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April 27, 2011

RE; Four Million U,S. Citizens Residing in the Commonwealth of Puerto Rico P~11 05~06

United States

Dear Sir:

I am pleased to address you on behalt of the tntsr-Arnerlcan Commission on Human nights in order to forward, for your information, the pertinent parts of additional information submitted by the State of United States in connection with lho petition referred to above,


M(HlO L(nH~l-GarBlh By .1\Ithoriz,)lfon

01 the- E~e(;litive Socrml,llry

Orlando E. Vidal

Sonnensctlein Nath & Rosenthal LLP 1301 K Street, N_W_

SUito 600, East Tower

wasrunoton, D.C. 20005-3364 202·408·6399


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United States Department of State

United States Permanent Mission to the Organization of American States

W(l$1t:ingt()1t, D.C. 20520

April 14,2011

Dr. Santiago A. Canton Executive Secretary

Inter-American Commission on Human Rights Organization of American States

Washington, DC 20006

APR 1 5 2011



Ref: P-I H15-06 and 1'-776-06, Four Million U.S. Citizens Residing in the Commonwealth of PU(lrlo Rico

Dear Dr. Canton:

With respect 10 the above-referenced petition, I have the honor to transmit to you the enclosed submission of the Government of the United Slates.

I would like to take this opportunity to renew to you the assurance of my highest considerat ion.


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Case No, 1>-1105-06: Rosscllb v. United States of America Before the Inter-American Commission on Human Rights

Observations on Reply of Petit.ioners

The United States of America respectfully submits its observations on the Petitioners; Observations to the Response of the United States or America ("Rcpli~), which was forwarded to the United States on August 20, 20 10.

Petitioners contend that the political status of Puerto Rico has nothing to do with the federal voting rights at issue in this casco To the contrary, the two are inextricably linked. Petitioners seck to avoid the one fact most fundamental to this case: in three referenda; United States citizens resident in Puerto Rico have to date not expressed a preference for statehood - the political status that would convey to them federal voting rights >- as opposed to Puerto Ricos current status.

Petitioners challenge the legitimacy of these votes, although their principal objection is merely that the referenda were organized by local authorities rather than the federal government. They rely on CtlSCS resting on facts and law demonstrably different from the case at hand. And they pursue other inappropriate analogies, at times likening modern Puerto Ricans to 19111 century chattel slaves.

In the end, however, the petition and Reply taken together fail to state facts which, iftrue, would be inconsistent with the provisions of the American Declaration or the Rights and Duties of Man ("'Amcrican Declaration'} Accordingly, the United States respectfully requests the Commission to rule the petition inadmissible.

1. Puerto Rico's political status and the issue of federal voting: rights.

Petitioners contend that the questions of Puerto Rico's political status and tilt: voting rights of its residents arc entirely separate. They hope to avoid the status issue, because it presents this case's central truth: the United Slates as a political entity is constituted as a union of states; it offers full political participation at the national level only to states and their citizens: and Puerto Ricans, in three referenda

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on status to date, have not yet given majority support to either statehood or independence ,

Petitioners assure the Commission that they do not ask it to override the democratically expressed will of the population they purport to represent. Yet two of the three "remedies' they propose would require precisely that. In the event of a decision in their favor, they ,;lrguc, the "remedy , .. could indeed include a change in political status, for example the admission by the United States of Puerto Rico as a State.' or "the remedy may also be the full relinquishment of' sovereignty over Puerto Rico by the Government of the United Stales, i. e., independence."! 'rhus, Petitioners deny thai they an: asking the Commission to act anti-democratically. while conceding that two of their three "remedies" would force statehood or independence on voters.

Only one ofPetitioners' proposed "remedies" would not involve overriding the expressed will of Puerto Rican voters. That would be a constitutional amendment extending federal voting rights without statehood.' However, it is difficult to articulate why the United States should be expected to pursue changes in its constitutional structure, when a constitutional path already exists for Puerto Ricans to seck federal voting rights. That path is a request for statehood.'

