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YLS Student Argues in District Court That Virgin Islands' Status Is Illegal

On March 21, 2002, Elizabeth Brundige, a second-year student at Yale Law School, argued in front of Virgin Islands U.S. District Court Judge Thomas Moore that "the United States is in violation of its international law obligations in respect to its relationship with the Virgin Islands." The hearing fell over the Law School's spring break--and the setting was certainly appropriate for a vacation--but it was the culmination of a half year of hard work by Brundige and others.

Eight months earlier, Brundige couldn't have decisively commented on the legal status of the relationship between the U.S. and the U.S. Virgin Islands. In fact, when Judge Moore first requested that the Allard K. Lowenstein International Human Rights Law Clinic contribute a brief on this subject to a case that was before him, the clinic looked to consult with someone with expertise in the field. "We couldn't even think of people who have dealt with these issues," says the clinic's executive director, Jim Silk.

And so a team of students began researching. The Virgin Islands is defined by the United Nations as a "non-self-governing territory." The U.S. Congress is responsible for overseeing the territory and can overrule laws passed by the local government. People living in the Virgin Islands are U.S. citizens, but they cannot vote for president, do not have a voting representative in Congress, and do not pay federal taxes. The arrangement is essentially a vestige of colonialism.

For the most part, however, the condition seems to be acceptable to the residents of the islands. Or at least, in Silk's words, "there's not a groundswell of popular support for independence or statehood." Possibly because every option for change comes with challenges and drawbacks.

The case now in the courts was started and maintained by one man's sense of injustice. Krim Ballentine--a longtime resident of the Virgin Islands who was born in St. Louis, Missouri, and served in the U.S. military as well as the U.S. Marshals--brought suit against the government claiming that he had been denied his constitutional right as an American citizen to vote for president and have voting representation in Congress. He also argued that the Constitution did not give Congress the power to confer statutory citizenship on Virgin Islanders nor to determine the extent of the constitutional rights of U.S. citizens residing in the Islands. Although government attorneys sought to have the case dismissed, Judge Moore decided that Ballentine's case raised important legal questions and sought clarification of international law from the Lowenstein Clinic.

According to Brundige and Silk, the current status of the Virgin Islands is based on a series of Supreme Court cases from the turn of the last century, called the Insular Cases, that gave Congress the authority to establish and govern colonies. The Insular Cases, however, incorporate an overtly imperialist viewpoint (assuming that people in territories were in a position of "pupilage and dependence"). Brundige argues, "Both international and domestic law have changed significantly since those days, and the Supreme Court in its jurisprudence has moved away from the Insular Cases." Furthermore, the U.S. has incurred additional obligations through international agreements, such as the U.N. Charter and the International Covenant on Civil and Political Rights, which insist that the people in non-self-governing territories have a right to self-determination.

"[The Islands] are in this status which is inappropriate and problematic," says Silk. Nonetheless, finding a practical remedy is difficult. As mentioned before, there isn't a strong drive among the residents for any one resolution. Statehood isn't feasible, nor is independence desirable. Other solutions would require an amendment to the U.S. Constitution, which would be difficult to achieve. The clinic's brief only points the way toward possible solutions, but Silk hopes that Judge Moore, even if he dismisses the case, will use his opinion to "send a strong message to the political branches that it is time to do something about this . . . internationally unlawful arrangement."

Brundige adds that though the potential solutions are difficult, "living up to international law obligations would not put the U.S. at odds with or in violation of the Constitution but would be consistent with the spirit if not the letter of the Constitution."

After the clinic completed its 42-page brief, they thought their engagement in the case was over, but Judge Moore asked them to send a representative to argue in person, and that's how Brundige ended up in the Virgin Islands for a working spring break. Brundige spoke for more than half an hour in a courtroom full of observers, scholars, politicians, and lawyers. "It was good because the judge let me say everything I wanted to say, but interrupted a lot with questions." She successfully expressed her main points, and felt that she could answer almost everything the judge asked, although some of his questions concerned issues the clinic team had not explored.

Silk and Brundige also met Krim Ballentine and had a chance to hear him make his pleas before the court. Ballentine is not a lawyer, and his brief was not as polished as a professional's, but his arguments in court were powerful. "He articulated things really nicely at his closing statement," says Brundige, "talking about the kind of service he's given to the nation throughout his life, and the fact that he doesn't have a vote."

Reporters covered the hearing for the Virgin Islands Daily News and the St. Thomas Source, and Brundige's arguments turned up in the next morning's papers.

Some observers think this case will be a milestone in Virgin Islands history, although Silk, among others, is more cautious in his assessment. If Ballentine is successful, it could affect the status of other U.S. territories, such as Guam, American Samoa, and Puerto Rico. But beyond that is a principle of consistency. "For the U.S. to be a credible and effective advocate for human rights abroad, we need to be able to have other countries look at what we do and see that we have a system that provides people with a remedy to violations of their international human rights," says Silk.

He is certain, however, that the case is a milestone for the Lowenstein Clinic. "Having a student arguing the case in U.S. district court represents a great moment in our effort to develop an approach to clinical human rights education that puts students at the center of every aspect of the work."