<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:33148.wais]
S. Hrg. 109-796
PUERTO RICO
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
THE REPORT BY THE PRESIDENT'S TASK FORCE ON
PUERTO RICO'S STATUS
__________
NOVEMBER 15, 2006
Printed for the use of the
Committee on Energy and Natural Resources
__________
U.S. GOVERNMENT PRINTING OFFICE
33-148 PDF WASHINGTON : 2007
------------------------------------------------------------------
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
RICHARD M. BURR, North Carolina, TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri DIANNE FEINSTEIN, California
CONRAD BURNS, Montana MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia KEN SALAZAR, Colorado
GORDON SMITH, Oregon ROBERT MENENDEZ, New Jersey
JIM BUNNING, Kentucky
Frank Macchiarola, Staff Director
Judith K. Pensabene, Chief Counsel
Bob Simon, Democratic Staff Director
Sam Fowler, Democratic Chief Counsel
Josh Johnson, Professional Staff Member
Al Stayman, Democratic Professional Staff Member
C O N T E N T S
----------
STATEMENTS
Page
Acevedo-Vila, Hon. Anibal, Governor of Puerto Rico............... 24
Berrios Martinez, Ruben, President, Puerto Rican Independence
Party.......................................................... 33
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 2
Burr, Hon. Richard, U.S. Senator from North Carolina............. 9
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 9
Domenici, Hon. Pete V., U.S. Senator from New Mexico............. 1
Fortuno, Hon. Luis G., Resident Commissioner of Puerto Rico, U.S.
House of Representatives....................................... 29
Landrieu, Hon. Mary L., U.S. Senator from Louisiana.............. 37
Marshall, C. Kevin, Deputy Assistant Attorney General, Office of
Legal Counsel, Department of Justice........................... 14
Martinez, Hon. Mel, U.S. Senator from Florida.................... 3
Menendez, Hon. Robert, U.S. Senator from New Jersey.............. 7
Salazar, Hon. Ken, U.S. Senator from Colorado.................... 6
APPENDIXES
Appendix I
Responses to additional questions................................ 49
Appendix II
Additional material submitted for the record..................... 71
PUERTO RICO
----------
WEDNESDAY, NOVEMBER 15, 2006
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m., in
room SD-106, Dirksen Senate Office Building, Hon. Pete V.
Domenici, chairman, presiding.
OPENING STATEMENT OF HON. PETE V. DOMENICI,
U.S. SENATOR FROM NEW MEXICO
The Chairman. Please come to order. Thank you, everyone.
Mr. Marshall, are you all alone? You're alone at the table, but
are you otherwise? There is nobody that will sit with you? I'm
just kidding. It just looks kind of strange, but we'll see what
happens here.
Thank you to everybody for coming. We're glad to have you
here in the U.S. Senate. I'm sorry we don't have one of our new
rooms, but this is the best we have and we hope that it is
adequate.
With that, let me open, and let me then go to Senator
Bingaman and then to Senator Martinez, recently honored with an
appointment by the President as chairman of the Republican
National Committee, for which we congratulate you.
With that, let me suggest that we are here at a hearing on
a report from the President's task force on Puerto Rico's
status. The committee shall come to order.
The purpose of the hearing is to receive testimony on the
December 2005 report from the President's task force on Puerto
Rico's Status. I am pleased to convene this important hearing
to discuss the White House report. I appreciate the attendance
of our witnesses and that many elected public officials from
Puerto Rico have traveled long distances to join us here today.
Thanks to all of you.
Before beginning, I want to express my gratitude for all
those serving in the Armed Forces from Puerto Rico. I also want
to commend those living in Puerto Rico that make their voices
heard in local referenda, dealing with their political status.
As I understand it, it is not uncommon to have more than 75
percent of the populous vote on referenda dealing with options
of political status. Puerto Ricans deserve an opportunity to be
consulted regarding their future and its relationship--their
relationship with the U.S. and I will work as closely as I can
with all parties involved prior to proceeding with any status
change.
I am pleased that the White House issued the task force
report. This is an important first step in understanding the
non-territorial forms of government for Puerto Rico. No matter
how we proceed, we ultimately need to be assured that the
majority of the people of Puerto Rico will have their voice
heard.
I want the witnesses, who have come here today, I want them
to know how grateful we are and I look forward to hearing their
testimony.
Now, before I introduce the witnesses that are going to
testify, let me yield to who today is the ranking member but
will be chairman in a couple of weeks, 3 or 4 weeks. But we'll
go as it is and we'll yield to the ranking member. That's
Senator Bingaman, my co-colleague from New Mexico.
Senator Bingaman.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
Senator Bingaman. Thank you very much, Mr. Chairman. I
appreciate you having this important hearing. I'm pleased that
the committee will have the opportunity here in the final days
of this 109th Congress to receive testimony on the report of
the President's task force on Puerto Rico's Status.
Over the years, this committee has put many hours into
hearings and the consideration of legislation, but enactment
has often been frustrated by a lack of consensus in the
Congress and in Washington and in Puerto Rico. In recent years,
there have been developments that may have changed that
political dynamic. For example, the United States has
dramatically reduced its military presence on the island.
Second, the possessions tax credit has been fully phased out.
And third, the free association relationships have been
established with three nations in the Pacific.
More recently, this report, that Mr. Marshall is going to
testify about, from President Bush's task force has reaffirmed
legal positions which seem to me well founded and that were
provided to the committee several years ago by the Clinton
administration. In two of those findings in particular I would
allude to, the current relationship with Puerto Rico is based
on the territorial clause and second, that the mutual consent
provisions in the new commonwealth proposal cannot be
accommodated under the U.S. Constitution. However, with respect
to the report's recommendations for legislation, I think it is
too early to determine if there is sufficient consensus in the
House and the Senate and also whether there is a commitment by
this administration to move forward with legislation.
This is an issue of great importance to the people of
Puerto Rico. They deserve an opportunity to be consulted. Today
is an opportunity to hear what the prospects for consensus are
and I will continue to work with you and consult closely with
others here on the committee and officials from Puerto Rico and
the administration before we proceed. So thank you again for
having the hearing. I look forward to hearing the witnesses and
continuing to work with you on this issue.
The Chairman. Thank you very much, Senator Bingaman. Now we
have some additional members of the panel who have arrived. On
our side, we have distinguished Senator Martinez and it's
noteworthy that we have two additional Senators on the
Democratic side, one a new member--not the newest, but a new
member from Colorado, Senator Salazar.
It's always a privilege. I'm sure we will hear some
insightful questions from you about this situation.
And then we have Senator Menendez. He's newly elected also,
so we congratulate you, for the record, on your election and
we're glad that you were able to make it here with us today,
Senator. Thank you very, very much.
I think the rules would now say we go to Senator Martinez,
and then to the Democratic side, to Senator Menendez. Please
proceed, Senator. Whatever time you want is yours.
STATEMENT OF HON. MEL MARTINEZ, U.S. SENATOR
FROM FLORIDA
Senator Martinez. Thank you, Mr. Chairman, and thank you so
much for holding this very important hearing today. I want to
express to you my real personal gratitude for making time for
this, for the diligent work of the staff. I also want to thank
Ranking Member Bingaman for his work on making this hearing
possible.
I also just want to take a moment to recognize de una
calidad bienvenida to so many people who have traveled here
from Puerto Rico to be with us today; most of all, and first
and foremost, Governor Acevedo, but also, of course, our
Congressman, Luis Fortuno, and the many other elected
officials. Mayor O'Neil I know is here and I'm sure there are
many others that represent the people of Puerto Rico in
different elected offices. So I welcome all of you and look
forward to continuing this discussion on this very important
issue.
When considering Puerto Rico's status, it is clear that we
have been left in an untenable circumstance regarding what the
future will hold for the citizens of Puerto Rico. This hearing
is critical in answering many of the questions that have, for
too long now, gone unanswered. Although it isn't likely that we
will hear all the answers today, we are certainly moving in the
right direction. This hearing will give us an opportunity to
review our Nation's policy toward Puerto Rico--how we got it
where we are--and it will also give us an opportunity to
discuss where we are heading.
However, first and foremost, we should start by clarifying
one point: Puerto Rico is undoubtedly a territory of the United
States. Puerto Rico is subject to the Territorial Clause of the
U.S. Constitution and, therefore, a territory of the United
States since 1898. That has not changed in the last 108 years.
Federal authorities including GAO, CRS, DOJ, State, the
Supreme Court, the U.S. House of Representatives and successive
U.S. Presidents, including the legislative history of Law 600,
which provided Puerto Rico to write a local constitution, and
the record of this committee, all make clear that the status of
Puerto Rico remains under the Territorial Clause since 1898.
It is for this reason that, as we begin our debate on
Puerto Rico's future, we do not forget the obvious--that Puerto
Rico is a territory of the United States. What does this mean?
Practically, it means that our Federal laws are applicable in
Puerto Rico, yet the U.S. citizens of Puerto Rico do not have
adequate or proportionate representation to decide those laws.
And a government based on representative democracy clarifying
this situation is an absolute necessity.
Mr. Chairman, in order to begin the process of resolving
this matter, we need to start by asking one important question:
Why is Puerto Rico the only territory in the United States to
be granted U.S. citizenship by Congress, while at the same time
not being put in a position to establish a permanent
relationship with the United States? When the Congress
conferred U.S. citizenship for the territories of Alaska and
Hawaii, the U.S. Supreme Court interpreted it to mean that the
U.S. Constitution applied and those territories were
incorporated into the Union. When Congress conferred U.S.
citizenship for Puerto Rico, the U.S. Supreme Court deviated
from the Alaska and Hawaii precedents and ruled that the
Constitution did not apply.
This meant that Congress could govern the U.S. citizens of
Puerto Rico under the same unincorporated territory doctrine
that applied to non-citizens in the Philippines when it was in
transition to independence. Although Congress has been active
on this issue, it has not taken the necessary steps to resolve
Puerto Rico's status. As a result, some U.S. citizens of Puerto
Rico have created a number of unconventional status ideologies
and doctrines that combine features of statehood, territorial
status and independence. The ideologies and doctrines may be
ill-advised or even legally flawed in some respect but they are
a direct result of U.S. citizens simply trying to fill the void
left by the U.S. Congress.
These doctrines, which now complicate the issue of Puerto
Rico's status, most likely would not have been created had
Congress not overlooked its responsibility for a territorial
status resolution.
I mention this not to chastise previous Congresses but to
urge my colleagues to take this matter up in an expeditious
fashion, to address it fully and to resolve it finally. As I
said earlier, this is long overdue and the people of Puerto
Rico deserve their say.
As a result, I have introduced legislation that would move
this process forward. It would not dictate the status of Puerto
Rico but it would begin a process whereby a resolution of this
matter could be reached. This hearing is a critical step toward
finding a workable solution and I'm pleased that both sides of
this important debate are represented here today and will
present testimony to our committee.
While some people support the White House report, others
oppose it. Both sides have valuable perspectives and are
important to this debate, because both sides have the best
interests of Puerto Rico at heart. It is with a tone of
civility that we should open this hearing, because there is, I
believe, a firm understanding that we are here today to
determine what is in the best interests of all U.S. citizens in
Puerto Rico and are here to better understand the
constitutional options available to future generations of U.S.
citizens living in Puerto Rico. Thank you, Mr. Chairman.
[The prepared statement of Senator Martinez follows:]
Prepared Statement of Hon. Mel Martinez, U.S. Senator From Florida
Mr. Chairman, I want to personally thank you for calling this
important hearing. The issue of Puerto Rico's status is of great
interest to me and many of my constituents in Florida, and it is an
issue where a meaningful resolution is well overdue.
When considering Puerto Rico's status, it is clear that we have
been left in an untenable circumstance regarding what the future will
hold for the citizens of Puerto Rico.
This hearing is critical in answering many of the questions that
have, for too long now, gone unanswered. Although it is unlikely that
we will hear all the answers today, we are certainly moving in the
right direction.
This hearing will give us an opportunity to review our nation's
policy toward Puerto Rico, how we got where we are, and will also give
us an opportunity to discuss where it is we are heading.
However, first and foremost, we should start by clarifying one
point: Puerto Rico is undoubtedly a territory of the United States.
Puerto Rico is subject to the Territorial Clause of the US
Constitution, and therefore a Territory of the US since 1898. That has
not changed in the last 108 years.
Federal authorities (including GAO, CRS, DOJ, State, US Supreme
Court, US House of Representatives, successive US Presidents) including
the legislative history of Law 600 (which provided for Puerto Rico to
write a local constitution), and the record of this Committee, all make
clear that the status of Puerto Rico remains under the Territorial
Clause since 1898.
And it is for this reason that, as we begin our debate on Puerto
Rico's future, we do not forget the obvious--that Puerto Rico is a
territory of the United States.
What does this mean? Practically, it means that our federal laws
are applicable in Puerto Rico, yet the United States citizens of Puerto
Rico do not have adequate or proportional representation to decide
those laws. In a government based on representative democracy,
clarifying this situation is of absolute necessity.
Mr. Chairman, in order to begin the process of resolving this
matter, we need to start by asking one important question: why is
Puerto Rico the only territory in U.S. history to be granted U.S.
citizenship by Congress, while, at the same time, not being put in a
position to establish a permanent relationship with the United States?
When the Congress conferred U.S. citizenship for the territories of
Alaska and Hawaii, the U.S. Supreme Court interpreted that to mean the
U.S. Constitution applied and those territories were incorporated into
the union.
When Congress conferred U.S. citizenship for Puerto Rico, the U.S.
Supreme Court deviated from the Alaska and Hawaii precedents and ruled
that the Constitution did not apply.
This meant that Congress could govern the U.S. citizens of Puerto
Rico under the same unincorporated territory doctrine that applied to
non-citizens in the Philippines when it was in transition to
independence.
Although Congress has been active on this issue, it has not taken
the necessary steps to resolve Puerto Rico's status.
As a result, some U.S. citizens of Puerto Rico have created a
number of unconventional status ideologies and doctrines that combine
features of statehood, territorial status and independence.
These ideologies and doctrines may be ill-advised or even legally
flawed in some respects, but they are the direct result of U.S.
citizens simply trying to fill the void left by Congress.
These doctrines, which now complicate the issue of Puerto Rico's
status, most likely would not have been created, had Congress not
overlooked its responsibility for a territorial status resolution.
I mention this not to chastise previous Congresses, but to urge my
colleagues to take this matter up in an expeditious fashion, to address
it fully, and to resolve it, finally. As I said earlier, this is long
overdue, and the people of Puerto Rico deserve their say.
As a result, I have introduced legislation that would move this
process forward. It would not dictate the status of Puerto Rico, but it
would begin a process whereby a resolution on this matter could be
reached.
This hearing is a critical step toward finding a workable solution,
and I am pleased that both sides of this important debate are
represented here today and will be presenting testimony to our
Committee.
While some people support the White House report; others oppose
it--both sides have valuable perspectives and are important to this
debate, because both sides have the best interests of Puerto Rico at
heart.
It is with a tone of civility that we should open this hearing,
because there is, I believe, a firm understanding that we are here
today to determine what is in the best interests of all U.S. citizens
in Puerto Rico and are here to better understand the constitutional
options available to future generations of U.S. citizens living in
Puerto Rico.
The Chairman. Thank you very much, Senator.
Now it's the Senator from Colorado.
STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR
FROM COLORADO
Senator Salazar. Thank you very much, Chairman Domenici and
Ranking Member Bingaman, for holding this hearing on this very
important issue. I also shout out my greetings to Governor
Acevedo, as well as to Luis Fortuno and Ken McClintock and
others who are here from Puerto Rico, who have traveled so far.
Welcome here to your Nation's capital as well.
When President Clinton signed Executive Order 13183,
establishing the President's task force on Puerto Rico, to help
answer the questions that the people of Puerto Rico have asked
for years regarding the options for their future status and the
process for realizing an option, I doubt that he or those
advising him expected that the task force would take so many
years to make a recommendation.
However, now that the task force has acted, I believe that
the 3.9 million people of Puerto Rico deserve a response from
this Congress. With Capitol Hill buzzing from the election and
the changes in the House and the Senate, I appreciate very much
the attention that the Energy Committee is giving to this issue
today. Not all issues are receiving this kind of attention in
Washington on these days.
I am very eager to hear from today's panels of leaders and
experts on this issue of the future of Puerto Rico. I look
forward to hearing from the Deputy Assistant Attorney General,
Kevin Marshall, with respect to the task force report.
Likewise, I am very interested in learning more about the
thoughts and reactions to the report from representatives from
Puerto Rico's political parties, Governor Acevedo, Resident
Commissioner Fortuno and Ruben Berrios Martinez.
All of you in Puerto Rico and those of us who are
interested in the future of the island have lived with this
issue for a very long time. Notwithstanding the status of
Puerto Rico, the people of Puerto Rico have been great citizens
of the United States and have contributed greatly to this
Nation.
I am sure you will use this forum to share your unique
perspective. I believe that our committee will benefit very
much from your views. I hope you can offer us clear and
practical ideas for moving forward. I have come to learn more
about the unresolved question of what is Puerto Rico's status
through conversations with Puerto Rican leaders on different
sides of this issue and by traveling, within the last year, to
Puerto Rico with my friend, Senator Mel Martinez.
I recognize the great responsibility that this committee
placed in providing Puerto Ricans with the means to determine
the ultimate status of their island. That is why, with 13 other
Senators, we introduced the Puerto Rico Democracy Act.
Our bill would implement the first step of the task force
recommendations by authorizing a plebiscite that would ask
Puerto Ricans to decide if they would like to remain in their
current status as a U.S. territory or pursue some other
permanent, non-territory option. In either case, Congress would
be responsible for assisting with and respecting the desires of
the people.
If the people determine that they are satisfied with their
current political situation, Congress may revisit the issue in
the future. If, on the other hand, Puerto Ricans elect to
pursue a permanent non-territory option, Congress would have to
authorize a mechanism to ascertain that new status.
My interest, very simply stated, is to provide the people
of Puerto Rico with a voice in their future. For more than 100
years, the U.S. Government has allowed the question of Puerto
Rico and its future simply to linger.
As we look ahead to the 110th Congress, it is my hope that
this committee will keep Puerto Rico on the agenda and that we
can help the people of Puerto Rico in moving forward on this
issue.
Once again, Mr. Chairman, I thank you for today's hearing
and I look forward to hearing from the panel today.
The Chairman. Thank you very much, Senator. Let me see.
Since there are so many people, I do want to be fair with the
Senators and the people in terms of time consumed. The next one
who would come up here would be you, Senator Menendez. I think
what we'll do, if you don't mind, is go to you with an opening
statement, but ask you in advance if you could tell us that it
would be limited in how long that opening statement might be.
Senator Menendez. Well, Mr. Chairman, I'll be, I think,
within the timeframe that we normally would have here.
The Chairman. Will you do that?
Senator Menendez. Yes, sir.
The Chairman. All right. We're going to do the same with
you, Senator Burr. Do you want to even take less? You're going
to do half the allowed? Well then, he agreed to that, now
that's the order. Thank you. You will follow him with half the
time allotted.
Senator Menendez, you're next.
STATEMENT OF HON. ROBERT MENENDEZ, U.S. SENATOR
FROM NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman. Thank you for
your kind wishes to our ranking member and soon-to-be-chair, as
well. I appreciate him and our colleagues; Governor Anibal
Acevedo, too; the Resident Commissioner, Congressman Fortuno;
the President of the Puerto Rican Independence Party; and all
who have come here. We welcome you.
Now, many of you think we are here to talk about Puerto
Rico and Puerto Rico policy, but what we are actually here to
talk about today is not policy, but process. Every member of
the Senate knows that process matters. Every member of the
Senate knows that the process you set up to debate amendments
and to vote on amendments can determine the outcome. That is
why we spend hours debating about how we are going to debate.
That is why members of the Senate, who know Senate procedure,
can win on process even when they could lose on policy. So
there is no group of people who should understand better than
this group of Senators that when it comes to the future of
Puerto Rico, process matters.
And every American understands that a rigged vote creates a
false outcome. I have always said that when it comes to Puerto
Rico, we must have an unstacked and unbiased process that
allows the people of Puerto Rico to determine their own future.
And I would hope that every member of the Senate would support
an unstacked and unbiased process, whether the outcome was
statehood, independence or commonwealth.
Unfortunately, the White House Task Force and certain
legislation in both the House and the Senate create a process
that in my mind, is designed to get a specific outcome. I know
that for many people, the idea of a plebiscite or a referendum
by the people sounds like a good idea. Why not let the people
vote on the options to determine their future? But that is not
actually what the White House Task Force proposes.
Unfortunately, the process set up by the White House Task Force
does not let the people of Puerto Rico hold a clear side-by-
side vote on the three options: statehood, independence or
commonwealth. And here is where we see, once again, that
process matters.
Rather than creating a process where all three options are
voted on side-by-side, the White House Task Force sets up a
rigged, two-step process designed to kill the commonwealth
option in the first vote and then not allow it as part of a
second vote.
First, the voters will be asked to vote for or against
moving to a permanent, non-territorial status. According to the
White House Task Force, the people of Puerto Rico will be asked
to say whether they wish to remain a U.S. territory subject to
the will of Congress.
Let me be clear. This is not a vote for or against the
commonwealth as we know it. In fact, the definition of the
commonwealth as described in the report is designed to scare
people into voting against the commonwealth. The report gives
the false impression that under the commonwealth, Puerto Rico
is a colony and that people could lose their U.S. citizenship.
The definition of commonwealth is so warped that even those who
support the current commonwealth status would likely vote
against it.
So the first vote doesn't even allow the people of Puerto
Rico to vote for or against a real commonwealth. In fact, the
vote would be designed to get a commonwealth-sounding option
voted down by scaring people. And by making the first vote a
separate vote on commonwealth status, you increase the number
of people voting against it by creating an alliance between
those who might support independence and statehood. So after
killing the commonwealth option, the second vote would only
allow voters to choose statehood or independence.
You may ask why the White House task force did not
recommend a straight side-by-side vote of the three options.
You may ask why the White House Task Force included a
definition of commonwealth that is designed to scare Puerto
Ricans. I cannot answer those questions, although I look
forward to getting some answers today. It reminds me of the
point I began with today, and this is where I'll end.
Process matters. If you cannot win in an outright vote,
then stack the process so your side wins. I say the people of
Puerto Rico deserve better than a stacked process designed so
one side can win. The people of Puerto Rico deserve to
determine their own future. The people of Puerto Rico, as
American citizens, have the right to a fair and unbiased
process. That's why I support legislation that will bring the
people of Puerto Rico together to build consensus in their own
land. It puts the future of Puerto Rico in the hands of Puerto
Ricans. It allows Puerto Ricans to tell Congress what they want
rather than the other way around. And that, Mr. Chairman, is
what I hope we would see.
I would remind everyone that the issue here is not whether
you support statehood, independence or commonwealth. The issue
is creating a process that is fair. The bottom line is that a
rigged process creates a false outcome and the people of Puerto
Rico deserve a fair process and a true outcome.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator. Now, we're
going to have Senator Burr for half the time allotted, so that
means 2\1/2\ minutes.