2. The nature and import of the votes on statehood and independence.

Petitioners attempt to muddy the record on the three referenda on Puerto Rico's status, They deny that Puerto Ricans have in fact rejected statehood," suggest misleadingly that in the most recent referendum .. statehood received the majority

1 Reply ut Zl , :~ ld,

.1 As observed in the United Stutes Response, 1I request lor statehood cannot by itself ensure admission ofthe t.<;rritll!'y ~lS ,l sta\l.:, hecau~~~ 'ldrnissi\HI Orrl~~w st,lt~~s requires congressional action, U,S, 1{~~Sr\lnS(; at 2 & n,6, Thus, n vote by the cltizens of pu~~no Rico In support ofsucl: a request would not, by itself. kat! 10 statehood lind I.i:deml voting righls. I lowe vel', whi lc appliclllinns Il)I' statehood hilVC lint ul W~ly~ been i mrncdiatcly !:'.!'<lrlll.:d, :lrld COIlg_rcs:; indeed ha~: frequently delayed ndmlssion into the Union tor ~I variety of reasons, ".~·,;nn.t.I.:.t55 .. .J)i.)5 .. nJ.:'yg!'fl~JJ.I.P .. U . .Y

(Jt':ll .. i~·\L:!\lm_i".~j_(.I.!l .. I!,) _ __Ih(; ... l)_n_i.(Jn.(.j)_ .. :_I.I}y .. ~,m .. iJ_y_!J].~I.UJ.t.I,~!S_WI_~:~_\~:'lLe:!}Jr.:mr:~:."- I Xl vlla- Co I () n, "l iqu ul C iIi zen sh i p, S c 11'· Ik(ermilliltiorl, ;111.-1 the t l.S. St.atclwod I'!'n~:e~~: A C(Hl.~1 iHHinn,d :tnd II istoricul :\n'ilySiS." I J C:I,~t~ W, j{(~S, J, In,'1 L. 315, 317 (198-1) (emphasis added).

·1 I\t.:ply al P).

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of the votes among the available Icgi!imatc options,':" and assert that the referenda were infirm because they were organized by local authorities rather than the federal government.6


The first two of these arguments can be quickly dispatched. The statehood option did not attract a majority of Puerto Rican voters in any of the three referenda. The sources cited by both parties confirm this as f1.1Ct,7 As for Petitioners' suggestion that, in the last referendum, statehood received the "majority" of votes among the "legitimate" options: in that referendum statehood attracted 46.6 percent supporta substantial share, but not a majority, The option that did attract a majority - J()!" reasons open to varying interpretations - W<1S "none of the abovc.?" The range of options in that referendum was determined by Petitioners' fellow Puerto Ricans; Petitioners never explain why the winning option must be viewed as "illegitimate.'

As for the complaint that the three referenda were not organized or sponsored by the federal government and thus did not represent a legitimate vole on statehood, this argument ignores the processes through which many territories have advanced toward statehood. Moreover, it suggests contempt for Petitioners' fellow citizens, and for Puerto Rican democracy,

Petitioners impugn the weight of the three referenda, stating that "not one or these referendums Vias a federally sponsored relercndum.~·9 They assert that. a Commission decision ignoring the results of the referenda would "in no way; shape or form serve to frustrate the people of Puerto Rico's democratic will; which, in any event, again, Congress has never deigned to ascertain in any federal referendum."!" They go so far as to state:

"I r the United States were truly concerned about democracy in Puerto Rico, it would, once and for aIL approve a status bill in both houses of Congress, followed by the President's signature, finally proposing the

j l{(~r!y a( I ~ ({~mph(1sis added). ,. Rl~p!y at 13.21 "22 & I1.M .

. j l !.S. lccsponsc at 4 & n.16; Reply ut ! II & 11.60.

!, "None of the above' attracted a ban: majority of 50.3 percent. Ben & (jarrell, Congressional Research Service. _JjJ.l.iU.gL\!_;_~_~I.r_jLUJ_I_\.:_I.:J.!}..B.is_\}-,.J)nLi.(,~H~_Eu.:i.\~IJ.l:1.r_l:~.ti <ll 13 and App, B at 2') (June 11),2009).

'! Rqlly ;·11. IX.

