University of Miami Inter-American Law Review


The territorial law and policy of the United States changed towards the turn of the 20th century, as territorial expansion was no longer motivated by the extension of national borders, but by geopolitical, strategic and economic objectives. The new territories acquired in the Spanish American war were different from those previously annexed. The resulting constitutional doctrine of the Insular Cases differentiated the previous incorporated territories from the new unincorporated territories, which were not destined to be part of the U.S. nor to be admitted as new states. Despite purported changes in the relation with the United States in 1950-1952, Puerto Rico is still an unincorporated territory, subject to plenary territorial powers without its participation in the government of its sovereign. During the second half of the twentieth century, the international law of human rights has recognized the right to self-determination of all peoples. As a result, the constitutional law of early twentieth century is at odds with the international legal obligations of the United States arising from customary law and those assumed under the International Covenant on Civil and Political Human Rights, which entered into force for the United States three decades ago. This article presents substantive and procedural avenues for the harmonization of U.S. constitutional law with international law through the exercise of the right of self-determination by the people of Puerto Rico.