various stakeholders, but Sarfaty points out that these structures do not guarantee that stakeholders on the ground are having a say in Bank projects that will affect their lives in a very real way. Still, if we compare the Bank’s willingness to, for example, fund projects that are “community-driven” (p. 759), shift its country directors from Washington, D.C. to the particular country (p. 760), or augment its funding of civil society partnerships (p. 760) with Bank practices prior to the mid-1980s, we see a marked difference in how the Bank practices participatory development. While participation at the project-level could certainly be more robust, greater internalization at more macro levels also suggests that the norm is in some form being crystallized.

Second, there is no generally-agreed definition for what counts as “participatory” in “participatory development” (pp. 736-39). This definitional quagmire returns us to the problems of satisfying the requirements of CIL. On the one hand, it is difficult to show that a more specific definition of participatory development—Sarfaty’s, for instance, seems to require project-level participation by affected stakeholders—has satisfied the two requirements of CIL. On the other hand, a vague definition runs the risk of being empty rhetoric that does not require the World Bank to do much of anything, let alone out of a sense of legal obligation.

Sarfaty concludes her response by asking whether one should distinguish between legal internalization and social or political internalization. My answer, both here and in the article, is an emphatic “yes,” and the current requirements of CIL provide the place for us to look to discern whether a moral norm has attained status as an international human rights law.

Unpacking the Participatory Development Norm: Galit Sarfaty Comments

by Galit A. Sarfaty

[Galit A. Sarfaty is a Fellow at Harvard Law School’s Program on the Legal Profession, and a Ph.D. Candidate in Anthropology at the University of Chicago]

I would like to thank Opinio Juris and Martin Totaro for the opportunity to comment on this engaging article. The piece is an excellent contribution to existing literature on norm development and international human rights law. Particularly important is his discussion of the “crystallization” process by which a norm shifts to a human right with corresponding legal obligations. This process has been largely overlooked and is very worthy of study. Totaro is correct to observe that classification of a norm as a legal right is not binary but operates on a continuum. One goal of his article is to distinguish between moral norms and legal human rights. While I agree that such a distinction is useful on a theoretical level, it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation. I would welcome Totaro’s thoughts on this issue and his recommendations on how scholars can distinguish the two in practice when conducting research on norm internalization.

My comments primarily focus on the second half of the article. Here, Totaro provides a case study of how the norm of participatory development is beginning to crystallize into a legal human right. Yet in attempting to demonstrate that the World Bank is slowly internalizing the participatory development norm, Totaro relies on insufficient examples that do not adequately establish his claim. Advocates often interpret the norm of participatory development as referring to participation by stakeholders in project design and/or implementation, rather than participation in country-level dialogues. Totaro’s examples are all from the latter category—e.g., the development of Country Assistance Strategies (CASs) and Poverty Reduction Strategy Papers (PRSPs)—so they do not fully address whether the Bank has internalized the participatory development norm in its operational practice. Furthermore, he argues that Global Monitoring Reports “represent a major step forward” in the Bank’s adoption of the norm, yet his main evidence is the level of transparency and accountability in the reports rather than participation (p. 752). His only example of participation around the reports involves the Center for Global Development, a U.S.-based policy NGO that does not represent the typical stakeholder of Bank projects.

I argue that project-level participation is a better indicator of whether the norm of participatory development has been internalized. Instead of only examining participation in country dialogues by select NGOs, one should also evaluate the level of participation by community-based stakeholders that are directly or indirectly affected by development projects. This type of participation is usually mediated by the World Bank rather than the state government. In order to provide an example of project-level participation, I suggest that Totaro discuss the important debate over prior informed consent by potentially affected communities, which was a central issue during the recent revision of the Bank’s Indigenous Peoples Policy (Operational Policy 4.10). Many indigenous communities and human rights advocates have argued that there is a right to prior informed consent, while others claim that it is simply an emerging norm that is not yet recognized under customary international law. The example of prior informed consent suggests that whether the Bank is internalizing this important component of participatory development is highly contested.

