The following article was published in the June 2024 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 77th anniversary of the United Nations Charter.
Dinorah La Luz Feliciano, Ph.D.
Introduction
There are 3 periods in Puerto Rican political history to which I will be referring:
- Transition and Cession– transition from autonomy with Spain to invasion by the United States, the cession after the Spanish-American War, and the subsequent statutes and Insular Cases, a product of the colonial relationship, 1897- 1922. The removal of Puerto Rico from the U.N. Trusteeship Council’s List of Territories in 1953.
- The establishment of Estado Libre Asociado (ELA) and the 1967 plebiscite, 1952-1967.
- Bankruptcy and the Oversight Board (Junta de Control Fiscal) and the PROMESA period: another tier of colonialism, 2016- 2023.
-
-
- Transition and Cession (1897-1922). The U.N. Charter and, the Removal from the U.N. Trusteeship Council’s List of Territories (1953)
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Before the U. S. occupation, Puerto Rico had a well-developed body of laws and institutions under Spain. Spanish courts were established in 1832 (Real Audiencia), from the experience of previous courts in Puerto Rico and in the rest of the Americas.[1]
By 1890, the U. S. courts followed the Law of Nations, recognized by “civilized States,” when dealing with new territories. Territories could be acquired by discovery, occupation, cession, conquest,[2] or purchase. Thus, the Hague Regulations of 1899 and 1907[3] regulated the law of conquest for States, including the United States. States could also acquire territories during the 19th century by voting in favor of annexation or integration, among other options.[4]
Two historians, R. Bothwell and Cruz Monclova, have argued that under the Autonomic Charter (Carta Autonómica) of 1897, Puerto Rico had the right to initiate commercial treaties with other countries, but the final decision rested with the Spanish government.[5] Thus, the argument about the illegality of the conquest cannot be based on the Carta Autonómica.
Other authors have legitimized the “cession” option. That option could have been legitimate after the first year of the invasion (1899), with some exceptions, including when the processes of independence, separation or incorporation have been considered. In the case of Puerto Rico, one can argue that steps have been taken to separate the territory in recent years, but since they were not taken before the cession, that argument fails.
The other theory of acquisition is that of “occupation by conquest,” which is also complicated in this case, because Puerto Rico was not a State — even under the autonomy during Spain — and certainly it is not a State now. The illegality of the U. S. invasion is clear in the case of Hawai’i, because, under international law, the occupation of a State, already formed and with ample recognition by other States, is illegal.[6]
In 1897, the Spanish Cabinet of Ministers granted Cuba and Puerto Rico three concessions: (1) the application of the Spanish Constitution (individual rights); (2) electoral law (the vote for 25-year-old men who had property and civil rights); and (3) Carta Autonómica (Charter of Autonomy) for the changes in the colonial regime. Changes were not substantial because the control by the King, the army, and main administrative positions remained under the Spanish Crown. The Legislature had a Council (15 members, 8 of them elected) and a Representative Chamber (32 members). Both bodies governed the administrative sectors in Puerto Rico as well as the foreign commerce, but commercial matters still had to be approved by Madrid.[7]
The main argument here is that there was a continuity after the Spanish-American War in 1898, as Puerto Rico was ceded by its former imperial power (Spain) to the United States. Guam and the Philippines were also ceded as a result of this war, and Cuba was placed in a protectorate. Puerto Rico was occupied by the United States, which imposed a military regime.
In 1900, after one year of military regime, a civilian government was established with the Foraker Act.[8] The civil government was installed and tariffs were enforced[9]— a tariff on commerce between the U. S. and Puerto Rico. Other tariffs were imposed later, as well as other shipping laws and restrictions, i. e., the Jones-Costigan Act of 1934, and the Cabotage Laws (under Commerce Clause). The Cabotage Laws provide that Puerto Rico is forced to buy only from U. S. ships, and cannot enter into commercial agreements by itself with other countries. Ships not only must be under U. S. flag, with a U. S. title, travelling through U. S. ports, but also must have a U. S. crew.[10]
Since the cession, and after the Foraker Act, Puerto Rico has always been under the plenary powers of the U. S. Congress, including Plessy v. Ferguson (the doctrine of “separate but equal”[11]), the non-incorporation doctrine,[12] and “manifest destiny,”[13] in order to acquire territories by conquest. All of them were reaffirmed in the Insular Cases since 1901,[14] and (with the exception of Plessy doctrine) remain in force to this date. In all of these precedents and the doctrines in the U. S. Supreme Court cases of Downes v. Bidwell[15] and Harris v. Rosario,[16] the U.S. Executive Branch, that issued the Interagency Reports of 2005 and 2007,[17] along with the recent debt cases,[18] have had the same purposes. Others include the doctrines and statutes imposed on the people of Puerto Rico, such as racial discrimination. In addition to the protection of profits, racial discrimination is the underlying rationale, which is the reason some have called them the “racist petard” cases. [19]
Besides the Insular Cases,[20] Organic Laws (Foraker and Jones) and the Federal Relations Act[21] reaffirmed the colonial status of Puerto Rico. The U. S. State Department — in the case of Sánchez Valle,[22] among others,[23] – and the Interagency Reports of 2005 and 2007,[24] issued by the White House — reaffirmed that Puerto Rico is still under the sovereignty of the United States.
