The term sovereignty, although it was proscribed in Puerto Rico for several generations after the invasion by the United States in 1898 (except, of course, among the nationalist and pro-independence sectors), returned to the public arena in the latter quarter of the 20th century as part of a discussion about election campaigns by the main political parties, especially in the autonomist sectors. Increasing references to sovereignty by autonomists arose as some began to perceive a recognition by the United States of Puerto Rico’s natural right to sovereignty as essential to being able to create a truly autonomous relationship. The pro-independence sector, meanwhile, insisted that sovereignty is synonymous with independence, while the conservative right (pro-statehood and integrationist) used the same line of reasoning because it allowed them to accuse their autonomist adversaries of hiding a separatist agenda.

Despite the common presence of the term sovereignty today, the party dialogue has not taken into account the complexity of the concept of sovereignty in the context of the historical transformation of the state in the modern world, its implications for the idea of citizenship under a democratic order and the centrality of theoretical thought on the nature of politics, which includes the structures of hegemonic (imperial) relationships. Nor does it take into account, unfortunately, the world historical experience, including that of the United States, in terms of the role of the principle of multiple sovereignties or shared sovereignties in federations, international institutions and super-national institutions. And only in recent times has sovereignty, with an emphasis on its pragmatic aspects, come to be related to economic prosperity.

Interpretations of sovereignty

Sovereignty, in its most elemental form, refers to the highest level of political authority in a community, which is why it is considered a collective right under democratic principles. This means that there is no power, at least formally, that is above the sovereign, while at the same time it is accepted that creating a sovereign state is the natural right of the people. But the issue is not that simple. It is invested with enormous complexity, both in theoretical and practical (political) terms and has therefore been the subject of study throughout the world for a long time, generating a broad historical and theoretical literature, especially since World War II. During that time, through international consensus, the expansion of democratic principles and the dismantling of traditional territorial empires accelerated. As part of this historical process of decolonization, the United Nations was formed in 1947 with the task, among others, of establishing guidelines for recognizing the natural sovereignty of those territories (peoples or communities) that until then had been subject to the political and administrative control of the Western powers.

From the perspective of political theory, there are three kinds of sovereignty, which are often referred to indiscriminately: individual sovereignty (citizenship), peoples’ sovereignty (nation) and state sovereignty (political). This raises the question of whether there are insurmountable contradictions among them and which is most important in politics. In the modern era, the most pertinent appears to be the sovereignty of the state, because popular (national) and individual (citizen) sovereignty resides in and is formally incorporated as the state. The nation state, in other words, is the fundamental unit of modern politics. Thus the planet is seen as a community of nations and not a community of peoples or individuals. The nation state is the only political institution that incorporates the national sovereignty of a community and its citizens. In other words, in the modern world individual sovereignty and citizen sovereignty are subordinate to the sovereignty of the state. To put it another way, the various forms of sovereignty only take shape and are legitimized in the form of the state. Nobody, no group, class or individual, is outside the state and much less above it.

At the beginning of the modern age, when the political scene was dominated by monarchic systems, the sovereign was the king, who personified the state (the state did not exist apart from the person of the king). No person or institution was exempt from the king’s authority or above it. He not only personified the state, but also presumed that his political authority (his position as sovereign) came from “the grace of God,” not the will of the governed. On the contrary, the modern nation state (whether totalitarian and autocratic or liberal republican) that replaced the monarchy incorporated the idea that the state is the sovereign (not the king) and is administered by a government representing the governed. The legitimacy of the nation state was based on the ideas that it was constituted (and administered) through the will expressed by the citizens, that it exists to work for the benefit of the community and that it is obligated to respect the citizens’ autonomy (natural rights).

But the citizens’ autonomy, which is a natural and inalienable right that also carries obligations, is not the same as individual sovereignty. The act of delegating individual sovereignty to the state automatically made the individual a citizen and thus subordinate to the state. It is the state that defines which are the legal rights of citizens and who are the bona fide members of the political community. Citizens’ rights are usually defined in a Bill of Rights or codified in legal tradition. The citizen can participate in choosing the state’s administrators (the government) and in formulating public policy, but in the nation state (including those organized under liberal republican principles and self-defined as democracies) all citizens are subject to the authority of the state, which is the sovereign.

Sovereignty gives the state the duty of organizing a government to administer it, to decree laws and ensure their compliance within its territory, and to make agreements and treaties with other states (countries). In practical terms, sovereignty includes the power to organize and maintain police and military forces to impose internal order and protect the integrity of the territory from external threats, among other powers. Under the modern idea of sovereignty, the state, as the sovereign, has a monopoly on the use of violence and in all cases retains the option of curtailing citizen freedoms to an extreme, when it is believed to be necessary, to suspend legal guarantees (including constitutional rights) and to exempt the current government from the constitutional obligation to comply with the law. A state of emergency or state of exception, therefore, exempts the sovereign (and, therefore, the government in power) of the obligation to adhere to constitutional rule. In this context, sovereignty has been defined as the power to grant exceptions to compliance with the law. Carl Schmitt, the best known German jurist of the 20th century, advanced the idea that the sovereign is that which possesses the power to make exceptions.

