Revisiting Puerto Rico’s Political Status: The Puerto Rico v. Sánchez Valle Case and its Implication in Contemporary International Law

By Carlos Andrés Pagán

Recently, Prof. Philip Alston, the United Nations Special Rapporteur on extreme poverty and human rights, visited Puerto Rico to assess the island’s situation after the passing of Hurricane María.[1] Some hope, that as result of the Rapporteur’s historical visit, a discussion on Puerto Rico’s political status might make its way to the U.N. General Assembly’s agenda, especially after the recent decision of the Supreme Court of the United States (SCOTUS) in Puerto Rico v. Sanchez Valle.[2]

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In the above case, decided last year, a six-justice majority of the Court determined that the Commonwealth of Puerto Rico[3] and the federal government are not separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.[4] As a result, SCOTUS concluded that Puerto Rico is still only a U.S. territory—a non-sovereign with limited authority over its affairs and still subject to Congress’s plenary powers under the “Territory Clause” of the U.S. Constitution.[5] The Court’s opinion raised many questions and concerns, both domestically and abroad, about the political relationship between the U.S. and Puerto Rico. Within the boundaries of international law, one of the issues the U.S. now needs to explain to the international community is why it has maintained a territory lacking meaningful self-government for over six decades, in apparent violation of Article 73 of the U.N. Charter.

The adoption and ratification of U.N. Charter created many obligations for Member States. One of those obligations pertains to territories, administered by a Member, whose peoples have not yet attained a full measure of self-government. Specifically, Article 73e of the Charter of the United Nations requires any country in charge of a non-self governing territory to transmit information to the U.N. periodically on the political and economic conditions prevailing in that territory. At the time of its adoption,[6] in the case of the U.S., its responsibilities included informing on American Samoa, Hawaii, Guam, the Panama Canal Zone, Puerto Rico, Trust Territory of the Pacific Islands, and the United States Virgin Islands.

Furthermore, in 1948, during its third session, the General Assembly adopted Resolution 222, titled Cessation of the Transmission of Information under the Article 73e of the Charter.[7] This resolution required Member States to inform the U.N. Secretary General, within six months, of any change in the constitutional position and status of a non-self governing territory as a result of which the responsible Government concerned thought it unnecessary to continue sending information with respect to that territory under Article 73e.

The discussions regarding the Commonwealth of Puerto Rico’s case at the U.N. occurred before three bodies: the Committee on Information on Non-Self-Governing Territories, the Fourth Committee, and the General Assembly.[8] From the start, there was considerable objection, both as to whether Puerto Rico had ceased being a colony and about the desirability of discontinuing receiving information under article 73e of the U.N. Charter in this case.[9] The debate concentrated on the meaning of the new Commonwealth status and whether its attainment brought a fundamental change to Puerto Rico’s colonial status. When the discussions about Puerto Rico’s case finally reached the General Assembly, opposition to the proposal that information on Puerto Rico should cease under Article 73e was still noticeably high.[10]

On November 27, 1953, the General Assembly approved by a vote of 26 in favor of the U.S. position, 16 against, and 18 abstentions, Resolution 748 (VIII), that the transmission of information on Puerto Rico under article 73e should cease. The resolution stated that, “the people of the Commonwealth, by expressing their will in a free and democratic way, have achieved a new constitutional status.” In the resolution, the General Assembly recognized that:

in the framework of their Constitution and their compact agreed upon with United States of America, the people of Puerto Rico have been vested with attributes of political sovereignty which clearly identify the status of the self-government attained by the Puerto Rican people as that of an autonomous political entity.[11]

Due to these developments, the General Assembly concluded that Article 73 of the U.N. Charter no longer applied to Puerto Rico. Notably interesting is that, in paragraph 9 of Resolution 748 (VIII), the Assembly expressed its assurance that “due regard would be paid in the eventuality that either of the parties to the mutually agreed association might desire any change in the terms” of their new association.