In summary, the statutes that are still in force in Puerto Rico, in addition to the Organic Laws (Foraker of 1900, and Jones of 1917), include the Act of 1947 (to elect a governor); the Act 600 of 1950 (P. L. 81-600, to authorize Puerto Ricans to have their Constitution); and Joint Resolution 447 of March 3, 1952 (for a constitutional government).[25] The Federal Relations Act compiled all of the previous public laws on Puerto Rico. Those three statutes were precedents to the establishment of the Commonwealth or Estado Libre Asociado (hereinafter, ELA.) In spite of the Federal Relations Act, the establishment of the ELA, and Puerto Rico’s Constitution (which is based on the Organic Laws), none of these statutes has changed the political situation.[26] Moreover, the United States Congress reserves the right to change any section of Puerto Rico’s Constitution.[27]
U. N. Charter, the List of Territories, and the General Assembly Resolution 1514 (XV) of 1960
In 1897, Puerto Rico was under an autonomous statute (Carta Autonómica) and it was supposed to have sufficient autonomy to represent itself internationally. Some have argued that this cession was illegal under the Treaty of Paris (1898). Others, including Prof. Gorrín Peralta, maintain that the Treaty of Paris gave Congress plenary powers in order to administer the “property” or territory of Puerto Rico. At the time, the imperialist point of view prevailed, whereby the U. S. would conquer and administer the territories and possessions as they pleased, based on the U.S. Supreme Court’s opinions construing the Territorial Clause of the U. S. Constitution.[28]
At the time of the invasion in 1898, although ceded by Spain as a result of the Spanish-American War, Puerto Rico was not a State. Custom implies a configuration of a territory, a population, a government, and the capacity of entering into foreign relations. But, even if Puerto Rico had some elements of autonomy under Spain, including the capacity to enter into foreign relations, it did not have international recognition by other States so, even if it is a nation, it is not a State. In addition, Spain still had the power to rule over Puerto Rico, having granted an autonomous state and not independence, as the United Kingdom did with Hawai’i.
The term “self-determination” had not been developed at the time of the U. S. occupation, in the 19th century. Nevertheless, some concepts such as the threat or the use of force against another State, that are violations of sovereignty, were already established as a customary norm of international law. In the case of Hawai’i, the use of force against Hawaii was a violation of customary law, as Professors K. Sai and F. Lenzerini have pointed out.[29] Their argument is that in 1893 — when the Queen of Hawai’i yielded her authority and the occupation began — this activated Article 43 of the Law of Occupation, as approved by the Hague Convention of 1907.[30]
In the case of Puerto Rico, even though it was not a State at the time of occupation, Article 43 would apply. After the U. N. Charter was approved in 1945, self-determination was established as a peremptory norm of international law. It has also been argued that Article 103 of the U. N. Charter, dealing with the supremacy of the Charter over other international obligations, is now custom.[31] Moreover, violations of the “right to self-determination” (and no doubt sovereignty) is considered a breach of the international peace, and even the threat or use of force is a breach of the peace. So, the right to self-determination is customary law, and is considered by some authorities as an international breach (thus it is not an internal matter.)
Under the League of Nations (1920- 1946), the right to self-determination was not mentioned, although the idea was present. That is, the idea of the system of mandates or trust existed as an attempt to deal with the rights of the peoples in what the colonial States perceived as underdeveloped nations.[32]
The first paragraph of Article 73 of the U. N. Charter imposed obligations on Member States with regard to the territories under their control. Article 73 imposes responsibility on the Administrative Power for matters such as: (1) cultural, political, economic, social and educational advancement, and just treatment; (2) development of self-government, taking due account of the political aspirations of the people, and assistance to them in the development of their free political institutions; (3) promotion of constructive measures of development;[33] (4) reporting periodically to the Secretary General information relating to the economic, social, and educational conditions in the territories for which they are respectively responsible.
All of these elements are applicable to the case of Puerto Rico. Essential to this case is the respect for the culture, which is at risk if there is an integration into the United States. Moreover, the political and self-determination obligations have not been met, and the social and economic elements have been violated due to the imposition of the PROMESA statute by U. S. Congress without including the right to be represented, vote or oppose any decision taken by the U. S. Congress or government. The “responsibilities for the administration of territories whose peoples have not yet attained full measure of self-government” is still pertinent, and was in place, when the U. S. accepted the membership to the United Nations and signed the U. N. Charter in 1948.
Contrasted with Hawai’i, that was a sovereign State after United Kingdom granted its independence,[34] Puerto Rico had autonomy under Spain in 1897, but Spain still had authority over Puerto Rico. Some have posited the legality of the cession of Puerto Rico to Spain in the Treaty of Paris. Nevertheless, when one compares customary law in the cases of Hawai’i and Puerto Rico, one must consider the nature of the cession. Even though both had a permanent population, a government, and the capacity to enter into foreign relations, Hawai’i was already independent and Puerto Rico was not.
In 1953, the U. S. claimed that it did not have to report anything to the United Nations because Puerto Rico had attained self-government, so Puerto Rico was removed from the List of Territories, thus ending the obligation to report under Article 73(e) of the U. N. Charter.[35]
During 1960’s, independence was being won by the African nations and elsewhere. When the countries that participated in the Tehran Conference approved General Assembly Resolution 1514 (XV)[36] of 1960,[37] the basic instrument for self-determination and independence,[38] the U. S. submitted additional resolutions to counter Resolution 1514 (XV). The counter-resolutions were G. A. Resolutions 1541 (XV)[39] and G. A. Res. 748 (VIII), also to supplant the 1967 referendum as an alleged self-determination and freely chosen status alternative under ELA. Nevertheless, such guidelines (for each status option, that is, integration, autonomy or independence) contained in Resolution 1541 (XV) cannot circumvent the responsibility imposed by Article 73 of the U. N. Charter. Moreover, the test of true self-determination is to ask whether Puerto Rico has the freedom to change its Constitution, do away with PROMESA, and declare unilaterally any political status, without having the approval of the U. S.