10 Reply at 21.22.

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available options and abiding by the decision of the people of Puerto Rico .... The States' claim that "it is U.S. Government policy to allow

[Puerto Ricans] ... to vote on [their status] periodically in the future,

as long as Puerto Rico remains a territory" is also risible (were it

not unfortunately ~ untrue) considering the fact that the government 1w3 never offered any process in the past to permit the people of Puerto Rico to resolve their political status." I J

This statement is misinformed, It suggests that the only "rear' vote on statehood must be sponsored by Congress. This is clearly belied by history,

The Constitution docs not outline specific procedures through which territories progress to statehood, other than to vest Congress with the authority to admit new slates, and to set out certain limitations not relevant here.12 Frequently, territories have initiated the process through u petition to Congress.':' The political process for determining whether the territory's citizens favor such a petition has most often been initiated and organized by the territorial government) with neither the blessing nor the pe11l11ssion of Congress.H Many territories have gone considerably farther on their own initiative: Alaska, Arkansas, Californiu, Florida, Idaho, Iowa,

Kansas, Kentucky, Michigan, Oregon, Tennessee, Vermont, and Wyoming convened constitutional conventions, drafted and rati ned "state" constitutions and sent them to Congress, all without enabling ads or other Congressional authorization. 1) I ndccd, many (I r these went so .1:11' as to create "state" governments, select "state" officials, and elect or appoint "Representatives" and "Senators" for the federal Congress --- all pre-statehood and all without enabling acts or other Congressional authorization.!"

II I~q)ly ,l\. n n,lih,

I·., us Constiunlon Art. IV, ~ 3.

IJ Peter B. Sheridan, Adlni~iSi()n orSta\e~ intl) the Union Alter thl· Original 'rhirl~(;n: i\ Bricrl-listorv and Anulpis o l the SI::lld1(.I'.ldl·'m\:\~.~~. :·11 I ((:nrlgr~~ssi"n:11 1<\·~S~;~lr~,h S\~rvi~:\;, 1995).

(~.i}j: ti;~ J 7· :.~t:He~ ··;l~ll1lit·tcd to the lJninn after the origin(ll 1.J, at least 24 hdd referenda, constitutional conventions, OJ' other (1)I'nlS oCrolling: on slate hood prior to petitioning Congress. and in the ahscncc oCenabling acts: or-these, 10 held additional votes or convcntlons after Congressional pa:;~;age of enabling acts _ _l_~!. at 4·55 (statc-by-stntc s\Hnmal"i\~~),

1\ 1(1. at 6 8:. nA 9· I 0, ! O'! 2, ! 4·15. ! 7,1 X, 2 L 2! ,2:1. 2:; <24, 2()-27, 42-44. 44·45. 49<50, 54<~:'i. 1(, ld.

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The referenda in Puerto Rico took place within the context of the Commonwealth's political system, for the purpose of determining whether a majority of its voters favored petitioning Congress for statehood. A majority did n01 favor such a petition, or any other change in political status, The fact that these referenda did not take place under federal auspices docs not render them in (.lilY way suspect, infirm or even unusual. Petitioners may not like the results, but their attempts to discredit them are misguided,

3. Statehood Solidarity and M.atthcws v. Unit.cd Kingdom arc irrelevant to this casco

Petitioners rely heavily on two cases, Statehood Soli~h)d1Y_{~Q!lJlnittce v, United .~Hn,~,~I·1 and M.~,tt.hc\Vs v, Unilt!d Kingdoll1,lll Neither case is apposite here, because both rest on facts completely different from this case. Indeed, Matthews differs not only in its facts, but even more so in the applicable law, and offers a stark example or the pi tfal Is or relying on a case arising under different international instruments, and indeed in the context of a completely different political community, in another hemisphere.

Petitioners refer to .SJfH£.h\!!.~~LSgJi~!i!rjl:Y. throughout their Reply.l" That case concerned the inability ofthe residents of the District of Columbia to vote in Congressional elections. The United States respectfully disagrees with the Cornmissions decision in that case, but the point to be underscored here is the different relationships between the United States and the District of Columbia and Puerto Rico, respectively,

District of Columbia residents have not had the opportunity or option to vote on the question or whether to petition Congress for statehood, The District of Columbia has unique status under the Constitution and there is serious question whether statehood is open to it, absent a Constitutional amendment. It is not clear that the District of Columbia could follow any of the routes to statehood followed by previous territories, whereas those routes clearly arc open to Puerto Rico.

II !A(,'HR Case No, 11.204, Rq1()rt ND. <)s/(U (2003). "'2X hi!'. U. II.R.:l()] (19'::19)

1<"RcplyaL7, 12,13, 17,23,25-27,36-37,43··44&1111.133& 135, SO.

