Catalonia: The Search for Independence

On Sunday October 1, 2017, Catalonia voted for independence from Spain.[1] Catalonia, the northeastern region of Spain that encompasses Barcelona, held a referendum and voted to become an independent state. Before the referendum took place, the Spanish courts and governments declared the holding of the referendum and the actual referendum as violations of the Spanish Constitution.[2] When the Catalans proceeded to hold the referendum against the demands of the Spanish government and leader, Mariano Rajoy, the central question shifted from the issue of Catalan independence to a more basic question of whether Catalans have the right to decide on statehood.

 

Over the past few decades, Europe has seen a lot of its states declare independence, including Crimea, Scotland, and Kosovo.[3] Similarly, the Catalans have several reasons as to why they believe they should have their own, independent state. First, Catalonia has its own distinct language, history, and culture from the rest of Spain. Catalonia was independent until it was captured by Philip V of Spain in 1714.[4] Since then, Catalonia has retained much of its own distinct language and culture, separate from the rest of Spain. This has caused much tension between Catalonia and the rest of Spain, especially during the Franco dictatorship, where the Spanish government tried to wipe out all of the Catalan culture and history.[5] Second, Catalonia almost was granted autonomy by the Spanish courts, but the statute was struck down as unconstitutional in 2010.[6] Third, the Spanish prime minister rejected a plea from Catalonia to reduce Catalonia’s contribution to the Spanish tax system that transfers money from wealthier areas to poorer areas of Spain.[7] Catalonia is the biggest contributor to the Spanish economy, and believes that it is being treated unfairly by having to contribute so much money to the rest of the Spanish economy.[8] Finally, Catalans believe that Spain is denying them the right to vote on their future.[9]

 

Although Catalans have compelling points for independence, Spain also has compelling points against Catalan independence. First, Catalonia is the biggest contributor to the Spanish economy.  If Catalonia were to secede, it could have destabilizing effects on both economies, and both states could face disastrous economic futures.[10] Second, Spain believes that Catalonia is undermining the democracy of Spain by flouting the rules and violating the Constitution.[11] If Spain did not object to this type of behavior, it could set a dangerous precedent for other regions in Spain. Third, Spain does not believe that Catalonia will be allowed back into the European Union (EU), which would have even more destabilizing effects on the country, and the EU as a whole.[12] Finally, Spain does not believe that Catalonia should be granted the opportunity to create its own country without a solid plan.[13]

 

The Spanish government and Spanish court have both determined that Catalan’s vote for independence violates Spain’s Constitution.[14] The EU is siding with Spain in this declaration of independence. Although the EU is a democratic body, it is a democratic body made up of sovereign states, and is therefore wary of encouraging separatist bodies that threaten the sovereignty of its member states.[15] If Catalonia succeeds in gaining independence, it would like to rejoin the EU as its own independent nation, something the EU has had no opinion about.[16] Catalonia has looked to the European Commission to intervene in this situation, but the EU has stated that Catalonia is a problem for Spain, not for the European Commission to deal with.[17] The EU is standing with its long held tradition of discouraging separatism, especially after the recent cases in Great Britain, Kosovo, and Crimea.[18] Because of he bias that the EU has shown towards Spain, the Catalans no longer view the EU as a neutral mediator in this situation, and have requested that the Venice Commission of International Lawyers, a part of the Council of Europe, to step in and handle the situation.[19] As of now, there is no word as to whether this will happen.

 

Catalans claim that Spain should look to other EU member states that have had similar separatist issues in the past, like Belgium.[20] When the Flanders population of Belgium threatened to declare independence, Belgium used a process of ongoing constitutional reform to give the Flanders population much more autonomy.[21] However, as of now, the Spanish courts and government are not deviating from their view that the declaration of independence is unconstitutional. [22] This move towards Catalan independence also causes worry that other regions of Spain, such as the Basque region, might move towards independence as well. The Basque region already has won control over its own tax receipts, something that the Catalans are demanding, so a vote for independence might not be far off.[23]

 

One of the questions that is up in the air at this point is whether the EU could recognize Catalonia as an independent state, and allow it to become an independent member of the EU. According to the Prodi Doctrine, a breakaway state would have to leave the EU and could then only be let back into the EU if the state had gained independence in accordance with the constitutional law in the member state that it left.[24] Further, any new member state must enter the EU with the unanimous agreement of all of the other member states.[25] In the case of Catalonia, clearly Spain would object to allowing Catalonia back into the EU, assuming that Catalonia gained independence constitutionally in the first place. But Spain would hardly be the only member state that will veto allowing Catalonia into the EU. Most member states are against separatism and the fragmentation of Europe, and allowing Catalonia back in could set a dangerous precedent.[26] Taking Kosovo as an example, today five of the 28 member states still do not recognize Kosovo as an independent state.[27] It would seem that the EU would have to respect the decisions of the Spanish government and constitutional courts and not recognize Catalonia as an independent member state.