Integration implies that an annexation to a different nation or culture would require that the small nation would disappear. When an Administrative Power pretends to annex territories that are not independent or “non-autonomous,” whose population has a distinct culture, language, history, origin, etc., it means that those colonized peoples would have to renounce their culture and their identity.[40] The right to protect their own identity and to choose their own destiny is central to the right of self-determination.[41]
The 1970’s Advisory Opinion of the International Court of Justice (ICJ) regarding Namibia[42] commented on the annexation, notwithstanding U. N. Security Council Resolution 276 of 1970. The ICJ’s opinion determined that annexation of one country with a different culture to the receptor country is prohibited. In paragraphs 42-86, the ICJ based its opinion on stare decisis and the prior South Occidental African cases. The Advisory Opinion cites the mandate’s trajectory during 1950, 1955 and 1956, and the 1962s.[43]
South Africa’s apartheid regime refused to prepare the territory for independence. Nevertheless, the majority of the colonial territories attained independence through the U. N. Trusteeship Council (included in the List of Territories), whose mandate ended in 1994. Palau was the last territory on the List.[44]
The majority of the plebiscites in Puerto Rico have been ignored by the United States, except the one in 2020, which was presented to the U.S. House of Representatives. The vote was 53% in favor of statehood,[45] but even so, the vote was questionable because several people abstained and many votes were irregularly casted. If statehood continues to be the favored option, even statehooders are not sure whether the U. S. will accept their decision. Neither Puerto Rico nor the U. S. government have even started an education campaign so the people can inform themselves of the consequences of each option.
In the international sphere, the U. N. Decolonization Committee has approved numerous resolutions and decisions on Puerto Rico. In June 18, 2021,[46] it approved a decision (adopted without a vote), affirming the Latin American character of Puerto Rico, “which its residents have been able to maintain despite the actions of the colonial power.” It also expressed concern about the imposition of control and economic influence by the United States and repression against activists.[47] The Committee has repeatedly stated that any mechanism or vote on a plebiscite must be free (not under duress or intimidation), and made by well-informed voters.
Recent plebiscites took place during 2022 and 2023. In December 15, 2022, H. R. 8393 (Puerto Rico Status Act) was approved. For the first time, “the U. S. recognized its role as a colonizing force.” (Ocasio-Cortez, 2022, December 15.)[48] The alternatives were between statehood and independence (excluding the territorial ELA alternative.)
The referendum planned for November 2023 includes a free association option, similar to the status of the Marshall Islands and Micronesia, and will be (supposedly) a binding referendum, which is odd for the U.S.,[49] because it has never accepted a binding option which is self-executing.
The examples[50] cited by Professor Keanu Sai in the case of Hawai’i are relevant here. He argued that amerizanization was being imposed by means of denationalization of the Hawai’ian culture.[51] This was the same tactic used against Puerto Rico during the 1940s: forcing a Spanish-speaking people to study all of their courses in English and to pledge allegiance to the U. S. flag (banning the use of the Puerto Rican flag). It displaced most of the population (especially in Vieques and Culebra, two of the populated adjacent islands) and curbed the nationalist and independence movements, among other violations of human rights. Lately, United States nationals and other nationals from Latin American countries have been substituting for Puerto Ricans who have fled the Island, and this has altered the voting patterns, favoring more conservative (statehood) options.
The argument that Puerto Ricans want to maintain the current colonial status or, that they want to be a part of the United States and lose their identity and culture, does not take into consideration the years of false information that statehooders have been promoting — “la estadidad jíbara”– which is the equivalent of a “creole statehood” made especially for Puerto Ricans to fit inside the federal system. This violates the doctrine of equality of states in the U.S. Constitution,[52] and is contrary to Article 73 of the United Nations Charter.
Establishment of ELA and the 1967 plebiscite (1952- 1967)
In 1952, the so-called Commonwealth of Puerto Rico (Estado Libre Asociado) was supposed to be a self-government alternative. In 1953, the ELA was presented at the United Nations by the U. S. — and by then-governor of Puerto Rico Luis Muñoz Marín — as a form of autonomous political status. Their purpose was to avoid having to report to the United Nations under the Charter. Although Puerto Rico gets to elect its governor, the power of almost all important decisions rests with the U. S. Government. The ELA used to have benefits for corporations (since 1945) with a program of “industralization by invitation.” It started with partial tax-exemptions, including federal exemptions, and buildings available for use by corporations at a lower rent or sale, among other benefits. In 1947, the Law of Industrial Incentives was approved which totally exempted corporations from local and federal taxes, property tax, patent and trademarks, lower interests for loans, etc.[53] This package of incentives was supposed to end in 1960’s, but actually ended during the 1990’s.
ELA’s territorial status was upheld in the 1967 plebiscite, reaffirming the Estado Libre Asociado.[54] After the 1967 plebiscite,[55] there were some attempts by the different political tendencies (integration or annexation, autonomism, and independence) before the U. S. Congress to clarify the colonial status of Puerto Rico. The next plebiscite took place in 1989. There were also some Oversight Hearings[56] to discuss and resolve the issue, but those solutions were not accepted by Congress because no common ground was agreed upon and voting patterns in the plebiscites had been inconsistent. It was not clear what Congress was willing to accept as an option, not even in the procedural phase.
The Puerto Rico Status Referendum Act (Senate Bill No. 712), proposed from 1989 to 1991 by Senator Bennett Johnston (D-La.), started the discussion. This was followed by Senator Ron Widen (D-OR) in 2013, to deal with the referendum of 2012.[57] Nevertheless, at this point, a change in the voting pattern had occurred. People rejected territorial status, which used to have majority support.
The United States had no choice but to accept that Puerto Rico was, in fact, a colony in three reports by the White House in 2005, 2007, and 2011.[58] This was contrary to what was presented in 1953 to the international community — that Puerto Rico had attained self-government.[59] This also contradicted what statehooders believed, i. e., that the U. S. Congress was not willing to give a slight advantage to the statehood option, in spite of what the statehooders claimed had happened in the 2012 referendum vote — that there was a clear and overwhelming majority of the votes in favor of statehood.