Totaro’s final example of “the fluid process between moral norms and legal human rights” is former Bank President James Wolfensohn’s embracing of human rights in non-legal terms (p. 762). This section appears to conflate the right to participatory development with human rights in general. It also relies solely on Wolfensohn’s statements as an indication that the Bank is not implementing the norm out of a sense of legal obligation. But one cannot make this assessment without examining how actual Bank employees are implementing the norm and whether they are accepting it as a binding legal obligation. Totaro raises a related point a bit earlier in his piece, when he rightly observes that the Bank’s governing body and the bureaucrats working inside the institution may hold competing preferences (p. 757). Yet his discussion of “the inevitable bureaucratization of rhetoric” fails to account for the internal tensions within bureaucracies over whether and how to operationalize rhetoric (pp. 758-61). Based on my own experience ethnographically studying the organizational culture of the Bank, the bureaucratization of rhetoric is certainly not inevitable. It is important to recognize the complex decision-making process within bureaucracies that may work against norm internalization, even when those norms are supported in rhetoric.

Finally, it would be useful if Totaro outlined what he sees as the conditions for norm internalization. If Totaro is correct that it operates on a continuum, then what are the different levels before full internalization is reached? Should one distinguish between legal internalization and social or political internalization? Addressing such issues would further strengthen this article and its contribution to existing literature in international law and human rights.

Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development

by Martin Totaro

[Martin Totaro is an associate at Baker Botts in Washington, D.C. These views are his alone. Please find his SSRN author page here.]

Thanks to Opinio Juris for providing an outlet for VJIL authors to express their ideas to a wide audience, and thanks to VJIL for including me as one of those authors. Galit Sarfaty has graciously agreed to respond.

In my article, I attempt to make two modest contributions regarding the relationship between international law and norm internalization. First, I offer a typology that bridges the basic tenets of legal positivism and constructivism for the purpose of providing a useful framework to separate moral norms from human rights that have attained customary international law (CIL) status. Second, by using an illustrative example—the purported right to participatory development—I aim to demonstrate how the sociopolitical process of pushing toward the legalization of a moral norm can be a vibrant, robust procedure that need not prematurely accord CIL status to a norm still in the adolescent stage of rights formation under international law.

Under a commonly accepted definition of CIL, a norm only becomes a part of CIL because of general and consistent state practice taken out of a sense of legal obligation. My article focuses in part on how an international human rights norm may be internalized such that states engage in or respect the validity of a moral norm (the usage or practice prong), but states might not do so out of a sense of legal obligation (the opinio juris prong). In other words, a state may respect the moral legitimacy of a norm while simultaneously opposing the norm as a binding legal obligation.

Several scholars, including Galit Sarfaty, have focused on the dynamic process of norm-internalization at the supra-national, national, and sub-national levels. My article enters this debate by concentrating on the fluid process of norm-internalization, paying particular attention to the crystallization period but prior to a norm attaining CIL status. My analytical framework borrows from legal positivism and constructivist theory in international relations literature. As used here, at its most basic, oversimplified level, legal positivism emphasizes “the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be.” H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 594 (1958). Constructivism, in contrast, refers to the process by which states and other major international actors internalize norms in a manner that has the potential to change these actors’ interests. For constructivists, a norm entrepreneur has the potential to change these actors’ interests. When combined as an analytical tool, “constructo-positivism” retains the key insights from both schools of thought—while CIL and non-CIL norms should not be conflated (i.e., distinguishing between the “is” and the “ought” in CIL), CIL can expand when a norm crystallizes to the point that major international actors engage the norm consistently and out of a sense of legal obligation. Put differently, the constructo-positivist as an explanatory matter separates moral norms from legal human rights but as a normative matter recognizes and even supports the process of legalization of certain norms.

The constructo-positivist framework provides a fresh look at the relationship between international human rights norms and legal human rights. These norms, grounded in a moral claim that a right should be viewed as binding in an international legal sense, do not attain this legal status simply because advocates push for such recognition. Rather, advocates of a particular right-claim must demonstrate that this right has become part of international law through accepted legalization conduits like treaties or CIL.

