Do Puerto Ricans Have Human Rights?

In: Chicano|human rights|Latin America|latinos|Law|politics

10 Dec 2009

pr-us-flagsSometimes I forget that while the official political status of Chicanos in the Southwest was decided by the Treaty of Guadalupe Hidalgo of 1848, even after a century, the status of Puerto Ricans on the Island has still not been resolved.  I remembered that fact today as I was reading about the celebrations being held all over the world in honor of International Human Rights Day.  I came across an article in the Taiwan News celebrating that two treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), would be going into effect today.  I thought to myself: what if Puerto Ricans wanted to add more human rights protection to their residents, protection that many in the United States do not enjoy thanks to our government’s nasty little habit of refusing to sign any treaties that might offer economic and social rights (or in some cases even removing our signature if there is a possibility of the US being taken to task for human rights abuses)?  Can the Government of Puerto Rico sign any treaties?  It turns out that it cannot.  Their government, according to Wikipedia, is “a republican form of government subject to U.S. jurisdiction and sovereignty.  Its current powers are all delegated by the United States Congress and lack full protection under the United States Constitution. Puerto Rico’s head of state is the President of the United States.”  Does this then mean that Taiwan, another island whose sovereignty is in dispute, can now boast more rights for its citizens than Puerto Rico can?

TAIWANHUMANRIGHTSJOINUNThe answer is complicated.  Most treaties that recognize economic and social rights, including the ICESCR, do not provide a remedy for violations.  Most require signatories to “work toward” achieving these rights.  The only teeth in these documents are in the form of public embarrassment via progress reports.  Thus, even though the Taiwanese took some steps to make human rights central to their political culture, I’m not sure if the Taiwanese will get anything tangible right away.   Taiwan’s government, however, the Republic of China, does get immediate gratification by reminding the world that it still believes it is an independent, sovereign nation even when only 23 countries recognize it as such (incidentally, nearly half of those countries are in Central America and the Carribean).

That leaves us with civil and political rights.  The United States is a signatory to the ICCPR; so, all citizens of the US should be able to take advantage of the treaty–right? Not exactly.  The ICCPR is only executed through local law.  That means that any rights therein are enforced through domestic law and the US Constitution.  For the most part, all ICCPR rights are covered locally; so, in theory all US Citizens should be covered.  But that is where the status of Puerto Rico creates problems.  At the beginning of the 20th century when Puerto Ricans were first granted citizenship, there was a series of cases, the Insular Cases, that attempted to answer the question of whether Puerto Ricans on the Island have the same rights as citizens in the States.  The results were unexpected (at least for me).  One shocking holding came from the Balzac v. Porto Rico case which denied a jury trial to Mr. Balzac saying not only did the US Constitution not fully apply to “citizens” in Puerto Rico, it shouldn’t apply to them because they were accustomed to Spanish law and would therefore be “unprepared for jury service.” (emphasis added).

After reading the great analyses of  Juan R. Torruela, author of The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, I can only definitively say that Nuyoricans, ChicagoRicans, and all other ‘Ricans residing in the 50 states are covered fully by the ICCPR and the US Constitution, but like the rest of us, they lack coverage of the ICESCR.  As for those folks on the Island, they may or may not be covered by ICCPR depending on whether the courts view any of the human rights in question as fundamental.  They are certainly not covered by the ICESCR.  Ironically, both covenants recognize that “all peoples have the right of self-determination.”

humanrightsforallOn the 61st anniversary of the Universal Declaration of Human Rights, it is shameful that anybody in the world is excluded from the tent of human rights protection, be they civil, political, social, cultural, or economic rights.  To rely on the status of countries and their ability or willingness to execute treaties (or not) fundamentally contradicts the spirit of the declaration.  The whole point is that everyone should be covered by virtue of their humanity. Are we not all humans regardless of who dominates our national sovereignty?

En hora buena…

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6 Responses to Do Puerto Ricans Have Human Rights?

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December 10th, 2009 at 4:01 pm

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December 10th, 2009 at 5:52 pm

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December 10th, 2009 at 10:34 pm

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Omar Little

December 11th, 2009 at 11:44 pm

Tried to use International Treaties against torture to apply against Jon Burge–only ones to think of it or at least try it
had a city council resolution pass by Ed Smith–I wrote it

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Omar Little

December 11th, 2009 at 11:45 pm

you should think about where fundamental human rights come from

STA could answer the question for you

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Rey Lopez-Calderon

December 12th, 2009 at 8:14 am

Yes, “Omar,” St. Thomas was there (through Maritain and MacIntyre mostly), but fundamental rights thinking isn’t soley Thomist, especially since others involved in the UDHR would not accept the underlying premise of a natural law. Even part of the human rights framework in Maritain is influenced by Bergson as well. Oh, and we can’t forget Kant…

A Thomist analysis obviously leads to an answer in the affirmative with regard to PR human rights, but that is the whole point of the post. There is a disconnect between the fundamental nature of human rights and the legal exercise of those rights.

Too bad you had to exercise all local remedies (is that right?) in the Burge case. Though since torture is a crime against the Law of Nations, it would have been cool to try to catch him on vacation, service a la Pinochet.

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