Puerto Rico, the PROMESA bill, and the future of the United Nations Organization
On June 29, 2016, President Obama signed the PROMESA law, known as such for its acronym, to, as he claimed, help with the debt crisis the Island of Puerto Rico is currently facing. However, while the intention of the PROMESA law — which in English means promise, which suggests hope — is to help, the reality is that the law, far from providing help and hope to the Island, will actually make things more complicated for the Island, and in terms of international law, for the world. Although the claim is that the law will bring “more stability, better services and greater prosperity over the long term for the people of Puerto Rico,” and will thus, be a sigh of relief for U.S. creditors and U.S. taxpayers, Senator Bob Menendez (D., N.J.) was right in that the law deprives the island of self-government, which as he stated, is “a price far too high for relief that is far too uncertain.” Nonetheless, if the agenda is to colonize Puerto Rico without calling it a colony, because of what it means and represents, then Rep. Raul Labrador, R-Idaho, was right, the PROMESA law “was something that was necessary” and as Rep. Nydia Velázquez, D-N.Y., — one of the Puerto Rican members of Congress — stated, “there are simply no other politically feasible options left on the table” than the PROMESA law.
There is no denial of the sad reality the Puerto Rican people face every day in the Island, and that most of the problems come from bad administration and corruption. However, this reality is the product of the ambiguous treatment U.S. has given the Island since its acquisition in 1898, and which worsened during the 1950s, and now with the PROMESA. It is time to stop feeding the audiences with false and colorful propaganda with empty promises that not only led to more corruption, it allocates the blame on who are most affected by it. In Boricua slang, the PROMESA law “es una curita mal puesta” (a misplaced band aid) that is destined to fall, and that will then expose a very deep and painful wound. A problem can’t be fixed by fixing only what the problem produces without fixing first what produced the problem in the first place. The PROMESA gives only the illusion of hope because it intends to fix the concrete problems we see now without fixing the abstract problem that produce them. In short, the PROMESA, like the ELA (Estado Libre Asociado or Associated Free State), by redefining the concept of colony, perpetuates the neocolonial dynamic between Puerto Rico and United States, which emerged in the 1950’s, and intentionally hides the Island’s status as a modern colony.
A review of the Island history vis-a-vis the United States provides reason to argue that a de facto neocolonial relationship exists between the two nations. Even more, recent events suggest that this relationship hides what otherwise would be considered a de jure colony. For example, although Puerto Rico has been a colony of the United States since the Spanish American War of 1898, because of legal modifications on its status made by the Congress with the creation of the ELA, it is typically referred to as a “territory” of the U.S. — in official documents, conversations, and thus, in news discourse throughout history — which not only produces ambiguity about the status, it hasn’t allowed the Island to participate in the Post World War II decolonization era and/or “era of development” remaining as one of the last colonies of the world.
The early years of the decolonization era or “era of development,” could be traced back to the post WWII period of the late 1940s when the industrial world became polarized by capitalism and Soviet communism. Understanding the origins of this era is imperative to understand why Puerto Rico’s status is not only upsetting, but affecting the progress of the Island and its people. This era emerged out of (1) the need for reconstruction in the immediate aftermath of WWII; (2) the evolution of colonialism or “colonization” into globalization and the establishment of new free trade policies between so-called ‘developed’ and ‘underdeveloped’ nations; and (3) the start of the Cold War and the desire of the United States and its allies to prevent the Third World from drifting towards communism (Rapley, 2002).
The initiative for processes of decolonization, which was the pillar movement for the developmental era, was also grounded on the claims of indigenous political movements to self-determination, which, by producing the idea of sovereign independence, eroded the colonial sovereignty idea, and became a jus cogens (Nagan and Haddad (2012). Jus cogens refer to the “existence of fundamental legal norms from which no derogation is permitted” (Charlesworth, 1993, p.63). Due to this new ideology, and to the great impact of President Franklin D. Roosevelt’s State of the Union Speech of 1941 — where he proposed freedom of speech, of worship, of want, and of fear as the four freedoms everyone in the world should enjoy — the Charter of the United Nations emerged in 1945, and subsequently, the Universal Declaration of Human Rights (UDHR) in 1948.