The same day that the U.N. General Assembly removed Puerto Rico from the list of non-self-governing territories, it also approved Resolution 742.[12] Resolution 742 enumerated the factors that should be taken into account in determining whether a territory is non-self governing, or in other words, whether a territory’s people have not yet attained a full measure of self-government. José Trías Monge stated that “the Puerto Rican case had just been decided and was not analyzed in the light of this list.”[13]  The resolution states that “the manner which territories can become fully self-governing is primarily through the attainment of independence” but also provides that territories could achieve self-government “by association with another State or group of States if done freely and on the basis of absolute equality.” The resolution also sets forth the constitutional framework of the central authority with regard to the territory associated by treaty or bilateral agreement. These include: (i) whether constitutional guarantees extend equally to the associated territory; (ii) whether there are powers that are constitutionally reserved to the territory or to the central authority; and (iii) whether there is a provision for the equal participation of the territory in any changes in the constitutional system of the State. Resolution 742 further noted that the territory should be free to modify its associated status through the expression of the associated will of the people by democratic means.

On December 14, 1960, the General Assembly approved Resolution 1514 (XV), also known as the Declaration on the Granting of Independence to Colonial Countries and People, which declared the inalienable right of all peoples to independence and called for an unconditional end to colonialism in the world.[14] The resolution was adopted by a vote of 89-0, with nine abstentions–including that of the United States. One day after, on December 15, 1960, the General Assembly adopted Resolution 1541 (XV).[15] In the latter, the General Assembly further defined the three alternatives in which a non-self governing territory can achieve full measure of self-government: independence, free association with an independent State,[16] and integration with an independent State.

In 1961, the General Assembly established a committee to monitor the implementation of Resolution 1514 (XV). The committee, popularly known as the Decolonization Committee or Committee of Twenty-Four, is also a successor to the former Committee on Information from Non-Self-Governing Territories, with which it was merged in 1963. On August 18, 1972, said committee passed a resolution introduced by Iraq recognizing “the inalienable right of the people of Puerto Rico to self-determination and independence in accordance with General Assembly resolution 1514 (XV) of 14 December 1960”.[17]  The committee resolved to ask its Working Group to look into the procedure that should be followed for the resolution to be complied with.[18] The vote was 12-0, with ten abstentions. From 1973 to 1977 the Decolonization Committee approved annual resolutions “reaffirming ‘the inalienable right of the people of Puerto Rico to self-determination and independence,’ requesting that the United States abstain from taking any steps to impede the exercise of such rights, and deciding to keep the matter under permanent review”.[19]

In 1980, the General Assembly held a special commemorative meeting on the occasion of the twentieth anniversary of the Declaration on the Granting of Independence to Colonial Countries and People, where the body adopted a Plan of Action reasserting its commitment for the complete eradication of colonialism around the world.[20] The resolution declared that the continuation of colonialism in all its forms and manifestations was incompatible with the U.N. Charter, Resolution 1514 (XV), and the general principles of international law. The resolution requested all nations to provide assistance to the peoples “under colonial domination in their struggle to exercise their right to self-determination”.[21]

Following these events, in 1981, the Decolonization Committee approved a resolution recommending for the first time since Puerto Rico was removed from the list of non self-governing territories in 1953 that the issue be again debated in the General Assembly.[22] In 1982, the Committee approved a similar recommendation. Although the United States was able to defeat both proposals at the General Assembly, the voting results showed that, even back then, a significant part of the international community understood that the topic should be addressed. [23]

Over the past four decades, the Decolonization Committee has agreed on more than thirty-five resolutions and decisions on Puerto Rico.  In the most recent one, dated June 19, 2017, the Decolonization Committee unanimously approved a resolution that called again on the U.S. “to assume its responsibility to expedite a process that would allow the people of the island to fully exercise their inalienable right to self-determination….”[24] Likewise, the resolution requests that “the General Assembly consider the question of Puerto Rico comprehensively” and decide on this issue as soon as possible.[25] The Committee also decided to keep the question of Puerto Rico under continuous review.

Without doubt, SCOTUS’ decision in Puerto Rico v. Sánchez Valle further underscores the island’s colonial status, which has been denounced for decades by both advocates of Puerto Rican independence and statehood and legal scholars. While explaining why Puerto Rico’s relationship to the U.S. is colonial, Judge Juan R. Torruella alluded to UNESCO’s Dictionary of Social Sciences that defines “colony” as “a territory, subordinate in various ways— political, cultural or economic — to a more developed country. Supreme legislative power and much of the administration rest[s] with the controlling country, which [is] usually of a different ethnic group from the colony.”[26] Explaining why the Territory Clause of the U.S. Constitution cannot be the legal framework for exercising control over Puerto Rico, Judge Torruella states that “such powers amount to the establishment of a colonial relationship in that, [at] a minimum, the United States exercises supreme legislative power over the island” while at the same time “depriving its inhabitants of all national suffrage right with regard to Congress and the national executive branch.”[27]

