Backgrounder

Self-Determination

On February 13, 2020, Power 4 Puerto Rico co-sponsored with the Hispanic National Bar Association and LatinoJustice PRLDEF a legal discussion on the self-determination of Puerto Rico that included explanations of self-determination and decolonization, and the differences in the situations of Washington DC and Puerto Rico. The following backgrounder is based on this discussion.

What is Self-Determination?

What is Decolonization?

The United Nations on Self-Determination and Decolonization

Why is Self-Determination Necessary?

Puerto Rico’s Bankruptcy Law (“quiebra criolla”)

PROMESA

Sánchez Valle, the Insular Cases revived

What’s the difference between DC and Puerto Rico?

What should be the path forward?

Sources

Self-determination is an internationally recognized human right and is fundamental to the exercise of all other human rights. It is a right guaranteed to peoples and nations – regardless of colonial status - to decide upon self-governance free from foreign coercion, restraint or control.

Self-determination is inherent to the process of decolonization.

● Decolonization is the process by which colonial control over separate nations is disentangled and the colonizing power transfers all political, economic, social, cultural, military and public control to the former colonial possession, thereby disrupting any foreign domination or subjugation over another nation or peoples.

● The obligation to decolonize has formally been recognized as a part of international law since 1960, shortly after World War II as many former colonies gained their independence.

● Decolonization requires taking immediate actions to remove any coercive measures – including repealing laws, withdrawing military, political, and diplomatic presence, and releasing political prisoners - that would otherwise perpetuate the colonial relationship and could undermine the decolonization process.

The United Nations’ Charter (1945) reflected this principle [the Charter does not refer to self-determination/decolonization but to “self-governing”] in Chapter XI entitled: “Declaration Regarding Non-Self-Governing Territories” (UN Charter, Article 73):

Members of the United Nations which have [...] responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost [...] the well-being of the inhabitants of these territories.

● As more former colonies joined the United Nations, they developed more comprehensive rules and regulations to make self-determination processes more effective, including:

○ Declaring the formal right of territories to a decolonization process;

○ Specifying the details of what decolonization should look like in practice; and

○ Establishing committees to supervise ongoing decolonization efforts.

UN GA Resolution 1514 (1960) declared that:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

● This right to self-determination was also reaffirmed in the International Covenant on Civil and Political Rights (“ICCPR”), which the United States has ratified, and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), which the U.S. has only signed but not ratified.

● These treaties matter because U.S. Constitution Article VI (6) makes clear that all treaties shall be the “supreme law of the land,” meaning the ICCPR is federal law.

● When it comes to abiding by the principle of self-determination, the United States doesn’t just have an obligation under international law, but also under its own Constitution.

The resolution also declared:
The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. (UN GA Resolution 1514)

UN GA Resolution 1541 (1960) lays out the obligations that nations need to fulfill to ensure they are promoting their colonies’ development toward self-governance as part of a mandatory process for decolonization.

In sum, decolonization is the process, defined and required by international law, that all colonizing nations are required to abide by in order to ensure the safe and effective transition of self-government to their former colonies.

Puerto Rico’s colonial status is being ignored

● In 1946, as part of UN Charter Article 73, the U.N. put together a list of Non-Self-Governing territories that were to initiate immediately a process of decolonization, including Puerto Rico.

● Yet, Puerto Rico was removed from the list in 1953 by the UN General Assembly - years before many of the treaties and resolutions mentioned above were passed. How?

In basic terms, the United States presented the United Nations a “compact” it agreed to with the people of Puerto Rico where they drafted a constitution that was approved by voters and ratified by Congress. The Commonwealth, or Estado Libre Asociado in Spanish (“Free Associated State”), allowed the United States to tell the international community that Puerto Rico had limited autonomy, and thus could no longer be considered to fully be a non-self-governing territory.

● Initially, many countries disagreed with the United States and would not vote to remove Puerto Rico from the list of non-self-governing territories.

● The United States decided to declare that Puerto Rico had sovereignty similar, but less than, a U.S. state, and so used this language:

“A fundamental feature of the new constitution is that it was entered into in the nature of a compact between the American Congress and the Puerto Rican people. This arrangement has been described by Senator Butler of Nebraska, Chairman of the Senate Committee on Interior and Insular Affairs and co-sponsor, of Public Law 600, as a relationship between two parties which may not be amended or abrogated unilaterally. [Emphasis supplied]

[quotes Sen. Butler:] "Thus, Puerto Rico is a Commonwealth, comparable in its political authority to any of the 48 commonwealths which we know as the 48 states that form the Union; but under the terms of the compact embodied in Public Law 600 of the Eighty-first Congress 1950, the Federal Government of the United States will do for it what it does for the 48 member states of the Union, while it will not interfere in any matter not normally reserved to a federal government in a federal system” - Frances Bolton, U.S. representative at the United Nations [Emphasis supplied]

● These assertions later proved to be either misleading, or actions taken by the US contradict their earlier assertions, as the Supreme Court recently clarified. The U.S. did in fact unilaterally alter its relationship to Puerto Rico when it approved the PROMESA law in 2016, which took back powers previously reserved for the elected leaders of the island. This was seen by many as a violation of the “compact” and clearly in contravention of G.A. Resolution 1514.

