The red herring of Puerto Rico’s Status Convention

On Aug. 25, New York Democratic Reps. Nydia Velázquez and Alexandria Ocasio-Cortez announced a bill pushing for the right of the people of Puerto Rico to create a Status Convention through which they would exercise their natural right to choose its sovereign status.  

This is the second time that Rep. Velázquez has introduced a self-determination bill in the House.

The proposal of a Status Convention to address Puerto Rico’s political status issue has become a mainstay of the territorialist Popular Democratic Party (PPD) as a procedural mechanism to detain the growing call for statehood in the island. In the past, stateside politicians like Velázquez, Ocasio-Cortez and former Rep. Luis Gutiérrez (D-Texas) have consistently allied themselves with the PPD to block any attempt to move the statehood question through Congress under the pretext of “self-determination.” 

It is noteworthy that these congresswomen, who champion self-determination, oppose the celebration of the “statehood: yes or no” referendum scheduled to occur in the November general election.

There are sound political and legal reasons why a Status Convention is not the way to address Puerto Rico’s current political impasse.

The proposed Status Convention claims that self-determination is a natural right. This legal justification rests on the universal declaration of human rights by the United Nations, which, by virtue of their ratification by the United States, are part of its statutory law. Of course, the mere invocation of a right does not automatically mean that it is correctly understood or applied, or that there are other ways in which it can be exercised. 

As to the claim of natural law, various thinkers have invoked it as a philosophical foundation for our normative behavior. For Aristotle, for example, natural law is derived from our experience of the apparent order of nature. For Thomas Aquinas, natural law was a derivative of divine law. For modern natural law theorists some sort of neo-Kantian proceduralism seems to be the foundation. Although this is not the time or place to discuss the philosophical underpinnings of natural rights, one would expect that those that invoke them as their legal foundation would be aware of the shortcoming of the position. The mere assertion of a natural right is not in of itself sufficient.

From a strictly political perspective, a Status Convention that purports to be the depositary of the will of the people of Puerto Rico would necessarily need to include all sectors of the island’s political spectrum, including those that favor statehood. As a general rule, those “statehooders”  — who are an electoral majority in Puerto Rico — oppose the idea because they correctly perceive it as an obstacle placed on voters’ direct participation on the decisive issue of our generation.

In this context, for example, the bill’s proposal of creating a Congressional Bilateral Negotiation Commission to discuss alternatives to the status question, is a clear instance of backroom procedures and privilege, aiming to deprive individual Puerto Ricans — who are American citizens — of their right to directly participate in the decision making process concerning their political future. Democratic candidate in New York’s 15th district, Ritchie Torres, is correct in stating that real self-determination is achieved through elections.

Only in the musings of die-hard authoritarians can a Status Convention claim to represent the people against the manifest opposition of those same people it claims to represent. A convention that does not have the endorsement of a majority of the electorate is a profoundly antidemocratic mechanism and cannot be understood in any way shape or form to be a legitimate exercise in self-determination.

Velázquez and Ocasio-Cortez’s proposal does not aim to obtain a federally mandated plebiscite on the status question, such as the pending legislative proposals that have been sleeping in forgetfulness in Chair Raúl Grijalva’s (D-Ariz.) House Committee on Natural Resources. Rather, its purpose is to create a deliberating body which presumes to be the legal embodiment of the people of Puerto Rico, as a collective, sovereign will. 

If anything was settled by the Supreme Court in Commonwealth of Puerto Rico v. Sanchez Valle it is that any sovereignty claimed by Puerto Rico is, as a matter of law, derivative and delegated by Congress pursuant its constitutional authority under the Territorial Clause.

As a matter of law, the people of Puerto Rico as a distinct political body, was created by section 7 of the Foraker Act, ratified by the Jones Act, the Federal Relations Act and expressly ratified by Public Law 600, which authorizes the people of Puerto Rico to organize and adopt a Constitution to govern themselves. We tend to forget that our 1952 Constitution of the Commonwealth of Puerto Rico is a creature of federal law and that it is precisely this federal statutory source that puts into question the political legitimacy of our current territorial status.

As a collective body, Puerto Rico has exercised its right to self-determination in every electoral event since the approval of the 1952 Constitution and subsequent general elections and local plebiscites, albeit incompletely and inconclusively. This is precisely the importance of the November 3 “statehood yes or no” referendum. It is only from the heights of the worst kind of legal conceptualism that one can argue that as a matter of political reality the People of Puerto Rico have not exercised their right to self-determination. 

It is highly ironic that two Congresswomen from New York aim to provoke the exercise of the sovereign power of Congress, to allow the people of Puerto Rico to exercise their alleged natural right to self-determination. If in fact there were such a thing, we would certainly not need congressional approval to exercise it.

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.