STATEMENT OF HON. RICHARD BURR, U.S. SENATOR
FROM NORTH CAROLINA
Senator Burr. I thank the Chair. I thank the ranking
member.
The Chairman. It's hard to breathe in 2\1/2\ minutes.
Senator Burr. But this Senator can do it.
The Chairman. All right. Let's go.
Senator Burr. I thank the Chair and I thank the ranking
member for the opportunity to have such a distinguished group
of witnesses here today.
The self-determination process for Puerto Rico must be a
fair and transparent process. We have a very important
responsibility to ensure that any process that leads to the
consideration of the 51st State in the Union be conducted in a
way that is fair to all involved. We owe it to our constituents
and to our common citizens in Puerto Rico.
The sanctity of the Union and our commitment to the
democratic principles must guide how we treat this sensitive
and significant process of self-determination. While I have
concerns about the task force report that we are here to
examine today, I do respect Puerto Ricans' right to self-
determination. S. 2304 simply recognizes Puerto Rico's right to
self-determination. Our founding fathers' belief in the
importance of a Constitutional Convention led to the formation
of the United States of America. Therefore, we must recognize
their wisdom and move this process forward through local
consensus first and for congressional consideration thereafter.
I look forward to the hearing we are here to learn from. I
pledge and look forward to working with the Governor and with
the Resident Commissioner as further issues are explored in
what I think is an extremely important issue about the
Commonwealth of Puerto Rico.
I thank the Chair.
[The prepared statement of Senator Craig follows:]
Prepared Statement of Hon. Larry E. Craig, U.S. Senator From Idaho
To give some context to today's hearing the record should include
some relevant history of the Committee's oversight role in support of
status resolution for Puerto Rico.
On January 17, 1989, the Governor of Puerto Rico, acting as head of
his political party, co-signed a letter with the heads of the other two
major political parties in Puerto Rico, seeking federal support for and
participation in a process to resolve the ``ultimate political status''
of Puerto Rico. In response, from 1989 to 1991 the U.S. Congress
expended a significant amount of time and effort trying to help our
fellow American citizens in Puerto Rico resolve the political status
question for that U.S. territory.
In 1994 the duly-constituted Legislative Assembly of Puerto Rico
formally petitioned the U.S. to approve a commonwealth proposal that
garnered less than a majority of votes in a locally sponsored vote
conducted in 1993. The 1994 petition asked Congress to define what
status options it was willing to consider. In 1997 the local
legislature renewed its petition and asked Congress to sponsor a
federally recognized vote based on legally valid status definitions
Congress would be willing to consider.
In 1998 the House answered the petition when it debated and passed
on a recorded vote legislation containing legally valid definitions of
statehood, independence and commonwealth. However, the Senate never
acted on similar bipartisan legislation I sponsored, and instead passed
a resolution confirming the territorial clause power of Congress with
respect to the status of Puerto Rico.
At that point the local Puerto Rican government called a plebiscite
based on the general principles of status options contained in the
House passed bill. In that vote statehood received 46.5%, the highest
vote of any political status option on the ballot. Independence
received 2.5%, and separate nationhood with a treaty of free
association like the compact for Micronesia received .02%.
The commonwealth option on the ballot was based on governing U.S.
Supreme Court rulings and federal law defining the current status as
that of a U.S. territory, and this option received .01% of the vote.
This represented a 99.9% rejection of the current commonwealth defined
by federal law as a territory.
That left only one option on the ballot, which was ``None of the
Above'', and it received 50.2% of the vote. Thus, a ballot option that
did not define any political status got the most votes, and we will
never know what the vote would have been for the actual status options
if ``None of the Above'' had not been on the ballot.
What we do know is that the local pro-commonwealth Party in Puerto
Rico rejected the House passed definition of commonwealth and the
version thereof on the 1998 local plebiscite ballot. This was because
both the House bill and 1998 ballot correctly stated that as a
commonwealth Puerto Rico remains subject to the authority of Congress
under the territorial clause in Art. IV, Sec. 3 of the U.S.
Constitution.
The reason the local commonwealth party rejected the House passed
definition of commonwealth is that in 1998 the Governing Board of that
party adopted its official platform confirming that party's long held
ideology that commonwealth is not territorial but is instead a form of
separate sovereign nationhood. The 1998 party platform asserts that:
<bullet> Puerto Rico is not a U.S. territory and therefore is not
subject to the power of Congress under the territorial clause
<bullet> Puerto Rico is a nation which conducts relations with the
U.S. on ``bilateral'' basis under a ``compact'' formed by
approval of the local constitution in 1952
<bullet> Commonwealth means Puerto Rico is a ``free associated
state'' with separate national sovereignty that exists on a
plane of international equivalence with the United States
<bullet> Commonwealth means Puerto Rico has its own separate
international identity and can conduct its own foreign
relations, including its own trade relations, even while it
enjoys domestic status as a U.S. customs territory
<bullet> While not yet recognized by the United States, so that
further development of the bilateral compact is required,
federal powers in Puerto Rico are only those delegated by
Puerto Rico or retained under the compact
<bullet> The compact is binding on the United States and cannot be
altered without Puerto Rico's consent
<bullet> U.S. law applies in Puerto Rico only as provided consistent
with the compact
<bullet> New federal laws do not apply unless consented to by Puerto
Rico under the compact
<bullet> The compact guarantees federal programs, tax exemptions and
U.S. citizenship in perpetuity under a political union that
cannot be ended without consent of Puerto Rico
On the basis of that platform the commonwealth party declared the
House passed bill and the commonwealth option on the 1998 plebiscite
ballot biased in favor of statehood. In other words, since the House
bill and 1998 ballot accurately defined commonwealth as it exists under
federal law rather than conforming to the local party's platform, the
House language was seen as biased towards statehood by some.
While I do not believe it is the job of Congress to choose sides in
determining what form of political status the Puerto Ricans will
decide, I do believe it is the responsibility of Congress to provide
the legal framework for the decision they must make.
defining status options
Given this history, it is clear that defining status options under
federal law and determining which of these Congress is willing to
consider is the single most imperative requirement for status
resolution. The territorial clause vests Congress with the primary
authority and responsibility to define options and sponsor an orderly
and informed process of self-determination. Unfortunately, in 1991 and
1998, Congress was not willing to sustain the effort required to
fulfill its constitutional role.
Congress has been determining the future status of territories
since 1796, when the first U.S. territory outside of an existing state
joined the union as a new state. After considering local status votes
and petitions, the United States has subsequently admitted 32
territories as states, with one territory becoming an independent
nation. Additionally, three U.S.-governed U.N. trust territories have
become free associated states under a treaty with the United States.
Yet in 108 years of U.S. administration, there has never been a
Congressionally-sponsored status referendum in Puerto Rico. Congress
has yet to recognize a Puerto Rican vote on status as a legitimate and
informed act of self-determination among options compatible with the
U.S. Constitution.
The 1952 vote to adopt a local constitution did not present
political status options to the voters and in fact was not a status
vote at all. A 1967 vote favoring a now obsolete and non-viable
commonwealth, the 1993 vote, and the 1998 vote, all failed to produce a
majority for a status option that Congress would accept as compatible
with federal law.
executive branch initiatives
Given this lamentable history of Congressional inaction, the
efforts to resolve Puerto Rico's status advanced by President Bush in
1992, President Clinton in 2000, and President Bush in 2003, are to be
commended. If these three Administrations had not provided leadership
on this issue, we would not be as far along as we are building a record
that provides a foundation for ultimate action by Congress.
The Report by the President's task force on Puerto Rico's Status is
a mercifully condensed but fully complete and adequate summarization of
the Puerto Rico status process to date. It makes sound recommendations
as to next steps for further progress. Accordingly, this hearing on the
White House report is timely and important if for no other reason than
it adds the White House report and the views of the witnesses about it
to the record before this Committee in anticipation of future
legislation.
In addition to examining the White House report closely, we need to
begin the process for considering legislation proposed to implement the
recommendations in the Report, which was prepared by the
Administration's senior officials responsible for policy relating to
Puerto Rico's status. S. 2661, sponsored by Mr. Martinez and Mr.
Salazar, represents a very restrained and even minimalist approach,
essentially an up or down vote on continuing the current status or
seeking a new status that is not territorial.
Instead of the relatively comprehensive self-determination process
contained in the 1998 House-passed bill, S. 2661 is essentially a
measure favoring gradualism in order to enable the political process to
take it one step at a time. That is appropriate because the first goal
and highest responsibility of Congress is not to promote statehood,
independence, or continued territory status, but to facilitate informed
self-determination.
Under this bill, there would never be the need for Congress or
Puerto Rico to define or sponsor a vote on statehood, independence, or
free association, unless there is first a majority vote to end the
current status and seek a non-territory status. Since 1993, there has
not been a majority vote for any political status option, and in 1998
virtually the entire population rejected commonwealth defined as
territory status. So it is important to end minority rule on status,
which refers to the 46.5% vote for statehood in 1998 or the 48.67% vote
for an unrealistic and unconstitutional commonwealth option in 1993.
Those pluralities in local votes can and should be replaced by
majorities in votes recognized by the United States, and the proposal
to determine if a majority favor the current status as defined by
federal law or seek a non-territory status is fair to all three status
options and all three major political parties in Puerto Rico.
Of course, because the White House report and the Martinez-Salazar
bill define the Commonwealth of Puerto Rico as a territory, some in the
commonwealth party argue that the intent of the Martinez-Salazar bill
and the report are both biased in favor of statehood. As a cosponsor of
the Martinez-Salazar bill, I reject that label of bias, and believe
that this bill would simply provide a mechanism for the people of
Puerto Rico to determine a legally acceptable political status.
The local commonwealth party remains committed to the proposed
development of commonwealth under the 1998 party platform described
above. Indeed, on December 28, 2005, shortly after the White House
report was issued, the Governor of Puerto Rico, in his capacity as head
of the commonwealth party, stated that the 1998 platform for
development of commonwealth ``reflects our aspirations for autonomous
development . . . We are ready to undertake this development when the
United States demonstrates the maturity to recognize that this type of
relationship is what . . . both countries need.''
At a House hearing on the White House report conducted on April 27,
2006, the commonwealth party witnesses argued that a vote on remaining
a territory or seeking a new non-territory status is biased in favor of
statehood because supporters of statehood and independence could ``gang
up'' and vote for a non-territory status.
The commonwealth party witnesses also asserted that a vote on the
current status as defined by federal law is unfair because the
commonwealth party does not accept the definition of the current status
under federal law, and so their definition of commonwealth is unfairly
excluded from the process.
To address these implausible arguments we begin with the fact that
under Article VI of the U.S. Constitution federal law is the supreme
law of the land. That includes federal law applicable to Puerto Rico as
long as it is a territory under U.S. sovereignty. If federal law
defines Puerto Rico as a territory, which it does, then a majority vote
to seek a new non-territory status is a majority vote against the
current status regardless of what new non-territory status the voters
may prefer.
Further, it is the responsibility of the federal and local
government to ensure that commonwealth proposals the U.S. Department of
Justice has labeled ``illusory'' and ``deceptive'' are not allowed to
appear on self-determination ballots.
What would be truly unfair and biased would be to include an
unviable option on the ballot in a status vote. That is what happened
in 1993, when a definition of commonwealth that was constitutionally
unrealistic and legally invalid was presented to voters. This results
in an ``artificial plurality'' for a commonwealth option that does not
exist and is impossible.
In the history of U.S. territorial law, statehood and independence
are the normative options. Territorial status is normative as a
temporary status until the territory is ready for statehood or
independence. What is not normative is for a territory to be granted
U.S. citizenship, develop internal self-government under a locally
adopted constitution, but remain in that status for an indefinite
period lasting decades, without any action by Congress leading to
incorporation and statehood, or even independence.
It is understandable that in the absence of a federal policy on
status local political parties would begin to develop their own status
definitions that would benefit their interests. At the same time, those
definitions might not fit within U.S. federal law or under the
constitutional definition of a territory.
For example, the United Nations recognized free association as an
alternative to integration with another nation or full independence,
but in international law that is based on separate sovereign
nationhood, and the retention by each party of the right to full
independence through unilateral termination of the association. If a
majority of voters in Puerto Rico want free association, that is a
legally valid and politically realistic status option. The same is true
of statehood, it is a well-defined legally valid status.
federal responsibility for status resolution
Historically, territory status was temporary until the conditions
were right for statehood. That was the Northwest Ordinance incorporated
territory model and it worked just fine for 30 territories that became
states in that way. Then territorial law became a little more
complicated when we acquired sovereignty over Alaska, the Philippines,
Puerto Rico and Hawaii.
The organic laws Congress enacted to govern these territories
created a good deal of confusion and ended up in the U.S. Supreme
Court. The court decided that Alaska and Hawaii were incorporated
territories under the U.S. Constitution, based on Northwest Ordinance
model, because Congress had conferred U.S. citizenship to the people of
Alaska and Hawaii. However, the Philippines and Puerto Rico were to be
governed by Congress without extension of the U.S. Constitution because
Congress had not extended U.S. citizenship.
Accordingly, Congress adopted and eventually implemented a policy
leading to independence for the Philippines. However, in the meantime
Congress extended U.S. citizenship to Puerto Rico. This should have
triggered the same result it did earlier for Alaska and Hawaii,
including extension of the U.S. Constitution and incorporation into the
union under a policy leading to eventual statehood.
However, instead of following its own precedent in the Alaska and
Hawaii cases, the new Supreme Court justices who decided the Puerto
Rico case ruled that Congress could extend citizenship but not the U.S.
Constitution, and still govern Puerto Rico in the same manner as it did
the Philippines when it had a non-citizen population and was on its way
to independence.
More than anything else, that flawed judicial ruling is the source
of the problem Congress is having on resolving the matter of political
status for Puerto Rico. The White House report on Puerto Rico's status
correctly calls on Congress to establish a self-determination process
that restores the historical integrity of federal territorial law and
policy by enabling Puerto Rico to choose a path leading to statehood or
separate nationhood, which now can include either independence or a
status recognized under later U.N. decolonization standards and known
as free association.
In the meantime, we need to recognize that historically and legally
Puerto Rico's status is a judicially imposed anomaly, and like most
anomalies it has unintended consequences for the nation and the
residents of Puerto Rico. Although ratified by Congress through
statutory policies accepting the ``unincorporated territory'' doctrine
created by court ruling, Congress has never come to grips with the
fundamental question of what ordered scheme of liberty, what rights and
duties, exist for U.S. citizens in an unincorporated territory.
Instead, because the courts gave Congress permission to govern U.S.
citizens in unincorporated territories without extending the U.S.
Constitution, and to govern U.S. citizens in Puerto Rico the same way
Congress governed non-citizens in the Philippines prior to its
independence, Congress went ahead an extended U.S. citizenship to the
populations of other unincorporated territories.
And why not? The ruling of the U.S. Supreme Court in the case of
Puerto Rico made conferral of U.S. citizenship a consequence free
activity.
Or, did it? To understand what we have done by deviating from the
Alaska and Hawaii precedents, to understand what Justice Taft did when
he wrote an opinion based on his personal intellectual preferences
instead of the doctrine of stare decisis embodied in the Supreme
Court's ruling on Alaska and Hawaii, we need to look at exactly what we
have wrought in Puerto Rico.
If Puerto Rico chooses separate nationhood, then conferral of U.S.
citizenship will end. But if the people of Puerto Rico choose to retain
American citizenship, Congress must enable, and perhaps even require,
the residents of Puerto Rico and the nation to complete the transition
to full and equal status through statehood.
I am pleased that the Chairman has called for this hearing today
and I hope that we can move forward with legislation in the next
Congress to address this difficult situation.
The Chairman. Thank you very much.
Senator Burr. Have it duly noted that I did not use all the
time.
The Chairman. You didn't do it in half the time, but we're
not going to argue. See, it just shows you with 32 seconds
left, so we used a lot more than half of 5. Oh, all right.
Now, ladies and gentlemen, we're going to proceed now, in
the following manner: Kevin Marshall, Deputy Assistant Attorney
General, Office of Legal Counsel, is going to testify now; and
then he will be followed by the Honorable Governor of the
Commonwealth of Puerto Rico; and then there will be two
witnesses with the Governor; and then the Congressman, two
Congressmen will join together and they will become the next
panel.
So we might proceed, Mr. Marshall, how much time do you
need to explain the position of the executive branch?
Mr. Marshall. Five minutes, if I get it just right.
The Chairman. Oh, you don't need to be in that much of a
hurry. This is very important. We're going to give you 10
minutes and you talk slow.
[Laughter.]
The Chairman. Thank you very much, Mr. Marshall.
STATEMENT OF C. KEVIN MARSHALL, DEPUTY ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE
Mr. Marshall. Thank you, Mr. Chairman and Ranking Member
Bingaman, for inviting me to discuss the working report of the
President's task force on Puerto Rico's Status. I'm a Deputy
Assistant Attorney General in the Justice Department's Office
of Legal Counsel. As the Attorney General's designee on the
task force, I serve as its co-chair along with the Deputy
Assistant to the President and Director for Intergovernmental
Affairs, Ruben Barrales.
The status of Puerto Rico and the options regarding that
status have been issues for many years. President George H. W.
Bush, in a 1992 memorandum, recognized that Puerto Rico's
current commonwealth stature grants it significant self-
government authority, described Puerto Rico as a territory, and
directed that it be treated like a State.
President Clinton, in establishing the task force in 2000,
made it the policy of the executive branch to help answer the
questions that the people of Puerto Rico have asked for years
regarding the options for the island's future status and the
process of realizing an option.
The task force was required to consider and develop
positions on proposals, without preference among the options,
for the commonwealth's future status. Its recommendations are
limited, however, to those options permitted by the
Constitution.
In establishing the task force, President Clinton also
expressly recognized that Puerto Rico's ultimate status has not
been determined and noted the different visions for that status
within Puerto Rico.
Although Puerto Rico held a plebiscite in 1998, none of the
proposed status options received a majority. Indeed, none of
the above prevailed because of objection to the ballot
definition of the commonwealth option.
Some in Puerto Rico have proposed a new commonwealth
status. That, among other things, could not be altered without
the mutual consent of Puerto Rico and the Federal Government.
In October 2000, a few months before President Clinton
established the task force, William Treanor, who held the same
position in the Office of Legal Counsel that I now hold,
testified that such a proposal was not constitutional.
Seeking to determine the constitutionally permissible
options and recommend a process for realizing one of the
options, the task force considered all status options
objectively, without prejudice. We sought input from all
interested parties and met with anyone who requested a meeting.
The task force issued its report last December and
concluded that there were three general options under the
Constitution for Puerto Rico's status: One, continue its
current status as a largely self-governing territory; two,
admit Puerto Rico as a State; or three, make Puerto Rico
independent.
The primary question regarding options is whether the
Constitution allows a commonwealth status that could be altered
only by mutual consent.
Since 1991, the Justice Department has consistently taken
the position the Constitution does not. The task force report
reaches that conclusion as well. The report, of course, is not
a legal brief, but it does outline the reasoning and includes,
as appendixes, two extended analyses by the Clinton Justice
Department, one of which was sent to this committee in 2001.
Thus, the new commonwealth position, as the task force
understands it, is not consistent with the Constitution.
Any promises that the United States might make regarding
Puerto Rico's status as a commonwealth would not and could not
be binding on a future Congress. Puerto Rico may remain in its
current status indefinitely, but it would remain subject to
Congress's authority under the Constitution to regulate U.S.
territories.
The report provides additional details on the other two
permissible options, statehood and independence. Additional
copies of the report have been provided to the committee for
your convenience.
With regard to process, the task force sought to ascertain
the will of the people of Puerto Rico in a way that provides
clear guidance for future action by Congress. The key is to
provide clear guidance, first to speak unambiguously about the
constitutional options and second, to structure the process so
that popular majorities are likely.
The task force therefore recommends a two-step process. The
first step is simply to determine whether the people of Puerto
Rico wish to remain as they are. We recommend that Congress
provide for a federally sanctioned plebiscite on this question.
If the vote is to remain as a territory, then the second step
would be periodic plebiscites to inform Congress of any change
in views.
If the first vote is to change Puerto Rico's status, then
the second step would be another plebiscite in which the people
would choose between statehood and independence.
Consistent with our presidential mandate, this recommended
process does not seek to prejudice the outcome, even though it
is structured to produce a clear outcome. Puerto Ricans have
before voted by a majority to remain as a commonwealth. They
may do so again. In addition, the process does not preclude
action by Puerto Rico itself to express its views.
At the first step, the task force recommends a plebiscite
to occur on a date certain. If Congress wished to ensure that
some action occurred, but not preclude local initiative, it
could allow a sufficient period before that date certain.
Thank you for this opportunity to share the views of the
task force. I have submitted my written statement for the
record and I look forward to taking your questions.
[The prepared statement of Mr. Marshall follows:]
Prepared Statement of C. Kevin Marshall, Deputy Assistant Attorney
General, Office of Legal Counsel, Department of Justice
Thank you, Mr. Chairman and Ranking Member Bingaman, for inviting
me to discuss the work and report of the President's task force on
Puerto Rico's Status. President Clinton established the Task Force in
December 2000, and President Bush has continued it through amendments
of President Clinton's Executive Order. The Task Force consists of
designees of each member of the President's Cabinet, and the Deputy
Assistant to the President and Director for Intergovernmental Affairs,
Ruben Barrales. I am a Deputy Assistant Attorney General in the Justice
Department's Office of Legal Counsel. As the Attorney General's
designee on the Task Force, I serve as its Co-Chair, along with Mr.
Barrales.
The status of Puerto Rico, and the options regarding that status,
have been issues for many years. In 1992, for example, President George
H.W. Bush issued a Memorandum that recognized Puerto Rico's popularly
approved Commonwealth structure as ``provid[ing] for self-government in
respect of internal affairs and administration,'' described Puerto Rico
as ``a territory,'' and directed the Executive Branch to treat Puerto
Rico as much as legally possible ``as if it were a State.'' He also
called for periodically ascertaining ``the will of its people regarding
their political status'' through referenda.
President Clinton, in his order establishing the Task Force, made
it the policy of the Executive Branch ``to help answer the questions
that the people of Puerto Rico have asked for years regarding the
options for the islands' future status and the process of realizing an
option.'' He charged the Task Force with seeking to implement that
policy. We are required to ``consider and develop positions on
proposals, without preference among the options, for the Commonwealth's
future status.'' Our recommendations are limited, however, to options
``that are not incompatible with the Constitution and basic laws and
policies of the United States.''
On the same day that he issued his Executive Order, President
Clinton also issued a Memorandum for the Heads of Executive Departments
and Agencies regarding the Resolution of Puerto Rico's status. That
memorandum added that ``Puerto Rico's ultimate status has not been
determined'' and noted that the three major political parties in Puerto
Rico were each ``based on different visions'' for that status. Although
Puerto Rico held a plebiscite in 1998, none of the proposed status
options received a majority. Indeed, ``None of the Above'' prevailed,
because of objection to the ballot definition of the commonwealth
option.