As part of the post WWII decolonization and developmental processes, the first native Puerto Rican to hold the highest office of Governor of the Island, Jesús T. Piñero, was appointed in 1946 by President Harry S. Truman, and in 1948, the Jones Act was amended by the Congress to allow Puerto Ricans to elect their own governor, and on that same year, Luis Muñoz Marín became the first Puerto Rican elected to the be the governor of Puerto Rico. It is worth noting that from 1900 to 1947, all governors of the Island were from the United States, and appointed by the United States president, and both the governor and the U.S. president were granted the right to veto any law enacted by the Puerto Rican Legislative Branch. Additionally, although the colonial civil government established in the Island under the Foraker Act of 1900 was modified with the Jones Act of 1917, which gave Puerto Ricans U.S. citizenship and a Bill of Rights, the main goal of this law was not to serve Puerto Ricans but to improve international trade in the midst of World War I by encouraging parallel pricing for all carriers with the establishment of the Sea Land Service in the Atlantic (Malavet, 2000). These intentions became even more clearer when one month after the enactment, Puerto Rican males were recruited into the U.S. military to fight in WWI, which confirmed that the granting of citizenship was another way to exploit the Puerto Rican people, and when it was clearly established the impossibility of Congressional representation and of voting in Presidential elections from the Island (Font-Guzmán and Alemán, 2010; Muntaner & Grosfoguel, 1997).
With the end of the WWII and the beginning of the decolonization era, the idea of sovereign independence became a jus cogens and a radical increase in internationally recognized claims to national State sovereignty emerged. However, a vast number of these newly independent sovereign states were “weak” — in terms of national integration and foreign relations — which justified the emergence of new ways of exercising power and control over nations (Nagan and Haddad, 2012). Thus, thanks to the powers granted by the territorial clause and the Federal Relations Act, the U.S. Congress, in order to avoid the claim that U.S. is a colonizer, and the responsibility that it represents to be a non-legitimate privileged nation State in the international arena, approved the Public Law 600 on July 4, 1951, allowing for the creation of a Puerto Rican Constitution through the newly Commonwealth pact, which led to the birth of the Puerto Rican Constitution on July 25, 1952, the 54th anniversary of the U.S. invasion.
Because the Constitution was approved by a popular referendum, boycotted by pro-independence advocates and then ratified by the U.S. Congress with a few amendments, the ELA was and is considered internationally as a demonstration of self-determination of the people of P.R (Font-Guzmán and Alemán, 2010). To make this new definition of a colony legitimate, after the ELA was created, Governor Luis Muñoz Marín — who with the help of his Operation Bootstrap industrialized the Island’s economy to decrease poverty through land redistribution and government-promoted birth control and surgical sterilization programs — in a letter sent to U.S. President Truman on January 17, 1953, stated that regarding the United States’ compliance with its obligations under Article 73 of the United Nations Charter with respect to Puerto Rico. In short, the letter suggested that Puerto Rico became a Commonwealth in free and voluntary association with the United States, in response to the wish of an overwhelming majority of the Puerto Rican people, and that because its people had attained a full measure of self-government, the U.S. should take steps to notify the United Nations that Puerto Rico was no longer a non-self-governing area, and that thus, reports to the United Nations concerning Puerto Rico status, are no longer appropriate.
The U.S. government, after accepting Muñoz Marín’s letter, on April 20, 1953, notified the United Nations that because of the great commitment of U.S. to accept any request made by the Puerto Rican legislature in favor of a greater degree of, or even total independence, it would cease to transmit information regarding Puerto Rico’s status. Although the goal of international law at that time was to accomplish a complete decolonization process, processes of globalization allowed for modified versions of the old “classic colonies” to emerge as “modern colonies,” and thanks neocolonial dynamics, to remain alive today.
The following year, on November 27, 1953, the United Nations stopped listing Puerto Rico as a colony or Non-Self-Governing Territory and approved Resolution 748(viii), which recognized that at that time Puerto Rico had ‘“achieved a new constitutional status,” that the people had “effectively exercised their right to self-determination,” and that the people have “attributes of political sovereignty which clearly identify the status… as that of an autonomous political entity”” (Pastor, 1984, p.587).
The removal of Puerto Rico from the list of decolonization meant a change in the classic colony status of the Island to something new that benefited only U.S. and not Puerto Rico — as the decolonization processes intended with what at the time were considered Third World countries — and underscore the U.S. Congress’ power within the international arena. However, the U.S. government has changed the position that Puerto Rico was no longer a non-self-governing area, and that it would accept any request made by the Puerto Rican legislature in favor of a greater degree of autonomy in many occasions. This change in position challenges not only Resolution 748(viii), but also the origins of the decolonization and developmental era that led to emergence of what we know today as the United Nations Organization.
A recent example of this abrupt change happened shortly prior to the enactment of the PROMESA law. In a friend-of-the-court brief filed by U.S. Solicitor, General Donald B. Verrilli, to the U.S. Supreme Court case Puerto Rico v. Sanchez Valle on December 23, 2015, the U.S. government stated “that Puerto Rico remains a territory under the powers of Congress despite the increased autonomy its constitution granted” because the Puerto Rican constitution and laws do not emanate from the people of the Island, but to the Congress, which therefore retains the ultimate sovereign powers over the Island. The U.S. Supreme Court review came out of the Puerto Rico Supreme Court ruling, earlier that same year, stating “that the island is not a separate sovereign because the decision by Congress to permit local self-government involved a “delegation of powers,” not a “transfer of sovereignty” (TWP, 2015, p.A02).
