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Namit Bafna & Shamy Ravishankar (Guest Contributors)

Puerto Rico, an island the US acquired in 1898 after the Spanish-American War, has lived in legal ambiguity with respect to its relationship with America and its statehood. It was recently declared bankrupt and has demanded that the US bail it out. This article explores if such a demand is well–founded, both in logic and in law.

A general reading of Puerto Rico’s history makes such a demand appear to be a prudent call. However, would this be desirable from the WTO law making perspective? Are bailouts allowed under WTO rules? We explore Puerto Rico’s dilemma through international relations and WTO law.

Understanding Puerto Rico’s Debt

Puerto Rico’s debt is a complex one with multiple types of debts; making it harder to negotiate agreements with various investors. Michael Williams, the Attorney who was handling Puerto Rico’s case states that its $123 billion debt is a consequence of years of economic stagnation and bad policy according to writers like Thomas Heath of the Washington Post. There is a serious need for debt restructuring, with investments needed for upgrading the island’s infrastructure (water works, waste management, and electric supply) as well as in boosting the economy.

Investors bought bonds from one of the eighteen authorised Governmental Agencies under the belief that the mainland Government would do everything necessary to prevent such an awful bailout situation from happening. However, the authorised agencies missed payments to the investors. Its cumulative bond debt is $74 billion. Even with an Oversight Board and PROMESA (Puerto Rico Oversight & Economic Sustainability Act of 2015-2016), it remains unclear how a wholescale economic turnaround can be initiated, with not only settling claims with investors (who will undoubtedly require fees for the Government’s defaulting on payments), but also improving the economy. Puerto Rico also requires funding for its pension commitments ($40 billion debt) and for MEDICAID, so that its social security obligations can also be carried out.

The Island has had a terrible recession since 2006, which has only been worsened by questionable policies of its previous Governments by borrowing more and thereby putting the island into greater debt. In addition to this, the current Government’s negotiation attempts with the aforementioned investors have not helped the situation by producing any concessions in the repayment of money owed to these creditors.

At this juncture, it is unfortunate to note that Puerto Rico has been knocking on Washington’s doors for over two years now, requesting more involvement from the mainland. It has been involved in Congressional Committee hearings and submissions before the United States Supreme Court. This invites the question: If any, what is the extent of Washington’s obligations to Puerto Rico, and in particular to this debt crisis? To ascertain this, we must go back in time and establish the exact nature of their relationship.

The US & Puerto Rico’s Relationship

The United States of America (US) has several categories of land holdings that it acquired over time, none of which are considered “Federal States”. These categories include territories (Guam, American Samoa, and US Virgin Islands), Possessions (which includes Baker, Howland, Midway, Wake, Palmyra, Kingman Reef, Jarvis and Johnston, that are all islands), and finally land holdings that are a Commonwealth (Northern Mariana Islands and Puerto Rico). It is to be noted that the Commonwealth category of land holdings are “insular political communities” that have affiliations with the mainland Government of the US. They are above territories in prestige and status but below the level of states. The Possessions and Territories have low levels of political and legal power on account of their fluctuating populations and not desiring self-determination. An another interesting nuance is the fact that the Commonwealth category of nations works with the US Congress and has an established political system that works for both the Congress and the Commonwealth land holding. However where the territories are concerned, the US Congress as more power to impose measures and in effect rule over the populations on the given territory. Citizens of the territories also cannot vote for the members of the Congress.

Over time the offshore territory policy of the US has varied and has even come before the US Supreme Court. In one case (Puerto Rico v. Sanchez) which went into the question of whether or not double jeopardy was applicable to Puerto Rico, the Judges of the Supreme Court had some interesting ideas of what Puerto Rico really was. If it was considered a Federal State then double jeopardy would not apply because federal proceedings could not disallow a state government to try a person for the same crime. If it wasn’t a Federal State then double jeopardy would disallow the person from being tried twice for the same crime (once by the US and once by Puerto Rico). This is because double jeopardy in the US does not apply where the person is being tried by “separate sovereigns” which in this case would be the State Court and the Federal Court. The counsellor for Puerto Rico suggested that it be given “Semi-sovereign status” so as to avoid the political implications of calling it a sovereign and thereby the 51^st Federal State of the US, while also ensuring that Puerto Rico would also be able to prosecute Sanchez. Justice Kennedy then sought clarification on whether this would be an “interim sovereignty”? In the end, however, the Supreme Court held that the sources of power for itself and for the Court in Puerto Rico were the US Constitution because Puerto Rico was not a State and therefore the double jeopardy principle did not apply. This meant that the Court in Puerto Rico could not also prosecute Sanchez.

This reasoning is the strongest for the US Congress to allow the bailing out of Puerto Rico. It has had many occasions to either grant freedom to Puerto Rico or to make it the 51^st federal state, as the US Constitution empowers the Congress to deal with matters of allowing a new state to be a part of the federation [Article IV. Section 3. Clause 1]. Given the fact that the US has both promised the United Nations to respect Puerto Rico’s sovereignty in 1953 (after allowing Puerto Rico’s Constitution to come into force in 1952), but also never fully allowed it to be a free independent nation, it would suggest that the US wants continued association with Puerto Rico. The fact that on several occasions, the US Government has rejected even the commonwealth status of Puerto Rico, deeming it as merely a territory, also points towards the same conclusion. The US wants these “land holdings” because it clearly benefits from the culture, natural resources and of course the population, who have served in the US military forces. That being said, the US Government does not want to give it full power that a State has. Regarding the bankruptcy bailout, the current US Administration has said it would not extend a helping hand, to what is undoubtedly (based on facts and legal precedent), a US problem.