Some in Puerto Rico have proposed a ``New Commonwealth'' status,
under which Puerto Rico would become an autonomous, non-territorial,
non-State entity in permanent union with the United States under a
covenant that could not be altered without the ``mutual consent'' of
Puerto Rico and the federal Government. In October 2000, a few months
before President Clinton established the Task Force, the House
Committee on Resources held a hearing on a bill (H.R. 4751)
incorporating a version of the ``New Commonwealth'' proposal. William
Treanor, who held the same position in the Office of Legal Counsel that
I now hold, testified that this proposal was not constitutional.
Thus, the Task Force's duties were to determine the
constitutionally permissible options for Puerto Rico's status and to
provide recommendations for a process for realizing an option. We had
no duty or authority to take sides among the permissible options.
The Task Force considered all status options, including the current
status and the New Commonwealth option, objectively and without
prejudice. We also attempted to develop a process for Congress to
ascertain which of the constitutional options the people of Puerto Rico
prefer. We sought input from all interested parties, including Governor
Acevedo-Vila. The members met with anyone who requested a meeting. I
myself had several meetings with representatives of various positions,
and also received and benefited from extensive written materials.
The Task Force issued its report last December and concluded that
there were three general options under the Constitution for Puerto
Rico's status: (1) continue Puerto Rico's current status as a largely
self-governing territory of the United States; (2) admit Puerto Rico as
a State, on an equal footing with the existing 50 States; or (3) make
Puerto Rico independent of the United States.
As indicated in my discussion of the 1998 plebiscite and the
origins of the Task Force, the primary question regarding options was
whether the Constitution currently allows a ``Commonwealth'' status
that could be altered only by ``mutual consent,'' such that Puerto Rico
could block Congress from altering its status. Since 1991, the Justice
Department has, under administrations of both parties, consistently
taken the position that the Constitution does not allow such an
arrangement. The Task Force report reiterates that position, noting
that the Justice Department conducted a thorough review of the question
in connection with the work of the Task Force. The report is of course
not a legal brief. But it does outline the reasoning, and it includes
as appendices two extended analyses by the Clinton Justice Department.
The second of these is a January 2001 letter to this Committee, a copy
of which was sent to the House Committee on Resources on the same date.
The report also cites additional materials such as Mr. Treanor's
testimony and the 1991 testimony of the Attorney General.
The effect of this legal conclusion is that the ``New
Commonwealth'' option, as we understand it, is not consistent with the
Constitution. Any promises that the United States might make regarding
Puerto Rico's status as a commonwealth would not be binding. Puerto
Rico would remain subject to Congress's authority under the Territory
Clause of the Constitution ``to dispose of and make all needful Rules
and Regulations respecting the Territory . . . belonging to the United
States.'' Puerto Rico receives a number of benefits from this status,
such as favorable tax treatment. And Puerto Rico may remain in its
current Commonwealth, or territorial, status indefinitely, but always
subject to Congress's ultimate authority to alter the terms of that
status, as the Constitution provides that Congress may do with any U.S.
territory.
The other two options, which are explained in the report, merit
only brief mention here. If Puerto Rico were admitted as a State, it
would be fully subject to the U.S. Constitution, including the Tax
Uniformity Clause. Puerto Rico's favorable tax treatment would
generally no longer be allowed. Puerto Rico also would be entitled to
vote for presidential electors, Senators, and full voting Members of
Congress. Puerto Rico's population would determine the size of its
congressional delegation.
As for the third option of independence, there are several possible
ways of structuring it, so long as it is made clear that Puerto Rico is
no longer under United States sovereignty. When the United States made
the Philippines independent in 1946, the two nations entered into a
Treaty of General Relations. Congress might also provide for a closer
relationship along the lines of the ``freely associated states'' of
Micronesia, the Marshall Islands, and Palau. The report explains, with
a few qualifications, that, ``[a]mong the constitutionally available
options, freely associated status may come closest to providing for the
relationship between Puerto Rico and the United States that advocates
for `New Commonwealth' status appear to desire.''
With regard to process, the Task Force focused on ascertaining the
will of the people of Puerto Rico. In particular, we sought to
ascertain that will in a way that, as the report puts it, ``provides
clear guidance for future action by Congress.'' The keys to providing
clear guidance are, first, to speak unambiguously about the options the
Constitution allows and, second, to structure the process so that
popular majorities are likely. The inconclusive results of the 1998
plebiscite, as well as an earlier one in 1993, did not strike us as
providing clear guidance to Congress.
We therefore have recommended a two-step process. The first step is
simply to determine whether the people of Puerto Rico wish to remain as
they are. We recommend that Congress provide for a federally sanctioned
plebiscite in which the choice will be whether to continue territorial
status. If the vote is to remain as a territory, then the second step,
one suggested by the first President Bush's 1992 memorandum, would be
to have periodic plebiscites to inform Congress of any change in the
will of the people. If the first vote is to change Puerto Rico's
status; then the second step would be for Congress to provide for
another plebiscite in which the people would choose between statehood
and independence, and then to begin a transition toward the selected-
option. Ultimate authority of course remains with Congress.
Two points about this recommended process merit brief explanation.
First, consistent with our presidential mandate, it does not seek to
prejudice the outcome; it is structured to produce a clear outcome. At
least once before, Puerto Ricans have voted by a majority to retain
their current Commonwealth status. They may do so again. But it is
critical to be clear about that status. Second, our recommended process
does not preclude action by Puerto Rico itself to express its views to
Congress. At the first step, we recommend that Congress provide for the
plebiscite ``to occur on a date certain.'' We did not, of course,
specify that date. But if Congress wished to ensure that some action
occurred but not preclude the people of Puerto Rico from taking the
initiative, it could allow a sufficient period for local action before
that ``date certain.'' If such action occurred and produced a clear
result, there might be no need to proceed with the federal plebiscite.
The Task Force knows well the importance of the status question to
the loyal citizens of Puerto Rico and to the nation as a whole. We
appreciate the Committee's commitment to this matter and the
opportunity to share our views.
Senator Craig [presiding]. Well, Kevin, thank you very much
for that statement. I'm sure my colleagues have questions.
Senator Domenici has stepped out and will be back in a few
moments, but we'll continue to proceed through the panel and to
build this record.
Please describe the process involved in putting the task
force together. Also, please describe what Federal agencies
were involved and to what extent the political parties of
Puerto Rico were involved in the process.
Mr. Marshall. The composition of the task force is
determined by the Executive Order establishing it, under which
every cabinet agency has a representative on the task force.
I'm the representative of the Attorney General. Every other
cabinet agency was represented. I remember your second part,
what was the third part of your question?
Senator Craig. Political parties.
Mr. Marshall. The members of the task force, particularly
my co-chair and my predecessor in my current position, met with
representatives of all the political parties in Puerto Rico.
Senator Craig. And your sense is by doing that they felt
they had adequate input into the process?
Mr. Marshall. I can't speak for them, but they did provide
input. Whether they consider it adequate or not, I don't know.
Senator Craig. Some have argued that there is an
``irrevocable compact'' between the United States and Puerto
Rico. Can you please discuss the validity of that statement?
Mr. Marshall. The task force concludes that view is
incorrect. That's a view that the Justice Department first took
in 1959 and was repeated many times since then. I don't think
that's a fair reading of what Public Law 600 tried to do, and
as we also explained, even if it had tried to do that, it would
violate the Constitution.
Senator Craig. So your basis for finding or viewing that as
different from the earlier status was you viewed it as a
violation of the Constitution, to have it interpreted as
irrevocable; is that correct?
Mr. Marshall. We don't think it should be interpreted as
irrevocable. If it were, that would violate the Constitution.
Senator Craig. OK, I see. In your testimony--in his
testimony, the Governor says that one of the disturbing
conclusions of the report is that the U.S. citizens born in
Puerto Rico may be deprived of their citizenship at any time
because of the statutory nature of it. Would you comment? Would
you please make comment on that observation?
Mr. Marshall. The task force addresses citizenship of
Puerto Ricans only in one context, which is if Puerto Rico were
to become independent. If Puerto Rico became a State, I think
it's pretty obvious that Puerto Ricans would be citizens, and
if Puerto Rico remains as a territory, I don't think there is
any likelihood that Congress would try to revoke that
citizenship, so it wasn't something we even needed to address.
Senator Craig. OK. The report makes findings regarding the
mutual consent provisions of a new commonwealth. Was there an
analysis made of other provisions of that proposal, and if so,
would you please provide it to the committee?
Mr. Marshall. I'm not sure what other provisions are in
question. The focus of the task force was on the
constitutionality of a mutual consent provision.
Senator Craig. And that was the scope of your----
Mr. Marshall. That is what we were focusing on, is what
options the Constitution allows.
Senator Craig. Well then, please describe the current
status, in reference to your report, of the Commonwealth of
Puerto Rico, that the report finds.
Mr. Marshall. Our view is that constitutionally, the
Commonwealth of Puerto Rico is a territory, but it is a
territory that has a large amount of self-government authority
with regard to its internal affairs.
Senator Craig. Thank you.
Mr. Chairman.
The Chairman [presiding]. Thank you very much, Senator. Now
I yield to Senator Bingaman.
Senator Bingaman. Well, thank you very much, Mr. Chairman.
Mr. Marshall, let me ask, is it your position that the
report that you have helped co-chair here represents the views
of the Bush administration? Do the recommendations in that
report represent the views of the Bush administration or is
there some difference between task force recommendations and
what you believe the Bush administration supports?
Mr. Marshall. The administration has not taken any public
position on the task force report, but the Executive Order
creating the task force didn't contemplate that the President
would publicly approve or disapprove of the report. So a direct
answer to your question--whether there is any difference
between the administration and the task force report--I would
just say I don't know.
Senator Bingaman. So, at this time, we do not have a
position by the administration; is that an accurate statement?
Mr. Marshall. Yes.
Senator Bingaman. I know in Governor Acevedo's testimony,
he refers to a memorandum by Charles Cooper and Michael
Reisman. Have you had a chance to review those? Do you have any
response to those that you could provide, either for the record
or a shortened response at this point?
Mr. Marshall. Mr. Cooper, as I understood it, represented--
the Governor and I met with him and other lawyers at least
twice and they provided me the memoranda in support of the new
commonwealth position, particularly in support of its
constitutionality. And I reviewed those and we considered those
and our public response to those is the report itself.
Senator Bingaman. So you disagreed with his conclusions?
Mr. Marshall. Yes.
Senator Bingaman. The report, the task force report, notes
that the United States has established these successful free-
association relationships with three new nations within the
former U.S.-administered trust territory of the Pacific
Islands. There are important differences, obviously, between
the situation in Puerto Rico and in those areas, but I wonder
if the U.S. model for free association should be more fully
explored to see if it can help in developing a solution to
Puerto Rico's status issue. Do you have a view on that?
Mr. Marshall. What the report says is that the free
association model seemed to us to come closest to what the new
commonwealth position wants, within the constraints of the
Constitution. As you suggest, there would be policy
considerations as to whether and how that might work with
regard to Puerto Rico. The one that the report flags is the
large difference in population between Puerto Rico and those
three Pacific territories.
Senator Bingaman. OK. We have two bills that have been
introduced here in the Senate, as I understand it, in response
to the task force report. There is S. 2304, which would provide
congressional authorization for a constitutional convention in
Puerto Rico with the purpose of proposing to Congress a new
compact of association or statehood or independence, and there
is S. 2661, which would authorize the first plebiscite that is
recommended by your task force. Could you give us any initial
reaction to these proposals? Do you have any thoughts as to
where Congress needs to go with these proposals?
Mr. Marshall. Well, the administration hasn't taken
position on either of those bills, so I don't think it would be
proper for me to do that here. I would just say that to the
extent the bills are consistent with what the report
recommends, then the task force would think that they are good
ideas.
Senator Bingaman. So you would basically say that S. 2661
is consistent with the task force report? Is that what I would
be led to believe?
Mr. Marshall. I am not intimate enough with that bill to
answer that question directly.
Senator Bingaman. OK. All right. That's all I had, Mr.
Chairman.
The Chairman. Thank you very much, Senator.
Now I believe it's time to go to Senator Martinez, if you
have questions. Let's sort of get ourselves organized here.
It's 3:05 and we haven't gotten to the second panel, which
consists of three people who want to talk. What do you think?
Do you have questions?
Senator Martinez. Not of Mr. Marshall. I don't have any
questions for Mr. Marshall.
The Chairman. No question of this?
Senator Martinez. No.
The Chairman. All right. Senator Salazar, do you have any
questions of Mr. Marshall?
Senator Salazar. No.
The Chairman. You're welcome to now. I'm not trying to--
there is time.
Senator Salazar. You scare me, Senator, so----
[Laughter.]
Senator Salazar. I'm kidding.
The Chairman. I didn't mean to scare him.
Senator Salazar. No, no, Senator, I'm satisfied. I don't
have any questions.
The Chairman. OK.
Senator Salazar. Thank you.
The Chairman. We'll come to you, sir.
Senator Salazar. I think the report is self-explanatory. My
own view, frankly, is that the legislative proposal that we
came up with was different from what the task force
recommended. And that's with respect to the legislation that we
introduced. But I think that at the end of the day, this dialog
is important to begin with and I think that the task force
report did initiate the beginning of this dialog and it's
obviously a dialog that will continue into the next Congress.
So thank you, Mr. Marshall.
Mr. Marshall. Thank you.
The Chairman. Thank you very much.
The Senator from New Jersey, Senator Menendez.
Senator Menendez. Thank you, Mr. Chairman. I do have a few
questions.
The Chairman. Please, if you can keep the time to a
minimum, I would appreciate it.
Senator Menendez. Well, I will do my best, Mr. Chairman.
The Chairman. Thank you very much.
Senator Menendez. Mr. Marshall, how many official visits to
Puerto Rico did the task force, as a body, make?
Mr. Marshall. As I indicated before, the co-chairman went
to Puerto Rico at least twice.
Senator Menendez. So the answer to my question is none?
Mr. Marshall. As an entire task force, I believe the answer
is none.
Senator Menendez. Puerto Ricans are U.S. citizens, are they
not?
Mr. Marshall. Yes.
Senator Menendez. How many of them were on the task force?
Mr. Marshall. None.
Senator Menendez. None. Did the task force conduct any
public hearings in Puerto Rico?
Mr. Marshall. I don't believe it conducted formal public
hearings. It met with representatives of the each of the
political parties.
Senator Menendez. And respecting the leadership of all
those political parties, the people of Puerto Rico did not have
a say? Did you not conduct any public hearings so that people
in Puerto Rico could have a say?
Mr. Marshall. Well, I believe the people of Puerto Rico
select the leaders of those political parties.
Senator Menendez. Do we not have public hearings where U.S.
citizens can come and express their views on different matters?
So the bottom line is, you had no public hearings?
Mr. Marshall. I don't think so, no.
Senator Menendez. I find it hard to take a report seriously
when it has no participation of the Puerto Rican community,
when it has no public hearings, and ultimately, it fails to
listen to the views of the people whose destiny is ultimately
going to be determined. I don't quite understand it.
Let me ask you this: I know that your co-chair, Mr.
Barrales, is not here testifying before us today, but he has
largely been the public face of that task force, in terms of
the trips that he took to Puerto Rico and speaking with others.
Are you aware that, as the co-chair of the task force, in July
2004, he went to Puerto Rico and publicly expressed his support
for Puerto Rico becoming the 51st State?
Mr. Marshall. I'm not aware that he expressed public
approval of statehood. I am aware that he made that trip.
Senator Menendez. OK. If I were to give you a press report,
would it improve your recollection?
Mr. Marshall. It's not an issue of my recollection,
Senator. I was not on the task force in 2004. I joined it in
the spring of 2005.
Senator Menendez. Oh, OK. Mr. Chairman, if I can, if we can
have for the record a copy of a report that had Mr. Barrales
going before a crowd of 40,000 and saying, as the head of the
White House Office of Intergovernmental Affairs, that he would
like to see Puerto Rico become a State. I think it is important
for the record to reflect it.
The Chairman. But what would the purpose be? I have no
objection at all.
Senator Menendez. The purpose is to--he was a co-chair of
the task force. The question of the task force was, at the end
of the day, to determine a process that isn't stacked. How is
it that the co-chair goes and says that he is for a specific
option of the three options? I think it is important for the
record to reflect that.
The Chairman. We're going to make--we're going to put it in
the record.
[The information follows:]
Barrales Supports Statehood For Puerto Rico
Puerto Rico Herald
July 28, 2004
San Juan, July 27 (EFE)--A White House official expressed support
for statehood for Puerto Rico at an event Tuesday in which thousands
commemorated the 147th anniversary of the birth of pro-statehood leader
Jose Celso Barbosa.
Ruben Barrales, head of the White House Office of Intergovernmental
Affairs, said he would like to see 51 stars on the U.S. flag.
Barrales' speech before a crowd of more than 40,000 people on
Barbosa square in Bayamon, a city next to San Juan, prompted approving
shouts and prolonged applause.
Michelle Cuevas, spokeswoman for the pro-statehood New Progressive
Party, told EFE that Barrales attended the event in representation of
President George W. Bush, and that his statements had the backing of
the White House.
She could not state categorically, however, whether Barrales spoke
in Bush's name.
Barrales said Puerto Rico would be better off if it had a permanent
relationship with the United States to help it achieve its objectives.
Senator Menendez. Thank you, Mr. Chairman.
My last question is, one of the issues most concerning to
me in this report states that the Federal Government may
relinquish U.S. sovereignty by granting independence or by
ceding the territory to another nation. Doesn't that statement
create the potential for undue panic and fear by implying that
Puerto Rico can be bartered or sold at whim?
Mr. Marshall. I'm unaware of any panic that has occurred
since the report came out. And I would think that, as a
practical matter, given that Public Law 600 has operated for
over 60 years, it's not likely to create panic simply to state
what the law is.
Senator Menendez. Well, you know, the bottom line is that
clearly you don't believe that the United States would cede
Puerto Rico to another nation, do you? Is that in any way the
expression of this administration's view?
Mr. Marshall. No. I would say that the--after I testified
at the House and received some questions on that question, what
we said is, there is a difference between what is technically
legally permissible and what is desirable or wise or----
Senator Menendez. Let me ask you one last question. Do you
really--just to clear the record, do you see any circumstances
under which Puerto Ricans, as U.S. citizens, those who have
worn the uniform of the United States for a long history,
would, in fact, lose their citizenship, short of seeking a
status of independence? Even in that case, would you see any
way in which they would lose their citizenship in the United
States?
Mr. Marshall. Short of seeking independence, no. If there
were independence, it would be a question that would need to be
resolved in figuring out the details of independence.
Senator Menendez. Thank you, Mr. Chairman.
The Chairman. Thank you very much. Senator, if you had any
additional questions that you would like submitted to the
witness for him to answer during the next 30 days--
Senator Menendez. I do, Mr. Chairman.
The Chairman. We will just do that. Let the record reflect
if the Senator desires to ask additional questions of you, Mr.
Marshall, you can have 30 days to do it and you'll have 10 days
to return questions, if you would.
Mr. Marshall. That sounds fair.
The Chairman. If it's not fair, it's too bad.
[Laughter.]
The Chairman. Isn't that right?
Senator Menendez. Absolutely. I'm with you.
The Chairman. We've established the rules here. We don't
ask questions.
Senator Menendez. That's why I said they are fair.
The Chairman. All right. So now, we're going to go to
Senator Salazar. Senator, we haven't heard from you. Do you
want to inquire? If you have any questions you might submit for
him to answer----
Senator Salazar. I might have some written questions that I
might submit, but I haven't had time.
The Chairman. All right. Thank you very much, Mr. Marshall.
You are excused.
Mr. Marshall. Thank you.
The Chairman. We'll have the next witnesses please come up
and take your seats at the table. Panel No. 2. The Honorable
Anibal Acevedo--is it Vee-yo or Villa?
Governor Acevedo-Vila. It's Vila.
The Chairman. Vila. The Governor of the Commonwealth of
Puerto Rico, San Juan, Puerto Rico. The Honorable Luis Fortuno,
U.S. Congressman, thank you, sir. And the third is the
Honorable Ruben Berrios Martinez, President, Puerto Rican
Independent Party, San Juan, Puerto Rico.
Did I say your name correctly? Bueno. Gracias. Vayamos,
adelante, no? Eso no es, esta bien, excusame, no puedo hablar
muy bien, vamos a comenzamos con el govenador.
The Chairman. Thank you very much for joining us and for
all the time and trouble you've gone to come here today. Please
proceed.
STATEMENT OF HON. ANIBAL ACEVEDO-VILA,
GOVERNOR OF PUERTO RICO
Governor Acevedo-Vila. Muchas gracias. Thank you, Mr.
Chairman and Mr. Ranking Member and all the other members. For
the record, my name is Anibal Acevedo-Vila. I am the Governor
of Puerto Rico and also the President of the Popular Democratic
Party. Along with my testimony, I am submitting, for the
record, two legal studies that ought to be read carefully by
all members of this Committee. One is a memorandum on the
constitutionality of the commonwealth, prepared by Charles
Cooper, the former head of the Office of Legal Counsel at the
U.S. Department of Justice. The other is the Reisman
Memorandum, prepared by Michael Reisman, Professor of
International Law at Yale Law School and one of the most
respected scholars on international law and relations. These
two studies compliment each other and I urge you to read them
carefully.
When you compare the scope of these studies with the 1-page
report by the President's task force on Puerto Rico's Status,
you will understand why this report cannot be the basis for any
serious self-determination process. This report cannot be the
basis for the future. Volumes have been written on the legal
and constitutional aspect of the status of Puerto Rico;
however, the report, under the title of Legal Analysis,
dedicates only four and a half pages to analyze the whole legal
conundrum on Puerto Rico's status.
The Cooper Memorandum had been submitted to the members of
the President's task force several months before the report was
issued. Together with the Reisman Memorandum, which was
produced after the report, you can get an in-depth
understanding of both U.S. constitutional law and international
law applicable to the political status of Puerto Rico.
Beyond the lack of depth and real analysis, there are four
conclusions that are particularly disturbing in this report.
No. 1, that Congress can directly legislate and change the
island government structure unilaterally. The logical
consequences of this conclusion is that this Congress can
abolish the Puerto Rico legislation, fire the Governor, and
tomorrow, appoint an emperor or whoever you want to rule Puerto
Rico. That is the only logical consequences of this all-or-
nothing view of the territorial clause of the Constitution that
the report puts forth.
Second, that the Federal Government may relinquish U.S.
sovereignty by sending Puerto Rico to another Nation. And I
heard Mr. Marshall respond to that question. Forget about the
legal analysis--even legally, that's not possible. That's an
interpretation that we are a piece of land with no political
rights. We're not a piece of land. We're a people. And that
report says that we can be given for some currency to China or
maybe we might be the solution in Iraq.
No. 3, that the U.S. citizens born in Puerto Rico may be
deprived of their citizenship at any time because of the
statutory nature of it. And I also heard a response to that,
and actually, that was a clear contradiction of the principle
that one Congress cannot buy the next one, because when he was
pressed, he said, no, no, no, that's only in the case of
independence. But Puerto Rico was a territory until 1917 with
no U.S. citizenship. So if you think it is good, that report,
that means that tomorrow--that report is telling you that you
have the power, tomorrow, to pass another law saying that we
are no longer U.S. citizens. I bet anyone to do that and see
what the Supreme Court of the United States would do with that.