After laying out a typology of constructo-positivism, the article then applies it to the current debate over whether participatory development is a legal human right. I conclude that it is not—while major international actors like to United States and the World Bank may accept the legitimacy of participatory development as an aspirational norm, these actors do not engage in participatory development out of a sense of legal obligation.

While I argue that participatory development is not a part of the body of CIL, I then turn to how norm entrepreneurs are pressuring the Bank to internalize the right to participatory development.

These efforts have been partially successful. I examine the rhetoric and practice of the Bank with respect to participatory development, and find that, over the past twenty or so years, there has been what might be called “the inevitable bureaucratization of rhetoric.” In 1985, the World Bank discussed the virtue of participation in broad terms. Ten years later, we saw a shift toward more specific rhetoric about what participation really means. In 2005, we saw not only more complicated rhetoric, but also more structures built around this rhetoric. I focus on World Bank programs like Poverty Reduction Strategy Papers and Global Monitoring Reports that illustrate how, as the rhetoric itself developed, a wide array of norm entrepreneurs pressured and worked with the Bank to enact accountability structures to match the participatory rhetoric.

I conclude by suggesting that this process of norm-internalization indicates growing acceptance of the virtues of participatory development and its widespread practice by major international actors like the World Bank. The next shift for participatory development norm entrepreneurs will be to attempt to push for the internalization of the legal status of the norm rather than the legitimacy of the norm itself. While this norm has not yet been internalized to the point where the World Bank engages in participatory development out of a sense of legal obligation, it has been internalized as an aspirational norm.

Second-Class Citizens, Naked Nationals: Reply to Sam Erman

by Christina Duffy Burnett

In his generous response to my article, Sam Erman rightly points to the importance of understanding the intersection between the Gonzales case and other struggles over citizenship that were unfolding even as Isabel González tried to make her way to New York City from her native Puerto Rico. Ngai’s book Impossible Subjects is a good place to start in order to learn about those other struggles; Erman’s valuable new article is where one must turn if one wants to make the connections between the Gonzales case and the broader history of membership in the United States. My own future work, I hope, will make additional contributions to this literature. In particular, I am currently up to my neck in a study that aims to enhance our understanding of the relationship between the history of U.S. citizenship and the history of nationality in international law. I therefore appreciate Erman’s well-placed suggestion that a more extended treatment of citizenship, the Constitution, and international law than the one I offer in my article on the Gonzales case would be welcome.

My work-in-progress looks at the emergence of the category of the noncitizen national (before its adoption into domestic U.S. law) in the work of nineteenth century authorities on international law. Toward the late nineteenth century, international legal experts became increasingly concerned that divergent domestic legal regimes governing citizenship gave rise to conflicts that could not be solved without clear and authoritative international legal rules. Their concerns included, but were not limited to, problems associated with statelessness, coverture (which could lead to a wife’s loss of her citizenship, even if she could not acquire her husband’s citizenship), and territorial conquest and annexation (which had consequences for the nationality of the inhabitants of the affected territory). These and other problems did not lend themselves to domestic legal solutions, because the relevant domestic legal regimes were either silent or in conflict. And so late nineteenth-century international lawyers took up the project of crafting a modern international law of nationality, attempting to capture the bond between the individual and the state at its most essential level (one writer used the phrase “naked nationality” to describe what fell within the purview of international law).

These developments shed light not only on the law of membership on an international level, but also on the interaction between international and domestic law more generally. It was a fruitful interaction to be sure, but one that could also have perverse results. International lawyers in this period did not merely hope to develop a particular area of international law; their broader goal was to promote respect for international law itself, and to invest it with authority. To do so, they had to carve out a space subject to the jurisdiction of international law, comprising whatever was not strictly “domestic.” In the process, they duly declared a distinct, domestic space off-limits to international law. In the context of nationality, this meant that they carefully refrained from questioning domestic rules creating hierarchies of political membership: on the contrary, authorities on international law borrowed the idea of partial political membership, devoid of the full rights of citizenship (“naked,” as it were), from the domestic practices of imperial states, and distilled from that idea the category of nationality under international law. As all of this suggests, the cost of carving out a space for international law was the uncritical acceptance of practices characterized as “domestic.”

