THE BILATERAL COMPACT ITS VIOLATION AND THE PLAUSIBLE POSITION OF THE INTERNATIONAL COURT OF JUSTICE CONCERNING PUERTO RICO

Fermín L. Arraiza Navas

To address the legal issue regarding the political status of Puerto Rico it is of paramount importance to analize other analogous situations which had been presented before the consideration of the International Court of Justice (I.C.J.). The case of the people of South West Africa (Namibia) is one of this instances.

As a matter of introduction, it is necessary to establish the analogy that can be found between the case of Namibia and Puerto Rico in order to apply the rulings of the International Court of Justice regarding Namibia to the decolonization issue of Puerto Rico.

While Puerto Rico became a colony of the United States as a result of a military occupation of the territory and the subsecuent signature of the Treaty of Paris, the People of Namibia became a territory under the tutelage of the League of Nations when it was put under the administration of South Africa after the end of the First World War. Under the articles of the League, even though the principle of non-annexation was included in its article 22, the lable of Namibia as a territory under mandate "C" gave South Africa an argument to try to incorporate that people to the latter.

After the end of the Second World War and the adoption of the United Nations Organization (U.N.O.) Charter in 1945, the territories under the League's Mandate System were located under Chapter XII (International Trusteeship System) and the rest of the existing colonies under Chapter XI (Declaration Regarding Non-Self-Governing Territories). In this respect, the United States of America accepted its responsibility under the UN Charter concerning the People of Puerto Rico and started to send reports to the U.N. General Assembly regarding the administration of one of their colonies in the Caribbean; Puerto Rico. As we will see both the United States of America and South Africa did not fulfill with their obligations under the Charter.

In the case of the People of Namibia, the General Assembly and the Security Council decided to present a request for an advisory opinion from the International Court of Justice regarding the legal consequences of the illegal presence of South Africa in that country.

The practice followed in order to request an Advisory Opinion from the I.C.J. has been based on resolutions either from the U.N. G.A. or the Security Council (S.C.) followed by a letter addressed to the Court by the U.N. Secretary General.

While the 1971 Advisory Opinion regarding the presence of South Africa in Namibia was originated by Security Council resolution 276 (1970) (due to the refusal of the South African Union to fulfill with G.A. and S.C. resolutions concerning its obligation to submit periodical reports to the U.N. G.A. regarding the administration of Namibia -from 1950 until 1970-), in the case of Puerto Rico, the basis to request an Advisory Opinion from the I.C.J. could be considered due to the refusal of the U.S. Government to fulfill with the reiterated resolutions of the G.A. Decolonization Committee reaffirming the right of the People of Puerto Rico to exercise its right to self-determination and independence according to G.A. resolution 1514 (XV), from 1972 until the 1990's.

In the Puerto Rican case, while the United Nations G.A. deleted its name from the list of non-self-governing territories in 1953 [Res. 748 (VIII)], the Decolonization Committee started considering the issue again due to the non-democratic relations that persist between the people of Puerto Rico and the U.S. Government and to the serious violations of the "Bilateral Compact" agreed between the Government of Puerto Rico and the United States and approved finally by the International Community through its resolution 748 (VIII), recognizing the constitutional and international status of the People of Puerto Rico.

As all we know, the unilateral amendments of the Puerto Rican Federal Ralations Act , which are an integral part of the "compact" and the violations of the internal sovereignty (recognized by the International Community) of Puerto Rico through the imposition of ordinary federal laws above our constitutional guaranties are ultra vires , and constitute and imperial position contrary to the postulates of international law. As we should know, colonialism in any form or manifestation has been declared to be a crime against humanity that threatens international peace and security.

In the case of Namibia, the Advisory Opinion was requested to seek legal advice from the I.C.J. on the consequences or implications of the previous resolutions of the Security Council. On the other hand, the position adopted by South Africa was to challenge the Security Council previous resolutions, and therefore, to object the request for an Advisory Opinion from the I.C.J.

According to the South Africa Government, the Union was not under the obligation to bring reports to the G.A. with regard to its administration of the territory of Namibia , once the Mandate System created under the League of Nations was over due to the termination of the League's System. Moreover, the Government of South Africa argued that due to the classification of Namibia under category "C" of the Mandate, it was natural to think about Namibia as a territory "not far removed from annexation", as a practical effect. (See I.C.J. Rep., 1971, pp. 28, 30).