Fourth, that the Constitution somehow prohibits the U.S.
Government from entering into a relationship with Puerto Rico
based on mutual consent. The Cooper Memorandum explains in
great detail just how ridiculous and legally wrong is the
mantra repeated in their report that Congress may not bind
itself to a relationship based on mutual consent.
The Reisman Memorandum discusses not only the applicable
U.S. constitutional law, but also international law, and
reaches similar conclusions. The authors of the report attempt
to unjustifiably limit the options available to the people of
Puerto Rico in order to create an artificial majority for its
statehood. This report does not provide the basis of any
legitimate process of self-determination.
As of today, 11 months after the publication of the report,
President Bush has not said a word about it. The President is
silent and with good reasons. I respect the fact that many
Puerto Ricans have legitimate reasons to favor full
independence or statehood. I am willing to debate in any public
forum why I think the autonomous alternative for commonwealth
is the best choice today for Puerto Rico. I'm willing to let
the people decide their future status to what is truly a
democratic process, but no Puerto Ricans should be forced to
accept the premises and conclusions of this report, no matter
what political advantage they might think they can get out of
it.
What's the next step? The problem with the report is that
they lay out a twisted process for a referendum that will
unfairly stack the deck in favor of statehood. You need to
understand, in every plebiscite with the three options,
commonwealth has been the winner--46, 48, 49 percent--second,
statehood, and in third place, independence.
By laying out a process in which it is yes or no to
commonwealth--not only using their ill-defined way to describe
it, but even if it were in a definition acceptable to us--what
you will be doing is adding the second and the third place to
defeat the first place and then have a run of election between
the second and the third one in which the winner takes all.
That's not only undemocratic, that's un-American.
And I am here to call this Senate to give the people of
Puerto Rico a fair process. The bill introduced by Senator
Burr, Senator Lott, Senator Menendez, and Senator Kennedy gives
that to the people of Puerto Rico. It only says we, Congress,
recognize that you have the self-determination right; that we,
Congress, recognize that you can call a constitutional
convention and once through that process, you make a decision,
and we will respond. It's a fair process, it's an inclusive
process, and it's a process that will start in Puerto Rico, not
a process like the one recommended by this report in which
Congress, if they are following that recommendation would
basically be making that decision of the final outcome on
behalf of the people of Puerto Rico. And that's a decision that
should be all the time in the hands of the people of Puerto
Rico. Thank you.
[The prepared statement of Governor Acevedo-Vila follows:]
Prepared Statement of Hon. Anibal Acevedo-Vila, Governor of Puerto Rico
Mr. Chairman and Members of this Committee:
My name is Anibal Acevedo-Vila. I am the Governor of Puerto Rico
and President of the Popular Democratic Party. It is a pleasure to be
back here. As you all know, I served in the U.S. House of
Representatives as the Resident Commissioner from Puerto Rico from
2001-2004 and I am truly glad to be back.
I appreciate the interest that this Committee has shown in dealing
with such an important issue for all Puerto Ricans.
Along with my testimony, I am submitting for the record two legal
studies that ought to be read carefully by all the members of this
Committee. One is a memorandum on the constitutionality of the
Commonwealth prepared by Charles J. Cooper, a former head of the Office
of Legal Counsel at the U.S. Department of Justice. The other is a
recent memorandum prepared by W. Michael Reisman, Professor of
International Law at Yale Law School and one of the most respected
scholars on international law and relations. These two studies
complement each other and I urge you to read them carefully.
When you compare the scope and depth of these studies with the 14
page Report by the President's task force on Puerto Rico Status, you
will understand why this report cannot be the basis for any serious
self-determination process. It has been a long journey for the Puerto
Rican people. This Report cannot be the basis for the future.
I sincerely hope that this hearing is only the beginning of a broad
and inclusive process, not limited to the political parties. The status
of Puerto Rico is such a fundamental issue for us that I urge you to be
as inclusive as possible. And more importantly, I hope that these
efforts result in a true Self Determination process.
The topic of this hearing is the Report issued by the President's
task force on Puerto Rico's Status on December 22, 2005. First, let me
focus on some-of the legal conclusions of the report that are most
questionable.
Volumes have been written on the legal and constitutional aspects
of the status of Puerto Rico. The scholarly debate is rich, complex and
extensive. However, the Report under the title of Legal Analysis,
dedicates only 4 and a half pages to analyze the whole legal conundrum
of Puerto Rico's status. If this was a college paper, it would get a
grade of D^--and that from a lenient and merciful professor. It seems
that the drafters of the Report were so eager to get to the conclusions
that they forgot to support them and to discuss the applicable law
altogether.
The Cooper memorandum that I am submitting to the record had been
submitted to the members of the President's task force several months
before the report was issued. Together with the Reisman memorandum, you
can get an in depth analysis of both U.S. Constitutional Law and
International Law applicable to the political relationship between the
United States and Puerto Rico. In light of the weight of authorities
cited in these memos, it is perplexing that the Task Force Report does
not even attempt to mount a legal defense of its conclusions. Some of
these conclusions pretend to be supported by a 14 page Department of
Justice memorandum on Guam, which as you will see is completely
discredited by the thorough legal analysis in the Cooper and Reisman
memoranda.
Beyond the lack of depth and real analysis, there are 4 conclusions
that are particularly disturbing of this Report.
i. that congress can directly legislate and change the island's
governmental structure unilaterally
The logical consequence of this conclusion is that this Congress
can abolish the Puerto Rico legislature, fire the Governor and appoint
an Emperor. That is the only logical consequence of this formalistic--
all or nothing--view of the territorial clause of the Constitution that
the report puts forth.
ii. that the federal government may relinquish u.s. sovereignty by
ceding puerto rico to another nation
Another logical consequence of this conclusion is that maybe you
can trade us to the People's Republic of China for some currency value
concessions. It is embarrassing that in this day and age, Federal
officials will put such a conclusion on paper. It really calls into
question the seriousness of this entire exercise.
iii. that the u.s. citizens born in puerto rico may be deprived of
their citizenship at any time because of the statutory nature of it
Here, I would like to see how the U.S. Courts will rule on an
attempt to deprive Puerto Ricans in Florida and in New York of their
U.S. citizenship.
The analysis, or lack thereof, of the issue of citizenship is
painful. The drafters of the Report adopt without discussion the legal
position advocated by some that Congress can revoke the U.S.
citizenship of the people of Puerto Rico because we are, allegedly,
merely statutory citizens. They do this ignoring vast case law and
legal scholars that sustain the contrary position.
This report, at a time in which we are discussing immigration in
America and the rights of foreign workers in this country, is
outrageous. This report, issued in times of war when our brothers and
sisters are sent into harms way in Iraq, is a shame.
iv. that the constitution somehow prohibits the u.s. government from
entering into a relationship with puerto rico based on mutual consent
The Cooper memorandum explains in great detail just how ludicrous
and legally wrong is the mantra repeated in the Report that the
Congress may not bind itself to a relationship based on mutual consent.
The Reisman memorandum discusses not only the applicable U.S.
Constitutional Law, but also international law, and reaches similar
conclusions. The task force report ignores over 200 years of precedent
and current legal trends. It is our position that both, the
Constitution of the United States and international law, allows the
United States and the people of a territory to enter into a bilateral
and binding political relationship. The authors of the Report attempt
to unjustifiably limit the options available to the people of Puerto
Rico in order to create an artificial majority for statehood.
All of these conclusions, if adopted by the United States, would
have tremendous political and legal repercussions.
The Report also casts grave doubt as to the value of the
commitments made by the United States to the world since in 1952 the
United Nations removed Puerto Rico specifically from its list of non-
self-governing territories based on representations from both the
United States and Puerto Rico. General Assembly Resolution 748 (VIII)
recognized ``that the people of the Commonwealth of Puerto Rico, by
expressing their will in a free and democratic way, have achieved a new
constitutional status'' and that ``in the framework of their
Constitution and of the compact agreed upon with the United States of
America, the people of the Commonwealth of Puerto Rico have been
invested with attributes of political sovereignty which clearly
identify the status of self-government attained by the Puerto Rican
people as that of an autonomous political entity''.
As Professor Reisman concludes in his memo, ``as a matter of
international law . . . since 1952, Puerto Rico has ostensibly existed
as a state freely associated with the United States of America.''
Puerto Rico, thereafter, attained a new status not only under
international law, but also under U.S. constitutional law since it no
longer could be treated as an unincorporated territory subject to the
plenary powers of Congress under the Territorial Clause. Former U.N.
Ambassador Jeane Kirkpatrick just couldn't make it more evident when in
a recent New York Times Op-Ed stated ``quite unbelievably, the Task
Force raised questions about Puerto Rico's status that reminded us of
what we heard from the Cuban delegation and its communist allies'' 25
years ago.
This Report does not provide the basis for any legitimate process
of self-determination. As of today, eleven months after the publication
of the Report, President Bush has not said a word about it. The
President is silent and with good reasons.
I respect the fact that many Puerto Ricans have legitimate reasons
to favor full independence or statehood. I am willing to debate in any
public forum why I think the autonomous alternative of the Commonwealth
is the best choice today for Puerto Rico. I am willing to let the
people decide their future status through a truly democratic process.
But no Puerto Rican should be forced to accept the premises and
conclusions of this report no matter what political advantage they may
think they can get out of it. No American citizen should accept the
implications of this report. Pro-statehood citizens should not favor
statehood because they are threatened or scared by a purposefully
biased report. Puerto Ricans should not be scared into voting for
statehood because otherwise they may be ceded to Pakistan.
what is the next step?
The problem with the Report is that they lay out a twisted process
for a referendum that would unfairly stack the deck in favor of
statehood. What this report does is an outrageous mathematical
exercise. In order to ignore the Commonwealth option, the proposed two-
stage process adds all the possible votes against Commonwealth, to
knock that option out in the first round.
In every plebiscite held in Puerto Rico, Commonwealth has won.
Statehood has never won.
This report tries to change that by creating an artificial
majority. The math is simple. If you add the second place--statehood--
to the third place--independence--then you can fabricate an artificial
majority against the real majority, the Commonwealth.
It is very simple, although perverse and antidemocratic. Puerto
Ricans deserve better. It is time for a new and better approach. An
approach that is fair to everyone. Supporters of autonomy, statehood or
independence, all Puerto Ricans deserve a fair, inclusive and
democratic process with all of the three options represented.
The Senate has an opportunity to make it right. Earlier this year
Senator Kennedy, along with Senators Lott, Burr and Menendez,
introduced legislation that recognizes the right of the Commonwealth of
Puerto Rico to call a constitutional convention through which the
people of Puerto Rico would exercise their right to self-determination,
and to establish a mechanism for congressional consideration of such
decision.
S. 2304, ``the Puerto Rico Self-Determination Act of 2006''
reaffirms the inherent authority of the people of the Commonwealth of
Puerto Rico to call, and expressly authorize the calling of, a
Constitutional Convention through the election of delegates in a
referendum for the purpose of proposing to Congress--
1) a new or amended compact of association to replace or
amend the compact established under the Act entitled `An Act to
provide for the organization of a constitutional government by
the people of Puerto Rico', approved July 3, 1950, commonly
referred to as `Public Law 600' and the Commonwealth
constitution;
2) the admission of the Commonwealth as a State in the United
States; or
3) the declaration of the Commonwealth as an independent
country.
As you can see, S. 2304 proposes a path that is initiated in Puerto
Rico, democratic, based on the will of the people of Puerto Rico,
inclusive, fair and full of promise for Puerto Rico and the United
States.
With this in mind--as Governor of all Puerto Ricans and President
of the Popular Democratic Party--I support S. 2304 because it provides
for a true self-determination process through a Puerto Rican
Constitutional Convention.
S. 2304 is the right approach. The bill offers Congressional
recognition of the right of Puerto Ricans to hold a constitutional
convention as the democratic mechanism to solve this issue. And it
commits the Congress to respond to the proposals of this convention.
This new approach learns from the mistakes of the past and follows the
example set by America's founding fathers allowing us to fully exercise
our democratic rights in an open and inclusive process.
The time to resolve Puerto Rico's status is now. I urge you to
affirm Puerto Rico's dignity and political rights. I also invite you to
reject any legislation that derives from the President's task force
Report. I invite you to endorse legislation that would establish the
constitutional convention as the new and most democratic approach to
solve this issue.
conclusion
Mr. Chairman and distinguished Members of this Committee, I urge
you to go beyond this report. Congress has yet another chance to make
it right. Puerto Ricans deserve more than this Report. I urge you to
support S. 2304 and let us really provide a process of self-
determination in Puerto Rico that is fair and inclusive.
The issue is status and it needs to be addressed. In this process
Puerto Ricans are entitled to be told the whole truth. And in this Task
Force Report the truth has been twisted to make a trap for fools.
Puerto Ricans will not be deceived again. We deserve much more.
The Puerto Rican people are ready. We are ready to write a new
chapter based on dignity, democracy and mutual respect. We are not
afraid. It is about time that we conclude what was started in 1952.
Congress has a choice to make. Let us move forward towards a new
beginning in the U.S.-Puerto Rico relations.
Thank you.
The Chairman. Thank you very much. Now, we're going to let
you all testify before we ask questions. So we will proceed now
with the two Congressmen and let you testify and then we will
proceed to--we will move to the Honorable Mr. Berrios.
Proceed, Congressman.
STATEMENT OF HON. LUIS G. FORTUNO, RESIDENT COMMISSIONER OF
PUERTO RICO, U.S. HOUSE OF REPRESENTATIVES
Commissioner Fortuno. Thank you, Chairman Domenici and
Ranking Member Bingaman and all the other Senators present, for
ensuring that a hearing is held this year on the fundamental
issue of Puerto Rico. I would also like to thank the many
elected officials that are present at this hearing, attesting
to the importance that they, and the citizens they serve, place
in this process.
The report of the President's task force and the
legislation to implement these recommendations--it is
imperative for establishing 3.9 million U.S. citizens to
finally obtain a democratic form of government at the national
level. One hundred and 8 years after Puerto Rico was taken
through war--
The Chairman. How many people?
Commissioner Fortuno. Three point nine million.
The Chairman. Three?
Commissioner Fortuno. Point nine million. And there are
even about 4 million Puerto Rico-Americans on the mainland.
The Chairman. OK. Thank you.
Commissioner Fortuno. There are many reason for Congress to
provide, for the first time ever, a federally-sponsored
plebiscite in Puerto Rico to decide our political future.
However, none speak louder than the valor and courage of the
hundreds of thousands of Puerto Rican men and women who have
defended our Nation with distinction in every war since 1917.
Every time I visit our wounded at Walter Reed, I witness
firsthand their dedication and love for our country and the
principles for which it stands.
That is the case with Private First Class Manuel Melendez,
who was wounded in Iraq and, after a 2-year recovery process,
joins us here today. We are honored to have him with us. We
have made a disproportionate contribution to our current effort
on the war on terrorism. He is only one example as to why we
have earned our keep and deserve congressional consideration of
our requests for a legitimate process to exercise our right to
self-determination.
However, the self-determination process in Puerto Rico is
in a state of arrest due to confusion about the options that
have been offered to the electorate in every state-sponsored
plebiscite held to this day. The task force was charged by
President Clinton with clarifying the options and recommending
a process for determining the territory's ultimate status. The
task force of senior appointees of President Bush agreed with
the Clinton administration on the options that are
constitutionally viable and recommended a process deferential
to the Governor's opposition, to a choice among the options and
his insistence that Puerto Ricans support commonwealth. It asks
Congress to provide for a plebiscite on whether Puerto Rico
should remain an unincorporated territory or seek a non-
territorial status. Depending on the results of the first
plebiscite, further measures would be taken.
Representatives of a vast majority of Puerto Ricans support
this plebiscite. The three political parties unanimously
approved a bill in the State legislature requesting action on
the status of Puerto Rico. This bill was vetoed by this
Governor, who only appears to back initiatives that are
intended to further delay any progress in providing the people
of Puerto Rico their legitimate right to self-determination by
direct votes of my constituents.
Status action for Puerto Rico is consistent with the
national Democratic and Republican platforms.
The Governor has stated a number of objections to the
report. Some are simply misleading, such as that Congress can
take away the U.S. citizenship of Puerto Ricans in the States.
It actually says almost the opposite.
Other objections are more subtle. A primary one is that the
report considers Puerto Rico to be subject to the powers of
Congress's Territory Clause, as has the U.S. Supreme Court, the
Departments of Justice and State, this committee, the House of
Representatives, the GAO and CRS.
The Governor does want to recognize that commonwealth is
really just a word in the formal name of Puerto Rico's
government, as it is in the cases of four States and another
territory. He complains that the report is unfair for two
reasons. One is that it does not accept his new commonwealth as
an option. He has asked members to support an alternative
process that would authorize Puerto Ricans to determine
unilaterally, through a constitutional convention, as opposed
to a direct vote by the people, what is an acceptable status
option and then bring it to Congress. That alternative process
would be a mechanism to try to force a Trojan horse with his
new commonwealth proposal.
Such a situation would create false expectations in Puerto
Rico resulting in greater frustration among my constituents and
unnecessary tension between the Federal Government and the
island.
To understand why his complaint is baseless and his bill is
a dangerous mistake, you have to understand his new
commonwealth. Under his proposal, Puerto Rico would be
empowered to exercise veto power over Federal laws and to limit
Federal court jurisdiction. It would be able to enter into
trade and other international agreements and organizations. The
United States will be obligated to provide new incentives for
investment and to continue to grant all current aid to Puerto
Ricans without paying Federal income taxes.
In addition, as if that were not enough, it would have to
continue to provide free entry of goods shipped from Puerto
Rico or through Puerto Rico, as well as permanent U.S.
citizenship to residents born in Puerto Rico.
Congress ultimately will not accept an alternative that is
not feasible under the U.S. Constitution, as stated by the
Justice Department under the last three presidents. Under the
Governor's plan, after much aggravation and effort, we would
end up exactly where we started.
The Governor's other fairness complaint is that a vote
between territorial status and seeking an non-territorial
status will result in a majority for an non-territorial status.
Setting aside the contradiction with his contention that Puerto
Rico is not a territory, why shouldn't the majority of the
people be able to seek a form of government that is democratic
at the national level if they want one of those options? And if
they do, neither the rejected territorial status nor the
impossible new commonwealth should be options.
Mr. Chairman and distinguished Senators, this issue will
persist and fester and 3.9 million people for whom the United
States is responsible will lack full democratic democracy at
the national level. Congress must formally recognize its moral
responsibility and join the executive branch in clarifying that
Puerto Rico remains in a territorial status and that the new
commonwealth proposal is unconstitutional, and thus, impossible
to consider. It must then provide a process for Puerto Ricans
to determine their preference among real and viable options.
Thank you again. I will be pleased to answer any questions.
[The prepared statement of Commissioner Fortuno follows:]
Prepared Statement of Hon. Luis G. Fortuno, Resident Commissioner of
Puerto Rico, U.S. House of Representatives
The report of the President's Task Force on Puerto Rico and
legislation to implement its recommendations in a manner approved by
Congress is imperative to achieve a democratic form of government at
the national level-for the 4 million U.S. citizens in Puerto Rico.
The self-determination and political status resolution process in
Puerto Rico is in a state of arrest, due to the ill-defined and
confusing state of federal law and policy concerning Puerto Rico's
status options. As a result, Puerto Rico remains the last large and
heavily populated U.S. territory living under the anachronisms of
America's imperial experiments in the distant past.
There are many here in Washington who promise to respect whatever
status choice Puerto Rico chooses, but in the next breath say the
problem is we can not make up our minds. Yet, the reason we do not have
majority rule in Puerto Rico on the status issue is that Congress has
failed to actin accordance with U.S. historical practice and
constitutional precedents for territorial status resolution.
Without becoming unduly legalistic, let me say that the political
dilemma we face is rooted in fatally flawed federal jurisprudence that
has deviated since 1922 from the preceding 135 years of American
territorial law going back to the Northwest Ordinance of 1787.
The historical norms for territorial status resolution were:
<bullet> Withholding U.S. citizenship and adopting a policy of non-
incorporation leading to independence, as in the case of the
Philippines, or
<bullet> Conferral of U.S. citizenship, triggering application of the
U.S. Constitution and incorporation, the result confirmed by
the U.S. Supreme Court in the cases of Alaska and Hawaii.
Hawaii v. Mankichi, 190 U.S. 197 (1903); Rassmussen v. U.S.,
197 U.S. 516 (1905).
In 1901, the Supreme Court had ruled that Congress could govern the
non-citizen populations of the Philippines and Puerto Rico as non-
incorporated territories under U.S. nationality without extending the
U.S. Constitution. Downes v. Bidwell, 182 U.S. 244 (1901) In
Rassmussen, however, the Supreme Court ruled that territories with U.S.
citizen populations were incorporated into the nation, and that the
U.S. Constitution applied by. its own force consistent with territorial
status.
Thus, the Alaska and Hawaii cases on extension of the U.S.
Constitution should have been applied to Puerto Rico when Congress
extended U.S. citizenship in 1917. Instead, in 1922 a deeply divided
U.S. Supreme Court made a fateful error and decided, notwithstanding
the conferral of U.S. citizenship, that extension of the U.S.
Constitution to Puerto Rico should be left to the discretion of
Congress. Balzac v. Puerto Rico, 258 U.S. 298.
The Balzac decision was a 5-4 ruling that gave Congress license to
govern the U.S. citizens of Puerto Rico in the same manner as non-
citizens in non-incorporated territories, without the restraints or
protection of the U.S. Constitution. Although statements of justices
indicate that the Supreme Court clearly expected this to be temporary
until Congress adopted a status resolution policy, Congress has ruled
Puerto Rico as a vestige of empire past, without a democratic form of
government at the national level for 108 years.
For territories under the Northwest Ordinance, incorporation and
eventual statehood were the only options. Modern principles of self-
determination, under the U.N. Charter and human rights treaties to
which the U.S. is a party, mean that Puerto Rico also has the option of
becoming a separate sovereign nation through independence or free
association.
However, the existence of additional options does not eliminate the
problem created by' extending U.S. citizenship but not the U.S.
Constitution to Puerto Rico while it is a U.S. territory. Having denied
protections of the U.S. Constitution to the U.S. citizens of Puerto
Rico wrongfully for more than eight decades as a matter of domestic
law, Congress needs to act immediately to correct the judicial error of
the Balzac ruling in 1922 and sponsor a self-determination process
satisfying both domestic and international standards.
local status ideology
It was not until 1950, that Congress authorized a local
constitution allowing self-government only in local affairs not
otherwise governed by federal laws, which are applied by Congress
without consent of the citizens.