 

The referendum was approved by over 90% of the 2.3 million Catalans who voted.[28] Although Catalonia is still pushing for independence, there has already been instability within the region. Before the vote occurred, the Spanish government deployed approximately 4,000 police officers to attempt to stop people from voting.[29] Hundreds of people were injured as the police used rubber bullets and truncheons to stops people from voting and to seize the ballot boxes.[30] Police also attempted to disable the Internet to interfere with the vote.[31] The Catalan referendum has been called the gravest threat to Spain’s democracy since Franco’s dictatorship in the 1970s.[32] Stay tuned to see what happens next.

 

About the author: Olivia Levine is a 2L at Penn State law.


 

[1] Minder, Raphael. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html

[2] Id.

[3] Id.

[4] Minder, Raphael. “Catalonia Independence Bid Pushes Spain Toward Crisis.” The New York Times, The New York Times, 8 Sept. 2017, www.nytimes.com/2017/09/08/world/europe/spain-catalonia-independence.html.

[5] Osborne, Samuel. “Catalonia: Spanish Government Demands Catalan Leader Clarify Whether Independence Has Been Declared.” The Independent, Independent Digital News and Media, 11 Oct. 2017, www.independent.co.uk/news/world/europe/catalonia-independence-spain-prime-minister-clarify-catalan-leader-mariano-rajoy-carles-puigdemont-a7994326.html.

[6] Minder, Raphael and Ellen Barry. “Catalonia’s Independence Vote Descends Into Chaos and Clashes.” The New York Times, The New York Times, 1 Oct. 2017, www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.

[7] Id.

[8] Id.

[9] Id.

[10] Erlanger, Steven. “For E.U., Catalonia Pits Democratic Rights Against Sovereignty.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-independence-referendum-eu.html

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Rodríguez, Blanca, and Sonya Dowsett. “Spain Gives Catalan Leader 8 Days to Drop Independence.” Reuters, Thomson Reuters, 12 Oct. 2017, www.reuters.com/article/us-spain-politics-catalonia/spain-gives-catalan-leader-8-days-to-drop-independence-idUSKBN1CG12O

[23] Erlanger, Steven. “For E.U., Catalonia Pits Democratic Rights Against Sovereignty.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-independence-referendum-eu.html

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Osborne, Samuel. “Catalonia: Spanish Government Demands Catalan Leader Clarify Whether Independence Has Been Declared.” The Independent, Independent Digital News and Media, 11 Oct. 2017, www.independent.co.uk/news/world/europe/catalonia-independence-spain-prime-minister-clarify-catalan-leader-mariano-rajoy-carles-puigdemont-a7994326.html.

[29] Ellyatt, Holly. “Constitutional Crisis Looms in Spain as Catalonia Looks to Vote on Independence.” CNBC, CNBC, 28 Sept. 2017, www.cnbc.com/2017/09/28/constitutional-crisis-looms-in-spain-as-catalonia-looks-to-vote-on-independence.html

[30] Minder, Raphael and Ellen Barry. “Catalonia’s Independence Vote Descends Into Chaos and Clashes.” The New York Times, The New York Times, 1 Oct. 2017, www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.

[31] Id.

[32] Id.

Stateless Nations: The Failing Peaceful Route to Independence

The recent referendums for both Catalonian and Iraqi Kurdish independence seem to have failed after being rejected by the government or judicial system of their respective governments.[1] While this may not be surprising to most observers, it is the furthest either movement has gone towards full independence – and the continued unrest in Catalonia represents the worst relationship that Barcelona has had with Madrid in decades. In both cases, it seems that the supposed legal avenue to independence by means of referendums and negotiations with the central government is not be possible, and that the peaceful route to independence for stateless nations has been proven to be an impossibility.