We should also remember that sovereignty is never absolute in political reality. The power of states, although it is strongest, is always limited by geopolitical and economic situations and by the simple fact that no state is self-sufficient. Despite dreams of self-sufficiency, all states depend on the others, which is why an international system has been built based on universally applied and accepted rules. Although world stability has been guaranteed by the military and economic power of the United States since World War II, the international system has been moving toward multi-lateral rules based on economic and political agreements (and the creation of super-national institutions) that limit the arbitrary use of unilateral policies in daily reality. At the same time, the entire world has also reaffirmed that the fundamental political unit of today remains the nation state.

Sovereignty is not synonymous with independence, though it is synonymous with having a government of one’s own. A state can, by exercising its own sovereignty, establish relations with others in the form of super-national structures or confederations (through agreements or treaties) that cede part of their political powers, their sovereign powers. But what modern democratic rule does not allow — and this has been stated in legal and political codes of the current international system — is the violation of the right of free determination. In other words, for political subordination (ceding sovereign powers) to be legitimate, it cannot be imposed. It must be voluntary and done through an act of free determination. This was the case with the 50 states of the United States, the 22 cantons of Switzerland and the 28 member countries of the European Union.

In this context, the concept of sovereignty is particularly pertinent to the case of Puerto Rico. The political parties have made contradictory claims in political campaigns. Pro-statehooders insist that the current relationship between Puerto Rico and the United States is colonial because Puerto Rico’s sovereignty resides with the U.S. Congress, without this transfer having been approved by an act of free determination by the people of Puerto Rico. This is the same position taken by the pro-independence sector. Some autonomists, by comparison, argue that the Commonwealth was the result of an agreement between two countries in 1952 (called a pact), which was approved in Puerto Rico by popular vote (free determination) and that Congress acted not as sovereign over Puerto Rico, but in representation of the sovereignty of the United States.

The issue is made more complicated among some autonomist sectors that propose the idea that sovereignty is synonymous with political powers normally associated with independent states. They claim, therefore, that the United States should give Puerto Rico political powers that under the U.S. Constitution reside in the central (federal) government and not in the individual states. Some of the most commonly mentioned rights are: (a) economic powers such as maritime transport and the ability to make trade and fiscal agreements; (b) political powers such as control over immigration and the ability to participate in international institutions (regional and worldwide); and (c) cultural powers such as recognition of its own nationality and participation in official super-national events and organizations. Also discussed has been a special mechanism between the two countries in regard to transfers of federal funds so that the state of Puerto Rico could be autonomous in its social policies and its priorities for using those funds.

Despite the specific powers that the U.S. government delegates to the territorial government, if the sovereign is not the state of Puerto Rico (as the pro-independence and pro-statehood factions claim) and sovereignty continues to rest with the U.S. Congress, this sovereignty is considered illegitimate under the current political codes in the world due to the simple fact that to date it has never been acted on in an act of free determination by the political community known as the people of Puerto Rico, but has continued to be a sovereignty taken unilaterally by a hegemonic power through an act of conquest. So the administrative powers exercised by the elected government of the Commonwealth of Puerto Rico are delegated by the sovereign (the U.S. Congress) and not by the governed. In other words, what is important in terms of democratic legitimacy (and political stability) in the relationship between Puerto Rico and the United States is not the administrative structure of the government or the range of economic, political and cultural powers. Nor is it the level of integration with the United States as a result of its hegemonic history. Moral and political legitimacy is not based on independence, on political integration into the United States (statehood), or on a government of our own with expanded administrative powers (autonomists). What is important under democratic principles, regardless of the formal status, is the universal recognition of the sovereignty of the people of Puerto Rico, incorporated in their own state, and an explicit act of self-determination in Puerto Rico that approves whatever legal relationship the two countries choose to agree to. The exercise of self-determination in terms of the powers that are to be retained by the state and those that will be delegated is in itself an act of sovereignty and is therefore legitimized, whether the form is an independent nation state, a state federated with the United States, an associated republic, a free associated state or any other name or constitutional invention that we imagine, negotiate and agree to.

In summary, democratic norms and international law establish that sovereignty is a natural right of all communities constituted as a political unit and that decisions with respect to how to structure political powers (including ceding specific powers through agreements of association, treaties or membership in international organizations) are limited only by the bounds of the imagination and political will. The only moral requirement is that any political or legal relationship, to have democratic legitimacy, must comply with the fundamentals of freedom, or in other words, comply with the formal requirements of self-determination.

Author: Roberto Gándara Sánchez
Published: September 11, 2014.

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