The controlling faction of the territory's ``commonwealth'' party
asserts Puerto Rico is no longer a territory, and that adoption of the
local constitution in 1952 established Puerto Rico as a
``commonwealth'' with national sovereignty. (Another faction of the
party, which favors free association does not subscribe to this
fiction.) The. current Governor is President of the party and he
asserts that it is only a matter of time before the U.S. accepts that--
--
<bullet> Puerto Rico is not a U.S. territory, but a sovereign nation
<bullet> Federal laws, including federal wiretap and death penalty
statutes, can apply in Puerto Rico only upon consent of the
local government
<bullet> Federal law is no longer supreme, but co-equal to Puerto
Rican law
<bullet> Puerto Rico has sovereign power to enter into international
agreements in its own name and right as a nation, and conduct
its own international relations
<bullet> U.S. citizenship and political union is guaranteed forever,
as in the case of a state of the union
<bullet> Federal services, programs and benefits will increase and be
guaranteed, but Puerto Ricans will always be exempt from
federal income tax
<bullet> Puerto Rico will remain within the customs territory of the
U.S., but enter into its own trade agreements with other
nations
<bullet> Puerto Rico will have the power to limit the jurisdiction
and operation of the federal court.
<bullet> The U.S. can permanently and irrevocably cede its sovereign
power over Puerto Rico to the ``commonwealth'', and retain only
such sovereign powers in Puerto Rico as may be delegated to the
U.S. by Puerto Rico.
<bullet> Under the innocuous label ``Development of Commonwealth'';
this virtual confederacy is unalterable by Congress in
perpetuity without local consent
<bullet> Disputes between governments would be settled by sovereign-
to-sovereign negotiations since federal law is no longer
supreme.
Based on this status doctrine, the Governor asserts that Puerto
Rico can have the benefits of both statehood and independence, and not
be required to make the difficult choice between the two. Accordingly,
the Governor argues that a choice between options recognized under
federal law will create an ``artificial majority'', because statehood
and independence supporters will ``gang up'' against the territory
status that he insists Puerto Rico does not have.
The Governor proposes that the solution to the status question is
for Congress to authorize a local convention to choose among statehood,
independence, and a development of the current status--which he intends
would be his ``Development of Commonwealth'' proposal.
He asserts that residents of Puerto Rico support ``commonwealth''
based upon a slight plurality in a 1993 local referendum, when less
than a majority voted for a ``Commonwealth'' proposal that was not
accepted by the Clinton Administration or in the Congress.
In 1998, another local status vote did not produce a majority vote
for any status option. The current status as recognized under federal
law was rejected by 99.9% of the voters.
These local votes demonstrate Puerto Rico does not have majority
rule on status, and the U.S. citizens of the territory have effectively
withdrawn consent to the current territory status.
The local constitutional convention proposal of the. Governor is,
simply a diversionary tactic. It is not needed because Article VII,
Section 2 of our local constitution already provides the exclusive
procedure for calling a constitutional convention, with a more
democratic procedure based on approval of a convention by a majority of
voters.
To confuse, confound and befuddle his own party, the people of
Puerto Rico, and Congress, the Governor's party has commissioned
respected lawyers to cobble together the best possible legal arguments
supporting the commonwealth party platform making Puerto Rico a nation
permanently linked to the U.S. in a confederation.
I am attaching a series of scholarly commentaries which reject the
legal briefs the Governor has presented to Congress and the White
House, in a failed attempt to derail federal policy on Puerto Rico's
status that is compatible with the Constitution and laws of the United
States.
conclusion
There are many reasons for Congress to authorize a federally
sponsored plebiscite in Puerto Rico, but nothing is truly more
important than the patriotism of the Puerto Rican men and women who
have served with honor and distinction in every war since we became
citizens of the United States in 1917, 89 years ago. Puerto Ricans have
fought in defense of our Nation, and the democratic principles of
freedom for which it stands, since World War 1. They have fought, and
many have made the ultimate sacrifice, on the--battlefields of Europe
and Africa, the Pacific and Korea, Vietnam and the Middle East, and
recently in Afghanistan and Iraq. I regularly visit our wounded at
Walter Reed, and am honored to witness first-hand their dedication and
love for our Nation.
We have made a disproportionate contribution to our current effort
on the War on Terrorism. We have earned our keep, and we deserve
congressional consideration of our request for a fair and legitimate
process to exercise our right to self-determination.
After 108 years of territorial status, Puerto Rico remains the
longest standing territory in the history of the United States.
Congress retains jurisdiction over the Puerto Rican status issue, so we
have a constitutional responsibility to address the issue. Although
Congress has consistently expressed its commitment to respect the right
of self-determination of the people of Puerto Rico, Congress has never
sponsored a plebiscite to allow the people of Puerto Rico to express
themselves on their preference based on options that are compatible
with the U.S. Constitution and basic laws and policies of the United
States.
The only way to restore majority rule locally and achieve democracy
and government by consent at the national level is to begin an orderly
process of self-determination. I support the recommendation of the Task
Force established by President Clinton and comprised of senior
appointees of President Bush: a congressionally-provided-for plebiscite
on whether to seek a non-territory status. Only if a majority vote to
seek a new status, would a second step be taken to choose among the
options accepted by the federal government and specifically, by the
Justice Department under Presidents George H.W. Bush and Bill Clinton,
and the current President, as permanent in nature.
This is a moderate and measured approach to the issue. It is the
minimum that Congress can--and should--do to fulfill its historical
role under the U.S. Constitution to redeem the promise of America in
Puerto Rico.
The Chairman. Thank you very much.
Now we will ask you, the distinguished Ruben Berrios, if
you would testify, please.
STATEMENT OF RUBEN BERRIOS MARTINEZ, PRESIDENT, PUERTO RICAN
INDEPENDENCE PARTY
Mr. Berrios. Mr. Chairman and members of the Committee,
there is more than enough testimony and evidence in the recent
record of the U.S. Congress to promptly approve legislation
regarding the status of Puerto Rico. Suffice to state certain
facts and issues in Puerto Rico--the bankruptcy and failure of
a colonial commonwealth experiment is self-evident.
In the United States, the White House report on the
consideration recognizes what the Puerto Rican Independence
Party has been saying for more than half a century; that
juridically, Puerto Rico is nothing but a United States
territory under the U.S. Constitution.
Internationally, next Saturday, November 18 or 19, the most
important Latin American and Caribbean political parties of the
widest ideological spectrum will meet in Panama. They will meet
to express Latin America's collective solidarity with Puerto
Rico's inalienable right to self-determination and independence
and to offer their good offices in the process to achieve
Puerto Rico's political organization.
It is time for Congress to fulfill its constitutional
mandate and to dispose of the territory. Puerto Ricans, of all
political persuasions, for more than a century, have urged the
U.S. Congress to act in order to de-colonize Puerto Rico.
Congress has refused to act. They simply say, in order to avoid
recommendations at a time when we are looking for solutions,
that the historical and political circumstances were not
appropriate. But they are now.
At the end of the cold war, the unavailability and costs of
commonwealth, the consensus for change in Puerto Rico, and the
need for new U.S. policy towards Latin America marked the end
of an era and signaled the beginning of a new one.
We propose a very simple solution, a very simple roadmap,
leading to your constitutional duty to dispose of a territory.
First, a yes or no referendum should be held to discard the
present commonwealth or any other territorial arrangement.
Second, a sovereign constitutional convention should then
be held in Puerto Rico to decide among alternatives, recognized
by international law. As long as legal decolonization
principles are respected, the specific details for the roadmap
can be worked out with all flexibility. We in Puerto Rico will
do all that is in our power to advance such a plan. That is our
duty. But the United States is also under an obligation, both
juridical and ethical, to act.
Under the present circumstances of utter dependence in
Puerto Rico, it is up to this Congress to jump-start such a
process, otherwise the colonial forces of inertia could prevail
once more. But if immobility prevails, the situation in Puerto
Rico will deteriorate and the status problem will come back to
haunt Congress in ever-more menacing ways. Now we are in a
position to formulate an orderly process that will balance all
interests involved, both yours and ours.
When all is said and done, regarding the issue of Puerto
Rico's status, the national self-interest, both that of Puerto
Rico and the United States, will prevail.
Commonwealth under any guise is the problem, and thus, it
cannot be the solution. Democracy and colonialism are radically
and utterly incompatible. Democracy cannot exist where the
basic laws of a country or territory are determined by another
country. The democratic colony is a contradiction in terms. It
is no more than a tinsel cage.
Furthermore, commonwealth is an open door to statehood. And
statehood, even though Congress may not openly acknowledge it
at this time, is undesirable, both for Puerto Rico and contrary
to national interest of the United States.
Independence, on the other hand, is the natural and
rational solution to our colonial problem. Independence is an
inalienable right and ``independentistas'' will never surrender
that right under any circumstances. An orderly transition to
independence with a date certain should, of course, be part of
any future arrangement.
I remind you, majorities come and go, as you well know, but
nationalities remain and Puerto Rico is a full-grown Latin
American nationality. I have no doubt that the Puerto Rican
people will proudly claim their independence once the blackmail
and intimidation to which we have been subjected for more than
a century, ceases to exist.
I urge the Senate to fulfill its constitutional duty and
its responsibility. Responsibility, needless to say, is a
function of power and only political will is necessary. Thank
you very much.
Senator Martinez [presiding]. I have now taken the Chair
and I will look to the Ranking Member for your questions. Do
you have any?
Senator Bingaman. Thank you very much, Mr. Chairman.
Let me start by asking Governor Acevedo about your proposed
alternative to the task force's recommendation. The task force
is recommending two plebiscites and your alternative, as I
understand it, is to call a local constitutional convention to
propose to Congress a new commonwealth relationship. Is that
wrong?
Governor Acevedo-Vila. Not exactly. At that constitutional
convention, the people of Puerto Rico will choose delegates,
delegates that believe in commonwealth, delegates who believe
in statehood, delegates that believe in independence----
Senator Bingaman. So you're not--I don't know what the----
Governor Acevedo-Vila. I don't know what is going to come
out of the convention. The whole idea is for them to ask for
representatives of the people of Puerto Rico, try to solve our
differences, and of course, we know how this process works.
Once you have a constitutional convention, working on the
issue, there is going to be communication with this committee
and with the House. And at some point, they will make a
recommendation that has to be approved by the people of Puerto
Rico and then we'll have a reaction from Congress. They might
say we agree. They might say, we totally disagree. Congress
might say we need some more changes. But it is an inclusive
process that not only we have had experience--this nation was
built through that process.
Senator Bingaman. Yes, but given the constitutional and
legal concerns that have been raised about the proposal for a
new commonwealth, as I understand it, why do you believe that a
proposal like that, if it were to be the end result of the
constitutional convention you've described, why do you believe
that such a proposal would receive more favorable reaction in
Washington if it were presented following a constitutional
convention than it would be otherwise?
Governor Acevedo-Vila. No. 1, it will come after a fair
process and it will come to Congress as the aspirations of the
people of Puerto Rico. That's the only thing I'm asking for:
Give my people the right to dream of a different Puerto Rico
and fight for it, using the democratic process.
I know how they picture statehood in Puerto Rico, during
the campaigns. They say that we're going to be the 51st state
with our own national Olympic team, so we can defeat the United
States in the Olympic games, like we did once in basketball.
They say that if we become a state, our judicial system is
going to be in Spanish. They say that if we become a state, our
public educational system will stay in Spanish and that we will
teach U.S. history in Spanish. I know that's not going to
happen, but I recognize the right they have of presenting those
aspirations to the people of Puerto Rico and in my case--in my
case, that's what we are asking for. What kind of future
relationship under a commonwealth--under a new commonwealth we
will have, if you allow me. Because there are a lot of legal
discussions and the problem with the legal discussion is that,
usually, for the people to say what political outcome they want
and data come up--well, legal constructions. From 1953 until
the late seventies, the Department of Justice position was
completely different from the one you heard here today.
But if you allow me, I'm going to quote you a well-renowned
jurist on this general issue, not on the specific issue of
Puerto Rico: ``The form of the relationship between the United
States and unincorporated territory is solely a problem of
statesmanship. The present day demand upon inventive
statesmanship is to help evolve new kinds of relationships so
as to combine the advantages of local self-government with
those of a confederated union. Luckily, our Constitution has
left this field of invention open.'' Justice Frankfurter, when
he was working at the Bureau of Insular Affairs of the War
Department.
This is a political issue and what we should be discussing
in the future is what's best for the economy of Puerto Rico,
what's best for the people of Puerto Rico, and let the people
of Puerto Rico make the decision. And, of course, if that
decision requires action from Congress, then we'll have a
response from you.
Commissioner Fortuno. Senator, if I may? For the record?
Senator Bingaman. Yes, go ahead.
Commissioner Fortuno. There is only one type of statehood.
There is only one type of independence. The problem is with the
definition of commonwealth and that's where the crux of the
matter is. Thank you.
Senator Bingaman. Let me ask one other question. My time is
about up, but Governor Acevedo, you also, in your written
testimony, say that the people of Puerto Rico have ``the
inherent authority to call a constitutional convention.'' If
that's the case--and I don't dispute it--why don't you go
ahead?
Governor Acevedo-Vila. Oh, we can do it. We can do it. I
think that it is a stronger constitutional convention if, at
the beginning of the process, there is an expression of
Congress saying, we recognize you have that power and we will
be listening. We'll be listening. If not, it could give us the
results we want, but I think it is a weaker one. I have to--I
recognize that, in that sense.
Senator Bingaman. Thank you, Mr. Chairman. Senator
Landrieu, I understand you may want to--need to be elsewhere.
Did you want to ask any questions before you have to go? I
don't know who will take the floor after that.
STATEMENT OF HON. MARY L. LANDRIEU, U.S. SENATOR
FROM LOUISIANA
Senator Landrieu. I just want to make a brief statement,
and I'm going to submit some questions for the record.
I thank you all, gentlemen, for your testimony because this
is an important issue for, obviously, Puerto Rico and the
Nation. I want to say that I hope, Governor, with all due
respect to your testimony, that we not hold out false hopes,
that we give the people of Puerto Rico a clear--clear choices.
They deserve our utmost respect and confidence and to give them
choices that are real and choices that are constitutional. I
hope that as we proceed with these discussions, that that will
be what we come out with: an opportunity for real choices based
on what our Constitution says, and to be respectful of the
people of Puerto Rico. I know that is what we all want to do.
So I'm going to just stop there and submit questions for
the record and we'll see where we go. And I thank Senators
Salazar and Martinez for their leadership.
[The prepared statement of Senator Landrieu follows:]
Prepared Statement of Hon. Mary L. Landrieu, U.S. Senator From
Louisiana
Thank you, Mr. Chairman. I am sure you will agree that as the
United States promotes democracy abroad, we should pursue it no less
vigorously here at home. We need to start today with Puerto Rico.
I do not believe that we should spend more time today echoing the
same debate between the local parties from Puerto Rico that we heard in
1998 and 1999, that we heard earlier in 1991 (before I came to
Congress), and that Congress has heard going all the way back to 1952
(before I was born).
Puerto Rico has been part of the United States for more than 100
years. It is high time Congress empowered the proud people of Puerto
Rico to decide their own future.
I believe that Puerto Rico should become a state. Puerto Ricans
cannot, on the one hand, keep their U.S. citizenship, income-tax-free
status and access to federal funding while on the other hand be able to
enter into trade agreements with foreign countries or choose which laws
passed by Congress to follow.
There is no such thing as a free lunch. Puerto Ricans should have
full representation in Congress and all of the rights--and
responsibilities--that such representation entails.
Otherwise, they should become an independent country with all of
the rights--and responsibilities--that such a choice would entail.
As I have said, I believe that the citizens of Puerto Rico will be
better off as part of the United States, but I am not afraid to let
them decide in a straightforward manner.
Past plebiscites held on this issue have failed because the
question has not been stated in a straightforward manner. When ``none
of the above'' is the most popular answer, it is time to rethink what
we are asking for.
Personally, I believe that we need to lay out a two pronged
question for Puerto Rico: Would you prefer to join the United States as
a full state? Or, would you prefer to become an independent country?
However, it does not appear that Congress or the White House is
ready to ask that question.
But the President's Task Force did come close by laying out a
relatively clear framework for resolving the issue:
Quite simply, it recommends putting a two step process before the
people of Puerto Rico:
Step 1) Are you happy with your current, territorial status?
Step 2) If you are not happy, do you wish to be an
independent country or a state?
That's pretty straightforward, and that is why I am an original
cosponsor of S. 2661, a bill to provide for a plebiscite in Puerto Rico
on the status of the territory. Several of my colleagues on the
Committee are cosponsors, and I hope we can move this issue quickly in
the 110th Congress.
I believe that we need to restore majority rule and consent of the
governed in Puerto Rico. Let's find out if a majority are happy with
remaining a territory. If they are, then we can give this a rest for a
while. If the majority really doesn't wish to be a territory any more,
then we can move forward.
Thank you Mr. Chairman
Senator Martinez. Thank you, Senator Landrieu.
Let me ask you a question and I'd like to get an answer
from each of the panelists. Why were the results of the 1993
and 1998 plebiscites so muddled, so confusing, and why is there
not a clear direction from the Puerto Rican people when
presented with three clear-cut options? Let me begin, from
right to left. I want to give Mr. Berrios an opportunity to
speak.
Mr. Berrios. It's from left to right.
Senator Martinez. Well, I'm sorry. Depending on which way
you----
[Laughter.]
Mr. Berrios. Regarding the commonwealth issue, as usual, in
one of the plebiscites, the formulation of a commonwealth was
the best of both worlds. Who can vote against that? Well, more
than 50 percent of the people did, but when you have things
defined in such a manner and all issues stacked against you,
after 100 years of intimidation and persecution, particularly
with regards to independence, you can imagine the outcome.
Senator Martinez. By the way, you have mentioned
intimidation and blackmail now a couple of times; who do you
accuse of that? I want to be clear.
Mr. Berrios. Everybody involved in this issue. When it was
up to----
Senator Martinez. All right, that's fine.
[Laughter.]
Mr. Berrios. I can give you some examples. I can give you--
when it was up to the U.S. Congress in 1945, at the start of
the cold war, the Smith Act was immediately appointed for
Puerto Rico. And then the Puerto Rican government took it over
and put more than 1,500 members of the Independence Party,
which seeks independence peacefully, into prison. That's the
intimidation I'm referring to.
Senator Martinez. OK. Congressman.
Commissioner Fortuno. First of all, Senator, I commend you
and Senator Salazar for the bill you have introduced and I
thank you all for the interest that you have shown all of the
members of the panel.
To address your question, I believe it goes to the crux of
why should we be here? Why should we have this process and why
should Congress get involved in this? I answer with a question.
If one of the options was that you could keep, actually, U.S.
citizenship, but you would not have to pay Federal taxes;
however, all social programs will be applicable to Puerto Rico,
and on top of that, that actually Puerto Rico will decide which
laws applies, which Federal laws apply and which ones don't,
that Puerto Rico will decide the jurisdiction of the Federal
District Courts in Puerto Rico, that Puerto Rico will decide,
actually, many of the--you know, even if we go to war or not,
when the U.S. is at war; that Puerto Rico, on top of that, will
enter into international trade agreements separate from the
United States, whichever country we want to enter into and that
we can, indeed, live the best of both worlds as Mr. Berrios was
saying. I beg you to--I ask the question to you all.
If you end up actually needing something like that, the new
commonwealth, as an option, you'll end up with 50 requests like
that here. And that's exactly why we need the intervention,
actually, and Congress to fulfill its responsibility to a
process that is fair and that allows the people to actually
voice their opinions directly, not in a smoke-filled room of 50
delegates that may decide that, actually, they're going to come
back as a tactic--with a Trojan horse and bring this to
Congress and will present this new commonwealth alternative.
My concern here is that we may mislead the people of Puerto
Rico, many of whom have served with valor and courage, on
behalf of our country and democracy, abroad and they will
believe actually that that is possible. The best of both worlds
doesn't exist. We can't have the cake and eat it too. It's
either statehood or independence. We can remain as a
territory--and, actually, the reports state so--or we can
explore free association. And actually there is a group within
the Governor's party that actually have recognized that that's
the only alternative that they have open and have actually
submitted for the record their own proposals today here.
Senator Martinez. Governor.
Governor Acevedo-Vila. Just to remind you, those two
plebiscites were called by the Statehood Party when they were
in power. Now, because they lost, the process was not fair. You
see? The reason is that----
Senator Martinez. I don't want to get----
Governor Acevedo-Vila. No, no. The reason is, yes, we're
divided. Commonwealth--we won one of them with 48, 49 percent,
and in the second one, we beat Statehood with none of the
above. None of the above. So I think it is unfair to ask
Commonwealth, why haven't you accomplished more when you get
40, 49 percent of the vote, but we win? And what about
Statehood? They haven't won. So what they are trying to do is,
because we are divided, it's like, well, since we don't know
how to do it, you--Congress--tell us how to do it. And the way
this report tries to do that is by eliminating Commonwealth,
who has been the winner.
Senator Martinez. Well, it seems to me that you want to
move in a direction away from a direct vote on this issue.
Governor Acevedo-Vila. No, I want to try a different
process, because we have failed with plebiscites and
plebiscites and plebiscites and we have failed by trying to get
Congress to establish the rules. And in this case, what I say
is, why don't we use the same process that has been used by the
United States, that was used in Puerto Rico and in many
countries around the world, a constitutional convention?
Senator Martinez. But isn't it more--I mean, wouldn't it be
easy to argue that a more democratic process is a direct vote?
Governor Acevedo-Vila. And we have had many of them and
commonwealth has won all of them.
Senator Martinez. But then, if your particular point of
view has won in the past----
Governor Acevedo-Vila. If, if, if. Senator, with all due
respect, if Congress is willing to commit to a plebiscite in
which, if Statehood wins, it would be granted and, if
Commonwealth wins, it would be granted and independence, if it
wins, would be granted, that's a completely different process.
But with all due respect, not even your bill offers that.
Your bill even excludes statehood, because we all know
today there is not the political will in this Congress to make
a commitment. There is not the political will to make a
commitment to statehood. That's the main reason and you know
that. That's the reason. In your bill, the second election is
not there. Because once you put there the option of the
statehood, the message will be, oh, we in Congress are making a
commitment toward statehood. And that's the problem here.
Senator Martinez. I think the idea of not having a second
election was to avoid the very problem that has been very
obvious here by the panel, which is to not get into the second
part of it, but only to determine whether, in fact, that is the
route to take, for the future.
Governor Acevedo-Vila. In that case, Senator, I will say
that is even more unfair to the people of Puerto Rico, because
the option will be to destroy what you have. But I'm making no
commitment, in terms of----
Senator Martinez. It's an expression of the will of the
people of Puerto Rico.
Governor Acevedo-Vila. But then there is no commitment--
there is no commitment as to what Congress is willing to offer
after.
Senator Martinez. I believe this is a helpful process,
because it educates the American people about the inherent
unfairness of the current status and then it allows us to move
forward toward a better status. So I don't think that this
process--this hearing today and even the debate about which
bill may be better--is anything but positive toward a future
outcome. But it seems to me that the best way to persuade the
Congress that the people of Puerto Rico are prepared to take a
step toward a more defined status would be to have a
plebiscite, which speaks with a clear voice. And I don't think
that should be feared. I don't think the ballot box should ever
be feared.
Governor Acevedo-Vila. But the one that is included in your
bill, with all due respect, is not a fair process.