My ongoing work on the international legal history of nationality examines this legitimizing dynamic as it played out in the United States: its own imperial practices contributed to international legal developments, and these developments in turn helped to shape a changing domestic constitutional landscape—in the process giving sanction to those very same imperial practices. To put it in more specific terms, this is the dynamic we can see playing out in the events surrounding the Gonzales case: the writers of international legal treatises looked to second-class citizenship in the United States, and to analogous statuses in other empires, in coming up with the idea of the noncitizen “national”; the United States then borrowed that label from international law, and applied it to Puerto Ricans and Filipinos.

Despite the newfangled nomenclature, not everyone, of course, was convinced of the “legitimacy” of this new status—least of all those upon whom it was conferred. Their arguments against their colonial condition would draw on international law as well—specifically, on the right to self-determination. And so the story continues.

Resurrecting Gonzales: Sam Erman Comments

by Sam Erman

[Sam Erman is a Ph.D. Candidate in American Culture and recent J.D. recipient at the University of Michigan]

The scholarly attention that Burnett devotes to Gonzales v. Williams (1904) is long overdue. The case is crucial to understanding the relationship between U.S. imperialism, U.S. citizenship, and the U.S. constitutional order in the early twentieth century. She shows us how in it voices at the center and at the periphery of the U.S. empire-state struggled over still-unsettled boundaries of U.S. citizenship, and how these struggles and the decision that resulted from them altered the U.S. constitutional system. The case, as I summarize below and discuss further elsewhere, is also an opportunity to integrate U.S. histories of race, immigration, gender, and empire into a single story and to explore how Isabel González’s struggle to preserve her individual honor launched a Supreme Court action seeking honor for her people. Burnett’s article suggests future inquiries too, most notably into relationships between international and constitutional law.

The insight that Gonzales merits scholarly attention owes much to Burnett’s efforts. Until recently, relatively few academics researched the Insular Cases, especially cases other than Downes v. Bidwell (1901). In 2001, in Foreign in a Domestic Sense, Burnett and Burke Marshall collected essays by many of the scholars who were grappling with the constitutional changes that resulted from the deliberate U.S. turn toward formal empire in the late nineteenth century. Four years later, in Untied States, Burnett questioned the scholarly conventional wisdom that portrayed Downes as establishing “that the Constitution did not ‘follow the flag.’” She showed that the case did not explicitly deny Puerto Ricans a panoply of constitutional rights. Instead Downes aided U.S. colonialism by perpetuating, “with slight modifications, an already ambiguous jurisprudence on the role of constitutional provisions in territories.” In many cases, it would be for future courts to say which constitutional provisions applied in Puerto Rico in what ways.

Gonzales matters because it gave the Supreme Court an opportunity to specify the citizenship status of Puerto Ricans at a time when the legal meaning of formal U.S. empire remained unsettled. As Burnett shows, in seeking to reconcile U.S. constitutional norms to U.S. empire, the Court departed from the conventional wisdom that the Fourteenth Amendment made U.S. citizenship and U.S. nationality coterminous. Instead, Gonzales introduced into U.S. legal culture—if not explicitly into U.S. case law—the category of non-citizen national.

The case was also an important chapter in the history of U.S. citizenship. As I have argued elsewhere, scholars too often conceive of U.S. citizenship either as an ahistorical ideal or as a stable, well-defined legal term that changed slowly. By contrast, Burnett observes how the lawyers for both parties stressed the plasticity of legal terms like citizenship. Their arguments demonstrated that both the content and distribution of U.S. citizenship remained contested long after the Fourteenth Amendment purported to settle both.

In Burnett’s hands, Gonzales also illustrates how the constitutional crisis and new constitutional order that U.S. empire produced did not merely result because empire created a difficult legal-analytical problem. Colonized peoples used U.S. forums to challenge actions and ideas of U.S. officials. For example, Burnett shows that Puerto Rican lawyer Federico Degetau was familiar with problems of formal empire that were new to the United States, having faced them repeatedly in prior political struggles under Spain. Those experiences shaped his arguments and claims before the Court and thereby altered the terrain upon which the Court ruled.