The Iraqi section of Greater Kurdistan remains the only section of the Kurdish population to be recognized as autonomous (see figure 1). In 1970 the Iraqi government granted the province of Kurdistan autonomous status, and the Federal Iraqi Republic confirmed that autonomy in 2005.[2] In Syria, Kurdish fighters have seized control of much of northern Syria from government forces, established their own government, and plan for greater autonomy following the war.[3] The Iranian section of Greater Kurdistan, although bearing the provincial name of Kurdistan, is not recognized as autonomous and does not enjoy any sort of self-rule. At a trade meeting on October 4, Iranian President Rouhani and Turkish President Erdogan both criticized the Iraqi referendum, calling it illegitimate and announcing their intent for more “decisive action” in opposition to a Kurdish state.[4]

The aftermath of the Iraqi Kurdish referendum for independence has shown Baghdad’s strong opposition to independence, including a complete refusal to negotiate with Kurdish leaders on the subject. Although the referendum was reported to show over 90% in favor of independence, Kurdish parliamentarians boycotted sessions of the Iraqi Parliament and the Shiite-dominated legislature moved to respond to the referendum by securing assets such as airports and oil fields in Iraqi Kurdistan.[5] Greater Kurdistan has never enjoyed independence, and opposition by all three states that include the claimed territory of Greater Kurdistan make legal progress towards independence unlikely.

Figure 1: Map of Kurd Population[6]

 

In Catalonia, which has a varied history of independence and autonomy, a peaceful movement of protests and referendums has defined aspirations of independence. Between 2000 and 2010, the pro-Madrid socialist party controlled the Catalan Parliament, but in 2010 Artur Mas and his pro-independence party won control of the legislature and held a referendum on independence in 2014. The Spanish courts and parliament labeled the referendum as unconstitutional and arrested Mas, who was convicted in March 2017, fined, and barred from holding office for two years.[7] Other legal efforts have included a 1983 provincial law making Catalan and Castilian Spanish equal languages. The law was validated by the Spanish Supreme Court in 1994 after challenges by the central government failed to overturn it.[8]

The referendum on independence held in early October 2017 by Catalan leader Carles Puigdemont was met with a repeat of the 2014 ban by Spanish courts, but has not resulted in convictions because it is being done under the agreeable auspices of Catalonia’s provincial judicial system and police force. If Catalonia declares unilateral independence, Madrid will most likely institute control over Catalonia’s administration and police force, but the chances of the movement becoming violent are higher than they have been in recent decades.[9]

Failed referendums in Catalonia and Kurdistan, particularly from the perspective of a long legal battle over Catalan autonomy for the former, show the apparent ineffectiveness of legal tools to achieve independence. If violence is to be avoided in these struggles for recognition and autonomy, usage of the law and meaningful dialogues must be as legitimate to central governments as leaders of independence movement hope them to be. For Catalonia, the answer seems to be recognition by the international community – in particular, the European Union. For Greater Kurdistan, the solution for true recognition is unclear, particularly while violence against the central government has led to the existing levels of autonomy enjoyed in Kurdish-held enclaves such as the oil-rich city of Kirkuk.

 

About the Author: Ben Black is a student at the School of International Affairs. 


 

[1] Zucchino, David. 2017. “Iraq Orders Kurdistan to Surrender Its Airports.” The New York Times. https://www.nytimes.com/2017/09/26/world/middleeast/iraq-kurds-independence.html?_r=0 (October 6, 2017).

Minder, Raphael. 2017. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times. https://www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html (October 6, 2017).

[2] Iraqi Constitution, Article 113

[3] “Kurds seek autonomy in a democratic Syria.” BBC News. http://www.bbc.com/news/av/world-middle-east-19291072/kurds-seek-autonomy-in-a-democratic-syria (October 6, 2017).

[4] Regencia, Ted. 2017. “Erdogan, Rouhani united in opposition to Kurdish state.” Al Jazeera. http://www.aljazeera.com/news/2017/10/erdogan-rouhani-united-opposition-kurdish-state-171004124507138.html (October 6, 2017).

[5] Press, The Associated. 2017. “Kurdish Lawmakers Boycott Iraq Parliament Session in Baghdad.” The New York Times. https://www.nytimes.com/aponline/2017/10/03/world/middleeast/ap-ml-iraq.html (October 6, 2017).

[6] Izady, Mehrdad. The Gulf Project. Columbia University. http://gulf2000.columbia.edu/maps.shtml

[7] Murphy, Carver. 2017. Penn State Schreyer Honors Thesis. “Stateless Nations and Their Endeavor for Independence.”

[8] Earl L. Rees. Spain’s Linguistic Normalization Laws. pg 314.

[9] Minder, Raphael. 2017. “Catalonia Government Declares Overwhelming Vote for Independence.” The New York Times. https://www.nytimes.com/2017/10/06/world/europe/catalonia-referendum-sedition.html (October 6, 2017).