Mr. Berrios. Senator, will you permit me?
Senator Martinez. Yes, sir. And then I'm coming to you.
Mr. Berrios. I wasn't sure what I was listening to, our
fellow Puerto Ricans here, who were arguing against me or for
me. It's fantastic what I have just heard. Let me--for the
first time in the history of the U.S. Congress, the co-author
of what happened in 1950, 1952--that is, a colonial status with
another name to put up a good face before the world community--
one of the co-authors has become state's witness for Puerto
Rico's rights.
That's the problem with commonwealth. Because they insist,
in an undemocratic, territorial or colonial status at a time
when that is totally outdated in the world. That is why they
don't want any clear definitions. They want to come up here
with an impossible colonial, undemocratic solution, which is no
solution at all. That's why we hear all this stuttering today,
here.
Things are clearing up and your first step proposed, which
is yes or no, do you want to live in the servitude of political
subordination as a territory in the 21st century, which is
degrading to Puerto Ricans and demeaning to the United States;
do you want to keep that, yes or no? They are afraid because
they could win in the cold war, but now they are going to lose
abysmally in Puerto Rico, because most of their party will come
against colonialism and, of course, statehooders will come
against it and the independent status is also dust.
Senator Martinez. Senator Salazar?
Senator Salazar. Thank you very much, Senator Martinez. Let
me just first make an observation that this is probably the
first time in the history of the U.S. Senate where you have
three Hispanic Senators in charge of a committee.
[Applause.]
Senator Salazar. So we might say the Hispanic Caucus is in
charge of this hearing for now. Let me also just assure you
that, notwithstanding the fact that there are two separate
bills that are here, I think the one thing that we obviously
share in common between Senator Martinez and Senator Menendez
and myself has to do with the people of Puerto Rico, to make
sure that we are helping in a process that, at the end of the
day, is a process of self-determination by the people of Puerto
Rico. And I think that the fact that you have the three of us
being the last remnants of this hearing will tell you that we
have a special interest and a special concern in Puerto Rico.
I'll make two observations and points and then I have a
question that I would like each of you to answer. The first
point is that I do think the White House report--it was, in
fact, biased, because I do think that it would have prejudged
an outcome. It would have essentially given to the people of
Puerto Rico, ultimately, the decision to decide whether to
accept statehood or to accept independence, so the third option
would not have been at the table. And it was actually in the
writing of the bill, with all due respect, Congressman Fortuno,
that Senator Martinez and I sat down and tried to figure out
what language would work for a bill that might accommodate all
the different interests. We did not accept the language from
the House because we wanted to make sure that there were--that
all the options were, in fact, placed on the table. At least
that was our intention as we were moving forward in the
construction of the bill.
So I think, at least in my conversations with my
colleagues, the notion has been here that there are viable
options out there and, ultimately, it's up to the people of
Puerto Rico to make the decision.
The third point I want to make here has to do with a little
bit of history and the history of the State of New Mexico. I'm
saddened that, as I make this statement, the two Senators from
the State of New Mexico are not here, because that's the Land
of Enchantment and a State that became a part of the United
States in 1912. I remember in my own days in reading the
history of my forefathers and foremothers in New Mexico;
founding the city of Santa Fe, New Mexico, in 1598; the whole
debate that occurred in the late 1800's and in the early part
of the last century, about whether or not New Mexico should be
allowed to become a State; and it was very clear when you go
back and you look at the Congressional Record, relative to the
debate that occurred in those days, that New Mexico was not
wanted as a part of the United States of America. New Mexico
was not wanted as part of the United States of America for a
very simple reason. Most of the people who lived in New Mexico
in 1900 were Hispanic Americans, Mexicano Americanos. They were
the ones who lived in New Mexico. So they were not wanted by
the United States of America.
To the North, my State of Colorado, that I represent,
became a State almost 30 years before New Mexico. But New
Mexico did not become a State because of the fact that it was
an Hispanic State.
So we need to recognize that the history was there. And one
of the questions, I think, that is a real question and concern
for me is that the people of Puerto Rico are not treated in a
different way because of the fact that it happens to be an
Hispanic population.
You know, Governor Acevedo, I very much respect you, and I
hear your point when you say that this Congress would not
willing to accept Puerto Rico if, in fact, it was to become the
51st state. You may be correct. I would hope that that is not--
would not be the case, that, in fact, if the people of Puerto
Rico, by themselves, were to decide that this was the option
that they were going to exercise, that this Congress would say,
yes, we are going to do it. Because it's not a Republican or a
Democratic issue, it's a matter of 3.9 million people who have
been a part of this country now for over a century and if it is
their decision that they wanted to become part of the United
States, it seems to me then that this Congress should recognize
that and then all of us would come together hopefully and fight
for that cause. So, I make that comment about New Mexico
because it is, in fact, one of the historical factors,
personally, that I care a lot about, with respect to what
happened to the Southwestern part of the United States, and the
analogy, if you will, that you can draw to Puerto Rico.
My question to the three of you simply is this: If, in
fact, there was legislation that would say that the people of
Puerto Rico would have a vote where the three options would be
placed on the table once again--independence, commonwealth,
statehood; one, two, three--and the people of Puerto Rico would
then vote on that plebiscite, is that something that the three
of you could support? Starting with you, Governor, and then
Congressman Fortuno and Mr. Berrios.
Governor Acevedo-Vila. As they say, the devil is in the
details. But in general terms, that's what my party tried to
push in Congress back in 1989, and we were very close to
creating that kind of plebiscite back then. With all due
respect--I can just pull it out here and check the record--
there was no willingness from this Senate to make any kind of
commitment to statehood and that's the extent of my comment. I
agree with you that it's a matter for the will of the people of
Puerto Rico, but what my point is, so far, what we know is that
Congress is not willing to commit to any process if statehood
is part of the process. But then, on the other hand, even
though that's what I believe, I recognize his right and the
right of the people of Puerto Rico, of the statehood supporters
in Puerto Rico to keep pushing. That's the only thing I'm
asking, that they recognize, too, commonwealth, and that's in
general terms--a plebiscite that will recognize the three
political ideologies, tendencies in Puerto Rico. That, if
fairly defined, is an alternative, definitely.
Senator Martinez. Thank you, Governor.
Congressman Fortuno.
Commissioner Fortuno. Yes. Certainly I'm not afraid of the
ballot box and I would like the people of Puerto Rico to decide
freely and directly what is it that they want. I have stated
publicly several times, regarding the bill that actually my
good friend and colleague, Jose Serrano, and I and another 108
members of Congress filed in the House, that I was open to
actually have, on the second round, some sort of vote, but
actually if we decide we don't want to be a territory anymore,
to have a true free-association option there so that the people
of Puerto Rico actually, if they don't want to be a territory,
have all the rules of the game, everything above the table and
they would know exactly what they will be voting for.
Statehood and independence are pretty easy. The problem
here is, again, on free association or whatever it is. But I
would not be--on the contrary, I'm not afraid of the ballot
box.
I would say something else, going back to your comments,
Senator. The fact that there are three distinguished leaders of
our Hispanic community here before us--and I'm so proud that
you are here today--actually attests to how this country has
changed dramatically. And I know for a fact that this Congress
will be very different from a Congress 80 years back when New
Mexico was trying to become a State.
Finally, I will say one thing. I do want the people of
Puerto Rico, my constituents, to vote directly on whatever the
options may be. I want them to know what they are voting for.
And I must say that what I find unfair is to try to block a
process. And I wanted Manuel Melendez to be here with us today,
because I would visit him when he was in a coma at Walter Reed.
And every time, I would get in my car to drive back to the
Hill, I would think to myself, how could it be that in the 21st
century there is an American hero lying in bed, fighting
between life and death and this American hero did not have a
right to decide whether we were going to war and to elect a
commander in chief? That is unfair and unconscionable in the
21st century. Thank you.
Senator Salazar. Thank you, Congressman Fortuno.
And thank you, as well, Mr. Melendez, for your service to
our country.
Mr. Martinez.
Mr. Berrios. Berrios Martinez. Senator Salazar----
Senator Salazar. You spoke with such eloquence that you
knocked the nametag off of your front, so I was trying to
remember it.
Mr. Berrios. It was Luis.
Senator Salazar. It was Luis? It was Luis who caused that?
Commissioner Fortuno. I'm sorry.
Mr. Berrios. Well, I think your question and the points you
bring up are very important. With them, we go back to basics.
The basics here are simple. First, commonwealth is demeaning
and degrading, both to Puerto Rico and to the United States.
Colonialism is anti-democratic, so that's really no option.
Now you go back to the other theoretical option and bring
up the case of Colorado. I will start with a small quote from
my grandfather. You will understand it, but maybe some other
people won't. En el tiempo de los apostoles, los hombres eran
barbaros y se comieron los pajaros debajo de los arboles. That
was possible at that time. New Mexico. Besides, knowing--or
Arizona. Knowing that it was going to be filled up with an
overpowering presence of American citizens of other
extractions. Now we are in a different world. We are in the
anti-colonial era. Latin America will never stand by when it
sees that one of their Latin American nation brothers is being
swallowed up by the United States. Puerto Rico would have more
votes than 28 States in the U.S. House. You know what that
means? If we had three or four more Puerto Ricans, we would
have more votes than 35. We would be the nation that would pay
less in Federal taxes and receive more in Federal money.
A Nation which is building a wall along its southern
frontier with Mexico will accept a mulatto, a Latin-American
nation as a State in the Union? You can say whatever you want
publicly, and I don't put in doubt your honesty regarding how
you would vote, but let me tell you, they will give you many
excuses, and probably, you will have two or three votes more,
but when the time comes up, statehood will be no answer to your
Puerto Rican problem.
Statehood is a solution for Americans or for people who
want to become Americans. For a nation full of people proud of
their Latin-American nationality, who do not want to become
Americans, including statehooders and commonwealthers,
statehood is no answer. Statehood was made for Americans, not
for Puerto Ricans.
It's a nation like Palestine is a nation. The solution
cannot be colonialism or being part of Israel, with all due
respect to the differences. That's the issue. You have to face
it. Either you will face it now or you will face it in 3 years
or 5 years. Face it now. Be honest with ourselves and with
yourselves and come forward and discuss the issues. When we
discuss the issues and the full plate is put before the Puerto
Rican people, the full offer, have no doubt that the Puerto
Rican people would vote for their independence once the
intimidation and blackmail of the last century----
Senator Salazar. I appreciate that, Mr. Berrios.
Mr. Berrios [continuing]. Goes out of the way.
Senator Martinez. I appreciate your comments and I
appreciate the three of you, from my point of view, appearing
before us today and providing us your comments.
Mr. Berrios. Thank you.
Senator Salazar. Thank you, Senator Martinez. Senator
Menendez.
Senator Menendez. Thank you, Mr. Chairman.
Let me say to all three of you, I admire your passion, I
admire your intellect and I respect your different views. You
do each of them service to the part of the Puerto Rican
electorate that you represent or the community at large that
you represent in terms of a point of view.
I want to salute the young man from Puerto Rico who has
served with distinction in the U.S. Armed Forces. We appreciate
your service.
[Applause.]
Senator Menendez. And I happen to like your name, too. That
has a long history of the people--was that Mendes or Menendez?
Governor Acevedo-Vila. Melendez.
Senator Martinez. It's not like yours.
Senator Menendez. But anyway, that is part of a long
history of the Puerto Rican people and a very honorable one.
I have a couple of quick questions that hopefully we can
get relatively short answers to, starting with the Governor.
Governor, what is undemocratic or unfair about asking the
people to choose, as the report recommends, between
commonwealth status and the other status options? Haven't there
been such plebiscites in the past? What is wrong with that?
Governor Acevedo-Vila. You mentioned the task force
recommendations, but the way it is crafted is not like the way
that Mr. Salazar proposed, and I think that the answer, for the
record, is that I was the only one that said yes to having the
three options, on equal footing, on a plebiscite. The problem
with the task force is that it defines the process in a way
that you get rid of commonwealth, which happens to be the
alternative the people have voted for. They might disagree, but
that is the will of the people. So it's like, ``since I don't
get the votes down in Puerto Rico, let me go to Congress to see
if I can get a process that will get commonwealth out of the
ballot or describe commonwealth in a way that is impossible to
vote for it.'' So that is what is really unfair about that
process.
Senator Menendez. Let me ask you, Congressman Fortuno, I
heard you say there was only one type of statehood. So then, if
Puerto Rico were to be--ultimately goes through a process and
determines that it wants to be a State and become a State of
the United States of America, it would not have--you would not
expect it to have its own Olympic team, you would not expect it
to have a judiciary that would operate in Spanish and you would
not expect its schools to operate in its primary language, in
Spanish, and on down the line?
Commissioner Fortuno. Well, Senator, I am a big defender of
State's rights and I have a record already here. Actually, I
would say, for example, I understand how important it is to
speak English to get ahead in life. If you open a newspaper in
Puerto Rico today, you will see, on a Sunday, any Sunday,
through the ad pages, 90 percent of the jobs require that you
be bilingual. Actually, I have a record in the Education
Committee in the House, on the House side, of introducing
amendments that have gone through with the help of my two
colleagues, other Hispanics on the committee, to make sure that
actually our children in New Mexico and Colorado and in Puerto
Rico learn English. Having said that, however, no one in
Washington is going to tell me what language I'm going to use
at dinnertime or when I pray with my family. And actually, the
fact that we can use both languages is a great advantage in
today's world. I'm proud of my heritage.
Senator Menendez. I have no doubt that, at dinnertime or in
prayer, no one would ever say that. The question is--when we
talk about that, we need a clear definition of commonwealth. We
also need a clear definition of what statehood means. So you
would not expect an Olympic team, you would not expect a
judiciary to operate in Spanish, you would not operate the
public schools of Puerto Rico in Spanish; you would expect them
to operate in English and you would expect to have Puerto
Ricans be part of a U.S. Olympic team?
Commissioner Fortuno. Actually, our judiciary today, at the
state level, can accept documents in both languages. The
Federal court actually is in English. And I don't have a
problem with that. On the contrary, I believe it is the right
way to go. So that's the way it operates today.
I understand that there are--in different campaigns, many
people have said different things. I would love for this
committee, actually--and I know you would love to do that, as
well--to clarify what it entails to do about everything, all
three options, what it entails, at the end of the day. And I
ask you, are you willing to accept a commonwealth that will pay
no taxes, but on the contrary, will be getting all of this aid.
Are you willing to accept a commonwealth that actually will
have veto power over the laws that are approved here and
actually will be able to enter into its own international trade
agreements outside the United States?
Senator Menendez. I don't think----
Commissioner Fortuno. And I believe that to be fair here,
we should define everything. And I'm willing to go through that
process anytime you want.
Senator Menendez. OK. And my final question is--
Governor Acevedo-Vila. May I clarify the record, just for--
if I may educate the members? The school system in Puerto Rico
is in Spanish. And that's by law. The law says that the main
language in our schools is Spanish. I learned that the founder
of this Nation was Jorge Washington, not George Washington, and
Puerto Rico was discovered by Cristobal Colon, not Christopher
Columbus. I didn't hear a clear answer about whether that will
change. In the judicial system, you have the right to an
interpreter if you speak English, but the prosecutor, the
defendant and the judge--everything is conducted in Spanish, by
law, just for the record.
Senator Menendez. Mr. Chairman, I have one last question
and I want to give it to Mr. Berrios Martinez.
I think have I finally figured out why you support Senator
Martinez and the legislation. And I was going to ask you the
question, but I just want to make sure that I heard you right
in response to a previous question. Given that independence in
the plebiscites that have taken place are only 5 percent, or
have only gained 5 percent of the electoral vote, is it your
thought that by having this structured two ways, where the
people of Puerto Rico would vote first on the question of
commonwealth, and presuming that you would join together with
those who want statehood, you would eliminate the commonwealth
status and then have a head-to-head on independence and
statehood where, based upon previous plebiscites, statehood
would win and then you would expect a rejection of the U.S.
Congress, and therefore, having been rejected, the people of
Puerto Rico having been rejected, you would turn then to the
expectation that your independence aspirations would be
achieved? Is that your master plan here?
Mr. Berrios. No, it's very simple.
[Laughter.]
Mr. Berrios. It's very simple, but it's not yours. I will
explain it to you. First of all, let me tell you that
majorities come and go. We've been majorities in Puerto Rico
before the United States converted us into a minority. In 1945,
we were the majority. In 1914, we were the majority. Now, it
was up to the pleasure and self-interests of the United
States--and that's the usual thing--to convert Puerto Ricans,
independentistas, into a minority. You gave flight to
statehooders and commonwealthers and here's the consequence you
have.
As soon as the playing field is leveled, I have no doubt as
to the way the people of Puerto Rico will vote. But you must
get interested in the problem. Because we have demanded many
times--we have demanded statehood, independence, a
commonwealth, and this Congress has never acted. If you put
your heads and minds to it and come forth with a program, that
can only lead to independence. It's the natural flow of the
processes. When a full-grown nation becomes full-grown enough,
it puts on its long pants.
You asked me before whether I would accept statehood or
commonwealth. Well, of course not. Independence is an
inalienable right. And that means we will fight for
independence, struggle for independence always, under any
circumstances. That's one of the important reasons why you will
never accept us as a State: because we might be the minority
now, but we will be the majority someday.
So act soon and avoid problems in the future. Thank you
very much.
Senator Menendez. I have just one last--what I hope might
be a unifying question.
You have all made very clear your views and--your strongly
held views. Can I just ask, is there--I think this is a
difficult issue. Obviously it has a lot of different views. Is
there a support--I think there is support in the Congress,
particularly the Congress that is coming up, to help Puerto
Rico in a variety of ways on what I would consider kitchen
table issues: education, health care, economic development. Is
there an opportunity for, at least on those issues, a consensus
agenda among these three parties?
Governor Acevedo-Vila. I have no doubt about it that we
can. And we have done so in the past, on issues regarding
education, economic development, health, and we can work
together. Actually, I had a meeting with the new Chairman of
the House Ways and Means Committee, Charlie Rangel, today, and
we agreed to try to work on an agenda that we can present to
the Resident Commissioner to see if we can have common grounds,
like before, on issues related to economic development, health
and other issues.
Commissioner Fortuno. Senator, I have a record in the last
3 years of working in a bipartisan fashion here and back in
Puerto Rico as well. I've worked with mayors from both parties.
I've worked with the administration. When there was a need for
a ferryboat between Vieques and Culebra, I was there. When
there was a need for additional buses for the transportation
system, I was there. When there was a need for additional
highway money, I was there. And I will continue to be there for
those bread and butter issues.
Mr. Berrios. You will see a big difference in our
approaches between me and my tow friends here. You will see a
big difference in the approach between our two friends here and
myself. Of course, we worked together in Vieques. Of course. I
was there for 1 year on the beaches, so I know. And they
continued in their own ways for these issues. And if, tomorrow,
we're going to raise the minimum wage, they can count on our
party. But let that not be used as an excuse to avoid the real
issue. That is what happened in the last 50 years. Let's deal
with the issues, like education and health care. And things are
worse now than 50 years back, to all practical effects, in many
areas. So then we work with that, but then we forget about the
real issues, which backs them up and which props them up. So if
that is the question, then of course you can count on the
Independence Party for the betterment of the Puerto Rican
conditions, but not as an excuse to avoid your obligation to
dispose of the territory. That's the main issue and that's why
we're here. That's the excuse of Populares in Puerto Rico.
Senator Martinez. Thank you, Mr. Chairman.
Senator Menendez. Thank you very much. Let me, at this
time, suggest that if there are any other questions any members
of the committee may have, they may be submitted in writing and
they will be submitted within the next 30 days and answered in
the following 10 days by any of the witnesses.
I want to thank the distinguished panel. I also want to
again thank all of the very distinguished guests that we had
here today. This has been a very important hearing. Buenas
tardes y gracias a todos.
[Whereupon, at 4:25 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Governor Anibal Acevedo-Vila to Questions
From Senator Craig
``development of the commonwealth''
Question 1. One of your primary complaints about the Task Force
Report is that it says your proposal for the ``Development of the
Commonwealth'' is not an option. Your proposal calls for Puerto Rico to
be recognized as a nation in a relationship that permanently binds the
United States to its terms. The U.S. would have to cede to the
Commonwealth the powers to nullify most federal laws and court
jurisdiction and to enter into trade and other agreements and
international organizations that States cannot. The U.S. would also
have to grant an additional subsidy to the insular government and new
incentives for U.S. investment and continue to grant all current
program benefits to Puerto Ricans, citizenship, and totally free entry
to products shipped from Puerto Rico. The Clinton Administration and
the Justice and State Departments have also said that the proposal is
impossible for constitutional, structure of government, and basic
policy reasons.
Can you identify any Member of Congress or other federal official
who has said that the ``Development of the Commonwealth'' proposal is
viable?
Answer. The problem with the Task Force Report is that we do not
even get a chance to discuss the specifics of an enhanced Commonwealth
because it concludes without adequate legal support that the
Commonwealth cannot exist under the Constitution.
Question 2. In lieu of the status resolution process recommended in
the Report, you have asked Members to sponsor a bill that would support
a convention in Puerto Rico to choose the territory's status preference
among three options--the recognized options of statehood and
independence and a new form of what the bill calls the current
``association.'' You led your party in adopting a proposal for that
association, the proposal for the ``Development of the Commonwealth,''
in 1998. It was incorporated into the Platforms on which you ran in
2000 and 2004, and you have continued to support it as Governor,
including in testimony to a committee of the Puerto Rico House last
year and after the presidential task force's report was released.
Since the convention would propose your plan for the ``Development
of the Commonwealth'' as Puerto Rico's status choice, have you fully
explained the contents and federal positions on the proposal to the
Members you are asking to sponsor your bill?
Answer. Since my first day in office I have proposed that the first
step should be for Puerto Ricans to elect a Constitutional Convention
and such convention would have the option of drafting a proposal to the
Congress for a new or amended compact. If Members of Congress support
self determination for Puerto Rico they should support the
Constitutional Convention option, regardless of the proposals that
might emerge from that Convention. If the proposal is not to the liking
of a particular member, be it an enhanced Commonwealth proposal, a
statehood proposal or and independence proposal, such Member of
Congress will have an opportunity to judge the proposal once it is
presented. It makes no sense to judge it before it is even proposed.
Question 3. Article XIII (b) of your proposal for the ``Development
of the Commonwealth'' would establish a mechanism whereby U.S. laws,
other than those providing benefits to Puerto Ricans specified
elsewhere in the proposal, would only apply to Puerto Rico if approved
by the Commonwealth.
As there is no chance that the federal government would cede the
power to determine the application of federal laws to the Commonwealth,
are you more willing to accept the status options recognized in the
report and otherwise by the federal government: a continuation of the
current status, statehood, independence, and free association?
Answer. I disagree with both your characterization of the proposal
and your ``no chance'' premise.
Question 4. Article VIII of your proposal for the ``Development of
the Commonwealth'' would enable the Commonwealth to limit the
jurisdiction of the federal courts in Puerto Rico.
How could the federal court tenably operate fits enforcement of
federal law could be limited at the Commonwealth's will?
