No. 6 : October-December 2012

Dominique Custos

Puerto Rico

Academic Foresights

How do you analyze the present situation of Puerto Rico?

The word duality seems to capture rather accurately the situation of Puerto Rico. The post-Colombian history of Puerto Rico has unfolded through two colonial eras. After 400 years of Spanish colonial rule, Puerto Rico, along with Guam, the Philippines and Cuba (1), became war spoils under the Treaty of Paris. Signed on December 10, 1898, the latter put an end to the Spanish-American hostilities and marked the passage under American rule. Thus, 114 years ago, the archipelago of Puerto Rico joined the company of U.S. territories.

Unsurprisingly, this double layer of colonization has its legal counterpart. Indeed, Puerto-Rico stands as one of the three mixed jurisdictions in the Americas. Like in Quebec and in Louisiana, in Puerto Rico, legal development is informed by the interweaving of two strands, on the one hand, the original civil law, on the other hand, the more recent common law.

Likewise, the dual dynamic of Puerto Rican culture is readily perceptible. Ever since the US invasion, Puerto Ricans have attempted to devise a compromise between their previous Caribbean syncretism or creolity and the sprawling cultural traits of the world power that checkmated their first Spanish colonial ruler. Perhaps, the bilingual arrangements and struggles of Puerto Rican life best crystallize this cultural dualism.

Migration from the island into the U.S. mainland has resulted in yet another dual dimension. While total population in Puerto Rico itself was 3.8 million in 2008, the Puerto Rican population in the U.S. reached 4.2 million and became the second largest Hispanic population in the continental U.S. (2).

Lastly, duality is reflected in the present political status of Puerto Rico. When considered from an internal standpoint, the country apparently boasts democracy. Yet, when the terms of the U.S.-Puerto Rico relationship are closely examined, democratic deficit is an inescapable conclusion.

After the military occupation following annexation, from the Foraker Act of 1900 (3) to the Jones-Schafroth of 1917 (4), to the Elective Governor Act of 1947 (5), to the 1952 Constitution (6), Puerto Rico has blossomed into a presidential regime subject to electoral discipline and the rule of law. However, as an incorporated organized territory of the U.S. (7), Puerto Rico falls under the scope of the Territorial Clause of the U.S. Constitution (8) which confers plenary powers over territories on the U.S. Congress. Consequently, the latter prevails over the Puerto Rican electorate in the constitutional design and the legislation applicable locally. In fact, the U.S. Congress could legally strip the Puerto Rican institutions of the self-government that it has conceded so far, whereas any similar attempt on its part with regard to states would come up against the constitutional protection afforded their shared, albeit subordinate, sovereignty. Moreover, in the case of Puerto Rico and territories in general, this U.S. supremacy is in no way counterbalanced by the right to participate in the federal institutions. The U.S. citizenship granted to Puerto Ricans by the 1917 statute (9) does not carry the same implications as that enjoyed on the basis of the U.S. Constitution (10) by the citizens of the 50 states of the Union. For Puerto Ricans living on the territory, U.S. citizenship provides neither the power to elect members of the Electoral College which selects the President (11) nor the power to designate Representatives (12) and Senators endowed with full voting rights in the federal legislature’s plenary sessions.

The very combination of the U.S. Congress’s and President’s jurisdiction over Puerto Rico and the inability of American citizens residing in Puerto Rico to fully participate in the designation and operation of the federal government, fatally tarnishes the appearance of self-government provided by the 1952 Puerto Rican Constitution. In essence, while the local institutions seem to meet the requirements for democratic legitimacy, the said combination undoubtedly denotes a violation of the government-by-consent principle (13). In that, the archipelago appears to be Janus-faced. In fact, this ambivalence is reflected in the conflicting designations given to the current political regime in the Spanish and English versions of the local constitution: Estado Libre Associado (14) v. Commonwealth (15).

As a result of this political duality, Puerto–Rico’s self-determination remains a nagging central issue. In the archipelago, the division among Democrats, Republicans and Independents does not structure the political landscape. Voters identify themselves as pro-statehood, pro-commonwealth, or pro-independence. Likewise, party lines revolve around the political status (16).

The U.S. Congress has been urged to initiate a process authorizing Puerto Ricans to determine once and for all their political future. But so far, it has shown no resolve to this end whether the exhortations came from the leaders of Puerto Rico’s main political parties, from presidential Task Forces (17), or from the United Nations Special Committee on Decolonization (18). Its response has been at worst, mere silence, at best, inconclusive initiatives (19). 

Three locally-sponsored self-determination referenda were held locally in July 1967, November 1993, and December 1998. More recently, in December 2011, the Puerto Rican legislature and Governor enacted Law 283 (20) providing for a self-determination referendum scheduled for November 2012 (21). In all likelihood, the upcoming referendum will generate as significant a turnout as its three predecessors (22).

Inasmuch as, in law (23), Congressional action is necessary to resolve the Puerto Rican conundrum, absent the latter, locally-sponsored referenda, which carry no binding force, are not legally sufficient to trigger a self-determination process. Potentially, however, they may serve as a political tool to pressure Congress. This is all the more true if the plebiscite results in a clear supermajority.

