*4 TORRUELLA, Circuit Judge (Dissenting). David Hume, that most seminal of British philosophers, in his essay That Politics May Be Reduced To A Science, [2] stated that "[i]t may easily be observed that though free governments have been commonly the most happy for those who partake of their freedom, yet are they most ruinous and oppressive to their provinces." Although this was a statement made with more direct reference to England's relationship to Ireland and its pеople, it is not one that is totally irrelevant to that between the United States and Puerto Rico and the four million United States citizens who reside there.
If on the one hand it can be argued that Puerto Rico and its "citizens" are better off materially than they were when the island was invaded 106 years ago, [3] the undeniable fact is that it *5 has been, and continues to be, at the basement of the American hegemony. One indicium of this condition is its comparative economic condition. Its residents have an annual per capita income of $16,800 in contrast with those of Mississippi, the poorest state, at $23,448 per capita. It is even more disparate if we look to the national average, which is $37,800. [4] The unemployment rates officially average over 11%, although they are de facto much higher. Even at the official rate, however, they stand at twice the national average. [5] While these dismal statistics prevail, Puerto Rico is second only to Mexico as a market for U.S. goods in Latin America [6] and several billion dollars are "repatriated" Rico amounted to $12.1 billion. Bureau of the Census, U.S. Dep't. of Commerce, Consolidated Federal Funds Report (2000), available at http://www.census.gov/prod/2001pubs/cffr-00.pdf.
[4] Current income figures come from the Central Intelligence Agency, World Factbook, and the U.S. Department of Commerce, Bureau of Economic Analysis. As a matter of historical comparison, in 1930, Puerto Rico had a per capita GDP of $122, compared to Mississippi's $202 and the overall U.S. figure of $619. 62 Bureau of Economic Analysis, U.S. Dep't. of Commerce, Survey of Current Business, 8 (Aug. 1982).
Bureau of Labor Statistics, U.S. Dep't of Labor. During July to December 2003, Puerto Rico received $8.65 billion in U.S. exports, leading Brazil, the next largest market for U.S. exports in Latin America, which received $5.98 billion during that period. Mexico received $50.82 billion in U.S. exports during the same period, a figure more than four times smaller than Puerto Rico's, once adjusted for population. Making Manufacturing Operations in Puerto Rico More Competitive, 29 Puerto Rico Business Review 1, (Mar. 2004); U.S. Trade (Imports, Exports and Balance) by Country, Foreign Trade Statistics, U.S. Census Bureau, available at http://www.сensus.gov/foreign-trade/balance/index.html.
annually from Puerto Rico to the Mainland by U.S. based companies doing business in Puerto Rico, [7] while sheltered from the I.R.S. [8] Meanwhile, while nearly half of the population of Puerto Rico lives below the poverty level, [9] compared to 12.5% in the United States, [10] the Supreme Court in Harris v. Rosario, 446 U.S. 651 (1980),
validated the discriminatory treatment by Congress in the payment
of Social Security benefits to Puerto Rico residents vis-à-vis
those on the Mainland, stating as one of the grounds for this
outcome that granting the same benefits to the residents of Puerto
Rico could disrupt the local economy. Id. at 651. See also
Califano v. Torres,
This brief and admittedly superficial synopsis of some of the conditions extant in the relationship between the United States аnd its citizens in Puerto Rico, does not, of course, tell the whole picture or even the most important components of this lopsided situation. [11] Together with others of a more fundamental kind, however, they manifestly establish the colonial nature of the U.S.-Puerto Rico relationship. [12]
The conundrum created by the Insular Cases
[13]
and People
v. Balzac,
*8 President and Vice-President. Additionally, the laws enacted by Congress are applied to them without their participation in their enactment, or consent in their application. This abusive shield and undemocratic condition can only be penetrated by the unpolitical branch of government. Only the judicial branch can correct this denigrating and unacceptable condition, one which was created in the first place by that branch in the Insular Cases, et al.
The dead end with which these citizens are today faced was forecast by Justice Harlan in his dissent in Downes when he said: "The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces -- the people inhabiting them to enjoy only those rights as Congress chooses to accord to them -- is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution." Downes, 182 U.S. at 380 (Harlan, J. dissenting).