Got Your Six? Not In Trump’s America

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On July 26th, 2017, Donald Trump, acting in his capacity as Commander in Chief of the Armed Forces, announced a new policy in the current fashion for this administration, via Twitter, which would ban transgender people from serving in the military.[1] This new “Trans Ban” is a direct reversal of Obama-era policies.

On June 30th, 2016, the Obama Administration announced that they would no longer discharge a member of the service for being openly transgender.[2] Following this, the Department of Defense announced that they would be accepting openly transgender troops into the service.[3] Within a year, on August 25th, 2017, despite no knowledge on the part of the Joint Chiefs of Staff[4] and vehement opposition from members of both parties[5], Donald Trump signed an Executive Order[6] prohibiting transgender people from joining any branch of the military, and giving the Secretary of Defense, James Mattis, six months to determine how to deal with the openly transgender soldiers currently serving, and leaving their long term fate unknown. These soldiers however, are not fighting this battle alone.

The future of this attempt by the Commander in Chief to use the war powers to discriminate may hang in the balance, however, without those he intended to support him. Civil liberty watchdog groups are not the only ones denouncing the President’s ban.  Republican Senator John McCain has openly criticized the ban since the tweet guidance.[7] Senator McCain, who acts as Chair of the Senate Armed Forces Committee, stated, “Any member of the military who meets the medical and readiness standards should be allowed to serve- including those who are transgender.”[8] Senator McCain has also lent his support to a new bill to be introduced into Congress, which pushes back against the Trans Ban.[9] This new bill, created after failed attempts by senators to stop the Ban by adding an amendment to the fiscal year 2018 Defense Authorization Bill[10], would prohibit the Department of Defense from not allowing current transgender troops to reenlist and also speed up the clock for Secretary Mattis in determining the effects on military readiness that he is required to report by February of 2018.[11] If the Bill passes, Secretary Mattis would have to report the results of his review to Congress by the end of 2017.

Secretary Mattis issued a guidance memo on September 15th, 2017 which stated that the Department of Defense, together with the Joint Chiefs of Staff, are convening a panel to discuss what the guidance will mean for transgender troops already currently enlisted, who relied on the Obama-era guidance in making their decision to serve openly as transgender.[12] In the meantime, Secretary Mattis confirmed that the Obama-era policies on transgender troops still hold, and that transgender soldiers may still continue to serve and receive proper medical care.[13] Secretary Mattis has said that he and the panel will create a plan that will “promote military readiness, lethality and unit cohesion”[14], but has not said if the Department of Defense has any idea what direction they will take regarding the currently enrolled soldiers.

While members of Congress are doing their best to fight for the rights of transgender soldiers currently enlisted, civil liberty groups are fighting for that and for the future of transgender people who desire to enlist. LGBT civil rights groups sued Donald Trump over this policy, some before the guidance even made its way to the Pentagon.[15] Others, like Lambda Legal[16] and the American Civil Liberties Union[17], waited until the Executive Order had been signed to sue. These groups cited Equal Protection and Due Process violations.[18] They cite documents that were prepared at the request of the Department of Defense during the Obama era, when they were considering allowing transgender people to serve openly in the service. This study, conducted by the RAND Corporation studied the effects on military readiness of allowing transgender people to serve openly and the costs of healthcare. They determined that healthcare costs were negligible[19] and looked to international examples to study the effects on military readiness.[20]

The Netherlands led the way in allowing transgender people to openly serve in 1974, and the other countries followed suit, including the United States last year. The study began with listing the eighteen countries that allow openly transgender people into their armed forces[21], and focused on the four most developed and long-term implementations of the policy in the Australian, Canadian, Israeli and United Kingdom armed forces. The study outlined the implementation of the policies and the long-term effects on readiness. They found that in all four countries, there was no report on any readiness or military operational effectiveness.[22] In fact, some leaders reported that the “increase in diversity has led to increases in readiness and performance.”[23] Through this research, the RAND Corporation recommended several best practices for the United States implementation of the policy, including diversity training, informed leadership, providing experts to commanders and promoting an inclusive environment.[24]

With the studies commissioned by the Department of Defense refuting the things that the Commander in Chief has cited as reason why they should not allow transgender service members to enlist, the law is on the side of those fighting for equality. While courts give great deference to the military and to anything that could be seen as a threat to national security, there is no reason to find in the favor of the Trump Administration when it comes to not allowing transgender people to enlist. In the Executive Order from the Trump Administration, the only reason given for the ban is that the Obama Administration did not have “sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”[25] This could not be further from the truth.