● The United States succeeded in convincing enough nations, and, with UN GA Resolution 748, the General Assembly approved the motion to remove Puerto Rico from the list of Non-Self-Governing territories in 1953.

2. Because few people know how Puerto Rico’s colonial status works, it starts with the Insular Cases.

● The Insular Cases are a series of Supreme Court decisions in the early part of the 20th century that provided legal cover for colonial rule, perpetuated racist ideology and justified separate systems of rules and rights for colonial possessions and their residents, and for U.S. citizens living in the continental United States.

○ Through the Insular Cases, acquired territories became defined as “unincorporated” or “incorporated,” a fictional distinction designed to continue a legal ranking based on who should be afforded more rights, and who less. Puerto Rico, designed as an “unincorporated” territory, was determined to:

■ Belong to but not be a part of the United States;

■ Only have apply under certain rights under the U.S. Constitution; and

■ Have no particular timeline for resolving its political status

● One of these Insular Cases, Downes v. Bidwell (1901), defined this new type of “unincorporated” territory. That definition was entirely made up by the court in order to arrive at the conclusion it wanted in justifying the political projects of empire and expansion that were espoused in the Monroe Doctrine. The court’s decision:

○ Made little sense/used confusing language

■ describing Puerto Rico as: “it was foreign to the United States in a domestic sense”

○ Used explicitly racist logic

■ "those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible”

● Ultimately, the Insular Cases gave Congress the power to control almost everything about their new territories without their consent, legalizing colonial control. Further, they allowed the U.S. government to decide what rights those in the colonies would or wouldn’t have.

○ For example, in 1922 the Supreme Court decided that Puerto Ricans did not have a constitutional right to a trial by jury as described in the 6th Amendment.

● While Puerto Rico gained increasing levels of local autonomy in the 20th century, it never stopped being an unincorporated territory which means that these cases are still the law of the land. While the Supreme Court continues to consider Puerto Rico as ‘belonging to, but not a part of’ the U.S.,” the Insular Cases are a stark reminder of modern-day imperialism and racialized colonialism.

3. Because colonialism is still alive in 2020

Recent legislation and Supreme Court decisions, all based on the Insular Cases, continue to impact Puerto Rico’s current reality. The following is an example:

● Context

○ Municipalities, counties and townships can declare bankruptcy under Chapter 9 of the Federal Bankruptcy Code in an effort to restructure their debts and get back on track.

○ Thanks to its colonial status, Puerto Rico was explicitly excluded from seeking protection under federal bankruptcy laws, which would have otherwise allowed Puerto Rican municipalities and public corporations to declaring bankruptcy under Chapter 9.

○ Seeing no other option, Puerto Rico’s government passed its own bankruptcy law to allow its financially troubled entities a chance at an orderly restructuring.

● The Case

○ Commonwealth of Puerto Rico et al. v. Franklin California Tax-Free Trust et al. (2016)

○ In simplified terms, this case – via another nuanced decision by the U.S. Supreme Court that continued with its legal fictions - determined that Puerto Rico didn’t have the authority to create its own bankruptcy codes.

● Consequences

○ On one hand, the U.S. Congress denied Puerto Rico access to federal bankruptcy procedures.

○ On the other, the U.S. Supreme Court denied Puerto Rico the ability to legislate its own bankruptcy procedures.

○ In sum, the U.S. government prohibited Puerto Rico from taking action to address its financial collapse.

○ Congress then passed the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA), a law in which Puerto Rico had no say as to what it needed and what would most help its residents out of economic depression. The law stripped the island of the limited self government gained under Commonwealth over internal rule of the island’s affairs, such as budgetary and taxing authorities.

● Context

○ With Puerto Rico about to lose the ability to pay its debts, and with its hands tied by the U.S. government, Congress stepped in.

○ It created bankruptcy procedures but also created a mechanism to further control Puerto Rico based, again, on Congress’ plenary powers, which stem from the Insular Cases discussed above.

● The Legislation

○ Puerto Rico Oversight Management and Economic Stability Act (PROMESA)

○ In simplified terms, this legislation created a bankruptcy process for Puerto Rico while also taking away Puerto Rico’s self-government.

○ It created a 7-member “Fiscal Oversight Board” that has the final say on all budgets and financial planning for the Puerto Rican government. The Board either approves or creates long-term “Fiscal Plans” that the Puerto Rican government must abide by. This power over financial matters extends over all laws since it can strike down any law that it determines doesn’t comply with the Fiscal Plan.

○ The Board has veto power over local government, sets fiscal and public policy for the entire nation, is unelected and unaccountable, meets in private, pays consultants and lawyers millions of dollars in fees and passes all their expenditures on to the People of Puerto Rico, who are forced to pay their fees.

○ The Board has been found to be a constitutional delegation of Congress’ authority over the colony, which it can decide how to exert, delegate or utilize as it wishes.