The doctrine of inequality created by the Supreme Court
in the Insular Cases stands on the same discredited theoretical
footing as that espoused by the majority in Plessy v. Ferguson, 163
U.S. 537 (1896), and which was put to rest by the Supreme Court
in Brown v. Board of Education, 347 U.S. 483 (1954). Had the
*9
Supreme Court awaited for the political branches to correct the
gross injustice perpetrated by Plessy upon the discrete minority
against which it was directed, it is likely that state-sponsored
racial segregation would still be with us. Equally on point, it is
the judicial branch that is called upon to protect minorities from
the otherwise unchecked abuses of a potentially oppressive
majority. "[P]rejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon
to protect minorities, and . . . may call for correspondingly more
searching judicial inquiry." United States v. Carolene Prods. Co.,
Although the political rights of the United States
citizens residing in Puerto Rico are at stake, the issue presented
is not a "political question" any more than were the rights claimed
in Brown. Cf. Marbury v. Madison,
Those born in Puerto Rico have since 1917 been born citizens of the United States. See Jones Act (Puerto Rico), Act of
March 2, 1917, § 5, ch. 145, 39 Stat. 951 (1917); 8 U.S.C. § 1402.
The right to vote is a fundamental right inherent in citizenship.
*10
Tashjian v. Republican Party, 479 U.S. 208, 217 (1986). It is
fundamental because it is preservative of all other rights by
adding the validating imprimatur of the ballot box to the business
of government. Furthermore, it has been considered a fundamental
right since at least 1886, see Yick Wo v. Hopkins,
The indefinite disenfranchisement of the United States
citizens residing in Puerto Rico constitutes a gross violation of
their civil rights as guaranteed by the Fifth Amendment and by
international treaties to which our Nation is a signatory. The
Fifth Amendment is fully applicable to the actions of the U.S.
*11
Government in Puerto Rico. Cf. Examining Bd. of Eng'rs v. Flores,
446 U.S. 572 (1976). An equal protection component, similar to
that in the Fourteenth Amendment, is part of the due process clause
contained in the Fifth Amendment and serves as a constraint on the
United States. Bolling v. Sharpe,
It is also a violation of Article 21 of thе Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 at 71 (1948) ("UDHR"), proclaimed by the member nations of the U.N. General Assembly shortly after World War II. The UDHR provides that:
(1)Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
. . .
(3) The will of the people shall be . . .
expressed in periodic and genuine elections which shall be by universal and equal suffrage . . . .
Although the UDHR does "not of its own force impose obligations of
internаtional law," Sosa v. Alvarez-Machain,
The United States has committed itself to specific
binding international obligations regarding the right to vote of
all of its citizens. The International Covenant on Civil and
Political Rights, 999 U.N.T.S. 171 (1967), opened for signature
Dec. 16, 1966 (entered into force Mar. 23, 1976) (ratified by the
Senate April l2, 1992, 138 Cong. Rec. S-4781, S-4783) ("ICCPR"), to
which the United States has been a party for the past twelve years,
states in clear and unambiguous terms in Article 25 that "[e]very
citizen shall have the right and opportunity . . . to vote . . . at
genuine periodic elections which shall be by universal and equal
suffrage . . . ." Furthermore, Article 2, Para. 1 states that each
signatory "undertakes . . . to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in
the present Covenant . . . without distinction . . . ." Most
dissenting) (noting U.N. Human Rights Committee decision that ten
year dеlay between death sentence and execution not necessarily a
violation of UDHR as informative precedent in Eighth Amendment
case); Dandridge v. Williams,
importantly, in Paragraph 2, the signatory nations commit themselves that
[w]here not already provided for by existing legislati[on], . . . each State Party . . . undertаkes to take necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. Additionally, in Paragraphs 3 (a) and (b), each State Party undertakes "[t]o ensure that any person whose [ICCPR] rights or freedoms . . . are violated shаll have an effective remedy," to ensure that such rights are "determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy." Paragraph 3(c) makes clear that these remedies shall be enforced by the "competent authorities."
Those portions of the UDHR that rise tо the level of customary international law, see Restatement (Third) of Foreign Relations Law of the United States, Pt. VII, introductory note (1987) ("[A]lmost all States would agree that some infringements of the human rights enumerated in the Declaration are violations of the [U.N.] Charter of customary international law."), in addition to the ICCPR and the obligations established thereunder, are the law of the land. U.S. Const. art. VI, § 2 ("This Constitution, and the Laws of the United States which shаll be made in Pursuance *14 thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .").