In your opinion, how will the situation likely evolve over the next five years?

Therefore, how the situation is likely to evolve in the next future depends in great part on the outcome of the referendum to be held on November 2012. The referendum, which is also referred to as a plebiscite, consists of two-parts. This structure, which echoed one of the 2011 Task Force recommendations, is an innovation because previous local self-determination polls regrouped all the status choices in a single question.

The first question of the upcoming referendum is a threshold question. It is aimed at determining whether Puerto Rico residents want to continue to be governed under the current territorial status or repeal it.  The second question is meant to gauge which of the three alternative options to the territorial regime gathers majority support. Voters will express their preference for statehood (estadidad), independence (independencia), or nationhood in free association (estado libre associado soberano) with the U.S. (24). It is worth noticing that the so-called “enhanced Commonwealth” status will not figure on the ballot (25), as its hybrid essence is deemed non-viable and unconstitutional (26).

The clarity of the four options included in the two questions deserves special mention. It contrasts with the ambiguity entertained by the 1998 local referendum which featured an unqualified “none-of-the-above” choice (27). This gain in clarity of the legibility may be partly lost, however. Indeed, the simultaneous nature of the two questions may not bring long term resolution. Indeed, should the status quo be favored by the voters, the answer to the second question might justify calls for subsequent referenda to assess the new state of political sentiments. A sequencing of the two parts of the referendum with the two questions being asked on two successive occasions would have probably allowed for greater legibility of the outcome. In this regard, the referenda held on January 10 and 24, 2010, in French Guiana and Martinique are cases in point.

On the other hand, a clear rejection of the unincorporated-territory regime would, politically speaking, gear the process towards status change. Among the remaining 3 options, given the marginal weight of the pro-independence party (28), the real contention would concern full integration through statehood and or partial sovereignty through nationhood in association.

The clarity of the results would be determinative. An unequivocal majority in favor of one option would provide a sense of direction on the basis of which Congress could write the roadmap for the path chosen by Puerto Ricans. Conversely, a narrow majority is likely to encourage or justify Congress’s inaction.

A second determining factor of the short-term evolution of Puerto Rico is the outcome of the U.S. general elections. Unsurprisingly, both the Democratic and the Republican presidential candidates have pledged that that they would heed the preference that Puerto Rico residents will express on November 6, 2012. Nevertheless, each presidential pledge comes with notable nuances. Mitt Romney who seems to mostly contemplate statehood has vowed to support statehood even if a simple majority favored it (29). Conversely, Barack Obama, referring broadly and carefully to status change, has not specified any particular option, but has emphasized that only a strong majority (30) would spur congressional action (31).

Be that at it may, under the U.S. Constitution, there is a prerequisite to the eventual presidential support to an actual status change in Puerto Rico. The President can show his support only if presented with an act voted by both houses. Congress preliminary action towards the resolution of the Puerto Rican status issue could fall under three different scenarios. Firstly, upon receiving petition for admission Congress could pass an Admission Act into the Union and submit to the approval of the Puerto Rican residents. An incidental question would concern the wording of this congressionally-mandated referendum. Would it narrow the choice to status quo and statehood or would it open it to independence? Secondly, it could adopt a Compact of Free Association which beforehand would have been negotiated with Puerto Rico and approved by its residents. Lastly, Congress could devise a step-by-step independence process either on the basis of the outcome of the non-binding local referendum, or on the basis of a prior congressionally-mandated status referendum. It remains to be seen whether the new majorities formed in the House of Representatives and the Senate after November 6, 2012 will engage into any of these paths.

What are the structural long-term perspectives?

Depending on the elections outcome and the resulting balance of power within Congress as well as between the legislative and the executive branch, Puerto Rico may or may not shed its political ambivalence. If it were to do so, regardless of the prevailing option among voters, it would take a historic turn as it would at last exercise self-determination. Correlatively, the U.S. would demonstrate that the values that it rightly advocates elsewhere are duly observed at home. On both sides, the prospective development would signal political maturity.  In addition, with respect to Puerto Rico, it would be interesting to see how the possible political refoundation might affect the legal, cultural and demographic dimensions of its duality.

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  1. (1) Under the Treaty of Paris, the fate of Cuba was different from that of Guam the Philippines and Guam. Spain ceded the latter colonies to the U.S. in exchange for money while it merely abandoned all claim of sovereignty over Cuba.

  2. (2)Sonia G. Collazo, Camille L. Ryan, Kurt J. Bauman, Profile of the Puerto Rican Population in United States and Puerto Rico, U. S. Census Bureau, 2008: (last visited: September 15, 2012)

  3. (3)Ch. 191, 31 Stat. 77 (1900).

  4. (4)Pub. L. n° 64-368, 39 Stat. 951 (1917)

  5. (5)Pub. L. n° 80-362, ch. 490, § 1, 61 Stat. 770.

  6. (6)Pub. L. n° 82-447, 66 Stat. 327.