In a concurrent article this summer in the Journal of American Ethnic History, I argue that Gonzales also bears deeper scrutiny because it illuminates interrelationships between U.S. legal histories of race, gender, empire, and immigration. Turn-of-the-twentieth-century annexations did not occur in isolation. During those years federal courts sustained Chinese Exclusion, Jim Crow, and black disfranchisement. State courts continued to recognize aspects of coverture. And the federal political branches extended their control over American Indians via detribalization and allotment. Burnett describes Degetau’s efforts to demonstrate that Puerto Ricans were not racialized “semi savages” akin to “uncivilized native tribes.” I aim to show that other lawyers and litigants in Gonzales shared Degetau’s concern with the comparative capacity of Puerto Ricans, analogizing islanders to women, children, domestic U.S. minorities, and colonized peoples. As these advocates understood, the problem of the citizenship status of Puerto Ricans was inseparable from the many citizenship questions involving “dependent” and “unequal” populations in and around the United States.

The case also presents an opportunity to trace Isabel González’s trajectory from detained “alien” to Supreme Court litigant. Burnett explains how the pregnant González brought her judicial action after immigration authorities derailed her plans to find and marry the father of her unborn child by excluding her as an alien “likely to become a public charge.” I argue that in hearings at Ellis Island, González and her family focused not on citizenship, but on preserving González’s honor against a finding that threatened impugn her sexual propriety. Only after reaching court did González’s focus switch to the honor of all Puerto Ricans. While her appeal was pending, she found and married the man she had come to New York in search of, but she then hid the event, declining the public redemption and potential mooting of her case that disclosure could bring in favor of pressing her claim to U.S. citizenship for all Puerto Ricans. After the Court ruled, she wrote in published letters to the New York Times that the decision and surrounding events revealed a United States that failed to treat Puerto Ricans honorably, breaking promises to them and marking them as inferior to “full-fledged American citizens.”

Burnett’s essay also suggests future investigations. Though not her focus, she describes a case permeated by international law. González’s attorney was a prominent international-law lawyer; the U.S. attorney referenced European approaches to nationality; and Degetau was a Spanish-trained lawyer citing international-law documents. I hope I am not too forward in wishing that these initial observations by Burnett presage her more extended treatment of the relationship between Gonzales, international law, and the Constitution in future work.

Beyond Nationalism: Reply to Professor Ngai

by Christina Duffy Burnett

Professor Ngai goes to the heart of the matter when she alludes to a literature on colonialism that takes issue with an essentializing nationalism. In my work on Degetau and on other figures of the intellectual elite of the American imperial periphery, I seek to offer an alternative to the nationalist perspective that has long dominated post-colonial historiography, in which the only legitimate anti-imperialist or “decolonizing” move belongs to the nationalist. Not only does this ignore the multiplicity of views that exist and engage with each other in the colonial periphery; it replaces them with the guilty fantasy of a liberal metropolitan intelligentsia, which, in a fit of vicarious repentance on behalf of its forebears, takes sides with the uncompromising nationalist. He alone (yes, he) can expiate the sins of empire with his strong arm, armed if needs be—and in the process take the whole mess off our hands. This bien pensant program for the remaking of the colonial world has caused as many catastrophes as it has resolved. Maybe more.

Then again, the historians of the metropole did not invent this maneuver all by themselves (nor of course do they deserve all the credit and/or blame for the phenomenon of nationalism). Degetau himself spent a great deal of his life fighting this essentializing move—and what concerned him most was the manipulation of nationalist discourse by his own generation of Puerto Rican political leaders, many of whom became increasingly enamored of the idea of “Puerto Ricanness” as the central organizing principle of political life on the island. They all started out as liberals and as “autonomists,” who confronted the Spanish government repeatedly with their demands for greater self-government for Puerto Rico, and who frequently cited the model of Canadian autonomy under the British North America Act. But Spain’s repeated rejection of their pleas for political reform had the unintended consequence of sharpening an emergent sense of Puerto Rican national identity—precisely what Spain foolishly hoped to prevent with its recalcitrance—and, inspired by this nascent sense of a distinct Puerto Rican identity, a segment of the late nineteenth century Puerto Rican autonomist leadership eventually turned against Canadian-style autonomy, and began calling with increasing stridency for a newly ethno-regional political regime. We are not Canadian autonomists, they declared; we are Puerto Rican autonomists.