In August 25, 2020, U. S. Representatives Alexandria Ocasio-Cortez and Nidia M. Velasquez from New York proposed the Puerto Rico Self-Determination Act of 2020. It aimed “To recognize the right of the People of Puerto Rico to call a status convention through which the people would exercise their natural right to self-determination, and to establish a mechanism for congressional consideration of such decision, and for other purposes.”[60]
Former Governor (2005-2009) Aníbal Acevedo Vilá, who was also Puerto Rico’s Commissioner (2001-2005) to the U. S. Congress, referred to the exclusion of the Commonwealth (ELA) option in another bill that followed. House Bill 8393, approved in the House during the last months of 2022, said that such exclusion of the “territory” option was none other than the “colonial option, which nobody wants anymore.”[61] Acevedo’s version is an interpretation of some in the more progressive section of the Popular Democratic Party, although it is not supported by the majority of that Party.
After decades of ambiguity, finally, in a 2012 plebiscite, the territorial status of Puerto Rico was rejected. In 2017, statehood[62] started to be the favorite option, but by only half a million votes (of those voting) of the 2.6 million eligible voters.[63] At that time, ELA was also questioned by Congress, the White House, and the U. S. Supreme Court. The people of Puerto Rico began to note the colonial status of the Commonwealth, but were left without options. On the other hand, the claim that the statehood or annexation option in the 2012 plebiscite was overwhelmingly favored by Puerto Ricans is to manipulate the results. In international law — the integration option — is invalid when one considers the distinct culture of the Puerto Rican people.[64]
The Puerto Rico Bar Association and other NGOs have recommended other procedural options besides plebiscites. The Bar Association has consistently proposed a Constitutional Status Commission, although this option has been discarded by the majority of the people of Puerto Rico, probably because it has not been explained clearly. Also, many who favor independence believe that the Constitutional Status Commission includes the annexation option; thus, it is invalid because annexation is not a form of self-determination.
Bankruptcy and the Oversight Board (Junta de Control Fiscal): Another Tier of Colonialism (2016-2023)
The U. S. government has added another insult to the people of Puerto Rico: the imposition of a “colonial Junta” or Fiscal Control Board, which is eroding what was left of the system of checks and balances.
The federal statute called P.R.O.M.E.S.A. that established the Oversight Board, which was approved by the U. S. Congress,[65] imposes undue hardship to the people of Puerto Rico. It represents more taxes and tariffs on everyday commodities, in order to protect the vulture funds.
The U. S. and Puerto Rico’s governments are opposed to re-examining the debt, but they want to continue imposing taxes and surcharges on basic necessities (electricity, water, communications, etc.) Moreover, the Cabotage Laws[66] have not been repealed; thus, Puerto Rico is being held hostage to the two or three shipping companies that control the merchant marine industry.
The United States, as an Occupying Power, has a duty under Article 73 of the U. N. Charter to restore the economic and political system to a self-sustaining and non-territorial alternative. The U.S. cannot plausibly argue that it is not responsible for the economic and social crisis because it established a system of exploitation[67] using the franchises, bonds, and corporate frameworks to favor U. S. corporations. One need only examine the history of the sugar trusts[68] in the 1900’s that operated in the Caribbean, and a Wall Street system whose main staple (sugar) and commodities flourished due to the resulting profits, at the expense of the Caribbean colonies.[69] Today, the vulture funds are waiting for an easy return on their investment.
From 1900 to 1940, the United States colonial administrations provided for a sugar plantation economy that was friendly to U. S. corporations.[70] Moreover, by the mid-1970s, the U. S. government had bailout and incentives packages for U. S. corporations.[71] This is still being funded by the Puerto Rican taxpayers.
Conclusion
Even though Puerto Rico had more powers under the Carta Autonómica from Spain than it has with today’s Estado Libre Asociado, the ultimate decisions under both colonial regimes were still made by the Spanish Crown and government, and today by the U. S.
Under the United States, it is not only the Insular Cases which reaffirm that in spite of claims of self-government, Puerto Rico has no decision-making power. Contrary to what was presented in 1953 in G. A. Resolution 748(VIII)), the U. S. has admitted in two Interagency Reports in 2005 and 2007, that Puerto Rico is a colony.
From the invasion in 1898, to the establishment of the Organic Laws Foraker Act of 1900, and Jones Act of 1917, and onwards, the U. S. government has imposed tariffs and restrictions on Puerto Rico. Tariffs were imposed on the people, but corporations were exempted from insular and federal taxes, and were granted loans with low or no interest. Corporations also had other incentives under ELA’s “industrialization by invitation” or Operation Bootstrap. Restrictions under the Cabotage Laws (and Commerce Clause) are also a burden on the common people.
Puerto Rico has had an array of referenda and plebiscites, although none have been conclusive. People have voted traditionally to retain the status quo, until 2012, when they started to vote for statehood or integration. The integration alternative, although part of the guidelines contained in G. A. Resolution 1541 (XV) of 1960,[72] would mean a setback of the preservation of Puerto Rican culture. The Namibian Advisory Opinion of 1971 clearly affirms that integration is not possible in cases of colonial regimes. Moreover, the U. N. Security Council in 1970 called for an end South Africa’s administration of the territory (Namibia), and determined that the Administrative Power was outside its mandate.[73]
Article 73 of the U. N. Charter imposes obligations on Member States with regard to the territories under their control. Such article imposes responsibility on the Administrative Power (U. S.) for cultural, political, social and educational matters, among others.[74]
Finally, the U. S. — as an Administrative Power — must guarantee that people in the “territory” under its administration not only make an informed opinion when voting in the plebiscites or referenda, but also that there is fair treatment when the Puerto Rican people are trying to self-determine or develop themselves. At this moment, Puerto Rico is more dependent, poorer, and its people are more uninformed and misinformed than ever. The P.R.O.M.E.S.A. statute and vulture funds are squeezing what is left of profits, and have disrupted the checks and balances of the branches of Puerto Rico’s government. Moreover, the people are struggling and paying an illegal debt that imposes more taxes and restrictions on everyday life in Puerto Rico. This situation is not, and never will be, conducive to development or to resolving the status question.