In this context, since 1946, the Government of South Africa had asked for the integration of Namibia to the Union. However, on 14 December 1946, the U.N. G.A. objected the integration of Namibia to South Africa through resolution 65 (I). Notwithstanding the resolution of the G.A., as far as 1971, the government of South Africa was still arguing that the administration of the territory was for the benefit of its inhabitants and was desired by them , and therefore, no legal provision prevented its annexation of Namibia. (See I.C.J. Rep., 1971, pp. 39-40, 43).

The Court responded to these arguments by making reference to previous advisory opinions concerning the same territory, as the one of 1950 with regard to the International Status of South-West Africa (Namibia). In the opinion of the Court, in "... the setting up of a mandate system 'two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of such peoples form 'a sacred trust of civilization'.' " The Court added:

It is self-evident that the 'trust' had to be exercised for the benefit of the peoples concerned, who were admitted to have interests of their own and to possess a potentiality for independent existence on the attainment of a certain stage of development: the mandate system was created to provide peoples 'not yet' able to manage their own affairs with the help and guidance necessary to enable them to arrive at the stage where they would be 'able to stand by themselves'. (See I.C.J. Rep., 1971, pp. 28-29).

Furthermore, the Court stressed that to "... accept the contention of the Government of South Africa ... would have entailed the reversion of mandated territories to colonial status, and the virtual replacement of the mandates régime by annexation, so determinedly excluded in 1920 ." The Court concluded that " 'the principle of non-annexation' was 'considered to be of paramount impotance' when the future of South-West Africa and other territories was the subject of decisions after the First World War. What was in consequence excluded by Article 22 of the League Covenant is even less acceptable today ." (See I.C.J. Rep., 1971, pp. 33, 43).

The I.C.J. also stated that in order to interpretate an international instrument, the framewok of the whole international legal system has to be taken into consideration. Hence, due to the provisions regarding the interpretation of legal norms impari materia and to the developments of the last fifty years, it is clearly illustrated that the "ultimate objective" of the mandate and the trusteeship systems was the "self-determination and independence " of peoples. "In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore ." (See I.C.J. Rep., 1971, pp. 31-32; emphasis added).

[T]he International Court of Justice treated the people of the Mandated Territory of South West Africa as having, in effect, rights at international law, including a right of progress towards independence , which had been violated by South Africa's failure as Mandatory Power to comply with its obligations to submit to the supervision of United Nations organs (see ICJ 1971, 16 at 56 where the Court referred to the people of the Territory as a 'juridical entity' and as an 'injured entity' ). (Véase J.G. Starke, Introduction to International Law... )

Considering the apparent contradiction between the United States Supreme Court decisions after 1953 in which Puerto Rico is described as a "non-incorporated territory" of the United States, subject to the "Plenary Powers" of Congress under the "Teritory Clause" of the U.S. Constitution, and the U.N. General Assembly resolution 748 (VIII) plus the unilateral violation of the "bilateral compact" agreed between 1950 and 1953, a future advisory opinion from the International Court of Justice concerning Puerto Rico should rule in the same way that they did regarding the presence of South Africa in Namibia.

In the same Advisory Opinion of 21 June 1971, the International Court of Justice ruled:

1. [T]hat inasmuch as the continued presence of South Africa in Namibia was illegal by reason of its refusal to submit to the supervision of United Nations organs, South Africa was under an obligation to withdraw its administration from the territory immediately, and to end its occupation there ...

Finally, as one of its last strategies, the Government of South Africa requested the Court for an authorization to hold a plebiscite in the territory, to take into consideration the desires of the People of Namibia . The Court concluded that due to the fact that no further evidence was needed, the mandate should be considered validly terminated and in consequence "South Africa's presence in Namibia is illegal, ... it follows that it cannot entertain this proposal." (See I.C.J. Rep., 1971, pp. 57-58).

Due to the treatment received by the people of Puerto Rico from the U.S. Governmental Branches, in violation of the agreements approved by the UN General Assembly in 1953, we can reasonable expect that any future I.C.J. opinion regarding Puerto Rico according to its previous rulings in the case of Namibia, would be in harmony and complementary to the Decolonization Committee resolutions reaffirming the right of the People of Puerto Rico to self-determination and independence under the dispositions of G.A. resolution 1514 (XV).

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El autor es abogado con maestría en Derecho Internacional Público del Instituto de Derechos Humanos y Derecho Humanitario Raoul Wallenberg, de la Universidad de Lund, Suecia.

Además, ha sido profesor del curso Derecho Internacional Avanzado: Derechos Humanos, en la Facultad de Derecho de la Universidad Interamericana de Puerto Rico.