Answer. Your premise is incorrect since what the proposal says is
that the jurisdiction of the Federal Courts will be agreed up by both
Puerto Rico and the United States in the Covenant.
Question 5a. Article IV (B) of your proposal for the ``Development
of the Commonwealth'' would obligate the U.S. to continue to provide
all current assistance to Puerto Ricans. Article V (A) would require
the U.S. to provide the Commonwealth with a new, annual block grant,
adjusted for inflation, for social assistance and infrastructure, and
new socioeconomic development incentives. Congress repealed the $3
billion-a-year Internal Revenue Code Section 936 tax exemption for
manufacturing income from Puerto Rico and other possessions. It also
rejected the essentially similar Sec. 956 amendment.
Very roughly, how much do you think the block grant should be?
Answer. The amount of the referenced block grant is one of the many
issues that would be up for negotiation when there is an actual
negotiation. To decrease the levels of economic dependency is one of
the goals that the PDP has established for the future. Whatever the
final cost of such a block grant, it would certainly be significantly
less than the added cost to the Federal treasury of making Puerto Rico
a state.
Question 5b. Would the socioeconomic incentives be tax exemptions
for companies based in the States?
Answer. No.
Question 5c. Don't you think that all of this financial assistance
is inconsistent with the proposal that Puerto Rico be recognized as a
nation and the proposed power for the Commonwealth to be able to
nullify the application of federal laws and enter into international
agreements that States cannot?
Answer. No. If read carefully, the proposal is designed to make
Puerto Rico less financially dependent on the Federal Government, which
contrasts with the case of statehood, where Puerto Rico would become
much more financially dependent on the Federal treasury.
Question 6. Your representative at the House hearing told that
committee that the Commonwealth ``Covenant'' ought to exempt Puerto
Rico from the laws requiring the use of U.S. crewed, built, and owned
vessels in shipping between U.S. ports. The Departments of
Transportation and Defense have previously opposed this proposal. U.S.
ship builders and owners and the AFL-CIO have opposed similar
proposals.
Why do you think it is viable?
Answer. That could be part of the overall negotiations. It is
pointless to assess viability without understanding the whole.
Question 7a. The director of your offices in the States told an
assistant to a Member of the Committee that there should be different
trade rules set by Puerto Rico for trade with Costa Rica.
What differences should there be?
Answer. That comment simply refers to the fact that there are
certain products, particularly agricultural products, that are grown in
Puerto Rico, but nowhere else in the United States. In those cases it
is important to take into consideration the different reality of
agriculture in Puerto Rico. And that, in fact, is already done to some
extent, in the negotiations conducted by the USTR because the
Commonwealth Government has alerted the USTR as to its specific
situations.
Question 7b. And, if Puerto Rico could negotiate trade agreements
with other countries and all trade between Puerto Rico and the States
continued to be totally unrestricted as proposed in your plan for the
``Development of the Commonwealth,'' couldn't products that the U.S.
restricted entry of from other countries enter the U.S. if shipped
through Puerto Rico?
Answer. If that were to be the route taken, I am sure that it is
possible to prevent such outcome.
Question 8. In the past some of your colleagues have proposed that
Puerto Rico be exempted from environmental laws.
What laws do you believe should not apply to Puerto Rico?
Answer. I do not believe that this written question and answer
process is the right forum to discuss the full panoply of laws that
should not apply to Puerto Rico.
Question 9. Your proposal for the ``Development of the
Commonwealth'' calls for the federal government to cede to the
Commonwealth the power to enter into trade, tax, and other agreements
with foreign countries and into international organizations that States
cannot--which are agreements that require national sovereignty--subject
only to U.S. security requirements. The Department of State testified
against the proposal in 2000, primarily because of the hybrid nature of
the governing arrangement you propose: Puerto Rico would be a nation
but U.S. citizenship would still be granted and U.S. domestic programs
would still apply but Puerto Rico would be able to nullify U.S. laws.
If Puerto Rico were to become a true nation, it would, of course, be
able to establish its own foreign relations. But if it retained the
benefits of a U.S. status inconsistent with true nationhood, Puerto
Rican foreign relations could create conflicts with U.S. foreign
relations, resulting in confusion abroad and imposing obligations on
the U.S. which the U.S. could be unwilling to meet. Earlier this year,
the State Department witness at the 2000 hearing reiterated that the
views he expressed remain those of the State Department. During the
term of your predecessor, State officials up to Secretary Powell had to
intervene several times when the Commonwealth sought to enter into
international agreements and organizations to which the U.S. had not
agreed or to which it objected.
In light of this, why should we consider this aspect of your
proposal viable?
Answer. Again, it is pointless to enter into such a discussion
unless we have an actual good faith negotiation, which is not happening
at this point.
Question 10. Your proposal for the ``Development of the
Commonwealth'' would recognize Puerto Rico as a nation but in a
permanent union with the U.S. that neither nation would be able change
or end. One of the basic elements of national sovereignty is that a
nation can determine its relationships with other nations.
Wouldn't acceptance of your proposal mean that neither the U.S. nor
Puerto Rico would be sovereign nations?
Answer. No. The question is premised on an outdated vision of
sovereignty as a zero sum game, where one entity's gain must be another
entity's loss. In the 21st Century nations are not absolute sovereigns.
Every nation agrees to cede some element of what could have been an
absolute sovereignty, simply as a matter of coexisting on the same
planet. The Federal Union of States itself recognizes a dual
sovereignty that cannot be unilaterally broken. There is absolutely
nothing in the U.S. Constitution that prohibits an analogous dual
sovereignty relationship with a non-State jurisdiction.
Question 11. You argued that the Task Force reiterated the federal
position that one Congress cannot bind a future Congress regarding
Puerto Rico policy as long as Puerto Rico remains a territory and does
not become a nation or a State.
If one Congress could bind a future Congress regarding Puerto Rico
policy while Puerto Rico remained a territory, wouldn't it compromise
the future Congress' power under the Territory Clause of the
Constitution? Wouldn't it compromise the sovereignty of the federal
government? Wouldn't it in essence make Puerto Rico a different kind of
State of the U.S.--in a nation where the States are intended to be
equal--and, since it would not have equal voting representation in the
federal government, make Puerto Rico a second-class State?
Answer. In the same fashion that one Congress may accept one
territory as a state, and thus ``compromise the future Congress' power
under the Territory Clause'', Congress can enter into a different
relationship. As explained by the late Chief Justice Rehnquist when he
served at the Justice Department:
``One Congress could bind subsequent ones where it creates
interests in the nature of vested rights, e.g., where it makes
a grant or brings about a change in status. Thus we concluded
in the early 1960's that a statute agreeing that the United
States would not unilaterally change the status of Puerto Rico
would bind subsequent Congresses.''
The Justice Department held this position for over 30 years, and it
has failed to provide a reasonable legal explanation of why 15 years
ago it changed this position. The Task Force Report had the opportunity
to offer this explanation, but it offered no new analysis.
Question 12. Proposals for the federal government to cede national
government powers to the Commonwealth without making it a nation have
been rejected by the federal government for half a century, beginning
with legislation by Resident Commissioner Fernos in the 1950s and
Governor Munoz's negotiations with a task force under President
Kennedy. At the same time, federal officials have always said that the
Commonwealth can continue to be a territory. The Task Force and the
Clinton Administration have also said that free association is the
status option most similar to ``developed Commonwealth'' proposals.
Is there a point at which you recognize that the federal government
is not going to cede national government powers to the Commonwealth and
you choose among the constitutional options: for the Commonwealth to
remain a territory or to become a sovereign nation in a free
association with the U.S., or choose one of the other recognized status
options--independence or statehood?
Answer. The reasons why Congress has failed to act on proposals for
greater autonomy for Puerto Rico have been varied and cannot be
simplified into a statement that they ``have been rejected by the
Federal Government for over 50 years.'' For 20 of those 50 years,
Puerto Rico had pro-statehood Governors who were not interested in
pursuing greater autonomy. It can also be said that several former
territories failed to convince Congress to accept them as a state for
long periods of time, yet this hardly seems like a convincing argument
for them to have stopped those requests if that is what their citizens
wanted.
Question 13. Your proposed ``Development of Commonwealth''
primarily consists of proposed changes in federal laws and policies.
Shouldn't the people of Puerto Rico have the benefit of federal
views on these proposed changes in federal laws and policies so they
can make an informed decision if they are to elect a convention of
delegates favoring different status proposals?
Answer. Yes. As I stated during the Committee hearing, I envision
that during the Constitutional Convention there would be extensive
consultation with the Federal Government.
Responses of Governor Anibal Acevedo-Vila to Questions
From Senator Martinez
Question 1. The Task Force calls on Congress to primarily provide
for a plebiscite between: A) continuing the current status and B)
seeking a non-territorial status. The Congress is not asked to take
another step until after that vote. The Puerto Rico Democracy Act that
I sponsored along with Senators Salazar, Craig, Landrieu and nine
others would provide for the plebiscite.
Would you agree that this bill will not preclude consideration of
any status proposal or process after that vote?
Answer. No. There is a significant dispute as to the scope of the
Territory Clause. It could be argued that any option where the United
States retains certain powers under the territory clause (be it limited
powers as we believe is possible) or unlimited powers (as the Task
Force report contends) would be precluded from consideration after that
vote.
Question 2. It is my understanding that you have referred to a
``democratic deficit'' in Puerto Rico and have further suggested
allowing Puerto Rico to nullify federal laws and to enter into
international agreements as a response to this perceived problem.
If your proposals for the ``Development of the Commonwealth'' are
feasible, why not allow the Task Force's plebiscite process to move
forward and perhaps include a `Developed Commonwealth' option in the
second-round of this process?
Answer. That does not appear to be possible, as explained in the
previous question.
Question 3. The Task Force recommended that Puerto Rico's status
preference be chosen by the citizens of Puerto Rico. Others have
proposed that it be chosen by a convention. Under this alternative
proposal, Puerto Ricans would only be able to accept or reject the
convention's choice after the federal government agreed to the
proposal.
Wouldn't it be more democratic to allow Puerto Ricans to directly
choose the status of the territory?
Answer. This notion that the two step vote outlined in the Task
Force Report is ``more democratic'' than the Constitutional Convention
is false. If you arbitrarily limit the options available to the people
in a direct vote as recommended in the Task Force Report, the process
becomes totally anti-democratic. The Constitutional Convention is well
recognized around the world as a valid democratic mechanism, but it has
its deepest roots in U.S. history since it was the mechanism used for
the adoption of the U.S. Constitution. The Constitutional Convention
will have before it a full range of options and the voters will have
the last word on approval, so I do believe voters will be directly
choosing their political future. Accordingly, I disagree that a status
choice among artificially limited options as suggested by the Task
Force Report is ``more democratic.''
Question 4. Governor, it is my understanding that you have objected
to periodic plebiscites and have chosen instead to preserve the status
quo. However, you have also recognized that the governing arrangement
for Puerto Rico is not democratic in that Puerto Ricans do not have
voting representation in the making of their national laws.
How can the current status be considered a permanent option fit
does not provide for a democratic form of government at the national
level?
Answer. I believe we need to use less the word ``permanent'' since
death is the only permanent status known to mankind. The Commonwealth
has served Puerto Rico and the United States well for over 50 years. In
that same span of time several regions of the world have been under the
sovereignty of different nations and at some point their status was
also called ``permanent''. The Commonwealth will be as permanent as the
people of Puerto Rico and the United States desire for it to be.
Clearly there are limitations, but the question is one of options. So
long as the other options are less desirable, the Commonwealth will
continue to be the preferred option.
Responses of Governor Anibal Acevedo-Vila to Questions
From Senator Landrieu
status process
Question 1. You have complained that the initial plebiscite
proposed by the Task Force would be unfair to what you call
``commonwealth'', which the federal government considers to be a
territory status, asserting that the vote for the non-territory
statuses would be combined against it. But you have also said that
Puerto Ricans want ``commonwealth.''
So, isn't the threshold question the one that the Task Force's
first recommendation poses: whether Puerto Ricans want the status quo
or want to seek another status?
Answer. The problem with this formulation is that those who want to
seek another status have completely divergent views. Imagine that you
had to run against both a more liberal and a more conservative
candidate in a race for the Senate. Would it be fair to you that if you
get the most votes, but fail to get more votes that the combined votes
of the more liberal and the more conservative candidate you would then
be eliminated from the second round of voting and voters would no
longer have Senator Landrieu as an option. That is essentially what the
Task Force is recommending.
Question 2. There are astute members of your party and others who
think that a vote between continuing the current status and merely
seeking a democratic status would favor the status quo because people
would vote for it rather than for seeking a new status that could wind
up being one that they do not want.
Don't people often opt for the status quo over uncertain change? If
a majority of the people want a non-territory status, however, what is
wrong with them voting for that and then choosing among all of the
options for a non-territory status?
Answer. Our job is not to try to game the vote by astutely
anticipating how voters might react. We should be trying to provide the
fairest voting process possible.
Question 3. The Task Force recommended that Congress provide for a
plebiscite between continuing the current status and seeking a non-
territory status. The Puerto Rico Democracy Act sponsored by Senators
Martinez, Salazar, Craig, Landrieu and nine others would provide for
the plebiscite.
Isn't it true that the bill, S. 2661, would not preclude
consideration of any status proposal or process after that vote?
Answer. No. There is a significant dispute as to the scope of the
Territory Clause. It could be argued that any option where the United
States retains certain powers under the territory clause (be it limited
powers as we believe is possible) or unlimited powers (as the Task
Force report contends) would be precluded from consideration after that
vote.
Question 4. You have said that Puerto Rico has a ``democratic
deficit'' and have proposed making the governing arrangement democratic
by allowing Puerto Rico to nullify federal laws and to enter into
international agreements.
If you believe that your proposals for the ``Development of the
Commonwealth'' are feasible, why, then, don't you embrace the Task
Force's plebiscite process and propose that there also be a `developed
Commonwealth' option in the second-round plebiscite among non-territory
options?
Answer. That does not appear to be possible, as explained in the
previous question.
Question 5. You have asserted that Puerto Rico has tried the
referendum route to choose its status preference and it has not worked.
But all three referenda Puerto Rico has held have included proposals
that are not status options. And only in 1967 was there a clear
majority for a status proposal. The legislation that resulted from that
``Commonwealth'' proposal for Puerto Rico to be ceded some national
government powers was rejected in the Congress. A different
``Commonwealth'' proposal, for tax, trade, and funding benefits and
asserting autonomy from federal powers, did not win a majority but
obtained a slight plurality over statehood in 1993. However, it too was
rejected at the federal level. Statehood won most of the votes for a
status option in 1998 but a slight majority was for no status option.
You said that a ``None of the Above'' vote would be for your
``Development of the Commonwealth'' proposal but ``None of the Above''
was also apparently supported by half of the independence vote and by
supporters of the current status and free association. In any case,
``None of the Above'' is not a status choice and is not a status that
can be implemented. And your `developed Commonwealth' proposal has been
rejected as impossible by the Clinton Administration as well as by the
Bush Task Force. The Task Force, the Clinton Administration, a 2000
law, the House in 1998, and many senators have recommended referenda
with options recognized as valid by the federal government.
Isn't the real reason that Puerto Rico's local referenda have not
resolved the issue that the referenda have always included proposals
that are not status options according to the federal government,
``Commonwealth'' proposals in 1967 and 1993 and ``None of the Above''
in 1998?
Since the ``Commonwealth'' proposals in the 1967 and 1993 referenda
were not proposals that the U.S. Government accepted and the 1998
referendum included the non-option of ``None of the Above'' weren't the
results of those referenda artificial?
Answer. I have to disagree with this characterization of the
previous plebiscite events. The 1967 referendum did not resolve the
issue because the 1968 elections in Puerto Rico were won by a pro-
statehood governor who proceeded to disregard the vote outcome.
Likewise, in 1993 when the Commonwealth option won again, Puerto Rico
had a pro-statehood Governor which made it impossible to pursue a
Congressional agenda to make good on the wishes of the voters. The
Governor at the time argued, among other things, that because the
Commonwealth option had failed to garner an absolute majority, that
there was no mandate in favor of it. In 1998 the None of the Above
option won so there was no mandate for a change in status, so the
wishes of the voters, at that time, were respected. Trying to force to
voters to chose among only the options that have less support is hardly
a democratic solution to this problem.
Responses of Governor Anibal Acevedo-Vila to Questions
From Senator Domenici
Question 1. The Task Force Report recommends a first plebiscite for
the people of Puerto Rico ``to state whether they wish to remain a U.S.
territory subject to the will of Congress or to pursue a
constitutionally viable path toward a permanent non-territorial status
with the U.S.'' It seems appropriate that Congress should gauge the
views of the people of Puerto Rico from time-to-time, but phrasing is
important. Would you support a plebiscite that asked: Do you wish to
continue the current relationship with the United States, Yes or No?
Answer. No. As stated in my testimony, I support a Constitutional
Convention as the best process through which to address the issue of
Puerto Rico's political status in a fair, democratic and inclusive
manner. That is why I support the ``Puerto Rico Self-Determination
Act'', (S. 2304 / H.R. 4963) bipartisan legislation in both the House
and Senate that represents a commitment by Congress to respond to the
proposal advanced by the Constitutional Convention.
One of the many criticisms of, and objections to, the task force
report, is its narrow, biased and demeaning definition of
``Commonwealth'' status. This has been explained in full in my
testimony, as well as in testimony and commentary by several others.
Therefore, any bill based on the task force report's definition of
``Commonwealth''--such as the ``Puerto Rico Democracy Act'' (S. 2661 /
H.R. 4867)--is flawed and slanted from the start. The clear intention
of the sponsors of that bill is to artificially move Puerto Rico closer
to becoming the 51st State of the Union by eliminating the only status
option Puerto Ricans have favored since its establishment in 1952:
Commonwealth.
If the Committee is interested in having Congress ``gauge the views
of the people of Puerto Rico from time-to-time'' my sense is that a
``gauge'' can be accomplished without the formality and expense of a
third plebiscite in twelve years. If the Committee believes that in
order for Congress to take any action regarding the Commonwealth's
future, a plebiscite must be held to certify to Congress the wishes of
the people of Puerto Rico, then it is essential that the plebiscite be
structured in a manner that is unbiased and gives no side any
particular advantage.
A biased plebiscite will provide skewed results that will mislead
Congress to making decisions based on faulty and prejudiced
information. I do not believe that such a plebiscite is in the
interests of Puerto Rico, the United States Congress or either the
Democratic or Republican parties. I believe a plebiscite that asked:
``Do you wish to continue the current relationship with the United
States, Yes or No?'' suffers from the same flaws of the task force
report recommendations. It stacks the deck on one side of the ballot by
having supporters of Statehood, Independence, and any other variations
of possible status options, against ``continuing the current
relationship with the United States.'' That process would inevitably
tip the scales against Commonwealth in order to knock that option out
in that first vote. If there is only one vote authorized in the
legislation, as in the Martinez bill (S. 2661), and the adversaries of
the ``current relationship'' win a majority, Puerto Rico would be
thrown into an uncertain state without any direction. If there is a
second vote, as in the Fortuno bill in the House (H.R. 4867), Puerto
Rico would then be on a fast track to statehood with a statehood v.
independence runoff, where almost half the voters would not feel that
they have an acceptable option. This approach is part of the agenda of
statehood proponents who want to create an artificial majority for
statehood. That makes no sense in the democratic tradition of the
United States.
In short, such a plebiscite would constitute an antidemocratic
exercise with a predetermined outcome. I cannot, of course, support it.
Question 2. The Task Force Report has identified the ``free
association'' relationship that the U.S. has with three Pacific Island
Nations as a model for a possible third, permanent, non-territorial
status option available to Puerto Rico. How much consideration has been
given in Puerto Rico to the ``free association'' relationship the U.S.
has entered into with these Pacific nations, and do you believe it is a
model worth further exploration between the U.S. and Puerto Rico?
Answer. The Popular Democratic Party, which I preside, supports the
Commonwealth status which has served so well both Puerto Rico and the
United States. The U.S. Supreme Court and the U.N. General Assembly
have upheld the validity and legitimacy of this relationship and have
recognized its unique and dynamic nature. And the people of Puerto Rico
continue to favor this association.
At the same time, we support enhancing or developing our
relationship with the United States and we have an open mind and are
flexible in considering different paths through which to enhance our
status.
With regard to ``free association'', I refer you to the legal study
prepared by W. Michael Reisman, Professor of International Law at Yale
Law School, which I submitted along with my testimony. Professor
Reisman is one of the most respected scholars on international law and
international relations.
Professor Reisman explains in his memo that, ``Free association, as
an international legal concept, subsumes a range of possible
relationships between the associate and the principal--from the
commonwealth arrangements that characterize Puerto Rico and the CNMI to
the explicit compacts of free association establishing the RMI, the
FSM, and Palau (collectively the FAS).'' (page 68) He concludes that,
``as a matter of international law, since 1952, Puerto Rico has
ostensibly existed as a state freely associated with the United States
of America.'' (page 101)
Professor Reisman accurately identifies and discusses the wide
spectrum of existing ``free association'' arrangements.
By contrast, the task force report's treatment and discussion of
``free association'' as a status option is not only legally dubious and
unnecessarily inflexible, but effectively shuts the door for the people
of Puerto Rico to seriously consider that status model as defined by
the task force. This conclusory remark in page 9 of the task force
report should suffice: ``[I]t would need to be made clear to the people
of Puerto Rico that freely associated status is a form of independence
from the United States and cannot (absent an amendment of the U.S.
Constitution) be made immune from the possibility of unilateral
termination by the United States.''
The task force report goes on to say that if Puerto Ricans chose
independence--or its model of ``free association''--they would ``cease
to be citizens of the United States''. Such a statement is not only
constitutionally and legally dubious, but in essence precludes the
great majority of Puerto Ricans, who cherish their U.S. citizenship,
from giving serious consideration to a ``free association'' model as
defined in the task force report, entailing independence, with possible
unilateral termination by the U.S., and with no U.S. citizenship.
______
Responses of Hon. Luis G. Fortuno to Questions From Senator Domenici
Question 1. The Task Force Report recommends a first plebiscite for
the people of Puerto Rico ``to State whether they wish to remain a U.S.
territory subject to the will of Congress or to pursue a
constitutionally viable path toward a permanent non-territorial status
with the U.S.'' It seems appropriate that Congress should gauge the
views of the people of Puerto Rico from time-to-time, but phrasing is
important. Would you support a plebiscite that asked: Do you wish to
continue the current relationship with the United. States, Yes or No?
Answer. The reason that the people represent to the federal
government have not chosen a democratic form of government at the
national government level--even though the vast majority want such a
status--is confusion about the current status propagated by the faction
of the ``commonwealth'' party that controls the governorship. As Gov.
Acevedo told you his verbal testimony and written submissions, it
claims that federal laws concerning Puerto Rico cannot be changed
without the Commonwealth's consent, Puerto Rico is not subject to
Congress' Territory Clause authority, and Puerto Rico is a freely
associated state. Indeed, the literal translation. of the name of the
territorial government is the ``Free Associated State of Puerto Rico.''