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Pizá Batiz, Joel, Opinión: El ELA, aún ganando Sánchez-Valle, no podía celebrar, 14 junio 2016, Ed. Microjuris.com Puerto Rico.
Puerto Rico v. Franklin California Tax-Free Trust, et al., cert. granted, Dec. 4, 2015 (Docket No. 15-233) (unreported cases).
Puerto Rico Oversight, Management, and Economic Stability Act of June 30, 2016 (P.R.O.M.E.S.A.), Pub. L. No. 114-187, 130 Stat. 549, 48 U.S.C. § 2101 (2016).
Puerto Rico Self Determination Act of 2020, H.R. 8113, 116th Congress, 2d Session (2019-2020).
Puerto Rico v. Valle, 579 U. S. ___ (2016).
Quintero Rivera, Angel G. (1975), La Clase Obrera y el Proceso Politico en Puerto Rico: la desintegración de la política de clases, I Revista de Ciencias Sociales 19 (3), in Padín, Jose Antonio, Imperialism by Invitation: Causes of a Failed Developmental State Project in Puerto Rico, 1940-1950, submitted to the Graduate School of the University of Wisconsin-Madison in partial fulfillment of the requirements for the degree of Doctor of Philosophy.
Ramos, Carlos E., Sánchez Valle v. Commonwealth of Puerto Rico, Tribuna Invitada, Periódico El Nuevo Día, 10 de junio de 2016.
Ramos de Santiago, Carmen (comp.), El desarrollo constitucional de Puerto Rico, Documentos y Casos, 2da. ed. rev. (1985).
Reports by the President’s Task Force on Puerto Rico Status, Dec. 2005, and Dec. 2007.
Rivera Vargas, Daniel, Lupa desde la academia a las leyes de cabotaje. (2022, September 26). Microjuris.com Al Día, https://aldia.microjuris.com/2022/09/26/lupa-desde-la-academia-a-la-ley-jones/
Sai, Keanu & Federico Lenzerini, Webinar on War Crimes and the U.S. Occupation of Hawai’i, International Association of Democratic Lawyers [Video], January 10, 2021.
Serrano Geyls, Raúl, 1, 3 Derecho constitucional de los Estados Unidos y Puerto Rico (1986).
Status of Puerto Rico. Report of the United States Puerto Rico Commission on the Status of Puerto Rico, August 1966.
Stromberg, Childers, Kristen, Seeking Imperialism’s Embrace: National Identity, Decolonization, and Assimilation in the French Caribbean (2016).
The Editors of Encyclopaedia Britannica, rev. by Melissa Albert, “Hague Conventions, International Treaties, 1899, 1907,” https://www.britannica.com/event/Hague-Conventions.
Trías Monge, José, 1 Historia constitucional de Puerto Rico (1980);
United Nations Charter, Chapter XI: Declaration Regarding Non-Self-Governing Territories, Articles 73 & 74, https://www.un.org/en/about-us/un-charter/chapter-11
United Nations, Peace, Dignity and Equality on a Healthy Planet: Trusteeship Council, https://www.un.org/en/about-us/trusteeship-council.
[1] Real Audiencia Territorial de Puerto Rico was created in June 19, 1931 by Royal Decree (Real Cédula), but in force in 1832. See, Archivo General de Indias de Sevilla, Audiencia de Santo Domingo 2338; Cayetano Coll y Toste, Boletín histórico de Puerto Rico, 14 vols. (1914-27); Archivo General de Puerto Rico, Audiencia Territorial Real Acuerdo, Caja 1, Exp. 1, Legajo 1 (1932); Autos acordados de la Real Audiencia de la Isla de Puerto Rico (1957) folio 7; Joaquín Rodríguez San Pedro: Legislación Ultramarina, 16 vols. (1860), vol. VII, 59-61, in Gerardo A. Carlo-Altieri, Justicia y gobierno. La Audiencia de Puerto Rico (1831-1861), (2007).
[2] Jones v. U. S., 137 U. S. 202 (1890), in Lyman J. Gould, La Ley Foraker, raíces de la política colonial de los Estados Unidos 59 (1969, 1975).
[3] Laws and Customs of War on Land (Hague IV), of October 18, 1907, and the previous convention (Hague, 1899) dealt with the laws and customs of war. Specifically, article 43, Annex to the Convention (Regulations Respecting the Laws and Customs of War on Land, Section III, Military Authority over the Territory of the Hostile State, is pertinent because it requires that the Occupant State ensures public order and safety, while respecting the laws in force of the Occupied country. The United States participated in the first 1899 Hague Conference (from May 18 to July 29, 1899), and in the 1907 Hague Conference. In fact, the 1907 Conference was proposed by U. S. President Theodore Roosevelt, but was later convened by Russia’s Nicholas II. It took place from June 15 to October 18, 1907, and there were 44 States that took part of this Conference. See, The Editors of Encyclopaedia Britannica, rev. by Melissa Albert, “Hague Conventions, International Treaties, 1899, 1907”, https://www.britannica.com/event/Hague-Conventions.
[4] R. Garzaro, Puerto Rico, una nación en busca de Estado 47-51 (1974).
[5] R. Bothwell & L. Cruz Monclova, Los documentos… ¿qué dicen? 336-337 (1974). See, also, Carta Autonómica, 1 Laws of Puerto Rico Annotated.
[6] Keanu Sai & Federico Lenzerini, Webinar on War Crimes and the U.S. Occupation of Hawai’i. International Association of Democratic Lawyers, January 10, 2021. See, also, Kamrul Hossain, The Concept of Jus Cogens and the Obligation Under The U. N. Charter, 3 Santa Clara J. Int’l L. 72 (2005). http://digitalcommons.law.scu.edu/scujil/vol3/iss1/3.
