First Circuit Rejects Claims Under International Law for Puerto Rico Representation in U.S. Electoral Process

Igartua v. U.S., No. 09-2186 (1st Cir. 24 Nov. 2010),  represents the most recent attempt – there have been three earlier trips to the First Circuit – by Iguartua, joined in most respects by the Commonwealth of Puerto Rico, to obtain judicial orders permitting them to participate in the apportionment of Representatives in the U.S. electoral process.  Puerto Rico is not a State of the U.S., and its citizens do have the constitutional right to vote for members of the House of Representatives.  This litigation has been trying to change that.

In the part of the recent decision of interest to international practice, the plaintiffs in the case asserted that international law requires Puerto Rico to be able to participate as if it were a state.  The First Circuit had previously rejected that argument, and a majority of the Court of Appeals felt itself bound by that precedent.  Nonetheless, the Court of Appeals majority and several other opinions addressed whether subsequent authority should change the earlier result, and individual members of the Panel addressed anew the international law-based argument. 

The Plaintiffs argued that their claims were supported by four international agreements or treaties or by “customary international law”, including (1) the International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (ICCPR); (2) the Universal Declaration of Human Rights, G.A. Res. 217 A(III), U.N. Doc. A/810 (1948); (3) the Inter-American Democratic Charter of the Organization of American States, 28th Spec. Sess., OAS Doc. OEA/Ser.P/AG/RES.1 (XXVIII-E/01) (OAS General Assembly) (Sept. 11, 2001); and (4) the American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX (1948), O.A.S. Off. Rec. OEA/Ser. LV/I.4 Rev. (1965). 

The Court of Appeals rejected all these bases, though the Court’s recent decision focuses on the first of these.  The Court also found no new precedent helping the plaintiffs but did conclude that Medellin v. Texas, 552 U.S. 491 (2008), reinforced its  earlier conclusion that the ICCPR was not self-executing.  Treaties, Medellin said, “are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing and is ratified on these terms”.  For that proposition, the Supreme Court quoted an earlier Igartua decision. 

Several of the other opinions in the recent decision address the ICCPR.  One of these is the opinion of Judge Torruella, concurring and dissenting in part, who writes that the ICCPR is enforceable, that the courts should address the issue, and that it is a ”treaty establish[ing] individual, enforceable rights on behalf of persons situated as are Appellants, and obligating the United States to provide a judicial remedy in its courts to vindicate their violation”.

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