The ICCPR was signed by the United States in 1976 and ratified thereafter by the Senate in 1992. See 138 Cong. Rec. S- 4781, S-4783. Although the Senate added an Understanding that the ICCPR would not be self-executing, id., I cannot countenance that this Nation would have committed to the ICCPR by signature and ratification if compliancе with the obligations enumerated therein was not contemplated. The duplicity and cynicism that would be implicit if such were the case would be a stain on our national honor and integrity of monstrous proportions. Because I refuse to believe that the United States would so act, I cannot but conclude that there is no legal excuse for continued non-compliance with these agreements.
Although there exists no individuаl cause of action to enforce the ICCPR in the instant case, I am nonetheless compelled *15 to recognize that the United States is in violation of its obligation under Article 25 to afford universal suffrage to its citizens. See Restatement (Third) of Foreign Relations Law of the United States § 321 (1987) ("Every international agreement in force is binding upon the parties to it and must be performed by them in good faith.").
The United States has taken some actions to meet some of its obligations both under domestic and international law to validate the right of all citizens to vote in national elections. The Constitution was thus amended in 1961 to allow citizens resident of the District of Columbia, (an unincorporated territory of the United States, as is Puerto Rico), to vote for the offices of President and Vice-President. U.S. Const. amend. XXIII. However, said citizens continue to be represented in Congress on an unequal footing with the U.S. citizens residing in the States, as are, of course, the United States citizens of Puerto Rico.
Furthermore, in 1986, Congress passed the Uniformed and
Overseas Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff-1973ff-
6, which allows United States citizens residing outside the United
States to vote in federal elections as absentee voters in their
Moreover, at least one court has determined that the individual
rights guaranteed by the ICCPR may be raised dеfensively. Duarte-
Acero,
last state of residence. But because the statute's definition of "United States" includes Puerto Rico, 42 U.S.C. §§ 1973ff-6(8), the residents of Puerto Rico who would otherwise qualify to vote pursuant to this statute are disqualified.
Since we decided Igartúa II in 2000, the United States
has taken no action towards the national enfranchisement of its citizens in Puerto Rico or towards ending the present colonial relationship. This total inaction is particularly poignant at this moment in our history, when we seek to convince the inhabitants of far-flung places of the world of the democratic process and the validity of its expression through the ballot box. [18] It is nothing short of ironic that close to 3,500 U.S. citizens from Puerto Rico support these goals by their presеnce in Iraq and Afghanistan as members of our Armed Forces, while they are themselves denied these rights particularly with regards to the election of their Commander in Chief. Their presence in these distant lands has not been without some cost. [19]
The total default by the United States of its constitutional and international obligations with respect to the citizens of the United States residing in Puerto Rico, release me from any obligation to give stare decisis recognition to our prior decisions in Igartúa I and Igartúa II. "Our Constitution . . . neither knows nor tolerates classes among citizens," Plessy, 163 U.S. at 559 (Harlan, J. dissenting), and yet what we have in this case is without a question the creation and perpetuation of a class of sub-standard, second-class citizens, with less rights than those enjoyed by the main class of U.S. citizens.
Given the failure by the United States to take steps to
rectify this clear viоlation of a fundamental right, I believe that
the courts of the United States are required to take such
extraordinary measures as are necessary to protect the discrete
groups that are "completely under the sovereignty and dominion of
the United States." Cherokee Nation v. Georgia,
Because the normal avenues of government arе not open to
the United States citizens who reside in Puerto Rico to end the
limitless and unconstitutional (see Downes, 182 U.S. at 380
(Harlan, J. dissenting) colonial condition that deprives these
citizens of the equality that should be inherent in United States
citizenship, it becomes incumbent upon the judicial branch to take
*18
such extraordinary measures as are necessary and appropriate to
protect the rights of this discreet аnd insular minority. As an
initial remedy, I would reverse the judgment of the district court
and remand for the entry of a declaratory judgment consistent with
the views expressed by me and stating that the United States has
failed to meet its obligations under Article 25 of the ICCPR.
"This is of the very essence of judicial duty." Marbury,
For the above reasons I respectfully dissent from the opinion of my brethren in the majority.
