Statement presented at a Puerto Rican Bar Association of Florida Seminar held at Nova Southeastern University Law School, Fort Lauderdale, Florida
Saturday, June 13, 2009
I have also decided not to lecture on the economic feasibility of independence. As I assume we would all agree, Puerto Ricans are inferior to no one. Since many nations, smaller than Puerto Rico are doing better without federal funds or U.S. citizenship, while many of the more powerful or wealthy nations are currently in deep financial trouble, the economics of an independent Puerto Rico are collateral matters of public policy or fiscal administration, not a core issue of status politics. Therefore, I have decided to talk about the essence of Puerto Rico’s status problem: a nation’s inalienable right to self determination denied.
We are discussing a Latin American nation of the Caribbean which does not command itself. It is ruled in all essential aspects by another nation’s legal and constitutional system. Since Puerto Rico is parte de la bola del mundo, “part of the globe,” as Puerto Rican patriot José De Diego used to say, I have chosen to frame the issue in a wider context than the title of this seminar, Millions of U.S. Citizens Are Not Equal in the Eyes of the Law. My remarks here therefore focus on the fact that, Millions of People Around the World are not U.S. Citizens. The formal title of this seminar posits a domestic civil rights problem for Americans. Therefore, my remarks here, today, will focus on an international legal conflict: colonialism.
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In a thought-provoking article recently published in Puerto Rico, this Seminar’s Chair sought to compare “the current U.S. citizenship of Puerto Ricans and the legal status of Puerto Rico with the Roman citizenship and legal status provided to some city-states incorporated into the Roman Republic in the late republican period,” namely civitas sine suffragio; that is, citizenship without full political rights. He points out that, after a period of this “standard Romanization policy for incorporating conquered regions while building the Roman Republic,” by 133 B.C. “nearly all” Roman provinces had been fully enfranchised by the formal grant of ius suffragi.
“Nearly all;” but not all! Certainly not Palestine, where a young man was executed by crucifixion, a terrible punishment given to slaves, robbers and members of subject peoples! The crucifixion of Jesus of Nazareth in Palestine was administered by Pontius Pilate, the agent-in-charge, if you will, of the chief law enforcement agency—the Roman guards of the EBI (the Empire Bureau of Investigations, if you will)—of the Republic-turned-Empire under Julius Caesar’s adoptive son, Augustus, the first to use the title “Emperor” in 31 B.C.
This goes to show that what passes as a republic can develop the bad habit of behaving like an empire!
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There were other models, to be sure, that the Romans (or the Chair of this Seminar) could have followed. It was beyond the imagination of the Romans, however, to see the world in any other fashion. They would never, for instance, have done what Alexander the Great had done: turn the lands they controlled into a single, vast empire in which everyone was treated equally. As a renowned historian has pointed out, Roman conquerors “looked down on native inhabitants,” as the equivalent of the U.S. Supreme Court’s Insular Cases in those times might have shown, “even when they were … all peoples of very ancient culture,” like Phoenicians, Jews, and Greeks. The way the Supreme Court viewed the descendants of those cultures—Spaniards, Portuguese, Basques or Catalonians—in the Iberian Peninsula; and the sub-conscious way dominant circles in American society have come to lump nationalities as diverse as Brazilian, Chilean, Guatemalan, Haitian, Mexican, Peruvian, or Puerto Ricans, imposing the basket-term of Hispanics or Latinos, to include all Latin Americans of Iberian ancestry.
Assuming there has been progress since Roman times, there are certainly other juridical and political models. The United States of America’s constitutional model is only one of them, and only part of the cultural richness of diversity in the world today. Its origins stem from the 1776 American Declaration of Independence that inspired anti colonialist struggles in the Americas against European empires. The progress since then is undoubtedly reflected in the Universal Declaration of Human Rights of 1948.
The UDHR, imbued as it was with the principles established in the U.N. Charter, set the stage for the explicit incorporation of self determination as a basic human right. In 1960, the U.N. General Assembly adopted Resolution 1514, which has become the Magna Carta of self determination and independence as a legal right. It establishes, among other things, that “Inadequacy of political, economic, social or educational preparedness”—traditional arguments of those who have denied Puerto Rico its rightful self determination—“should never serve as a pretext for delaying independence.” In 1966, self determination became article number 1 in both the Civil and Political Rights, as well as in the Economic, Social, and Cultural Rights Covenants. In 1975, the International Court of Justice ruled that Resolution 1514 constituted an authoritative interpretation and the legal basis for a decolonization process. Through treatises and further writings of publicists and well-known scholars of International Law, the right to decolonization and self determination has come to be recognized as a basic human right with no expiration date—part of what is known as the ius cogens.