  7. (7)Territory [is] “an area over which the United States exercises sovereignty. The term is so used in Article IV, Section 3 of the United States Constitution, which provides that Congress shall have the "power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. - An "unincorporated territory" or "outlying possession" is an area over which the Constitution has not been expressly and fully extended by the Congress within the meaning of Article IV, Section 3 of the United States Constitution. U.S. Department of State Foreign Affairs Manual Volume 7- Consular Affairs, 7 FAM 1120 Page 3, (CT:CON-315 09-03-2009).

  8. (8)US Const. art. 4, section 3, clause 2.

  9. (9)Pub. L. n° 64-368, 39 Stat. 951 (1917).

  10. (10) Amendment XIV, Section 1, Clause 1

  11. (11) Article II, Section 1, Clause 2 of the U.S. Constitution allocate electors to states only. Territories are not recipients of such allocation. However, because, since 1980, presidential primaries and caucuses have been held in Puerto Rico, Puerto Ricans may thus designate some of the delegates to party conventions that eventually select the presidential nominee. With respect to the 2012 presidential election, a Republican primary were held in Puerto Rico on March 18, 2012, while  Democratic caucuses were held on June 3 and 4, 2012.

  12. (12) The Resident Commissioner of Puerto Rico is elected by Puerto Rican voters. Like the Delegate of each of the other U.S. territories,(s)he is not a member of U.S. House of Representatives and is not empowered to vote on the final disposition of legislation on the House floor. (S)he may however vote in legislative committee.

  13. (13) D. Custos, “Entre Dépendance et Indépendance, des Relations Privilégiées: Le cas de Puerto Rico ”in Destins des Collectivités Politiques d’Océanie, Jean-Yves Faberon,  Viviane Fayaud, Jean-Marc Régnault, Presses Universitaires d’Aix-Marseille, 2011, pp.319-328 ; "Puerto Rico ou l’Apparence de Souveraineté Partagée" in J.-Y. Faberon and G. Agniel, Ed.: "La  Souveraineté Partagée en Nouvelle-Calédonie et en Droit Comparé", Documentation Française, 2000, pp. 213-230.

  14. (14) Which translates literally as “Freely Associated State of Puerto Rico”.

  15. (15) The term "Commonwealth" does not describe or provide for any specific political status or relationship. It has, for example, been applied to both states and territories. U.S. Department of State Foreign Affairs Manual Volume 7- Consular Affairs, 7 FAM 1120 Page 3 (CT:CON-315 09-03-2009).

  16. (16) The New Progressive (NPP) advocates statehood, the Popular Democratic (PDP) advocates both the status quo and enhanced Commonwealth status (which entails the repeal of the current territorial status), the Puerto Rico Independence Party (PIP), independence.

  17. (17) A task force was established in 2005, 2007 and 2011.

  18. (18) The most recent of such calls was issued by the U.N.  Special Committee on Decolonization on June 6, 2011.

  19. (19) On October 11, 1990, Congress took a significant step as for the first time one house (the House of Representatives passed a bill calling for a referendum on the status of Puerto Rico. But the substantial differences between the two houses could not be resolved causing the bill to die. In 1998, H.R. 856, known as the "U.S.-Puerto Rico Political Status Act , sponsored by Representative Young in 1998 was passed by Congress but died in the Senate as the latter failed to take action. In 2009, HR 2499, i.e.,  “Puerto Rico Democracy Act of 2010”, co-sponsored by the Resident Commissioner Pierluisi, experienced a similar fate.

  20. (20) The act voted by the legislature was signed into law by Governor Luis Fortuño on December 28, 2011.

  21. (21) November 6, 2012 coincides with the date of the US general elections and the gubernatorial and legislative elections  in Puerto Rico.

  22. (22) In 1967, 1993 and 1998, voter turnout was respectively 66%, 74% and 71%.

  23. (23) US Const. art. 4, section 3, clause 2, i.e., Territorial Clause and Article 4 Section 3 of the U.S. Constitution: New States may be admitted by the Congress into this Union.

  24. (24) The Marshall Islands, Micronesia, and Palau fall under this association regime.

  25. (25) In light of which, a guest column published on February 17, 2012, by Pedro Pierluisi, the Resident Commissioner of Puerto Rico, argues that the upcoming referendum is historic: Puerto Rico Status Referendum is Historic See note 21.

  26. (26) “Enhanced Commonwealth” would combine nationhood with perpetual U.S. citizenship and continuing  financial assistance. See Pedro Pierluisi, Puerto Rico Status Referendum is Historic, 2012: (Last visited: September 15, 2012)

  27. (27) The above was constituted by the 4 other options on the 1998 ballot: the existing territorial status (0.06%), free association (0.29%), statehood (46,49%), and independence (2,54%). 50,3% of the votes went to the “None-of-the-above” which was subject to conflicting interpretations.

  28. (28) In the 1998 referendum, the PIP gathered 2,54% of the votes.

  29. (29) (last visited September 15, 2012)

  30. (30) As opposed to the votes being spread in the middle with a 50%-50%  or a 51%-49% outcome.

  31. (31) (last visited September 15, 2012)

Dominique Custos is Judge John D. Wessel distinguished professor of law at Loyola University New Orleans (U.S.A.). She previously served as a full professor at the University of Caen (France).

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