In my own view, the most outstanding trait that highlights Puerto Rico’s colonial status is the notion that the U.S. government has the power to alter or revoke unilaterally the Commonwealth’s constitution. This clearly hinders the democratic will that the Puerto Rican people expressed in 1952 when they approved their constitution. Moreover, it purports to show that even for local affairs or internal self-government, the ultimate source of authority is the U.S. Government, not the people of Puerto Rico. Likewise, the fact that the U.S. Congress can legislate unilaterally on a wide array of issues that affect Puerto Ricans, without requesting their consent, amounts to an unequivocal colonial relationship.

In addition to being a breach of international law, Puerto Rico’s case should be resolved because it is also widely accepted that the U.S.’s current treatment of Puerto Rico’s status violates human rights. Carlos Gorrín Peralta states that “international consensus (opinio juris) has evolved to characterize the right of self-determination as a fundamental, collective human right that must be respected by all states, even those not signatories to international instruments.”[28]

Prior to the development of Puerto Rico v. Sánchez Valle, for almost four decades, there has been consensus at the Decolonization Committee that Puerto Rico’s political status does not satisfy the criteria set in Resolution 1514 (XV). In other words, a significant part of the international community also understands that the Commonwealth of Puerto Rico still lacks political sovereignty, further undermining the validity of Resolution 748 (VIII). Given this understanding, it seems safe to conclude that the removal of Puerto Rico from the list of non-self-governing territories under Article 73e of the U.N. Charter was not an appropriate judgment. The ambiguity surrounding Puerto Rico’s political status at the time of delisting in 1953 almost thwarted the approval of Resolution 748 (VIII). Considering the General Assembly’s increasing aversion towards neocolonialism, Roger S. Clark has stated that “[i]t is extremely doubtful that a case similar to the Puerto Rico one would be resolved in the same manner today.”[29]

The Court’s opinion in Puerto Rico v. Sánchez Valle has several immediate implications. First, the U.S. government should acknowledge that it was not proper to cease transmitting information of Puerto Rico under article 73e of the U.N. Accordingly, the U.S. should resume transmitting information on the island to the General Assembly. Secondly, the U.S. should immediately initiate a process to achieve a full measure of self-government for Puerto Rico—one that will get rid of all vestiges of colonialism. The United States should comply with international law and eradicate colonialism within its own borders or should be prepare to be subject to strong condemnation by the international community. Ultimately, the United States should avoid the possibility that the U.N. General Assembly declare Puerto Rico one of the world’s last remaining colonies.

Given these recent developments, inaction by the U.N. General Assembly can no longer be justified. This is no longer a matter of domestic dispute; this a grave breach of international law that for too long has persisted with impunity. The U.N. has a significant role to play in Puerto Rico’s process towards achieving self-determination. As previously noted, the creation of the U.N. helped speed the progress of decolonization around the world. Since its establishment, more than 80 former colonies have gained their independence. Puerto Rico’s case should be addressed during the next session of the General Assembly and a resolution should be submitted to rescind Resolution 748 (VIII) or, at the very least, demand compliance with it. Paragraph 9 of Resolution 748 (VIII), discussed earlier, assured the international community that due regard would be paid if the United States or Puerto Rico desired any change in the terms of their association. There is no doubt that the current state of affairs is well beyond the point of change and that the terms of political association have eroded significantly since 1953. In view of this, the General Assembly should express itself strongly and energetically in favor of a complete decolonization process for Puerto Rico.

The decolonization process could take up to a couple of years but the General Assembly should express a desire that Puerto Rico gets full self-government before the present decade is over. Such urgency on behalf of the U.N. would strongly express the undesirability of the current political arrangement. With luck, the Special Rapporteur’s visit to Puerto Rico sets in motion this process, which has long been overdue in the U.N. General Assembly.