Degetau was not among them. He and other like-minded autonomist leaders remained deeply skeptical of the suggestion that the political regime for which they were all struggling should have a defined ethnic content. An article published in the Puerto Rican newspaper El País on 3 November 1897 captures their reaction to the novel assertion that Puerto Rico must have “Puerto Rican” autonomy: “We don’t get it: we are Autonomist Spaniards; and because being Spanish is inherent in us, whatever form of autonomy we receive cannot alter that condition: if they give us a regime identical to the one enjoyed by Canada… will that somehow undermine what we are by our very nature—Spaniards?” (translated from the Spanish, emphasis added).

The split between the two autonomist factions not only persisted after the transfer of sovereignty to the United States, it became aggravated by the resistance of the United States to the idea of Puerto Rican statehood, a rejection which even further heightened the sense among the advocates of a specifically Puerto Rican autonomy that nothing but Puerto Rican autonomy would do. But Degetau and his colleagues persisted in their view that the goal was the implementation on the island not of Puerto Ricanness, but of liberal ideals, and that those ideals would become “Puerto Rican” if Puerto Ricans enjoyed the benefit of them. The same conviction informed Degetau’s arguments with respect to U.S. citizenship: he believed that, if they were going to live under U.S. sovereignty, then Puerto Ricans deserved U.S. citizenship quite as much as other Americans did, and he remained confident always that becoming U.S. citizens would not cost Puerto Ricans their Puerto Ricannness. Rather, it would simply make U.S. citizenship as consistent with “Puerto Ricanness” as it was with any ethnic identity. As it should be.

Legal Cosmopolitanism: Professor Ngai Comments

by Mae Ngai

[Professor Mae Ngai is Lung Professor of Asian American Studies and Professor of History, Columbia University]

I especially appreciate Christina Burnett’s examination of Federico Degetau’s “legal cosmopolitanism” in Gonzales v. Williams. Burnett shows that intellectuals in the colonial periphery made a unique contribution to the legal discourse on empire and citizenship. Degetau’s critique, that the American wish to “nationalize” Puerto Ricans as sovereign subjects but not “naturalize” them as U.S. citizens smacked of Spain’s colonial policy, was a devastating exposure of U.S. imperial character. Degetau’s critique hints, too, at the enduring influence of American exceptionalism, even on contemporary scholarship.

Burnett’s discussion of Degetau prompted me think about the spread of Enlightenment ideas in the non-European world. Burnett is correct, in my view, to resist judging Degetau as “collaborationist.” His views on equal citizenship and political autonomy for Puerto Rico were liberal, arguably cut from the same large bolt of modern cloth as, say, those in Puerto Rico and Cuba who championed national independence. This is not to say that there was no difference in the politics of autonomy and independence but to suggest a larger ideological frame that is worth thinking about.

Men like Degetau who advocated for equality and autonomy pushed back against the social Darwinism of the age, which considered Puerto Ricans “natives” not (yet) fit to be “citizens,” even while accepting social Darwinism’s general hierarchy insofar they wished to relocate themselves to a higher rung on the ladder.

The influence of Enlightenment rationality and modern nationalism on colonized peoples is not easy to evaluate. Scholars of India and China have pointed out that the emphasis given to nationalism in the colonized and semi-colonized world (at least through the mid-twentieth century) has blotted, even stamped out alternate modes of cultural and political expression and resistance (Chakrabarty, Duara). Some have chafed at Benedict Anderson’s view of nationalism’s imaginary as an irresistible force as a kind of colonizing move (Chatterjee). Yet besides these pernicious aspects of liberalism and nationalism, there clearly also is—as Degetau’s writings attest—an emancipatory thrust in the embrace of such concepts as equality, fairness, autonomy, and self-determination. There is, moreover, something wonderfully ironic about the intellectual cosmopolitanism of colonials like Degetau—his experience at a colonial crossroads of multiple empires gave him a broader vision than the American jurists with whom he sought to engage.

