Self-Determination and Puerto Rico

Javier  J. Rivera-Alvarado, Vol. 36 Associate Editor

The existence of the right to self-determination in international law is well established, but its precise meaning is still up for debate.[1] It has been defined as the right of all peoples “to determine their future, whether in the form of independence, integration in the administering state or some third state, or free association.[2] Although there is some debate on whether to classify self-determination as a right, a norm, or a principle, it may be understood as a qualified “right,” limited by competing considerations and the complexity in its application.[3] Moreover, context is of special importance to determining its contours.[4] The peoples of Puerto Rico have invoked the right to self-determination and the United States has recognized this right.[5] However, Puerto Rico’s commonwealth status under the Territorial Clause of the Constitution remains unchanged after four plebiscites.[6] A new bill in Congress proposes a federally sanctioned status plebiscite but it should be modified to include different alternatives to increase the legitimacy of the results and help Puerto Rico put an end to its current status. Plebiscites Held in the Exercise of Self-determination Puerto Rico has held four plebiscites since it gained some autonomy in 1952.[7] In 1967, the people of Puerto Rico chose the commonwealth option in the only government-organized and federally-sanctioned plebiscite to date that asked the people of Puerto Rico whether they preferred to remain a commonwealth, become independent, or join the Union as a state.[8] In 1993, a similar plebiscite was held, and the commonwealth option won by a slight margin, statehood came in a close second, and the remaining small percentage of the votes went to independence and other options.[9] In 1998, a third plebiscite was held, but this time the commonwealth option was excluded.[10] The majority of voters selected the “none of the above” alternative.[11] In 2012, a plebiscite asked the people of Puerto Rico two questions.[12] First, it asked whether they wanted to maintain the existing commonwealth status.[13] The result was that 53.97 percent of voters answered “No” to the first question.[14] Second, it asked whether the people of Puerto Rico would prefer statehood, independence, or become a sovereign free and associated state no longer under the Territorial Clause.[15] In regard to the second question, 61.34 percent voted in favor of statehood, 33.34 percent in favor of a sovereign state, and most of the remaining votes went for independence.[16] How should the results of the 2012 plebiscite be interpreted? It is a controversial issue. Some argue that the plebiscite was designed to skew the results of the second question in favor of statehood because almost 500,000 voters with no appealing alternative elected not to answer the second question.[17] This in turn questions whether statehood received a real majority.[18] In any case, the White House’s spokesperson at the time stated that the results were not clear but correctly recognized that the results to the first question show wide discontent with the current status.[19] The spokesperson explained that “Congress should now study the results closely and provide the people of Puerto Rico with a clear path forward that lays out the means by which Puerto Ricans themselves can determine their own status.”[20] The Proposed Plebiscite Should Be Modified In 2013, House Representative Mr. Pierluisi introduced a bill (“H.R. 2000”) to “provide for a federally authorized ratification vote in Puerto Rico on the admission of Puerto Rico into the Union as a State.”[21] The bill proposes only one yes or no question: “Do you want Puerto Rico to be admitted as a State of the United States?”[22] Arguably, it is positive that H.R. 2000 attempts to create a federally sanctioned process in cooperation with the local Electoral Commission in Puerto Rico. This reflects the reality that the process of self-determination is not a unilateral—it will take both the United States and Puerto Rico to bring an end to this matter. However, the H.R. 2000 proposed plebiscite could pose further obstacles to the resolution of the political status of Puerto Rico. Although there is almost no international law regarding the specifics of the content for self-determination itself, there are notions of self-determination that should guide its designs in conjunction with domestic considerations.[23] The results of the plebiscite should reflect the “freely expressed wishes of the territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage.”[24] A plebiscite should be designed in a way that maximizes the United States’ sense of obligation and commitment to act in furtherance of Puerto Rico’s self-determination. To accomplish this, legitimacy of the results is also important.[25] The plebiscite as designed in H.R. 2000 is prone to further criticism that could undermine the legitimacy of the results and therefore the process of self-determination. The proposed plebiscite regarding only one alternative would not allow the people of Puerto Rico to fully express their wishes in an informed manner. A one “yes or no” question plebiscite limits the breadth of possibilities that flow from the right of the people to determine Puerto Rico’s place in the international community. A plebiscite should include choices of different degrees and the people should be informed of the consequences of each one and foster public deliberation.[26] Otherwise, the exercise is incomplete. Moreover, people might refuse to vote or answer the question if they perceive that the plebiscite lacks an alternative that reflects their choice. It also does not help that H.R. 2000’s purpose is to ratify the controversial results of the 2012 plebiscite. Voter turn out is important for legitimacy because the federal government wants clear results that represent the people of Puerto Rico’s own choice.[27] On the other hand, a federally sanctioned plebiscite that allows the people of Puerto Rico to choose at a minimum between independence and other alternatives, which would maintain a relation between the two and that are specifically approved by the United States, may help legitimize the results and help the United States government to meet its obligation to act in furtherance of Puerto Rico’s right of self-determination.