[7] Zahira Cruz (rev. Lizette Cabrera Salcedo), La Carta Autonómica de Puerto Rico, 1897, Enciclopedia Puerto Rico (2014, 2021), https://enciclopediapr.org/content/la-carta-autonomica-de-1897/
[8] Foraker Act (1900) and Jones Act (1917), Act 600, compiled later in the Federal Relations Act of 1950, 48 USC §§ 731, et seq. Neither the military nor the federal surveillance have left the Island and are still in the different federal buildings and installations (FBI, etc.).
[9] Diana L. Dick, U. S. Tax Imperialism in Puerto Rico, 15(1) Am. Univ. L. Rev. 1-86 (2016), although it does not include the ones that the Fiscal Control Board has been imposing because the article was published before the Junta de Control Fiscal was imposed.
[10] Daniel Rivera Vargas, Lupa desde la academia a las leyes de cabotaje. Microjuris.com Al Día (2022, September 26), https://aldia.microjuris.com/2022/09/26/lupa-desde-la-academia-a-la-ley-jones/
Cabotage Laws are still in force. That means that all maritime transportation between Puerto Rico and the U. S. must be with U. S. vessels exclusively, under the Merchant Maritime Act of 1920, as per an amendment to the Jones Act of 1917. The Jones Act amendment of 1921 imposed the requirement of the U. S. crew. See, Daniel Nina, Puerto Rico and the United States Under the Cabotage Laws: A Breach to the World Trade Organization’s Member Agreement? 21(2) Forum Empresarial 59-78 (2016).
[11] Plessy v. Ferguson, 163 U. S. 537 (1896).
[12] The Insular Cases affirm that Puerto Rico belongs to the U. S. as a territory, but is neither a state nor part of the United States.
[13] Manifest Destiny (1600-1900) was an idea that proclaimed American exceptionalism. It was based on a mission, purpose and destiny with a “sense of racial superiority in their blood, [mowing] down everybody in their way.” Review by David C. Hendrickson of Anders Stephanson’s Manifest Destiny: American Expansion and the Empire of Right, Foreign Affairs (March/April 1996), https://www.foreignaffairs.com.
[14] Gerald L. Neuman & Tomiko Brown-Nagin, eds. Puerto Rico and the United States at the Crossroads, Reconsidering the Insular Cases. The Past and Future of the American Empire.
Human Rights Program, Harvard Law School 183-212, 194 (2015).
[15] Downes v. Bidwell, 182 U.S. 244 (1901).
[16] Harris v. Rosario, 446 U.S. 651 (1980).
[17] Department of Justice, Report by the President’s Task Force on Puerto Rico Status (2005 & 2007).
[18] The Commonwealth of Puerto Rico v. Sánchez Valle & Gómez Vázquez, U. S. Supreme Ct., Case No. 15-108; and, The Commonwealth of Puerto Rico v. The California Tax-Free Trust, et al., cert. granted, Dec. 4, 2015 (No. 15-233) (unreported cases).
[19] Christina D. Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L. J. 2390 (2022), https://scholarship.law.columbia.edu/faculty_scholarship/3658.
[20] From Downes v. Bidwell, 182 U.S. 244 (1901), to Harris v. Rosario, 446 U.S. 651 (1980), The Insular Cases have been unaltered, as it refers to Puerto Rico’s territorial status and its non-incorporated status. Gustavo A. Gelpí, The Constitutional Evolution of Puerto Rico and Other U. S. Territories (1898- Present), (2017).
[21] Federal Relations Law of 1950, 48 USC §§ 731, et seq.
[22] Commonwealth of Puerto Rico v. Sánchez Valle, et al., Case No. 15-108, 579 U. S. ___ (2016). The Majority Opinion delivered by Justice Kagan determined that Puerto Rico did not have a separate jurisdiction in criminal cases, and that 1952 status did not change that fact. Joel Pizá Batiz, Opinión: El ELA, aún ganando Sánchez-Valle, no podía celebrar, 14 junio 2016, Ed. Microjuris.com Puerto Rico. See, also, J. Pizá, Supremo federal confirma al supremo de Puerto Rico en Pueblo v. Sanchez-Valle, 7 de junio de 2016, https://aldia.microjuris.com/2016/06/09/supremo-federal-confirma-al-supremo-de-puerto-rico-en-pueblo-v-sanchez-valle/.
Sánchez Valle basically reaffirmed the Insular Cases. Commentators have called the Insular Cases racist. See, Daniel Rivera Vargas, Describen jurisprudencia ‘frustrante’ que ilumina la realidad colonial. Microjuris.com Al Día (June 6, 2023). https://aldia.microjuris.com/2023/06/06/describen-la-jurisprudencia-frustrante-que-ilumina-la-realidad-colonial/.
[23] Commonwealth of Puerto Rico v. The California Tax-Free Trust, et al., cert. granted, Dec. 4, 2015 (No. 15-233) (unreported cases).
[24] Reports by the President’s Task Force on Puerto Rico Status, Dec. 2005, and Dec. 2007.
[25] Carmen Ramos de Santiago (comp.), El desarrollo constitucional de Puerto Rico, Documentos y Casos, 2da. ed. rev. (1985).
[26] Vicente Géigel Polanco, La farsa del Estado Libre Asociado, at 21 (1974).
[27] Raúl Serrano Geyls, 1, 3 Derecho constitucional de los Estados Unidos y Puerto Rico, at 482 et seq. (1986). See, also, José Trías Monge, 1 Historia constitucional de Puerto Rico 164 (1980).