Prior to the Obama Administration’s repeal of the Department of Defense’s policy prohibiting transgender troops, they commissioned studies to assess if a repeal of the policy would affect all the things that Trump cited in his new Executive Order. Studies by the RAND Corporation, discussed supra, and the Palm Center helped assess the implications on readiness and effectiveness, and found that it would have no real impact. The Palm Center then, along with other transgender advocates, helped the Department draft standards to assuage the concerns about the medical needs of transgender troops. Per the newly drafted policy, transgender troops would have to be “stable without clinically significant distress or impairment in social, occupational or other important areas of function for 18 months.” They also must meet all other standards required for their respective positions in the service. Transgender advocates and experts on military readiness have supported all of these provisions.

And with respect to the concern of “taxing military resources”, a recent study by the Palm Center, assessed that it would cost the military $960 million dollars to discharge transgender troops (determining the number by calculating how much it would cost to recruit and train new members for the positions they would leave vacant [$75,000 per member x 12,800 active transgender members]).[26] The RAND Corporation study, discussed supra, assessed the cost of providing medical care to transgender troops to be $2.4-$8.4 million.[27] The cost-benefit analysis does not require an economist to interpret the results. The “taxing” of “military resources” would come with discharging these troops, not providing them with adequate medical care.

Without any data to back up the President’s reasoning for the Executive Order, when challenged in a court of law, he will not meet his standard of review. Generally, in cases regarding military policy, the courts have given extreme deference in upholding the choices of the armed forces and using strict scrutiny as their standard of review. This has lead to some devastating Supreme Court decisions in the past.[28] In order for it to hold under strict scrutiny, the action must have a compelling government interest and be narrowly tailored to achieve that interest. With all available data proving that allowing transgender troops to serve openly has no impact on military readiness and costs a fraction of what it would cost to discharge existing troops, the argument that the interest the government has in excluding them becomes less than compelling. And the half-baked guidance sent to the Pentagon that Secretary Mattis has to interpret for the confused military leaders could hardly be called narrowly tailored. Civil liberty watchdogs are likely to find themselves on the right side of history and easily overturn this ban as a matter of law.

While the current administration had made their disdain for the transgender community clear through the actions taken by the president and his chosen leaders for various administrative agencies, with this Ban, they are facing challenges from within their own party, overwhelming data on the side of the transgender soldiers and compelling histories of foreign militaries showing the success of allowing transgender people to serve openly. With the actions of the devoted Congress members fighting to keep those already enlisted in the service, civil liberty groups fighting for the equality promised to them by their government, and the breadth of studies from which the data is on the side of the soldiers, Trump’s Trans Ban will hopefully soon be a thing of the past.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law. 


 

[1] Donald J. Trump, (@realDonaldTrump), Twitter (July 26, 2017, 5:55am) https://twitter.com/realDonaldTrump/status/890193981585444864

[2] Press Operations, Secretary of Defense Ash Carter Announces Policy for Transgender Service Members, U. S. Department of Defense (June 30, 2016) https://www.defense.gov/News/News-Releases/News-Release-View/Article/821675/secretary-of-defense-ash-carter-announces-policy-for-transgender-service-members/

[3] Transgender Service Member Policy Implementation Fact Sheet, Department of Defense (September 13, 2016) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[4] Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNN (July 27, 2017) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[5] Aaron Mak, Trump’s Transgender Troops Ban is Backfiring Among Congressional Republicans, Slate (July 27, 2017) http://www.slate.com/blogs/the_slatest/2017/07/27/trump_s_transgender_troops_ban_is_backfiring_among_congressional_republicans.html

[6] Donald J. Trump, Military Service For Transgender Individuals, Office of the Press Secretary (August 25, 2017) https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland

[7] Chris Johnson, McCain Co-sponsors New Bill Against Trump’s Trans Military Ban, Washington Blade (September 15, 2017) http://www.washingtonblade.com/2017/09/15/bipartisan-bill-introduced-senate-trumps-trans-military-ban/

[8] Gayle Tzemach Lemmon, On Transgender Ban, Trump, Listen to Your Generals, CNN (September 18, 2017) http://www.cnn.com/2017/09/18/opinions/on-transgender-ban-trump-should-listen-to-his-generals-lemmon/index.html