● Consequences

○ The Board strips Puerto Rico of its limited autonomy and shows how the U.S. government can ignore the democratically elected government of Puerto Rico.

○ This Board has imposed strict austerity measures that many argue will worsen Puerto Rico’s chances of recovering from its financial collapse.

● Context

The constitution prohibits double jeopardy, which means that individuals cannot be charged for the same crime twice by the same sovereign. However, they can be charged for the same criminal activity by both federal and state governments, which are two separate sovereigns. Puerto Rico had been charging individuals for the same criminal activity since 1952. The question for the Supreme Court was whether Puerto Rico was a separate sovereign for purposes of the double jeopardy clause.

● The Case

○ Commonwealth of Puerto Rico v. Sanchez Valle et al.

○ In simplified terms, this case determined that Puerto Rico was not a separate sovereign, for purposes of double jeopardy cases, and that the source of the local government’s entire authority came, not from its own people and elected power, but from whatever authority Congress decided to grant it.

○ In a dissenting opinion, Justice Breyer raised concerns about this interpretation as being in conflict with the United States’ obligations under international law, stating that the U.S. had misled the international community since 1952 by insisting that in fact Puerto Rico had limited sovereignty.

● Consequences

○ This decision was interpreted by many as an affirmation by the courts that PROMESA, which passed the same day this decision was released, could be constitutional given the plenary powers theory.

As recently as June 2020, the Supreme Court upheld the constitutionality of the appointments to the Financial Oversight and Management Board (FOMB), reinforcing the plenary powers of the federal government over Puerto Rico and the treatment of the Island and other U.S. territories as just federal property. The decision was pivotal. Not only because it was unanimous, but also due to a concurrent opinion issued by Justice Sotomayor over the potential violation that PROMESA represents to the 1952 “compact.”

While the current disenfranchisement of Americans in the District of Columbia (DC) is unjust and undemocratic, it differs from the situation in Puerto Rico in a number of ways:

○ While Puerto Rico is governed by the Territorial Clause of the U.S. Constitution (Article IV, Section 3), the District of Columbia is a unique Federal District (Article I, Section 8) with its own legal framework.

○ While DC was apportioned from previous state territory, subject to domestic law, Puerto Rico was acquired by a treaty, subject to international law.

○ Puerto Rico is different in that Puerto Ricans are a People under international law, i.e., a separate nation, with its own distinct ethnicity, history, identity, and culture, while DC is the capital city of the nation.

○ Residents of DC pay full federal income taxes, while Puerto Rico residents do not do so on Puerto Rico-generated income.

○ Unlike Puerto Rico, DC depends on Congress for its budget. Though Puerto Rico now is ruled by the FOMB, the fact that the nation’s capital depends on. Congressional approval for its budget means that if there is a federal shutdown, the capital city does not have money to operate. That is not the case in Puerto Rico which has its own tax system.

○ DC residents have representation in the electoral college, after a 1960s constitutional amendment allowed them to vote for president. That is not the case in Puerto Rico.

○ There is no dispute or question as to the overwhelming will of DC voters for statehood. The complete opposite is the case for Puerto Ricans, who challenged the last two referenda as being unfair and excluding non-statehood alternatives.

In sum, DC is a matter of civil rights, Puerto Rico is a matter of decolonization through self-determination as prescribed under international law, and as affirmed by various international human rights entities.

Effective self-determination requires a series of important principles:

○ It’s not as simple as a vote/straw poll that the U.S. Congress can ignore.

○ The process can’t be seen to have a predetermined outcome.

○ No political, economic or military pressures or coercion towards a particular status.

In sum, it is the responsibility of the colonizing country to honor their colony’s rights and provide conditions for a free, informed and unbiased decision, as prescribed by U.N. Resolution 1541.

● Power 4 Puerto Rico’s platform states that a self-determination process must be fair, inclusive, transparent and binding.

○ Fair and Inclusive

■ Both sides must ensure a process that ensures all voices are heard and have weight.

■ The United States must commit to provide equitable support to ensure the process has no predetermined outcome.

○ Transparent and Binding

■ The process must ensure both sides clearly delineate the conditions and procedures both before, during and after the self-determination process so that Puerto Ricans can make an informed choice.

■ The process must commit the U.S. government to act instead of ignoring the democratic will of the People of Puerto Rico. We believe such measures are warranted given the long history of dismissing Puerto Rico’s efforts at self-determination.

United Nations

UN Charter Article 73

UN GA Resolution 1514

UN GA Resolution 1541

UN GA Resolution 748

UN Special Committee Report on Puerto Rico (2017)

SCOTUS

COMMONWEALTH OF PUERTO RICO v. SANCHEZ VALLE ET AL. (2016)

COMMONWEALTH OF PUERTO RICO ET AL. v. FRANKLIN CALIFORNIA TAX-FREE TRUST ET AL. (2016)

Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (2020)

U.S. Constitution Article VI (6)

U.S. CONSTITUTION ARTICLE IV, SECTION 2