After this broad-brush review of how self determination became a peremptory norm on International Law, let’s go back to Rome. In a recent seminar held in Rome last year, the U.S. Assistant Secretary of State for Western Hemisphere Affairs, the Hon. Thomas A. Shannon paid homage to Latin America’s legacy in human rights, the “vanguard role … Latin America continues to play … in understanding human rights and incorporating human rights into the behavior of states.” He underscored that, among the ways that Latin America has helped consolidate contemporary human rights thinking is by overcoming “historic or traditional divisions … between political and civil rights on one hand and economic, cultural and social rights on the other hand.” On the basis of this linkage, he went on to say that:
Latin America has helped to create a new dynamic between diplomacy and development, between political activity and development, and has also helped us [meaning the United States] redefine certain aspects of our diplomatic exchange, especially in the area of security. And finally …, Latin America has helped at least the Western Hemisphere, at least the Americas, open a new space for dialogue among and between nations and has really marked the emergence of peoples as the principal political actors in the Americas.
These are interesting words, enounced in interesting times, by the official spokesman of the U.S. State Department for Western Hemisphere Affairs under the Bush administration—who has continued to serve in that capacity under the Obama administration. The Assistant Secretary accompanied the Hon. Hillary Clinton, U.S. Secretary of State, to the inauguration of the recently elected president of El Salvador, following the electoral victory of the FMLN, the former guerrilla movement that fought against the bloody right wing dictatorships propped up for decades by the U.S. State Department.
Only two years earlier, 33 political parties representing a wide ideological spectrum—many of them government parties or allies of the United States—from 22 different Latin American nations (including Mexico, Brazil, Argentina, Chile, and Cuba) met in Panama City, among other things:
To reiterate to the World our solidarity and support for the cause of Puerto Rico’s independence, an historic and principled claim of our America. Latin America and the Caribbean will not be truly independent until all its nations are.
To offer to both the Puerto Rican nation as well as the Government of the United States, our cooperation and good offices, including the role of interlocutors and the tasks to lay the groundwork that may be necessary at the several levels of the Government of the United States, leading to a Hemispheric dialogue to resolve Puerto Rico’s colonial problem.
Undoubtedly, there is a new, more assertive, Latin America emerging in the 21st century. Through similar pronouncements, like that of Panama, Western Hemisphere nations south of the Río Bravo have, over the last quarter-century, increasingly reiterated that Puerto Rico is a member of the Latin American family and should return to the fold. In the words of Martín Torrijos, the President of Panama, speaking at the congress co-sponsored by his ruling party:
The point is that for a century, our aspirations regarding Puerto Rico’s independence have been part of a moral and cultural indebtedness dating back to Simón Bolívar and José Martí, but … this issue, like many others, became cloaked in Cold War rhetoric.
That rhetoric entangled the Puerto Rican question … and has left it unresolved before us in the 21st century when no form of colonialism can be justified.…
And the basic problem is that Puerto Rico is the only Hispanic American nation that remains under a colonial regime. For Latin Americans, forever correcting this anomaly must be a matter of principle and a priority of continental proportions. What remains is to agree on whatever is necessary to consolidate the Puerto Rican right to constitute an independent republic.
The days are over when U.S. Marines could invade any Latin American country to topple a government Washington did not like; and the days are over when rest of the region could be expected to silently acquiesce. Quite the contrary! Now the U.S. government will have to develop new and different policies in its relations with Latin America. A Latin America that, to quote Assistant Secretary Shannon once more, has “really presented to the world an important model, a model that needs to be understood and examined, but more importantly, a model that needs to be supported.” A Latin America of hundreds of millions who are not U.S. citizens!
So, there it is! The word is out and the line has been drawn. Puerto Rico’s subordinate status is not a matter of civil rights. It is a matter of human rights. Puerto Rico’s colonial status must end, to end colonialism in the Western Hemisphere. Certainly the United States must be a party to this process. So must Latin America.
And the votes will follow.
 Francisco A. Rullán, Puerto Rico Toward Statehood, in 1 Ley & foro 22 (Colegio de Abogados de Puerto Rico 2009).
 E.H. Gombrich, A Little History of the World (Yale University Press 2008), p. 83.
 G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 67, U.N. Doc. A/4684 (1960).
 Western Sahara, 1975 I.C.J. 12 (Oct. 16).
 See Oppenheim’s International Law 7-8 (R.Y. Jennings and A. Watts eds., 9th ed. 1992); Ian Brownlie, Principles of Public International Law 515 (3d ed. 1979); Roger S. Clark, Free Association—A Critical View, in Proceedings: Conference on the Future Political Status of the United States Virgin Islands (1989); Mark W. Janis, An Introduction to International Law 54 (1988); inter alia.
 U.S. Embassy to the Holy See, Latin America and the International Human Rights Project: Yesterday, Today, and Tomorrow (May 2, 2008), hereinafter, Latin America and the International Human Rights Project.
 Thomas A. Shannon, Remarks as Delivered, at Latin America and the International Human Rights Project, supra, at 87, hereinafter,Remarks.
 Id., at 87-88.
 Latin American and Caribbean Congress in Solidarity with Puerto Rico’s Independence, Proclamation (Panama City, Panama, November 19, 2006). The Proclamation was unanimously approved.
 Martín Torrijos, Keynote Address, Latin American and Caribbean Congress in Solidarity with Puerto Rico’s Independence, supra.
 Remarks, supra, at 92.