[28] Charles C. Langdell, Status of Our New Territories, 12 Harv. L. Rev. 365 (1899); Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and government by the United States of Island Territory, 12 Harv. L. Rev. 155 (1899); Simeon E. Baldwin, The People of the United States, 8 Yale L.J. 159 (1899). In: Carlos Iván Gorrín Peralta, “Constitucionalismo colonial y autodeterminación de Puerto Rico,” XVII Conferencia Continental de la Asociación Americana de Juristas, Facultad de Derecho de la Universidad de la Habana, 25 de noviembre de 2016; íd., Past, Present and Future of U.S. Territories: Expansion, Colonialism and Self-Determination, 46 Statson L. Rev. 233 (2017); and LI Rev. Jur. U.I.P.R. 7-36 (2016-17).
[29] K. Sai & F. Lenzerini, IADL Webinar, Jan 10, 2021.
[30] Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention (II) of 1899 and (IV) of 1907.
[31] Hossain, 72.
[32] Navdeep Kour Sasan, League of Nations and Self-Determination, 3 GNLU J. L. Dev. & Pol. 139 (2013).
[33] Article 73 of Chapter XI (Declaration Regarding Non-Self-Governing Territories), Charter of the United
Nations and Statute of the International Court of Justice, U. N. Department of Public Information
(1994).
[34] Sai and Lenzerini, IADL Webinar…, supra.
[35] U. N. G. A. Resolution 748(VIII) of 1953-54, A/RES/748(VIII), Cessation of the Transmission of Information under Article 73e of the Charter in Respect to Puerto Rico, https://digitallibrary.un.org.
[36] General Assembly Resolution 1514(XV) of 14 December 1960, Declaration on the Granting of Independence to Colonial Countries and Peoples, A/RES/15/1514.
[37] Declaration 2625(XXV) of 1970 (Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations) (A/8082), adopted by the General Assembly on October 24, 1970; in addition to the Teheran Proclamation, Conferencia Internacional de Derechos Humanos, Teherán, May 13, 1968, reaffirming the Universal Declaration of Human Rights on self-determination.
[38] Ian Brownlie y Gros Espiel comment that self-determination is already jus cogens or a peremptory norm of international law, in Antonio Cassese, Self-determination of Peoples, A Legal Reappraisal (1995), at p. 152.
[39] U. N. G. A. Resolution 1541 (XV), of December 15, 1960, titled “Principles which should guide members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter” (A/RES/1541(XV)).
[40] 1950 Advisory Opinion on the International Status of South Western Africa, ICJ Reports 1950, at 131. Also, Article 103 of the UN Charter notes possible conflicts between the international obligations and said Charter. Nevertheless, the Charter prevails. See, Chapter XVI, Article 73, U.N. Charter; and, Resolution 48 (Precedence of Charter over other Treaty Obligations).
[41] T. M. Franck, Postmodern Tribalism and the Right to Secession, Catherine Brölmann, Renè Leféberm and Marjoleine Zieck, Peoples and Minorities in International Law (1993), at 20, in Emilio J. Cárdenas & María F. Cañas, The Limits of Self-Determination, Wolfgang Danspeckgruber, ed., The Self-Determination of Peoples. Community, Nation, and State in an Interdependent World (2002), at 115.
[42] Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, International Court of Justice (ICJ), 21 June 1971, https://www.icj-cij.org.
[43] Cárdenas & Cañas, The Limits of Self-Determination, Wolfgang Danspeckgruber, ed., supra.
[44] United Nations, Peace, Dignity and Equality on a Healthy Planet: Trusteeship Council, https://www.un.org.
[45] Kohli, Anisha. U. S.- Puerto Rico. House Passes Bill that Would Allow Puerto Rico to Vote on its Statehood or Independence. Time.com (2022, December 17).
[46] United Nations Meetings Coverage and Press Releases, Special Committee on Decolonization Approves Resolution Calling upon the United States to Promote Process for Puerto Rico’s Self-Determination, Eventual Independence, GA/COL/3360, 20 June 2022.
[47] The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples was formally known as the Special Committee on the Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. It approved the annual draft resolutions titled, “Information from Non-Self-Governing Territories transmitted under Article 73(e) of the Charter of the United Nations.” The June 18, 2021 decision was presented on June 18, 2021, and approved without a vote on the 20th of June 2022 as: “Decision of the Special Committee of 18 June 2021 concerning Puerto Rico.” (Doc. A/AC.109/2022/L.7).
[48] Al Jazeera, U. S. House Approves Referendum on Puerto Rico’s Future Al Jazeera News/Politics (2022, December 15).
[49] Paula Dupraz-Dobias. Democracy, Puerto Rico Prepares to Possibly Become New US State. SWI Swissinfo.ch (2023, January 23).
[50] Professors Keanu Sai and Federico Lenzerini argue against the legitimacy and the continuity of the State of Hawaii, based on various sources including the Larsen v. Hawaiian Kingdom case (PCA case #1999-01). Basically, they said that it was already a State by the time of occupation, as recognized by other States including the United States. See, K. Sai & F. Lenzerini, Webinar on War Crimes and the U.S. Occupation of Hawai’i, with Dr. Keanu Sai and Prof. Federico Lenzerini, IADL, January 10, 2021. The main difference between the Hawaiian case and that of Puerto Rico is that Hawai’i was a State with international recognition by other countries when the U. S. invaded and later annexed it. Also, the United Kingdom had granted independence to Hawai’i. Afterwards, the U. S. did not comply with the treaty made with the Queen and illegally annexed Hawai’i by a Joint Resolution of the U. S. Congress.
[51] Id., IADL Webinar, January 10, 2021.
[52] JUSTIA, US Law, US Codes and Statutes, US Constitution Annotated, Article IV. States’ Relations, “Doctrine of Equality of States.” https://law.justia.com/constitution/us/article-4/15-doctrine-of-the-equality-of-states.html.
[53] James L. Dietz, Historia económica de Puerto Rico 227-229 (2007).
[54] Estado Libre Asociado was the first alternative with 425.132 (60,4 % of the vote). See, Anderson, Robert W. Gobierno y partidos políticos en Puerto Rico, 263, et seq. (1973).
