Consistent with relevant resolutions of the
U.N. General Assembly, Puerto Rico's options for full
self-government are: Independence (Example: Philippines); Free
Association (Example: Republic of the Marshall Islands);
Integration (Example: Hawaii). See, G.A. Resolution 1514 (1960);
G.A. Resolution 1541 (1960); G.A. Resolution 2625 (1970).
For purposes of international law including the
relevant U.N. resolutions international conventions to which the
U.S. is a party, the current status of Puerto Rico is best
described as substantial but incomplete integration. This means
that the decolonization process that commenced in 1952 has not
been fulfilled.
As a matter of U.S. domestic constitutional
law, a territory within U.S. sovereignty which has internal
constitutional self-government but is not fully integrated into
the national system of political union on the basis of equality
remains an unincorporated territory, and can be referred to as a
"commonwealth." (Example: Puerto Rico and the Northern
Mariana Islands).
For purposes of U.S. constitutional law,
independence and free association are status options which are
created and exist on the international plane. Thus, instead of
the sovereign primacy of Congress under the territorial clause,
the sources of constitutional authority with respect to nations
with separate sovereignty include the article II, section 2
treaty-making power and the applicable article I, section 8
powers of Congress such as that relating to nationality and
immigration law.
Relations between the U.S. and a nation which
is independent or in free association are conducted on the basis
of international law. Thus, independence and free association are
status options which would remove Puerto Rico from its present
existence within the sphere of sovereignty of the United States
and establish a separate Puerto Rican sovereignty outside the
political union and federal constitutional system of the United
States.
Instead of completing the integration process
through full incorporation and statehood, either independence or
free association would "dis-integrate" Puerto Rico from
the United States. This would terminate U.S. sovereignty,
nationality and citizenship and end application of the U.S.
Constitution in Puerto Rico. In other words, the process of
gradual integration which began in 1898, and which was advanced
by statutory U.S. citizenship in 1917 and establishment of
constitutional arrangements approved by the people in 1952, would
be terminated in favor of either independence or free
association.
Under either independence or free association
the U.S. and Puerto Rico could enter into treaties to define
relations on a sovereign-to-sovereign basis. Free association as
practiced by the U.S. is simply a form of independence in which
two sovereign nations agree to a special close relationship that
involves delegations of the sovereign powers of the associated to
the United States in such areas as defense and other governmental
functions to the extent both parties to the treaty-based
relationship agree to continue such arrangements.
The specific features of free association and
balance between autonomy and interdependence can vary within
well-defined limits based on negotiated terms to which both
parties to the arrangement have agreed, but all such features
must be consistent with the structure of the agreement as a
treaty-based sovereign-to-sovereign relationship. In U.S.
experience and practice, even where free association has many
features of a dependent territorial status the sources and
allocation of constitutional authority triggered by the
underlying separation of sovereignty, nationality and citizenship
causes the relationship to evolve in the direction of full
independence rather than functional re-integration.
Free association is essentially a transitional
status for peoples who do not seek full integration, but rather
seek to maintain close political, economic and security relations
with another nation during the period after separate sovereignty
is achieved. Again, this could be accomplished by treaty between
independent nations as well. Thus, free association is a form of
separate sovereignty that usually arises from the relationship
between a colonial power and a people formerly in a colonial
status who at least temporarily want close ties with the former
colonial power for so long as both parties agree to the
arrangements.
Free association is recognized as a distinct
form of separate sovereignty, even though legally it also is
consistent with independence. Specifically, free association is
consistent with independence because, as explained below, the
special and close bilateral relationship created by a free
association treaty or pact can be terminated in favor of
conventional independence at any time by either party.
In addition, the U.S. and the international
community have recognized that a separate nation can be a party
to a bilateral pact of free association and be an independent
nation in the conventional sense at the same time. For example,
the Republic of the Marshall Islands is party to the Compact of
Free Association with the United States, but has been admitted to
the United Nations as an independent nation.
Thus, the international practice regarding free
association actually is best understood as a method of
facilitating the decolonization process leading to simple and
absolute independence. Essentially, it allows new nations not
prepared economically, socially or strategically for emergence
into conventional independence to achieve separate nationhood in
cooperation with a former colonial power or another existing
nation.
Under international law and practice including
the relevant U.N. resolutions and existing free association
precedents, free association must be terminable at will by either
party in order to establish that the relationship is consistent
with separate sovereignty and the right of self-determination is
preserved. This international standard, also recognized by the
U.S., is based on the requirement that free association not be
allowed to become merely a new form of internationally accepted
colonialism.
Specifically, free association is not intended
to create a new form of territorial status or quasi-sovereignty.
It is not a "nation-within-a-nation" relationship or a
form of irrevocable permanent union, but is, again, a
sovereign-to-sovereign treaty-based relationship which is either
of limited duration or terminable at will by either party acting
unilaterally.
In other words, both parties have a sovereign
right to terminate the relationship at any time. The free
association treaty may provide for the terms and measures which
will apply in the event of unilateral termination, but the
ability of either party to do so can not be conditioned or
encumbered in such a manner that the exercise of the right to
terminate the relationship effectively is impaired or precluded.
For that reason, the territory and population
of each nation involved must be within the sovereignty,
nationality and citizenship of that nation, and the elements and
mechanisms of the free association relationship must be defined
consistent with that requirement. Separate and distinct
sovereignty and nationality must be established at the time of
decolonization and preserved under the relationship or the
ability of either party to terminate will be impaired.
Thus, the major power may grant to people of
the free associated nation special rights normally associated
with the major power's own citizenship classifications, such as
open immigration and residence rights.
However, these arrangements are subject to the
same terminality as the overall relationship, and thus may be
either for a limited duration or subject to unilateral
termination by either party at any time.
Consequently, there can be no permanent mass
dual nationality because this would be inconsistent with the
preservation of the underlying separate sovereignty. Any special
rights or classifications of the major power extended to the
people of a free associated nation are more in the nature of
residency rights and do not prevent either nation from exercising
separate sovereignty with respect to the nationality its own
population.
Upon termination of the free association
relationship by either party, any such classifications or special
residency rights will be subject to unilateral termination as
well. Both during and after any period of free association, the
people of each of the two nations will owe their allegiance to
and have the separate nationality of their own country. Any
attempt to deviate from these norms of international law and
practice would undermine the sovereignty of both nations, as
would impair the right of self-determination which must be
preserved to ensure the relationship is based on consent rather
than coercion.
In summary, the United States recognizes each
of the three U.N. accepted status options for Puerto Rico to
achieve full self-government. One of those options, integration,
is within U.S. sovereignty and the federal political union, the
other two, independence and free association, exist without U.S.
sovereignty, nationality and citizenship.
Obviously, Puerto Rico can not act unilaterally
to establish a new status. This is so not only because of U.S.
sovereignty and the authority of Congress under the territorial
clause, but also because Puerto Rico seeks the agreement of the
U.S. to the terms under which any of these options would be
implemented. This means Congress must agree to the terms under
which a new status is defined and implemented.
There is no right on the part of Puerto Rico
unilaterally to define its relationship with the United States.
Nor would it be consistent with U.S.
commitments to respect the right of self-determination for
non-self-governing people under U.S. administration to dispose of
the territory of Puerto Rico in a manner which does not take into
account the freely expressed wishes of the residents.
Thus, as the two parties which must define and
carry out a future relationship based on consent and the right of
self-determination which each must exercise, Congress, on behalf
of the United States, and the people of Puerto Rico, acting
through their constitutional process, must decide whether
decolonization will be completed through completion of the
process for integration into union or separation and nationhood
apart from the U.S. for Puerto Rico.