[9] Zack Ford, McCain Joins New Legislative Effort to Overturn Trump’s Trans Military Ban, Think Progress (September 18, 2017) https://thinkprogress.org/mccain-transgender-military-ban-b15affc6d31d/

[10] Chris Johnson, Senate Blocks Vote on Gillibrand Amendment to Protect Trans Troops, Washington Blade (September 14, 2017) http://www.washingtonblade.com/2017/09/14/gillibrand-amendment-protect-transgender-troops-wont-get-vote/

[11] Jennifer Bendery, John McCain Cosponsors Bill to Block Trump’s Ban on Transgender Troops, The Huffington Post (September 15, 2017) http://www.huffingtonpost.com/entry/john-mccain-transgender-troops-trump_us_59bc31bbe4b086432b072478

[12] W.J. Hennigan, Pentagon to Convene Panel on Implementing Trump’s Ban on Transgender Personnel in the U.S. Military, Los Angeles Times (August 30, 2017) http://www.latimes.com/politics/washington/la-na-essential-washington-updates-pentagon-to-convene-panel-on-1504105334-htmlstory.html

[13] Jeremy B. White, Trump’s Transgender Ban Halted by Defense Secretary General Mattis, Independent (August 30, 2017)  http://www.independent.co.uk/news/world/americas/us-politics/trump-transgender-ban-general-mattis-frozen-defence-secretary-a7919331.html

[14] Richard Lardner & Lolita C. Baldor, Mattis: Transgender Troops Can Continue to Serve, Associated Press (September 16, 2017) http://www.military.com/daily-news/2017/09/16/mattis-transgender-troops-can-continue-to-serve.html

[15] Mark Joseph Stern, Why the First Lawsuit Against Trump’s Trans Ban is so Ingenious, Slate (August 9, 2017) http://www.slate.com/blogs/outward/2017/08/09/nclr_and_glad_file_lawsuit_against_trump_s_transgender_troops_ban.html

[16] Lambda Legal and Outserve-SLDN Sue President Trump to Reverse Transgender Military Service Ban, Lambda Legal (August 28, 2017) https://www.lambdalegal.org/blog/20170828_lambda-legal-outserve-sldn-sue-trump-over-trans-military-ban

[17] ACLU Files Lawsuit Challenging Trump’s Transgender Service Member Ban, American Civil Liberties Union (August 28, 2017) https://www.aclu.org/news/aclu-files-lawsuit-challenging-trumps-transgender-service-member-ban

[18] Karnoski et al. v. Trump, Lambda Legal, Complaint at 23 https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/karnoski_us_20170828_complaint.pdf

[19] The costs of providing healthcare to transgender troops would cost $5.6 million annually, only 22 cents per member per month

[20] Agnes Gereben et al., Accessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation (June 2016) https://www.rand.org/pubs/research_reports/RR1530.html

[21] Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, United Kingdom

[22] Gereben at 60

[23] Id.

[24] Gereben at 61

[25] Supra at 6

[26] Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (August 2017) http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf

[27] Gereben at 12

[28] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944)

 

A Forgotten Gesture



Samantha Smith, Samantha’s Letter (November, 1982), http://www.samanthasmith.info/index.php/history/letter

Unease about North Korea’s nuclear capability has been growing steadily for the past few months, but that unease escalated when Kim Jong Un recently said he would attack the US territory of Guam.[1] A recent survey shows 94% of Americans fear nuclear war with North Korea.[2] National fear of an aerial attack of this magnitude draws parallels to the Cold War and the fear of that time. Yet, it also brings to mind a story about a young girl from Maine, whose innocent, but impactful gesture made both sides of the Cold War mourn her death.[3] In 1982, Samantha Smith taught us that a profoundly human act has the power to influence international diplomacy.

Ten-year-old Samantha Smith from Manchester, Maine wrote to Soviet leader Yuri Andropov seeking to understand the interminable tensions between the Soviet Union and the United States. Samantha’s letter read as follows:[4]

 

          Dear Mr. Andropov,

          My name is Samantha Smith. I am ten years old. Congratulations on your new job. I have been worrying about Russia and the United States getting into a nuclear war. Are you going to vote to have a war or not? If you aren’t, please tell me how you are going to help to not have a war. This question you do not have to answer, but I would like to know why you want to conquer the world or at least our country. God made the world for us to live together in peace and not to fight.