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Whether or not one considers District of Columbia residents "disenfranchised," Puerto Ricans are not, on the central issue around which this petition turns. Puerto Ricans have repeatedly voted on whether to seck federal voting rights through the statehood process, and United States Government policy has consistently been open to future votes on this same question, so long as Puerto Rico remains a territory." ,~lrrt9.1tQ,Q~1~iQU~t;;lCi.ty turned on very different facts, and is anything but the controlling precedent asserted by Petitioners.

Petitioners also devote many pages to a discussion of Matthews/I a ease with even less relevance to this Petition. ]ylJ:HJhS?l':J?, concerned the United Kingdom and Gibraltar, and arose under the European Convention 011 Human Rights and Fundamental Freedoms, a vel)' different instrument from the American Declaration. The controversy was sel not within a domestic political context, but within the context of the European Community, a supranational institution.

J:~:IJnJJ.!,£.\Y~\:i did not even involve Gibraltarians ' right to vote in U.K. legislative elections .m. which would have been its only arguable parallel to the present petition. I nstcad, Matthews concerned (j ibraltarians' right to vote in elections {(OIl' the

F,: u nll2£il!1 e!;~clL~!L!l£,~g.

It should be noted that at the time Matthews was decided, Gibraltarians who are

citizens ell" the U.K. - could nnJ vote in U.K.. Parliamentary clcctions.r' but .Matthews did not address this issue at all. In summary, Matthews arose in the context or a supranational political community. involved voting rights to positions within that community, under the framework instruments of that community, and judged according to human rights instruments and jurisprudence particular to that community.

,~,.! The consistent support for wnlinuiTll:: periodic voles on Puerto Ricos stutus is described :HL.I.,.>.,.I·~~~,~f1( .. l~~.:~\: .. i~·.t..h:~:. The l'~~cenlly released RepMI hy the President'< T3Sk Force on Puerto Rkfl'~~ SlnttlS (Morel: 2011), D.y"Cljl.[lJ)l.r_.J.l 1.1.l.ll.'.;.:.L).:.~.~l_'.:0..!l.U.':.l.I!L'I:"".,.)!,!,:~:;.~:~I.\':.~:\J,J.jql.U.Jjj_,,'.:;.{.\,\I:.l.'~U.~I.c.J~'/\:.U.'.~_g.b~\.....:LLh~I::i.21.!,::,'; .. .Ji!,l!~2.LLl.!.,U., rca m r 1 n s lila l PI) I i c y, :md n~L:lHnrm~mb I:ii.lll.:r il plchist;il.l: (}('gi1lli/.l~d hy llll: (\H1lrnonwl~,tllh Ihis S\Jrr\rrH~r, or liJiling Ihill, kdcr:J! kgisli.tl.i{)rl tor such :1 vote. to be enacted bv the end of 20 12 .

. ~ I ...

• Reply :,\1 13-13,

.::: Vallghn(: Milici', "(iibl'altal'. the United Kingdorn and Spain," 1!()U~(~(lfCornm()ns I,il:il',lt'!, RCS(~(lI'dl Paper No. 9Si50, at 26 (1998) ("In Britain the voting system for El', a~; Ior national ckctiol"ls, is based on parliamentary constituencies, ofwhich Gibrultur is 1101I)11c"); jJ.l. a( 27 ("Then.: have hl.~I.:11 various attempt» by Brili~;h purlicmentnrinns to cnfrunchise Gibrulluriuns lor the purposes 01' EP (and Westminster} elections").

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It is difficult to imagine a set of facts and law k5S pertinent. to this petition. There could hardly he a better illustration of why the United States consistently resists attempts to import precedents from other legal contexts into petitions before this Commission.


The United Stares citizens resident in Puerto Rico arc not powerless. disenfranchised or passive, They have voted repeatedly on the issue or Puerto Rico's status. The results ofthese votes have not. expressed a preference (or statehood, the status that would convey federal voting rights. It is expected that they will vot: .. ~ on the question of statehood again in the future. These transparently democratic processes are entitled to respect.

In these circumstances, the United States reiterates that this petition docs not state facts that, if true, would be inconsistent with the provisions of the American Declaration, and we there fixe respectfully request the Commission to rule the petition inadmissible.

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