The US policy on its offshore holdings seems to be one of granting those populations a “second class citizenship” status. It must be noted that when the US conceived the idea of a commonwealth, it was used to mean that the path to self-determination was automatic. This, however, has not taken place for Puerto Rico. Could this be a new twist to an already floundering and ever changing US policy on its offshore land holdings? Could this be the impetus necessary for the Puerto Ricans to demand freedom over their own affairs and formation of a new country that is divorced from the US?

The WTO perspective!

May be yes! But an underlying problem with bailouts would be that it may not be allowed under the WTO norms. Though bailouts are not anything new and the 2008 financial crisis triggered a few bailouts, every forthcoming bankruptcy should push for a clearer stance of the WTO on whether such bailouts would be considered as a subsidy and thus prohibited under SCM? Is it trade distortive under GATS? Is it time to introduce special WTO rules to deal with economic crises; making state actions non-vulnerable from WTO consequences?

The WTO has a well drafted subsidy discipline under the SCM Agreement. Any financial contribution which provides some benefits to an enterprise or an industry would result in a subsidy. Bailouts being sponsored from public money may attract provisions of GATS as they may provide benefit to the bank and its dependent (read “whole economy” of a major bank). As financing of banks would ultimately assist manufacturers, exporters and other players; they may affect other trading partners by creating artificial competitive processes.

However, as banks provide services, a bigger case forms under the GATS; for affecting competition in banking & financial services and making market competitive artificially. This may violate GATS’ obligation of National Treatment, Most Favoured Nation and Anti–Competitive provisions.

Despite its widespread use as a tool for economic reconstruction, no member state of the WTO has challenged bailouts at the WTO. But even if one appears in future, would it be desirable? As financial crises are unavoidable and it is practically impossible to pin down fault to any one entity, group of entities or even a state – bailouts are inevitable. They are required not just to save the bank but the whole economy. Thus, desirability of an “economic crisis exception” in the SCM and/or GATS should be put on table for member states and WTO expert committees before we witness another Puerto Rico-like situation in some other part of the world.

Conclusion

It is unfortunate that today, much after colonialism and colonialist tendencies have lost international relevance, that Puerto Rico’s relationship with the US is still not well-defined in law. However, for the purpose of alleviating this crisis, this article firmly backs considering Puerto Rico to be an integral part of the US; although it may not be necessary to use the terminology of “federal state”. Puerto Rico must be treated for all intents and purposes as a federal state, that entitles them to federal support and involvement, as was granted when Detroit required an $18 million debt restructuring in 2013. This is because, the US still claims Puerto Rico as a land holding, and the US Congress is still empowered under the US Constitution to manage the same. It may have given Puerto Rico some degree of sovereignty but the fact is that the US still has not granted it independence. By the very fact of this lack of independence from US policies and control, Puerto Rico has a right to seek and get aid from the Federal government.

Even if Bankruptcy is declared and the Federal Government pumps money into the Commonwealth, the question of its legality from WTO perspective still remains unresolved. Nevertheless, the bigger question is would bailouts even be challenged at the WTO? As bailouts are used by every member state to safeguard its economy from financial crisis, it is unlikely that it they will be challenged at the WTO, much like the fossil fuel subsidies.

Namit Bafna is a Corporate Lawyer working in Bangalore. His area of interest includes derivatives & trade law. 

Shamy Ravishankar is a 2015 Felix Scholar, now working as a Human Rights Lawyer. Her areas of interest include environmental law, public international law and of course Human Rights Law. Follow her on twitter: @shamy27 or on her blog: https://theworldweknowsite.wordpress.com/

References:

1. Mark Joseph Stern, Second-Class Sovereignty, Slate (14 Jan., 2016), available at: http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/01/the_supreme_court_considers_puerto_rico_s_sovereignty_in_sanchez_valle.html
2. Puerto Rico v. Sanchez, https://www.oyez.org/cases/2015/15-108
3. Puerto Rico Report, The Relationship Between Puerto Rico and the U.S. (27 Feb 2016), available at: http://www.puertoricoreport.com/relationship-puerto-rico-u-s/#.WSAl_uuGPcd
4. Thomas Heath & Tory Newmyer, Puerto Rico, with $73 billion in debt, forced toward bankruptcy, The Washington Post (3 May 2017), available at: https://www.washingtonpost.com/business/economy/puerto-rico-with-73-billion-in-debt-forced-toward-bankruptcy/2017/05/03/92e39d76-3020-11e7-9534
5. Jaemin Lee, Beneath the Tip of the Iceberg – Global Financial Crisis, Bank Bailouts and the SCM Agreement, 10 Asian Journal of WTO & International Health Law and Policy (2015)