Exploiting Puerto Rico's Fuzzy Sovereignty

With the homeland as neither nation nor state, Puerto Ricans twist in the wind of political whimsy.
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With the homeland as neither nation nor state, Puerto Ricans twist in the wind of political whimsy.
San Juan, Puerto Rico. (Photo: Aneta Waberska/Shutterstock)

San Juan, Puerto Rico. (Photo: Aneta Waberska/Shutterstock)

Is there a geography of human rights? As a graduate student, I was preoccupied with this question. In pursuit of an answer, I learned that territory rules. In terms of protection from government power, where you are defines who you are.

Ideally, wherever you are, you deserve some sort of basic dignity. But only nation-states can agree on laws. Thus, international human rights laws do not apply to the high seas. Anarchy rules most of the Earth's surface. The results aren't pretty. In the middle of the ocean, far from shore, there is no human dignity.

If you don't want to die for capricious reasons, seek strong sovereignty. If you live in a place of weak sovereignty, migrate. Ironically (if you think like a geographer), sovereignty undermines state power. Paradoxically, human rights depends on the strength of state power.

Both in and outside of the United States, Puerto Rico is a legal spatial loophole. When the birth control pill needed more rigorous tests, the research moved from culturally restrictive Massachusetts to anything goes Puerto Rico. Researchers didn't need to ask permission. They took full advantage of a legal blank slate. Human dignity didn't apply.

Today, human dignity still doesn't apply in Puerto Rico:

"What's really weird about Puerto Rico is that the commonwealth has been excluded from the Chapter 9 provisions of the bankruptcy code," says John Pottow, a professor at the University of Michigan Law School. "Now what's weird about Puerto Rico's omission from the bankruptcy code is that no one can really defend it. It appears to be a technical error. In fact, if you go back through the legislative history it looks like Congress tried to fix it and was unsuccessful. So, the clear text of the Federal Bankruptcy Code for mysterious reasons precludes Puerto Rico from letting its entities file for Chapter 9."

There's a bill in Congress that would allow Puerto Rican agencies to file for Chapter 9, but it has stalled. And Federal Reserve Chair Janet Yellen said Wednesday that she thinks the Fed "can't and shouldn't" get involved in the commonwealth's debt crisis. The commonwealth itself even drafted legislation to try to restructure its debt.

"It passed and then got struck down as unconstitutional for, ironically, violating Chapter 9 of the Federal Bankruptcy Code, which they say preempts it," Pottow says.

Puerto Rico can't re-structure its debt like other states can. Perversely, the U.S. Constitution doesn't really restrict federal government power in the commonwealth. This territorial limbo is a relic of various Supreme Court rulings during the early 20th century:

The Insular Cases eventually settled the question by holding that the newly acquired territories belonged to, but were not a part of, the United States. The cases created a distinction between incorporated and unincorporated territories that remains today. The consequence was that in territories including Puerto Rico and Guam, constitutional protections do not apply unless they are fundamental, and territories have no ultimate guarantee of statehood.

Puerto Rico does enjoy some constitutional protections. But it is closer to the human rights anarchy of the high seas than the 50 states. Thus, where you are can determine what human rights you might enjoy. Just being human isn't enough.

Jim Russell, a geographer studying the relationship between migration and economic development, writes regularly for Pacific Standard.