“They say I am not an American…”: The Noncitizen National and the Law of American Empire

by Christina Duffy Burnett

[Professor Christina Duffy Burnett is Associate Professor of Law, Columbia University]

My article in the latest issue of the Virginia Journal of International Law forms part of a larger project in which my goal is to tell a different kind of constitutional history of empire. Rather than focus on the question that has long occupied constitutional historians of U.S. imperialism—whether the Constitution “follows the flag”—I look beyond the text, and beyond the United States, in order to examine the interaction among different constitutional traditions in the context of empire in the Americas—U.S., Spanish, Cuban, Puerto Rican. In the process, I hope to enrich constitutional history in general (as well as the history of imperialism) by bringing to bear the intellectual traditions and legal perspectives of the inhabitants of the colonial periphery.

In this particular contribution to that project, I tell the story (or stories, really) behind the 1904 Supreme Court case Gonzales v. Williams. The decision in Gonzales came down several years after the United States annexed Puerto Rico and the Philippines at the end of the war with Spain in 1898. Departing from its usual practice with respect to previous territories, Congress declined to offer U.S. citizenship to the native inhabitants of these new territories. But it did not treat them as foreigners, either. Instead, Congress invented a new status for them: they became “citizens of Porto Rico” and “citizens of the Philippines.” No one knew what these sui generis labels meant: were these people implicitly citizens of the United States? Were they aliens? It seemed like they were neither, but didn’t they have to be one or the other?

Before addressing these questions, the Supreme Court dealt with the status of the territories themselves: it decided that they were neither “foreign” nor “domestic”: instead, they were “foreign to the United States in a domestic sense,” or as they later came to be known, “unincorporated territories” (because they had been annexed, but not “incorporated” into the United States). But eventually, the question citizenship found its way to the Court too, in a dispute involving a Puerto Rican woman named Isabel González. González, who was pregnant at the time of the incident giving rise to her litigation, traveled to New York from Puerto Rico in August of 1903. She was detained at Ellis Island, where immigration officials denied her entry on the ground that she was an alien immigrant “likely to become a public charge.” But González soon found powerful allies, including the prominent international lawyer Frederic R. Coudert, Jr., who took her case to the Supreme Court, and won—sort of.

The Court held that, under the immigration laws in force at the time, González was not an alien, and therefore could not be denied entry into New York. At the same time, however, the Court stopped short of declaring that she was a U.S. citizen, declining to the reach the constitutional question altogether. As a result, even after the Court took up the question of the citizenship status of the inhabitants of the new island territories, their situation remained confusing, ambiguous, and contested. Neither citizens nor aliens, they came to be known as something in between: “noncitizen nationals.”

The story of González herself is one of the stories behind the case. Very little is known about the details of her life, but she did end up staying in New York and marrying the man we understand to be the father of her baby, with whom (as best the record shows) she had come to be reunited. Another story behind the case, about which we know more, is that of Federico Degetau y González (no relation to Isabel). Degetau too was Puerto Rican, but he had encountered no difficulty in moving to the mainland: he traveled to Washington, D.C., as Puerto Rico’s first “Resident Commissioner,” or nonvoting representative. Although he was generally welcomed there and treated in many ways as if he were a citizen, he nevertheless dedicated himself to the struggle to gain U.S. citizenship, not only for himself but for all Puerto Ricans.

Degetau was a lawyer, politician, writer, and statesman with a long history of struggling for equality for Puerto Ricans. He had been one of the leaders of the “autonomist” movement in the nineteenth century, a movement dedicated to obtaining greater self-government for Puerto Rico while it was still a Spanish colony. After the United States took sovereignty over the island, Degetau became an advocate of statehood, equal rights, and full citizenship for Puerto Rico and its people. One of his many contributions to this struggle was an amicus brief he filed in González’s case.

