Self-Determination: History and Meaning
On March 18, 2021, two bills aimed at ending Puerto Rico’s colonial status were introduced in the U.S. Senate and House of Representatives. The bills, S. 865 and H.R. 2070 (the “Puerto Rico Self-Determination Act”), purportedly seek to allow Puerto Ricans the exercise of their “natural right to self-determination,” through a process that would feature a status convention. The members of the convention would work in coordination with a Congressional Commission.
The convention must propose “self-determination options,” which must be “outside” the Territory Clause of the United States Constitution. That is, none of the options to be presented to Puerto Rico voters can include the current arrangement, whereby Congress exercises “plenary power” over Puerto Rico, qua “territory” of the United States. This article addresses the history and contents of the legal concept of self-determination.
What is Self-Determination?
Self-determination is a concept developed in the international arena, initially as a political principle; later, as a legal one. Today, international law defines self-determination as the right of peoples to freely determine their own destiny; in particular, their own political status, as well as their economic, cultural and social development.
The peoples deemed to have the right to self-determination have mostly been colonized peoples of geographically distinct “Non-Self-Governing Territories.” Called “external self-determination,” it is the right of peoples to decide their own political status, including the right to constitute their own, independent state, and to be free of alien domination.
European and American Imperialism
The history and development of the concept of self-determination mirror the second wave of European imperialism, which resulted in the subjugation of most African and Asian peoples. The first wave was the conquest and subjugation of the peoples that inhabited the American continent.
The genocidal brutality of that initial phase prompted the Spanish Bartolomé de las Casas and Francisco de Vitoria to develop principles supporting the humane treatment of peoples. Those principles were suffused with concepts of natural law, and the inherent dignity and reasoning ability of all human beings, including the natives of the Americas. In the 18th and 19th centuries, abolitionists on both sides of the Atlantic relied on similar principles of universal human dignity to call for the end of the slave trade, and of slavery.
In the 19th century, while the United States was expanding its empire in the North American continent –displacing and annihilating the Native nations, and taking by force almost half of Mexican territory–, the European powers eyed Asia and Africa as new sources of raw materials, markets, and labor. The central impetus for those imperial ventures was capitalist expansion; that is, more sources of income and profits for entrepreneurs, speculators, and financiers.
The last decades of the 19th century were mired in economic depressions, as well as in civil and labor upheavals, which made European capitalists more determined to subjugate peoples abroad; and gave additional reasons to already-convinced American capitalists of the need to expand “overseas.” In 1890, after the European carving of Africa at the Berlin Conference of 1884–85, the United States closed the frontier with the crushing of the last Native resistance. In 1898, Hawaii, Philippines, Guam and Puerto Rico became “overseas possessions” of the American empire.
Self-Determination After Two World Wars
Imperialism would exacerbate the intra-European rivalries. 30 years after the Berlin Conference, a devastating war took 20 million lives. The consequences of World War I also included the dissolution of the Austro-Hungarian and Ottoman Empires. U.S. President Woodrow Wilson asked the war victors to guide their political decisions in the European continent by the principle of self-determination, thus advocating for taking into account the desires of Czechs, Slovakians, Hungarians, and other peoples of Eastern Europe, who had been ruled by the Habsburg dynasty of the defeated Austro-Hungarian empire.
The territories inhabited by non-Turks who had been ruled by the vanquished Ottoman Empire were divided between France and Britain, in an imperial regime that sought to find legitimacy in the “mandates system” of the new League of Nations. That system, however, had no use for the self-determination of Arabs, Kurds, Maronite Christians, and other peoples living in the Northern parts of the Arabian Peninsula, and in Mesopotamia.
After an even worse war, which ended in 1945, the concept of self-determination became an important cog in the process of decolonization. By the 1960s, self-determination had become a norm of customary international law, not through treaties, but through General Assembly resolutions, which were supported by the practice of nation-states.
The United Nations Charter, of June 26, 1945, included “self-determination and equal rights of peoples” among its principles. Self-determination is mentioned twice in the Charter, both times in the context of developing “friendly relations among nations” and in conjunction with the principle of “equal rights of peoples.” The reference to “peoples” would encompass groups beyond states, to include non-self-governing territories “whose peoples have not yet attained a full measure of self-government.”
In 1960, the General Assembly of the U.N. issued Resolution 1514 (XV), which proclaimed: “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.”
All that was the foundation of self-determination becoming a norm of international law, which by the 1960s was deemed as establishing the right of all colonial territories to become independent or to adopt any other status which they freely chose.
Two multilateral treaties provided another source for the law of self-determination. In 1966, both the Covenant on Civil and Political Rights, and the Covenant on Economic, Social, and Cultural Rights –multilateral treaties which came into effect in 1976– affirmed the right of “all peoples” to self-determination.
Article 1 of the Covenant on Civil and Political Rights restated the right of “all peoples to self-determination.” It added that “all peoples may, for their own ends, freely dispose of their natural wealth and resources;” and that the “States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”
Moreover, each party to the Covenant must “take the necessary steps … to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” The United States is a party to the Covenant on Civil and Political Rights. As such, it is bound by its terms and commands.
In 1970, the U.N. General Assembly issued Resolution 2625 (XXV). Considered to reflect customary international law, Resolution 2625 remains the most authoritative statement on the meaning of self-determination. It reiterated that “all peoples” have the right to self-determination and identified two purposes which will be achieved by its realization: 1) promoting friendly relations and cooperation among States; and 2) bringing a speedy end to colonialism.
Self-Determination is Part of U.S. Law
International law is part of United States law. The U.S. Supreme Court has made clear that, as such, international law “must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending on it are duly presented for its determination.” [1]
According to the Supremacy Clause of the U.S. Constitution, the treaties to which the American government is a party are part of “the supreme law of the land.” Also, Article I, Section 8 of the Constitution empowered Congress “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”
Indeed, since 1789 U.S. district courts have original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. [2] What in the 18th century was known as the “law of nations” is today’s customary international law –that part of international law which is based on the accepted, consistent practices of international actors, including nation-states.
Given that international law is part of the legal regime of the United States, it is appropriate for Congress to rely on the law of self-determination. That said, history teaches us to expect politics –not law– to determine the outcome of all efforts aimed at ending the subordination of Puerto Ricans.
In a forthcoming article, I will argue that statehood would not end that subjugation. Instead, it will culminate it, while its myriad, devastating effects will mostly become irreversible. The next article, however, will center around the 1953 decision of the U.N. General Assembly, exempting the United States from filing reports about Puerto Rico, as required by Article 73 of the U.N. Charter.
[1] The Paquete Habana, 175 U.S. 677 (1900).
[2] See, e.g., Filártiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980).