Notes
[2] David Hume, Political Essays 15 (Charles W. Hendel ed., 1953).
[3] The estimated infant mortаlity rate for 2004 is 8.37 deaths per 1,000 live births. Central Intelligence Agency, World Factbook ( 2 0 0 4 ) , P u e r t o R i c o , a v a i l a b l e a t http://www.odci.gov/cia/publications/factbook/print/rq.html (last visited Oct. 8, 2004). Life expectancy is 77.49 years. Id. The death rate is 7.77 per thousand, and the birth rate is 14.1 births per thousand. Id. The literacy rate is 94.1%. Id. Gross Domestic Product ("GDP") per capita in 2003 was $16,800. Id. In 1933, in comparison, the infant mortality rate was 139.4 deaths per 1,000 live births. Compendio de Estadísticas Sociales - 1981, P.R. Planning Board, San Juan (1982). Life expectancy in 1902 was 36.36 years. Id. The birth rate in 1900 was 40.5 births per thousand. United States-Puerto Rico Commission on the Status of Puerto Rico 151, Table C1-5 (1966). The death rate in 1900 was 25.3 per thousand. Id. Literacy in 1899 was 20.4%. José Vázquez Calzada, La Población de Puerto Rico y su Trayectoria 82, tbl.59 (1978) (unpublished). GDP per capita in 1930 was $122. Daniel Creamer, The Net Income of the Puerto Rican Economy 1940-1944, at 21-22 (n.d.). In the fiscal yеar 2000, federal expenditures in Puerto
[7] Ingresos Netos al Fondo General del Gobierno Estatal, Departamento de Hacienda, Gobierno de Puerto Rico, available at (showing amounts paid in so-called "toll gate" tax to the Commonwealth of Puerto Rico on capital exiting the island).
[8] The income tax provisions of the Internal Revenue Code are inapplicable to most income derived from Puerto Rico sources. 26 U.S.C. § 933. This is an irrelevant benefit to most residents of Puerto Rico because of their low income levels. United States companies are able to "repatriate" income pursuant to I.R.C. § 30A. 26 U.S.C. 30A.
[9] The poverty rate in Puerto Rico in 2000 was 48.2%. Personas por Debajo del Nivel de Pobreza por Municipio, Censo de 2000, Oficina del Censo, Gobierno de Puerto Rico, available at, http://www.censo.gobierno.pr/Censo_Poblacion_Vivienda/Datos_Histo ricos/Datos_Nivel_Pobreza_2000.htm.
[10] Income, Poverty, and Health Insurance Coverage in the United States: 2003, U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau.
[13] Ocampo v. United States, 234 U.S. 91 (1914); Dorr v. United
States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197
(1903); Downes v. Bidwell,
[14] Justice Harlan also dissented, famously, in Plessy. 163 U.S. at 552.
[15] See John Stuart Mill, On Liberty 10 (Prometheus ed. 1986) ("'[T]he tyranny of thе majority' is now generally included among the evils against which society requires to be on guard.").
[16] This Nation's highest court has referred to the provisions of the UDHR on several occasions since its adoption in 1948. See Knight v. Florida, 528 U.S. 990, 996 (1999) (Breyer, J.,
[17] Most courts to address the ICCPR have found that its non-self-
executing nature precludes the existence of a private right of
action to enforce its provisions. See, e.g., Igartúa I,
[18] See David Roche & Carlotta Gall, Afghans Studying the Art of Voting, N.Y. Times, Oct. 4, 2004, at A1 (discussing challenges facing Afghanistan's first-ever democratic elections).
[19] As of September 28, 2004, twenty U.S. citizens from Puerto Rico
have died in Iraq, the 4th U.S. jurisdiction per capita. Twentieth
Puerto Rican Soldier Killed in Iraq, The Associated Press State &
Local Wire, Sept. 28, 2004. Two more have died in Afghanistan.
Nearly 3,500 Puerto Ricans in Action in Afghanhistan, Iraq, Puerto
Rico Herald, Nov. 21, 2003. Puerto Rico had the second highest per
capita casualty rate in the Nation in the Korean Conflict and the
twelfth in the Vietnam War. Nancy San Martin, A Military History,
The Miami Herald, Jan. 21, 2004, available at