The National Association for the Advancement of Colored People (NAACP) recently endorsed statehood for Puerto Rico. This latest declaration comes after it had back-tracked its earlier support for statehood in favor of the self-determination of the people of Puerto Rico. This policy change in the NAACP is a hopeful sign of the ongoing shifts in mainland perceptions on the issue of Puerto Rico and the need to address its political status.
Statehood opponents in Puerto Rico and in the mainland have argued for years that its political status is a matter of self-determination, and that until Puerto Ricans finally decide in which direction they want to move — statehood or independence — Congress must abide and act according to that decision. This argument is legally and politically contested, and turns a historical blind eye to its political, economic and social developments since 1898.
The idea of self-determination as a criteria for settling Puerto Rico’s political future derives from the United Nations Resolution 1514 (XV) of 1960 which declares that “all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The question that needs to be asked is whether Puerto Rico is a colony as defined by the United Nations.
As a matter of record Puerto Rico had in fact been listed as a “non self-governing territory” of the United States at the end of the Second World War and subject, therefore, to a decolonization process. In 1953 however, at the height of the Cold War and at the time of the creation of the “commonwealth” and the enactment of its Constitution, the United States argued before the United Nations that Puerto Rico had achieved a level of self-government and requested that it be excluded from the list.
Since then, Puerto Rico has not been listed as a “non self-governing territory” under the United Nations, notwithstanding the annual pilgrimages of pro-independence groups to its Decolonization Committee who insist in defining Puerto Rico as colony of the United States.
Many in Puerto Rico, unfortunately, have echoed uncritically the use of the terms “colony” or “colonial” to describe the island’s political relationship with the United States, failing to take into account its legal connotations in the international arena, and the fact that the United States Constitution allows for territories, not for colonies.
It was precisely because of the lack of an acceptable legal terminology for the acquired territories of Puerto Rico, Guam and the Philippines in 1898, that lead the United States Supreme Court in Downes v Bidwell (1900) to develop the doctrine of territorial non-incorporation, as properties belonging to, but not a part of the United States.
This doctrine, which allows for the selective and discriminatory application of constitutional rights to millions of American citizens in Puerto Rico, is predicated on racist and xenophobic beliefs prevalent at the turn of 20th century, there is some truth to the charge that the United States government has treated the territory at times as a colonial dependency.
This charge has acquired a new lease on life with the approval by Congress of the Puerto Rico Oversight and Management and Stabilization Act (PROMESA) which, justified as it is, severely curtails whatever self-government Puerto Rico might have obtained in 1952.
The case for Puerto Rico’s self-determination is used by many as a stalling tactic to protect the territorial tax advantages of the American controlled foreign corporations (CFC) at the expense of its citizens. As a non-incorporated territory, Puerto Rico has traditionally been treated as foreign jurisdiction in the tax code. Of course, the principal beneficiaries of this tax treatment have been those American corporations that do not report billions of dollars to the IRS.
Others, still beholden to romantic 19th century notions of national and racial identity, argue that self-determination is a collective right, independent of the individual rights of its citizens, and should be promoted as a matter of principle. The current Democratic candidate for governor in Florida Andrew Gillum, for example, would appear to fall within this train of thought when he back-pedaled his earlier support for statehood after obtaining Puerto Rico’s Gov. Ricardo Rosselló’s endorsement.
History does not pass unnoticed. It should be understood that the people of Puerto Rico have become an integral part of the American experience, fully identifying with its political and civic values. Over 5 million Puerto Ricans live on the continental United States, 3.5 million on the island. The continual back and forth of the population throughout the last 120 years with its predictable sociological consequences, has inextricably tied its political identity to the United States.
Those that argue for Puerto Rico’s right of self-determination while at the same opposing any effort to address its political status issue are drawing on a nativist, a-historical understanding of identity, and not on principles of democratic representation and the protection of individual rights. In this regard, the NAACP endorsement of statehood for Puerto Rico is a timely recognition that real and effective self-determination can only occur within the framework of political equality.
Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.