[1] Press Release, Office of the United Nations High Commissioner for Human Rights, UN expert on extreme poverty and human rights to visit USA, one of the wealthiest countries in the world (Nov. 29, 2017), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22465&LangID=E
[2] 136 S. Decolonization posterCt. 1863.
[3] The 1950’s were a landmark decade for relations between Puerto Rico and the U.S. This period heralded the institutionalization of an arrangement called the Estado Libre Asociado de Puerto Rico (the ELA)—in English, the Commonwealth of Puerto Rico.  It all started in 1950 when Congress enacted Public Law 81–600, authorizing Puerto Rico to hold a constitutional convention.  Pursuant to this, in 1952, the people of Puerto Rico ratified a constitution establishing a republican form of government for the island. After being approved by Congress and the President in July 1952 and thus given force under federal law, the new constitution went into effect on July 25th, 1952. See Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico 7 (2001).
[4] U.S. Const. amend. V. “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”
[5] U.S. Const. art. IV, § 3, cl. 2. “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state”(emphasis added).
[6] G.A. Res. 66 (I), (Dec. 14, 1946).
[7] G.A. Res. 222 (III), (Nov. 3 1948).
[8] José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World 122 (1997).
[9] Id.
[10] Id. at 123.
[11] G.A. Res. 748 (VIII), (Nov. 27, 1953).
[12] G.A. Res. 742 (VIII), (Nov. 27, 1953).
[13] Supra, note 8, at 136.
[14] G.A. Res. 1514 (XV), (Dec. 14, 1960). The resolution declared that the “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights” and is “an impediment to the promotion of world peace and cooperation”; that all people have the right to self-determination and “by virtue of that right they freely determine their political status”; that the lack of preparation in the political, economic, social, or educational fields should not serve as a pretext for denying independence; that immediate steps shall be taken to transfer all powers to all territories that had not yet attained their independence “in order to enable them to enjoy complete independence and freedom”; and that all states should strictly observe the provisions of the Charter, the Universal Declaration of Human Rights and the present resolution  on the basis of equality, respect for the sovereign rights of all peoples and nonintervention in their internal affairs.
[15] G.A. Res. 1541(XV), (Dec. 15, 1960).
[16] Principle VII of Resolution 1541’s annex established the criteria for achieving the status of free association: “(a) Free association should be the result of a free and voluntary choice by the peoples of the territory involved expressed through informed and democratic processes. It should be one which respects the individuality and cultural characteristics of the territory and its peoples, and retain for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes. (b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon (emphasis added).”
[17] U.N. Docs. A/AC.109/PV.942 (August 26, 1972).
[18] Supra note 8, at 138.
[19] Id.
[20] Id. at 139.
[21] G.A. Res. 35/118 (Dec. 11, 1980).
[22] Supra note 8, at 139.
[23] The Committee 1982’s recommendation was defeated by a vote of 70-30, with forty-three abstentions. Id.
[24] Special Comm. on Decolonization Press Release, Special Committee Approves Text Calling on United States to Expedite Puerto Rico’s Self-Determination Process, Welcomes Release of Long-Time Independence Activist (June 19, 2017).
[25] Special Comm. on Decolonization, U.N. Doc. A/AC.109/2017/L.12 (2017).
[26] Colony, A Dictionary of Social Sciences 102 (Julius Gould & William Kolb eds., 1964).
[27] Juan R. Torruella, The Insular Cases: A Declaration of their Bankruptcy and My Harvard Pronouncement, in Reconsidering the Insular Cases: The Past and the Future of the American Empire 74 (Gerald Neuman & Tomiko Brown-Nagin eds., 2015).
[28] Carlos I. Gorrín Peralta, Puerto Rico and the United States at the Crossroads, in Reconsidering the Insular Cases: The Past and the Future of the American Empire, supra note 42, at 200.
[29] Roger S. Clark, “Self-Determination and Free Association: Should the United States Terminate the Pacific Islands Trust?,” 21 Harv. Int’l L.J. 1, 46 (1980).

ASIL 2017 Recap: Claims against the United Nations: From Within and Without

By: Loren Turner

At 9:00 a.m. Friday, April 14, 2017, during ASIL’s annual meeting, a panel of international law experts assembled to address the accountability of the United Nations in its peacekeeping operations (or, in practical terms, lack therof).  The topic is getting increasing attention in light of recent evidence that U.N. peacekeepers caused the cholera outbreak in Haiti and sexually-abused children and women during peacekeeping operations in Central Africa.