[55] Status of Puerto Rico. Report of the United States Puerto Rico Commission on the Status of Puerto Rico, at 6, 8 (August 1966).
[56] Rodríguez Orellana, 58.
[57] Id.
[58] Id.
[59] I established in a previous article that the U. S. had lied to the international community and violated its mandate as an Administrative Power. See, Dinorah La Luz Feliciano, The Case of Puerto Rico under the UN Charter, International Association of Democratic Lawyers Review 1(2) (June 2016).
[60] Puerto Rico Self Determination Act of 2020, H. R. 8113, 116th Congress, 2d Session (2019-2020).
[61] Aníbal Acevedo Vilá, Punto de vista, El Nuevo Día, April 27, 2023.
[62] Not the real statehood, but one that would fit public opinion, that is, a special statehood — “estadidad jíbara” — which is a statehood geared to attract the Puerto Rican vote. This special statehood does not exist, and it has never been explained to Puerto Ricans.
[63] Other plebiscites had taken place in 1993, 1998 and 2012, where the ELA had been chosen or, at least there were also many abstentions and confusion.
[64] The U. S. is a Member of UNESCO; most of the rights guaranteed in the UNESCO Convention of 1972 are already part of the legislation that protects cultural rights, to wit, Convention on Cultural Property, 19 USC secs. 2600, et seq. Moreover, UNESCO’s Cultural Diversity Declaration states that cultural diversity is inseparable from human dignity. (General Conference, Session 31 of 2001.) The UN Declaration on Human Rights also guarantees fundamental rights like, for example, the right to enjoy cultural life. The International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights protect culture and languages. The OAS Charter and the American Declaration on Human Rights guarantee fundamental rights such as enjoyment and participation in cultural life. An example of an unfortunate cases are Martinique, Guadalupe, French Guyana, Mayotte and Réunion’s integration into France as “Départements.” At least in the case of Martinique, in 1946, Aimée Césaire had regrets on integration to France, because the social and economic integration had not been what was expected by the Caribbean nations. Aimée Césaire, an important political and literary figure, expressed regrets at having to choose that path. Kristen, Stromberg Childers, Seeking Imperialism’s Embrace: National Identity, Decolonization, and Assimilation in the French Caribbean, 2 (2016).
[65] Puerto Rico Oversight, Management, and Economic Stability Act,48 U.S.C. Ch. 20, https://uscode.house.gov/view.xhtml?path=/prelim@title48/chapter20&edition=prelim. See, also, Carlos I. Gorrín Peralta, Constitucionalismo colonial y autodeterminación de Puerto Rico, American Association of Jurists Continental Assembly of 2016. Carlos E. Ramos, Sánchez Valle v. Commonwealth of Puerto Rico, Tribuna Invitada, Periódico El Nuevo Día, 10 de junio de 2016, and by the same author, Puerto Rico and the United States at the Crossroads, Reconsidering the Insular Cases. The Past and Future of the American Empire. See, also, Gerald L. Neuman & Tomiko Brown-Nagin, eds., Puerto Rico and the United States at the Crossroads, Reconsidering the Insular Cases. The Past and Future of the American Empire, Human Rights Program at Harvard Law School, 2015, 183-212, 194.
[66] Since 1817, there was a prohibition against using merchants, crew, and ports other than United States. Rosanna López León, Comisión de Derechos Civiles, Participación Ciudadana y Economía Social. Resumen Ejecutivo sobre Informe Final a la Resolución del Senado Núm. 237, “Cabotaje: muralla al desarrollo económico. (Ley de Marina Mercante de 1920).”
[67] Puerto Rico had to reimburse funds received. U. S. Stat., Vol. 31 (1900-1901), 56th Congress.
[68] From 1890 to 1891, the prize wars of small sugar refineries in the U.S. led to a sell-out to companies known as the Sugar Trust. This conglomerate had nine refineries locally and 11 in the rest of the U. S., and controlled 75% of the sugar. Before 1888, New Jersey started consolidating companies and the laws were changed to favor consolidation, through the acquisition of stocks in other corporations. William R. Compton, Early History of Stock Ownership by Corporations, 9 The George Washington Law Review 125 (1940), in Lawrence M. Friedman, History of American Law, 2d. ed. Simon & Schuster 520 (1985). With the passing of the New Jersey Act of 1896, banks and insurance companies merged. Laws of New Jersey 1896, ch. 185, sec. 6, p. 279, in Friedman, íd., 464. For an explanation of the corporate internal arrangements, see Morton J. Horwitz, The Transformation of American Law, 1870-1960. The Crisis of Legal Orthodoxy, (1992).
[69] Peter James Hudson, Bankers and Empire. How Wall Street Colonized the Caribbean (2017). See, also, Dinorah La Luz Feliciano, Los 500 acres en las Leyes Foraker, Jones, Ley de Tierras y su impacto en los sectores agrícolas, 1900- 1950, Exégesis 5-6, Segunda Época (forthcoming, December 2023).
[70] Ángel Quintero Rivera, La Clase Obrera y el Proceso Político en Puerto Rico: la desintegración de la política de clases, I Revista de Ciencias Sociales 19 (3), (1975), in José Antonio Padín, Imperialism by Invitation: Causes of a Failed Developmental State Project in Puerto Rico, 1940-1950, submitted to the Graduate School of the University of Wisconsin-Madison in partial fulfillment of the requirements for the degree of Doctor of Philosophy.
[71] Pantojas García (1993), in Jose Antonio Padín, Imperialism by Invitation: Causes of a Failed Developmental State Project in Puerto Rico, 1940-1950, 127-128 (1998).
[72] U.N.G.A. Res. 1541(XV), of 1960.
[73] Advisory Opinion on Namibia (ICJ), 1971.
[74] Article 73 of the U. N. Charter.
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