In his brief, Degetau drew on his knowledge of Spanish history to make arguments to the Court that they were unlikely to hear from the other lawyers (whether González’s lawyer Coudert or the Solicitor General, Henry M. Hoyt). Degetau pointed out to the Court that by denying U.S. citizenship to the native inhabitants of Puerto Rico, the United States had perpetuated a form of discrimination that Puerto Ricans had suffered under Spain: geographic discrimination, under which Spaniards born on the Iberian Peninsula had rights that Spaniards born in Puerto Rico did not. With this argument, Degetau hoped to shame the Court into rectifying the unacceptable situation in which Puerto Ricans found themselves—living on U.S. territory, subject to U.S. sovereignty, but denied U.S. citizenship and the rights it implies—by comparing U.S. imperial policy with the imperial policy of Spain, which after all was supposed to be the less “enlightened” empire. But as we have seen, the Court was not persuaded: it agreed that Puerto Ricans were not aliens, but it did not conclude that they were citizens.

The legal designation that emerged out of all of this—that of the “noncitizen national”—was the product of constitutional improvisation in the face of imperial exigency. Once embarked on an imperialist quest, the United States needed some way to annex territory without necessarily expanding the ranks of U.S. citizens (or promising statehood to annexed territory). Congress obliged by inventing a novel membership category—“citizen of” such-and-such annexed territory—and the Court followed suit by declaring these territories “not incorporated,” and by allowing the liminal citizenship status of their native inhabitants to persist. In doing so, the United States failed to live up to its promise to bring the “blessings of enlightened civilization” (as General Nelson Miles put it upon landing on Puerto Rico’s shores in 1898) to the new territories. Instead, as Degetau made clear to the Court, the United States perpetuated the geographical discrimination devised by the Spanish empire, adopting it into U.S. law.

For the affected colonial subjects, this turn of events proved to be a crushing disappointment. Indeed, even the eventual conferral of U.S. citizenship on Puerto Ricans in 1917 (three years after Degetau died) would prove to be a mixed blessing, for it was done by Congress without consulting them, and it did not change Puerto Rico’s status as an “unincorporated territory.”

As a legal historian (and a Puerto Rican), I seek to contribute to the continued struggle for equality for Puerto Rico by recovering the struggles of my compatriots in the past, and remembering that their experiences, too, form part of the constitutional history of American empire. These have been my goals in telling the story of the Gonzales case through the experience of Isabel González and the arguments of Federico Degetau.

Virginia Journal of International Law, Vol. 48-4: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law will continue its partnership with Opinio Juris this week with an online symposium featuring three articles recently published in VJIL Vol. 48-4, available here.

Our discussion on Tuesday will focus on the constitutional history of American empire at the turn of the twentieth century. In her article, “They say I am not an American…”: The Noncitizen National and the Law of American Empire, Christina Duffy Burnett (Columbia) revisits the historical events surrounding the Supreme Court’s decision in Gonzales v. Williams (1904), which relegated Puerto Ricans to an ambiguous status between alienage and citizenship. Challenging mainstream historical critiques which focus on the ways in which the United States unilaterally imposed its own law abroad and influenced other legal traditions, Professor Burnett analyzes the events surrounding the Gonzales decision to argue that the civic and political leaders of the colonial periphery brought a transnational perspective to the debate over law and American empire and transformed U.S. law in the process. Professor Mae Ngai (Columbia) and Sam Erman (University of Michigan) will be the respondents.

On Wednesday, Martin Totaro will discuss Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development. Mr. Totaro uses the debate surrounding the right to participatory development as a lens for viewing international human rights law generally. By offering a typology of international human rights law and applying that typology to recent shifts in rhetoric and practice at the World Bank regarding participatory development, Mr. Totaro examines the sociopolitical nature of rights recognition as a means of describing the early stages of norm development within customary international law. Galit Sarfaty (Harvard) will be the respondent.

On Thursday, we will conclude our symposium with a look at the role of empiricism in international investment law. In her essay Empiricism and International Law: Insights for Investment Treaty Dispute Resolution, Susan Franck (Washington & Lee) considers the recent move towards the reintegration of international law and empiricism and proposes five steps towards the creation of an empirical research agenda for international investment treaty dispute resolution. Professor David Zaring (Wharton) will be the respondent.

We encourage you to join in the online discussion this week. Throughout the symposium, we hope that you will visit our website to read full copies of the articles and to continue the scholarly conversation.