The panelists were: Simon Chesterman, Professor of Law at the National University of Singapore; Andreas Vaagt, with the United Nations Secretariat, and Patricia Galvao Teles, with the International Law Commission.  Alejandro Sousa, senior legal adviser to the U.N. General Assembly, moderated the discussion.

Professor Chesterfield unpacked the concept of accountability into two inquiries: (1) to whom is the United Nations accountable and (2) for what?  In short, the answers are: (1) unfortunately, no one – yet; and (2) violations of humanitarian law.

In 1952, when there were 60 countries that comprised the United Nations, a committee of the American Society of International Law (referenced here) questioned whether the U.N. was subject to the laws of war.  After all, the U.N. was not, itself, a party to the Geneva Conventions or any other treaties.  It was not until the Kosovo intervention in 1999 that it was decided yes, humanitarian law applies to U.N. peacekeeping operations because: (1) the U.N. is an independent actor – separate from member States – when it exercises peacekeeping functions under the U.N. Charter (2) customary law supports humanitarian intervention in certain situations and the laws of war thus apply to the actors performing the humanitarian intervention and (3) the U.N. increasingly exercises state-type activities, such as in Kosovo when it set up panels to prosecute criminals and freeze assets.

Yet, despite theoretical application of laws of war to U.N. peacekeeping operations, the practical reality is that the U.N., as an international organization, has absolute immunity.  Additionally, individual U.N. officials have immunity as well.  When the U.N. admitted its role in Haiti’s cholera epidemic, victims brought suit in U.S. federal court.  The Second Circuit dismissed the case for lack of subject matter jurisdiction, finding the U.N. was indeed immune under Section 2 of the Convention of the Privileges and Immunities of the United Nations, which states “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity…” So, victims in places where the U.N. operates, such as in Haiti, have no avenue to contest activities or hold the U.N. accountable.  The organization that is supposed to enforce the rule of law around the world is not itself accountable.

Mr. Vaagt spoke on behalf of the United Nations. He said enforceability of the rule of law related to personnel actions depends on member states. Once article V or VI of the U.N. Charter is invoked, the status of forces agreement (SOFA) between the U.N. and the host country applies.  Under the SOFA, the state(s) providing humanitarian personnel maintain exclusive jurisdiction of those individuals.  The concept of exclusive jurisdiction also applies to NATO forces going into NATO countries.  Once the U.N. refers a case to a state, it is up to the state to investigate and prosecute the offender.  General Assembly resolution 62/63 urged states to exercise that jurisdiction.  Yet, to date, despite approximately 100 case referrals, not a single state has pursued charges.  

As to the immunity of U.N. staff, only official high level U.N. officials have diplomatic immunity.  But, there are other U.N. employees who have functional immunity, which can be waived by the U.N. Secretary General.  Officially, the U.N. has a zero tolerance policy and Secretary-General Guterres recently released a strategy to end impunity for sexual exploitation and abuse system-wide.  It is too early to comment on the effect of that strategy. Regardless, unless waived by the Secretary-General, immunity stands.

Ms. Galvao Teles said that the issue of U.N. accountability is not a new one.  There are three strategies that have been raised to attempt a balance between immunity and impunity: (1) revise the 1946 Convention on the Privileges and Immunities of the United Nations; (2) envision a convention on the jurisdictional immunities of international organizations; or (3) tackle the immunity question within the context of “settlement of international disputes” to which international organizations are parties.  In Ms. Galvao Teles’s opinion, none of these strategies is appropriate.  It is risky to revise agreements that already contain good law.  Given the current international political climate, the Secretary-General says he is happy to have what we have rather than risk getting less.  Maybe it is not the rules that need to change, but the implementation.  We could clarify when a waiver of immunity would be appropriate.  We could define better the phrase “private claim.” We could explore a sanctions-type system to handle claims rather than relying on judicial resolution.  All of these are better options than revising an established treaty.  As to the second idea of envisioning something new?  Not going to happen.  What would it add?  Again, it is probably an issue about new strategies of implementation rather than the creation of new rules.  The last idea, the topic of tackling the immunity question within the context of settlement of international disputes, was added at the sixty-eight session of the International Law Commission.  Ms. Galvao Teles thinks it is more likely that the International Law Commission would provide draft clauses to address the issue of immunity – not an entire convention.

[For more information about this program, read the official recap on ASIL Cables].