By guest contributor Howard Hills*
U.N. Human Rights Committee petitioned to question U.S. on decolonization of American territories
Beginning on what Americans alternately celebrate as Columbus Day and/or Indigenous People’s Day, the United Nations Human Rights Committee (HRC) began its three-week 139th Session that focuses among other things on implementation of the International Covenant on Civil and Political rights (ICCPR).
In addition to review of formal submissions by U.N. member states, non-governmental organizations (NGOs) issue “shadow” reports on topics commended to the HRC. This year that includes the Puerto Rico/Guam NGO statement on the political status of five U.S. overseas island territorial possessions under American sovereign rule. The document is entitled “Towards Decolonization & Repair: U.S. territories, self-determination, and the incompatibility of colonialism and human rights.”
Prepared by the ACLU of Puerto Rico and Guam-based Blue Ocean Law, not surprisingly those two territories are the focus of the report’s decolonization narrative. It also makes observations about three other U.S. territories organized under federal territorial statues – American Samoa, Northern Mariana Islands and U.S. Virgin Islands.
International law narrative
The contents of the shadow HRC document from a coalition of territorial NGO’s include a highly legalistic international law argument that the U.S. is not sufficiently adhering to its commitments and obligations under Article I of the ICCPR. That assertion is made with respect to full implementation of the principle of self-determination for Puerto Rico and Guam, as well as the other three possessions “organized” under current federal territorial law.
Of course, self-determination limited to home rule under federal territorial organic laws is only the first stage of Article I implementation under ICCPR. It is suggested here in this analysis that the international law narrative in the Puerto Rico/Guam shadow report would be enhanced and strengthened by an equal if not greater reliance on Article 25 of the ICCPR, which implicates more robust and efficacious U.S. implementation of the principles of universal suffrage as well as individual equal voting rights.
It is only and exclusively through these additional government by consent suffrage rights under Article 25 of ICCPR that self-determination as to political status resolution under Article I of ICCPR can be institutionalized for U.S. nationals and citizens in the American system of constitutional federalism. That constitutional equality in citizenship rights comes solely by virtue of statehood, the only status that secures equal representation in the Electoral College process for election of the President, and in Congress where supreme federal statute law is promulgated (and appointments to the co-equal Judicial branch are confirmed).
Thus, if Puerto Rico, Guam or the other three current territories remain under U.S. sovereign rule, and the people born there in continue under U.S. statute law to acquire and retain U.S. nationality and citizenship, it is through principles of Article 25 under ICCPR that our nation and fellow Americans in the territories can redeem the paramount goal of government by consent and equal rights of nationality and citizenship at the national level.
For further background on ICCPR and territorial status, see Puerto Rico’s Future: Time to Decide by Richard Thornburgh, former United States Attorney General.
Domestic American law narrative
The Puerto Rico and Guam shadow petition to HRC also makes highly legalistic U.S. domestic law arguments relating to the policies and practices of the political branches of the federal government under current territorial statute law and federal court jurisprudence defining American territorial law.
That includes general references to both the original “unincorporated” territory political status doctrine of the historical but now anachronistic “Insular Cases.” That line of rulings applied the court-invented non-incorporation doctrine to the Puerto Rico and Guam prior to the conferral of U.S. nationality and citizenship.
As the Puerto Rico/Guam shadow HRC report notes, the 1922 case of Balzac v. Puerto Rico anomalously has been applied to impose the non-incorporation political status doctrine of the Insular Cases – historically applicable from 1901 to 1922 only to non-citizens in three territories – on American citizens in five current island possessions organized under federal territorial law.
Balzac in effect separated national citizenship from application of the national constitution. Thus, it is suggested here as central to this analysis that the historical and legal narrative of the Puerto Rico/Guam shadow report is incomplete and requires augmentation.
Specifically, it should be emphasized that the jurisprudence of the “Insular Cases,” as applied to and implemented in Puerto Rico from 1901 to 1922 and for Guam from 1901 to 1950, needs to be distinguished from the modern era federal “Insular Cases” territorial jurisprudence from the 1922 Balzac ruling to the U.S. v. Vaello-Madero ruling a century later in 2022.
The “Balzac citizenship” doctrine was invented by the courts in 1922 and applied since the advent of U.S. citizenship for each such island jurisdiction. The resulting legal and political anomalies emanating from the Balzac case are reviewed in the study entitled Citizens Without A State, available at Amazon or PR51ST.com.
Undemocratic political status incompatible with human rights
The Puerto Rico/Guam shadow report emphasizes that under ICCPR maxims decolonization is an “obligation under international human rights law that can be neither delayed nor deferred.”
Accordingly, in the first instance, if the people of a non-self-governing American territory democratically seek independent sovereign nationhood it would be contrary to ICCPR for the U.S. to deny transition to that status. Yet, in the case of all five U.S. territories there is no record of democratic majority rule petitioning for independent nationhood, or even free association as defined by 1970 U.N. resolution 2625 (XXV).
Rather, since statutory U.S citizenship conferred by Congress under Article I, Section 8 Clause 4 of the U.S. Constitution was granted in both territories, many observers suggest the single most impactful factor delaying and deferring decolonization has been resistance to status change by vested special interests thriving politically and financially under the territorial regime of home rule. It seemingly is in that context that fully equal rights of a national citizenship are still unrealized in these territories.
At the local and federal levels a “benign” despotism has perpetuated institutionalized economic and political co-dependency on the status quo. This arguably gave rise to the misleading political narrative and legal hoax associated with the autonomist “nation-within-a-nation” and “shared sovereignty” doctrine of “commonwealth,” based on ideological abstractions incompatible with the U.S. Constitution.
Thus, it is important that the Puerto Rico/Guam shadow report stated clearly;
“The reality of unincorporated status within the U.S. system is that the territories remain colonized regardless of whether they have commonwealth or not.”
Similarly, the Puerto Rico/Guam report notes that the outcome of the recent Fitisemanu v. U.S. case protected human rights of indigenous people of American Samoa from political status change that is imposed against the democratically expressed wishes of the people.
It should be emphasized that the Fitisemanu case involved an attempt to impose political status change to make American Samoa more like Puerto Rico, Guam and states of the union. The Puerto Rico/Guam report recognizes this was done in the name of human rights, but was not what the majority of the people supported through their traditional and democratic political process of self-determination.
Political and legal pathways to decolonization
The Puerto Rico/Guam shadow report requests HRC to direct numerous questions to the U.S. concerning the international and domestic law issues raised in the NGO report. It is suggested that in general the concerns raised by the NGO report are cast in legalistic terms, but the questions posed are largely “political question” matters that under jurisdictional grounds are best resolved by Congress rather than the courts.
Thus, again, it is suggested here that Puerto Rico and Guam NGO’s should consider alternatives to seeking legal solutions through Congress or political solutions through the courts. Instead of repeating initiatives that did not change outcomes, all those favoring decolonization based on self-determination should work more closely together to coordinate efforts in Congress and the courts.
Discerning legal and political strategies will be required to end the perversity of the Balzac doctrine for U.S. citizens in territories that remain under U.S. sovereignty, or to end Balzac status in favor of separate sovereignty, nationality and citizenship for those peoples in our island territories aspiring to full independence or independence with a treaty of free association outside the U.S. constitutional framework for permanent political union.
The author served as Legal Adviser for Territorial Status Negotiations, Executive Office of the President and National Security Council (1982-1986), Counsel for Free Associated State Affairs, U.S. Department of State (1987-1989), and Senior Adviser on Compact of Free Association Negotiations, Office of the Assistant Secretary of Interior for Territorial and International Affairs (2020-2023).