         Sincerely,

        Samantha Smith

 

The likelihood that Samantha’s letter would garner a response or even reach the margins of political influence was particularly low. After all, she was ten years old, and an American. Despite this, Soviet President Andropov took notice. He not only read Samantha’s letter, but published it in a national newspaper called the Pravda – it was a gesture that left a lasting impression on the Soviet people.[5] In his response to Samantha’s letter, President Andropov wrote[6]:
“…. In America and in our country there are nuclear weapons—terrible weapons that can kill millions of people in an instant. But we do not want them to be ever used….

Samantha Smith went on to be known as “America’s Youngest Ambassador”.[7] President Andropov invited Samantha to visit the Soviet Union. In the summer of 1983, Samantha flew to the Soviet Union to visit Moscow and Leningrad.[8] She also spent time in Artek, a Soviet pioneer camp, with children her own age. Samantha’s visit was broadcasted on two Soviet TV channels, which gave the United States a human face for the Soviet people.[9] While in Artek, Samantha shared a dormitory with nine other Soviet girls.[10] Her time at this Soviet pioneer camp was spent swimming in the Black Sea, studying the Russian language, and learning native songs and dances.[11] In Moscow, Samantha was greeted with a Press Conference where she declared that the Soviet people were “just like us” and that they didn’t want war either.[12] In America, Samantha Smith was featured on the Tonight Show and the Disney Channel as a young spokesperson for peace.

At the age of thirteen, Samantha Smith passed away in a plane crash; both the US and the Soviet Union mourned. The Soviet government responded to her death by issuing a postage stamp in her honor and naming a mountain in her memory.[13] President Mikhail Gorbachev also sent a letter to Samantha’s mother, Jane Smith; he wrote:[14]

 

“Everyone in the Soviet Union who has known Samantha Smith will forever remember the image of the American girl who, like millions of Soviet young men and women, dreamt about peace, and about friendship between the peoples of the United States and the Soviet Union.”

 

Before her death, Samantha addressed the Children’s Symposium held in Kobe, Japan.[15] In her last speech as a young ambassador, she recommended that U.S. and Soviet leaders exchange granddaughters for two weeks once a year – it was Samantha’s strong belief that a leader would not attack a country “his granddaughter was visiting.”[16]

Many people in the United States viewed Samantha Smith’s trip as an elaborate PR stunt.[17] To others, however, it was a symbolic gesture. Regardless of its origins, Samantha’s story disrupted the narrative that the Soviet Union, as a nation, was single-mindedly committed to perpetuating nuclear warfare. Samantha shows us that while distance, mistrust, and fear are realities of the modern world, it is also necessary to humanize the people on the other side of that divide. Samantha’s journey demonstrates that sometimes alternative modes of diplomacy can alter the dialogue of international affairs.

 

President Reagan meeting with President Gorbachev three months after the plane crash. Geneva Summit, November, 1985.
http://samanthasmith.info/index.php/history

 

About the Author: Patrick Opran is a 2L at Penn State Law.


 

[1] Euan McKirdy, Zachary Cohen and Ivan Watson, North Korea says Guam strike plan ready within days (August 10, 2017), http://www.cnn.com/2017/08/09/politics/north-korea-considering-near-guam-strike/index.html

[2] CNN via telephone by SSRS, REL7B – NORTH KOREA (August 8, 2017) http://i2.cdn.turner.com/cnn/2017/images/08/08/rel7b.-.north.korea.pdf

[3] Arthur Frederick, Samantha Smith, the schoolgirl whose desire for peace made…, ( August 28, 1985), http://www.upi.com/Archives/1985/08/28/Samantha-Smith-the-schoolgirl-whose-desire-for-peace-made/7407494049600/

[4] Samantha Smith, Samantha’s Letter (November, 1982), http://www.samanthasmith.info/index.php/history/letter

[5] Gale Warner and Michael Shuman, Citizen diplomats: pathfinders in Soviet-American relations and how you can join them (1987), http://www.samanthasmith.info/books/Citizen%20Diplomats.pdf

[6] Yuri Andopov, Yuri Andropov’s Response to Samantha’s Letter (1983), http://www.samanthasmith.info/index.php/history/letter

[7] Gale Warner and Michael Shuman, Citizen diplomats: pathfinders in Soviet-American relations and how you can join them (1987), http://www.samanthasmith.info/books/Citizen%20Diplomats.pdf

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] History.com Staff, Samantha Smith dies in plane crash, (2009), http://www.history.com/this-day-in-history/samantha-smith-dies-in-plane-crash

[14] Mikhail Gorbachev, Letter to Jane Smith, (August, 1985) http://samanthasmith.info/index.php/history

[15] http://www.samanthasmith.info/index.php/history/kobe-japan

[16] Samantha Smith, Look Around and See Only Friends (December 26, 1983), http://www.samanthasmith.info/index.php/history/kobe-japan

[17] Alice-Leone Moates, Yes, Samantha, there’s a Soviet bear, The Philadelphia Inquirer. p. A11., (July 12, 1983).