  [1] James Crawford, The Right of Self-Determination in International Law: Its Development and Future 10 (2001), http://internationalhumanrightslaw.net/wp-content/uploads/2012/01/Crawford-The-Right-of-Self-Determination-in-Intl-Law.pdf. [2] Declaration on Friendly Relations and Co-operation among States, G.A. Res. 2625(XXV), U.N. Doc. A/RES/2625(XXV) (Oct. 24, 1970) (“[A]ll peopled have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every state has the duty to respect this right . . . .”); see also Crawford, supra note 1, at 17 [3] Crawford, supra note 1, at 9. [4] Crawford, supra note 1, at 8. [5] Press Release, U.N. Special Comm. on Decolonization, Special Committee on Decolonization Approves Text Supporting Puerto Rico’s ‘Inalienable Right to Self-Determination,’ U.N. Press Release GA/COL/3269 (June 23, 2014), http://www.un.org/press/en/2014/gacol3269.doc.htm; see also Lani E. Medina, An Unsatisfactory Case of Self-Determination: Resolving Puerto Rico’s Political Status, 33 Fordham Int. L. J. 1048, 1052 (2009) (discussing President Obama’s recognition of Puerto Rico’s right to self-determination). [6] Rocio Gonzales, Puerto Rico’s Status Debate Continues As Island Marks 61 Years As A Commonwealth, Huffington Post, (July 25, 2013), http://www.huffingtonpost.com/2013/07/25/puerto-rico-status-debate_n_3651755.html?. [7] Gonzales, supra note 6. [8] Id. [9] Id. [10] Id. [11] Id. [12] Sam Garret, Cong. Research Serv., Puerto Rico’s Political Status and the 2012 Plebiscite: Background and Key Questions (2013), http://fas.org/sgp/crs/row/R42765.pdf. [13] Garret, supra note 12, at 7. [14] Id. at 8. [15] Id. at 7. [16] Id. at 8. [17] Id. [18] Pablo Hernandez, Manipulating Self-Determination, Harv. Political Rev., (March 8, 2010), http://harvardpolitics.com/united-states/manipulating-self-determination/ (discussing that the design of the plebiscite was “absolutely loaded to produce statehood”). [19] CB Online Staff, Caribbean Bus., White House Clarifies Status Stance (Dec. 4, 2012) [hereinafter CB Online Staff], http://www.caribbeanbusinesspr.com/news/white-house-clarifies-status-stance-79102.html. [20] CB Online Staff, supra note 19. [21] H.R. 2000 113^th Cong. (2013) (as introduced to the Comm. on Natural Res.), available at https://www.congress.gov/113/bills/hr2000/BILLS-113hr2000ih.pdf. [22] Id. [23] There is customary international law regarding the general conditions for the making a valid self-determination plebiscite under international law. A. Declet, Jr., The Mandate Under International Law for A Self-Executing Plebiscite on Puerto Rico’s Political Status, and the Right of U.S.-Resident Puerto Ricans to Participate, 28 Syracuse J. Int’l L. & Com. 19, 59 (2001). [24] Daniel Thurer & Thomas Burri, Self-Determination para. 22 (2008). http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e873. [25] See James Summers, Peoples and International Law: Second Revised Edition 52-53 (2013) (discussing the role of legitimacy that a plebiscite confers to the self-determination process). [26] See Antonio Cassesse, Self-Determination of People a Legal Reappraisal 213, 241 (1999) (“[I]n making self-determination the dominant value . . . a referendum or a plebiscite should not artificially predetermine the issue by offering limited set of alternatives” and international law indications provide that the proper way to exercise self-determination consist in holding a referendum that provides a “range of fair and realistic choices”). [27] See CB Online Staff, supra note 19.