An indirect ruling on the question of “whether Puerto Rico is a “separate sovereign” for purposes of the U.S. Constitution’s Fifth Amendment Double Jeopardy clause,” would also mean a U.S. Supreme Court ruling on the political status of the Island that would affect the status quo. Thus, in response to the ambiguities and challenges that this debate represents for the social, economic, and political future and development of the Island, on December 28, 2015, Puerto Rico Governor, Alejandro Garcia Padilla, whose governance has been greatly criticized, did what needed to be done. In a letter to U.N. Secretary, General Ban Ki-moon, AGP claimed that Puerto Rico is not a “mere territory,” and denounced “a change in the U.S. government’s historic position on the island’s political status” (TWP, 2015, p.A02). This is so because a modified version of a classic colony or a modern colony challenges the right to self-determination, and thus, violates the international law principle of jus cogens. However, the Governor’s criticism fell short by not challenging the validity of Resolution 748(viii), and thus, requesting the adding of Puerto Rico back into the UNO list of decolonization, which will subject the U.S. government back to the U.N. Charter obligations.
On June 9, 2016, in a 6–2 ruling, the U.S. Supreme Court, completely ignoring Resolution 748(viii) and calling the Island a territory, made interpretations on the question under review by defining Puerto Rico’s sovereignty as an “interim sovereignty” within United States but not separate from it (Lessmiller, 2016). In short, Puerto Rico is not a separate nation State. In this sense, although this decision does not touch on the issue of the Island’s sovereignty within the international arena, it denotes the inconsistent desires within the Supreme Court in bringing the relationship between Puerto Rico and U.S. within already established international norms regarding sovereign powers and responsibilities. In fact, it could easily be understood as a violation of international law.
The case of Puerto Rico v. Sanchez Valle was considered by the Island “the most important case on the constitutional relationship between Puerto Rico and the United States since the establishment of the commonwealth in 1952” (Lessmiller, 2016, para.3). And in fact, it was. Not too long after, the PROMESA was signed into law. In this sense, the decision of the Supreme Court and the fact that Christopher Landau, the attorney for Puerto Rico, floated “the idea that the justices recognize the island as a semisovereign for constitutional purposes, largely autonomous but still ultimately answerable to Congress,” could only have two possible explanations; either (1) they were more concerned about the potential of a human being facing double jeopardy; and or (2) they ignore, or decided to ignore, the meaning of sovereignty, and with it, international law, which allowed for the later emergence of la PROMESA law (Stern, 2016, para.14).
To end my long argument, and with all due respect, to President Barack Obama, to Rep. Nydia Velázquez, D-N.Y. and to Rep. Raul Labrador, R-Idaho, the PROMESA law was not and is still not what it is necessary to fix the current situation of the Island, and there were and are plenty politically feasible options left on the table to do so. The PROMESA law, confirms the U.S. Supreme Court decision that Puerto Rico has a second-class sovereignty — whatever that means — and thus challenges the right to self-determination, which violates the international law principle of jus cogens, and which also challenges the origins of the United Nations Organization, putting at stake its own existence. Therefore, in order to salvage the United Nations Organization, and align the relationship between Puerto Rico and United States to already established international norms, this piece proposes a few solutions:
(1) For the U.S. Congress to stop making up names and unilateral definitions of the Island’s status to disguise what in practice is clearly a modern colony under international law;
(2) For Puerto Ricans and the international community to expose, with quantitative and or qualitative data, violations of the UDHR and the ICCPR, and challenge the validity of Resolution 748(viii); and
(3) For the U.N. to add Puerto Rico back into the list of decolonization in order for the U.S. Congress to be obligated under international law to follow the necessary steps to really help the Puerto Rican people.
References
Charlesworth, H., & Chinkin, C. (1993). The gender of jus cogens. Human Rights Quarterly, 15, 63.
Font-Guzmán, J., & Aleman, Y. (2010). Human rights violations in Puerto Rico: Agency from the margins. Journal of Law & Social Challenges, 12, 107–149.
Malavet, P. A. (2000). Puerto Rico: Cultural Nation, American Colony.Michigan Journal of Race & Law, 6(1).
Nagan, W. & Haddad, A. (2012). Sovereignty in theory and practice. San Diego International Law Journal, 13, (2), 429–519.
Negrón-Muntaner, F., & Grosfoguel, R. (Eds.). (1997). Puerto Rican Jam: Rethinking Colonialism and Nationalism. U of Minnesota Press.
Pastor, R. (1984). The international debate on Puerto Rico: the costs of being an agenda-taker. International Organization, 38(03), 575–595.
Rapley, J. (2002). Understanding development: Theory and practice in the Third World. Psychology Press.