American Exceptionalism, Sovereignty, and a Call to Arms: President Trump’s Opening Speech to the UN General Assembly

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

In President Donald Trump’s opening speech to the United Nations General Assembly on Tuesday, September 19th 2017, it is unclear if the President is aware of what the U.N. was chartered to accomplish, or if he is making a purposeful stance against the current state of international law set forth by the organization and its members. His speech brought to light questions concerning international law and ‘presidential’ behavior through his discussion of American exceptionalism, the importance of sovereignty, and the condemnation of Kim Jung Un and Iran, the former of which he referred to as ‘Rocket Man’.[1]

He began his 41-minute speech by touting America’s exceptionalism and stressing not only the importance of honoring the sovereignty of nations as the key to international cooperation, but that nations would be expected “to respect the interests of their own people and the rights of every other sovereign nation.”[2] While the UN Charter details the importance of sovereignty in Article 2, it is important to remember that one of the main purposes of the UN is to encourage “international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”[3] It is no surprise, following the President’s statements from earlier this year concerning the Paris Climate Accord, that he believes America has been “taken advantage of” through entering “one-sided deals” with its Allies, potentially touting a new age of American isolationism.[4]

However, it is interesting to hear these two subject discussed in the same speech, and almost in the same breath. How can President Trump tout the importance of nations and nation-states taking care of their people by their own rules while he stresses how America’s excellence should be seen as a model to be copied by the rest of the world. Were these comments harmless notions from a new American leader who is attempting to bring about a new age of American isolationism, or something more?

The real issue in question arises when the President begins speaking on the wellbeing of the world and the UN’s inaction when it comes to the threats from both North Korea and Iran. Chapter I, Article 2 of the UN Charter, signed by the United States of America states, “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” And further that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[5] This does not mean that countries cannot act in self-defense, or even preemptive self-defense, as the UN charter also details the time and place for such action in Chapter VII, Article 51.[6] However, is it noted that all action, pre-emptive or responding, should be proportional to be in accordance with the Charter and International law.[7] Further, this provision is meant to not just encourage, but require nations look to other means, aside from war or threats of that ilk, to solve their disputes and guide their interactions.[8]

In his speech, President Trump states in no uncertain manner that If the UN does not take collective action against Kim Jung Un and North Korea, the United States will.

 

“The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.”[9]

 

Is the President looking for a call to action from the U.N.? Or is it a call to arms? Would the United States potentially violate the U.N. Charter by pre-emptively striking North Korea, or would they cite self-defense? The answers to these questions are unknown at this time, but the rhetoric of the President’s speech came off more as a threat than anything more cooperative or encouraging of international togetherness and security.

Iran received the same treatment from the President, as he called for the UN General Assembly to join the United States in demanding that “Iran’s government end its pursuit of death and destruction” and “respect the sovereign rights of its neighbors.”[10] While these statements have not received that same attention from the media as President Trump’s comments on North Korea, it is important to question, as seen previously in his speech, what the President means when he says he respects sovereignty, or if he only respects the sovereignty of a nation when it looks like his own.

Finally, President brought his 41-minute speech to an end with this comment in reference to the current state of the world at large:

 

            “The American people hope that one day soon the United Nations can be a much more accountable and effective advocate for human dignity and freedom around the world. In the meantime, we believe that no nation should have to bear a disproportionate share of the burden, militarily or financially. Nations of the world must take a greater role in promoting secure and prosperous societies in their own regions.”[11]

 

These last statements and the entirety of this speech from the President of the United States begs the question, does America want to be a part of a rich, diverse, and different international community? Or do they only want to be a part of an international system that reflect the state of their own American morals and values?

 

About the Author: Sara Firestone is a 2L at Penn State Law.


 

[1] Politico Staff, POLITICO (Sept. 19, 2017), http://www.politico.com/story/2017/09/19/trump-un-speech-2017-full-text-transcript-242879.

[2] Id.

[3] U.N. Charter art. 2, para.6.

[4] Supra note 1.

[5] U.N. Charter art. 2, para.3, 4.

[6] U.N. Charter art. 51.

[7] Id.

[8] Supra note 5, para 3.

[9] Supra note 1.

[10] Id.

[11] Id.