As Gov. Acevedo's submissions to you make clear, he also misrepresented
the positions of the Congress, the courts, and the Executive branch
regarding Puerto Rico's status.
The central point of the executive order establishing the
President's Task Force on Puerto Rico's Status issued by President
Clinton and continued by'President Bush is that the true status options
need to be clarified. That has also been the point of Puerto Rican
petitions for congressional action to enable the issue to be resolved
and the Task Force report. Asking whether Puerto Ricans want to
``continue the current relationship'' would not clarify the options and
would not result in an adequately informed vote.
The question proposed by the Task Force can be stated a little less
starkly and perfected, however. The bill that I introduced with
Representative Jose Serrano and 108 other Members of the House would,
for example, ask whether Puerto Rico should ``continue the existing
form of territorial status as defined by the Constitution, basic laws,
and policies of the United States'' or ``pursue a path toward a
constitutionally-viable, permanent, non-territorial status.''
While the Task Force report language recommending a vote on
continuation of the current status is not necessarily actual ballot
language, the report language does correctly conclude that any ballot
language should make it clear that the current status is that of a
territory as defined by federal statutes approved by
Congress in the exercise of its territorial powers, as interpreted
by the federal courts. Since even some lower federal court opinions
have been taken out of context to confuse status definitions, Congress
needs to take cognizance of U.S. Supreme Court ruling, applicable
provisions of the U.S. Constitution. and federal statutory law or
policy, and on that basis sponsor a vote based on the most accurate and
fair definition of the current status.
A vote on ``the current relationship'' invites subjective
interpretation that is already well-know in Puerto Rico and Congress to
be unrealistic.
It is imperative that Congress invite voters to express their
wishes regarding continuation of the current. status based on what it
is under federal law, as opposed to what some in Puerto Rico may wish
that is was in real life. Telling the truth about territory status and
the sovereignty of Congress is not prejudicial to any legitimate
interest, and is not unfair to anyone who wants informed self-
determination to take place.
Question 2. The Task Force Report has identified the ``free
association'' relationship that the U.S. has with three Pacific Island
Nations as a model for a possible third, non-territorial status option
available to Puerto Rico. How much consideration has been given in
Puerto Rico to the ``free association'' relationship the U.S. has
entered into with these Pacific nations, and do you believe it is a
model worth further exploration between the U.S. and Puerto Rico?
Answer. There has been a lot of consideration of true free
association by some people--a growing faction within the
``commonwealth'' party--but not by a lot of people. There has certainly
been less consideration than there should be for a status that is
recognized as:
<bullet> One of three decolonizing options for a non-self-governing
territory by the United Nations, with the support of the United
States, as well as by international law generally;
<bullet> A valid option by President Clinton and the House and 15
senators in 1998; and
<bullet> In the case of President Bush's Task Force and Clinton
Administration, as the option closest to Gov. Acevedo's
proposal for the ``Development of the Commonwealth.''
The reasons for the lack of adequate consideration are that:
<bullet> The faction of the ``commonwealth'' party that controls the
governorship will insist on the ``Development of the
Commonwealth'' proposal instead of free association as long as
Congress does not join the Executive branch in clarifying that
Gov. Acevedo's proposal is impossible;
<bullet> Gov. Acevedo claims that Puerto Rico is already in free
association with the United States, as he told you; and
<bullet> The literal translation of the name of the territorial
government is the ``Free Associated State''.
Real free association is based on separate sovereignty, nationality
and citizenship, and under that status model by international agreement
the U.S. and Puerto Rico could enter into a compact that would preserve
close and beneficial economic, political and social relationships. For
example, many current federal programs and services could be continued
as agreed by Congress.
Unfortunately, the true nature of real free association compared to
other options has never been fully explored because the Governor's
party continues to espouse an unrealistic doctrine that
``commonwealth'' in effect is free association by federal statute.
Additionally, the Governor's party proposes a constitutionally-
impossible compact of association in which a ``mutual consent'' power
for both the U.S. and Puerto Rico would mean that ``commonwealth'' is a
non-territorial and non-colonial status.
The truth is that under international law and U.S. recognized
criteria for free association, each party must be free to end the
association in favor of the right to full independence. Thus, a compact
of association that can only be ended with mutual consent gives each
party a power to deny independence to the other, and this a essentially
a territorial and colonial status that is free association in name
only.
Response of Hon. Luis G. Fortuno to Question From Senator Craig
Question 1. The Task Force recommended that Congress at this time
provide for a plebiscite in which Puerto Ricans would decide whether
they want to continue the current status or seek a non-territory
status. Senators Martinez, Salazar, and 13 others have sponsored a bill
for the plebiscite. The Task Force outlined steps it recommended be
taken depending upon the results of the plebiscite. You, Representative
Serrano, and 108 other House Members introduced a bill that would
implement all of the Task Force's recommendations, including the
alternative actions recommended depending upon the results of the
plebiscite.
Why not just implement the Task Force's recommendation for the
congressional action to take now?
Answer. The bill that introduced with Representative Serrano and
108 other Members of the House includes the steps recommended by the
President's Task Force report. We believe the process recommended in
the report is sound and should be provided for by Congress.
To understand the need for the steps recommended by the Task Force,
it is important to understand that, during 108 years of American
governance, the residents of Puerto Rico have never chosen among the
options for the territory's status. The 1952 vote to ratify the local
constitution was not a vote on the status question and did not involve
status options. It also did not change the fundamental status of the
territory.
In a 1967 locally-sponsored status vote, a majority favored a
``commonwealth'' proposal that would have given Puerto Rico some
national. government powers, but the proposal was rejected in Congress.
In local votes on status in 1993 and 1998, no status option received a
majority vote. In the 1993 vote, a plurality voted for a
``commonwealth'' proposal that consisted of economic benefits and other
provisions that also was not accepted by the Congress or the President.
In 1998, statehood received more votes that any other status option,
but a line on the ballot to vote for none of the actual status options
received half the vote. This half was cast: in favor of another
``commonwealth'' proposal for national government powers and greater
economic benefits that successive federal administrations have
rejected; by supporters of independence and free association; and by
individuals unhappy with the governor at the time. Less than .1% voted
for the current status, which was defined in language consistent with
federal law, including the U.S. Constitution and federal law as
interpreted by the U.S. Supreme Court.
Despite this record, Governor Acevedo claims that ``Puerto Ricans
have always supported `commonwealth.' '' By this, however, he does not
mean the current territory status. Instead, he means a non-territory
status that the federal government does not recognize as possible.
In this historical context, it is not clear to most voters in
Puerto Rico what a vote for ``commonwealth'' really means. Does it mean
a vote for the current territory status? Does it mean a vote for the
status quo but not as a territory? Does it mean a vote for Gov.
Acevedo's ``commonwealth'' proposal for national government powers and
greater federal economic benefits?
Statehood, independence, and free association are non-territory
status options recognized under U.S. and international law, The federal
government has rejected as legally and politically unrealistic over 15
formal proposals by Gov. Acevedo and his political predecessors for a
non-territory ``commonwealth.''
The three steps recommended by the Task Force are intended to
clarify the wishes of the people through self-determination based on
real options rather than Gov. Acevedo's misinterpretation of the
current status and impossible ``commonwealth'' proposal,
The first step is to conduct a federally-sanctioned vote on whether
the voters want the current status to continue or to seek one of the
non-territory status options.
It would be provided for both by the rouse bill sponsored with Rep.
Serrano and 108 other House Members and by that the bill sponsored by
Senators Martinez and Salazar and 13 other senators.
Under both bills, the process would not continue further unless a
majority vote to seek a new status. Under the Martinez-Salazar bill,
the next steps and the status options would be determined at that time.
Under the Fortuno-Serrano bill, the next steps and options would be as
proposed by the President's Task Force except that it would be clear
that free association between Puerto Rico and the United States would
be a nationhood option for the territory in addition to independence.
Response of Hon. Luis G. Fortuno to Question From Senator Martinez
Question 1. The Task Force identified Puerto Rico becoming a nation
in a free association with the U.S. as a possible status option, saying
that the decision of whether it should be an actual options be made by
the Congress and the President. The last Administration and bills
passed by the House and sponsored by a number of senators from both
parties included free association as an option. A faction of the
``commonwealth'' party advocates free association.
Do you, favor the inclusion of face association as an option?
Answer. Yes. Free Association is one of the three non-colonial
options for a territory in U.S. and international law. It is supported
by a growing thoughtful faction of Puerto Rico's ``commonwealth''
party. It is the real status option closest in nature to Gov. Acevedo's
impossible status proposal.
Full consideration of the option has been squelched by Gov.
Acevedo's control of his party's organization and because of the
confusion. that has emanated from his claim that Puerto Rico is already
freely associated with the United States--as he asserted in his initial
statement in the hearing.
Free association is non-colonial because it preserves the right of
each party to independence. The U.S. precedents for it also involve
separate nationality and citizenship as well as separate national
sovereignty, although in the case of Puerto Rico this would presumably
require a choice between U.S. and Puerto Rican nationality and
citizenship for individuals born before free association and Puerto
Rican nationality and citizenship for persons born after free
association.
As explained to the Committee by the Clinton Administration, free
association between Puerto Rico and the U.S. would also presumably
include close economic, political and social relations in a non-
territory context, including continuation of many federal programs and
services normally provided only in domestic areas of the United States.
Response of Hon. Luis G. Fortuno to Question From Senator Landrieu
Question 1. The Governor has proposed that we support Puerto Rico
holding a convention to choose among options of statehood,
independence, and a development of what he calls the current
``association''--which is unincorporated territory status--that he
hopes would be his ``Development of the Commonwealth'' proposal.
Senator Berrios has supported the Task Force recommendation for a
plebiscite between the current territory status and seeking a non-
territory status but says that the choice among non-territory options
should be made in a convention.
Why are you opposed to the Governor's proposal? What do you think
of Mr. Berrios proposal?
Answer.
First with respect to Governor Acevedo's proposal for federal
authorization for a local convention to choose among statehood,
independence, and a new or amended form of what he misleadingly
calls the current ``association'' between the U.S. and Puerto
Rico
In 1989, the then governor, as president of the ``commonwealth''
party, was joined by the presidents of the other two major political
parties, the parties favoring statehood and independence, in seeking
federal action to enable the people of Puerto Rico to choose the
territory's ``ultimate status.'' In 1994 and again in 1997, the
legislative Assembly of Puerto Rico formally petitioned Congress to
either implement the proposal. of the current Governor's party for a
``commonwealth'' that is not a territory, that is immune from federal
law, and with greater economic concessions from the U.S., or to define
the status options it was willing to consider, and, then, sponsor a
status vote on the options.
As U.S. Senate Res. 279 of September 17, 1998 reminds us, status
resolution for Puerto Rico will require changes to federal law and
policy, and only Congress has the power to define the options for an
ultimate future status.
The fundamental problem with the Governor's proposal is that it
would invite Puerto Rico to choose a status proposal that is
incompatible with the Constitution and basic laws and policies of the
United States and, thus, is not a status option.
This proposal calls for the U.S. to be permanently bound to the
terms of a Covenant with a nation of Puerto Rico that could nullify
federal laws and court jurisdiction and enter into international
agreements and organizations that States cannot while the U.S. grants
an additional subsidy to Puerto Rico and new incentives for investment
from the States and continues to grant all current assistance to Puerto
Ricans, totally free access to any goods shipped from Puerto Rico, and
citizenship.
The convention process is a tactic for delay of progress and. for
avoidance of accountability for the merits of Gov. Acevedo's status
proposal. At best it would be an unproductive and wasteful bureaucratic
duplication of the functions of the Legislative Assembly, which is
duly-constituted to represent the residents of Puerto Rico with respect
to federal affairs. More likely, it would raise expectations on the
part of the people of Puerto Rico that cannot be fulfilled for the
federal government to authorize the convention to choose a new or
amended form of what Gov. Acevedo calls the current ``association''
when it is aware of what he proposes that new arrangement be.
Gov. Acevedo's convention proposal would also permit the convention
to choose a status that did not represent the will of a majority of
Puerto Rico's electorate--through a coalition or `back-room' deal
between delegates representing minority factions--and it would not give
the voters a chance to consider that choice until after it is approved
by the federal government. In fact, the formation of a coalition
between supporters of Gov. Acevedo's ``Development of the
Commonwealth'' proposal, advocates of free association, and advocates
of independence in the convention is a goal of the proposal already
stated by some of Gov. Acevedo's associates. Advocates of independence
and free association would probably support Gov. Acevedo's
``commonwealth' proposal in the convention to defeat the more popular
option of statehood and recognizing that the ``commonwealth'' proposal
would later be rejected by the federal government.
Gov. Acevedo's convention proposal is also flawed in other ways.
First, the legislation purports to convey congressional recognition of
an inherent right of the people of Puerto Rico to convene a
constitutional convention on their political status. What does this
really mean? The answer is that the bill was drafted to seek federal
approval of a convention that is convened and operates in a manner less
democratic than the constitutional convention procedure in the
Constitution of the Commonwealth of Puerto Rico. Article VII, Section 2
of the constitution provides the procedure, and it requires a majority
vote in a general election.
Additionally, Article VII, Section 3 of the constitution requires
that any amendment be consistent with federal law. Another purpose of
Gov. Acevedo's legislation is to circumvent this provision, which
followed the federal law authorizing the constitution. The law provided
the extent of the authority delegated to the territory with the
constitution.
Since the 1989 petition of the three local party presidents,
Congress has invested significant time and effort into devising a
process and a mechanism for status resolution based on self-
determination between options Congress can accept if approved locally.
To adopt Gov. Acevedo's proposal would be to move backward, not go
forward.
It is ironic that Gov. Acevedo claims the local constitution is
part of a compact that cannot be unilaterally amended by Congress, and,
at the same time, asks in the proposal for a unilateral amendment for a
status convention.
Congress should keep its eye on the ball and continue to focus on
what federal measures are required to ensure the U.S. citizens of
Puerto Rico are able to exercise informed self-determination. This
means self-determination that is informed by Congress as to legally-
valid options,
That is what the Task Force report recommends, and Congress should
carry out the recommendations of the report or in some other way act to
ensure that disenfranchisement of U.S. citizens in Puerto Rico does not
continue because Congress neglected its responsibilities under the
Territory Clause of the U.S. Constitution.
Second, regarding Senator Berrios' convention proposal
The Independence Party's proposal is different from--and superior
to--Gov. Acevedo's. Unlike Gov. Acevedo's proposal, it also is not
incompatible with the Puerto Rico Democracy Act sponsored by Senators
Martinez and Salazar and 13 other senators of the I Nth Congress.
The critical difference between the proposals is that the
Independence Party's proposal would limit its convention to choosing
among the three statuses recognized by the Government of the United
States and international law as legitimate--statehood and nationhood in
free association with the U.S. as well as independence--and Gov.
Acevedo's is intended to choose the `developed Commonwealth'
arrangement that I explained earlier, which has been rejected as
impossible by the Bush Task Force as well as the Clinton Administration
and every Member of Congress who has commented on it.
The Independence Party's proposal is, however, flawed in terms of
democracy. A convention could choose a status not favored by a majority
of the people through a coalition of convenience between advocates of
statuses that have minority support. Puerto Rico's status choice--the
territory's proposal to the United States--should be chosen by the
people of Puerto Rico, not a limited group of representatives of the
people, so that it is clear that the choice reflects the will of the
majority of the people who would live under the status.
______
Responses of Ruben Berrios Martinez to Questions From Senator Domenici
Question 1. The Task Force recommends a first plebiscite for the
people of Puerto Rico ``to state whether they wish to remain a U.S.
territory subject to the will of Congress or to pursue a
constitutionally viable path toward a permanent non-territorial status
with the U.S.'' It seems appropriate that Congress should gauge the
views of the people of Puerto Rico from time-to-time, but phrasing is
important. Would you support a plebiscite that asked: Do you wish to
continue the present relationship with the United State, Yes or No?
Answer. No. Since the nature of the present relationship is what is
precisely at issue, the question should be as unambiguous as possible.
The Popular Democratic Party in Puerto Rico favors the existing
arrangement, but argues that it is non-colonial and non-territorial. We
in the Puerto Rican Independence Party have argued for decades that the
present relationship is both colonial and territorial. The statehood
party does, too. In fact, the present relationship has been presented
to the voters in recent times as ``the best of both worlds'' by those
who favor its continuation, while at the same time denying its
territorial nature under the U.S. constitution.
The phrasing referring to ``a constitutionally viable path toward a
permanent non-territorial status'' is ambiguous as well, and can be
misleading. There are those who would. argue that an ``incorporated
territory''--one that has been promised statehood--is
``constitutionally viable'' toward such a permanent status, or that the
current ``unincorporated territory'' could be a ``constitutionally
viable path'' toward something else.
I agree with you, therefore, that phrasing is important. The
question should leave no room for doubt. A clearer phrasing would be:
``Do you wish to remain as a U.S. territory subject to the plenary
powers of the U.S. Congress, Yes or No?'' An unlikely ``Yes'' would, as
you correctly point out, cause periodic referenda to gauge the views of
the people of Puerto Rico. The most likely ``No'' vote would, on the
other hand, leave no room for doubt as to the majority's desire for
change in Puerto Rico.
Question 2. The Task Force Report identified the ``free
association'' relationship that the U.S. has with three Pacific Island
rations as a model for a third, permanent, non-territorial status
option available to Puerto Rico. How much consideration. has been given
in Puerto Rico to the ``free association'' relationship the U.S. has
entered into with these Pacific nations, and do you believe it is a
model worth further exploration between the U.S. and Puerto Rico.
Answer. First off, let me point out that a non-colonial free
association arrangement recognized by international law is, by
definition, not a permanent status. Under free association, either
party may opt out at will. Since no political party in Puerto Rico
proposes free association, its exposure in political debate has had
limited impact. The option of full sovereignty or independence and the
treaty-making power of the United States under its constitution. can
provide for Puerto Rico and the U.S. to enter into flexible
arrangements under Treaties of Friendship, Commerce, and Co-operation--
common in international relations under international law. In other
words, there is nothing that could be achieved, politically and
economically, under a free association arrangement that independence
could not achieve more easily and more flexibly.
Finally, the free association arrangements with the Micronesian
nations have a very different context. These are sparsely populated,
culturally and linguistically diverse islands spread over a vast area
in the northern Pacific Ocean. Puerto Rico is a distinct, culturally
cohesive, Spanish-speaking, Latin American nation of the Caribbean
region, with four million inhabitants and an economically productive
capacity which its lack of sovereignty has severely curtailed.*
---------------------------------------------------------------------------
* In today's global economy, several other Latin American nations--
Antigua, Argentina, Barbados, Bahamas, Chile, Costa Rica, Saint Kitts-
Nevis, and Trinidad--and several nations elsewhere--Ireland, Malta,
Singapore, among others--have higher per capita GNPs than Puerto Rico.
Furthermore, between 1996 and 2003, ten Latin American nations--
including Barbados, Bahamas, Costa Rica, and the Dominican Republic in
the Caribbean region--have had a higher per capita GNP growth rate than
Puerto Rico. Puerto Rico remains stagnant. See, 2005 WORLD DEVELOPMENT
INDICATORS (World Bank) ALMANAC 2005; ECONOMIC REPORT TO TIDE GOVERNOR
(Puerto Rico, 2003). More details would be provided upon request. (Data
compiled by MP Secretariat for Economic Affairs.)
---------------------------------------------------------------------------
Question 3. Your proposal to resolve the status question is first
to have a plebiscite on whether to continue territorial status. Second,
assuming that vote is for non-territorial status, you recommend a
constitutional convention to decide among internationally accepted
alternatives. Would you please elaborate? What do you believe those
alternatives to be (Independence, Statehood, Free Association)? How
would the people of Puerto Rico decide among these options in such a
convention process?
Answer. The people of Puerto Rico proportionally would elect
delegates representing non-colonial, non-territorial options to a
Constituent Assembly. These delegates would formulate a majority
proposal for a non-territorial, non-colonial option, subject to
negotiation with the U.S. The negotiated proposal would then be brought
for ratification by the Constituent Assembly and, subsequently, by the
people of Puerto Rico. Under International Law, the three non-colonial
options you mention are possible, so long as the inalienable right of
the Puerto Rican people to independence is clearly recognized under any
status, including annexation.
Response of Ruben Berrios Martinez to Question From Senator Martinez
Question 1. Mr. Berrios, I read your comments in El Nuevo Dia that
refer to the recommendations you would be making before this committee
today. It has been suggested that your recommendations are consistent
with the Task Force recommendations. In your view, would you agree that
the process presented in S. 2661 is impartial?
Answer. Although each of us is likely to have written it
differently, S. 2661 certainly appears impartial in seeking to
establish a fair process in harmony with the White House Task Force
recommendations. Moreover, far from creating an ``artificial'' majority
for anything, as has been argued by those who support inaction and the
current commonwealth arrangement created under federal Public Law 600
(1950), the bill would make it possible for the initial and crucial
decision in favor or against continued territorial status to be made by
a clear majority. To characterize this as ``artificial'' would be to
affirm that Congress remains indifferent as between colonial and non-
colonial alternatives.
I take this opportunity to suggest that the question posed by S.
2661 be rephrased, as I have responded to Senator Domenici's additional
question for the record. The response to a clearer question along the
lines of, ``Do you want to continue as a territory under the plenary
powers of the U.S. Congress, Yes or No?'' would leave no room for
ambiguous speculation. The duty of Congress is to decolonize--in U.S.
constitutional terms, to dispose of the territory. S. 2661, in keeping
with the White House Task Force recommendations, aims at fairness to
the extreme that it even allows for the current territorial arrangement
to remain--albeit subject to periodic assessments--in the unthinkable
alternative of a majority wishing to remain as a colony.
The second phase recommended by the White House Task Force
therefore depends on the outcome of the vote that S. 2661 would
provide. As I responded to Senator Craig's additional question for the
record, the time will come for fine-tuning acceptable status options
for both Puerto Rico, a Spanish-speaking, Latin American nation of the
Caribbean, and the United States. Since last November's hearing by this
Committee, from an international policy perspective, the United States
faces a call by Latin America and the Caribbean for Puerto Rico's
decolonization and independence. As stated by the unanimously approved
Proclamation of the ideologically diverse Latin American and Caribbean
Congress in Solidarity with Puerto Rico's Independence held in Panama
last November 18-19, ``solidarity and support for the cause of Puerto
Rico's independence [is] an historic and principled claim of our
America. Latin America and the Caribbean will not be truly independent
until all its nations are.'' The Proclamation further states:
[I]t is a matter of launching a hemispheric dialogue on the
subject, in order to agree as soon as possible on a transition
schedule that will--once and for all--solve the problem in a
dignified and efficient manner for all involved. Latin America
can offer its good offices, promote that agreement, and
guarantee compliance and the durability of that schedule.
(See: PROCLAMATION OF THE LATIN AMERICAN AND CARIBBEAN CONGRESS IN
SOLIDARITY WITH PUERTO RICO'S INDEPENDENCE, Panama City, November 19,
2006; and accompanying annex, which I hereby request be made part of
the record).
______
Latin American and Caribbean Congress in Solidarity
with Puerto Rico's Independence
proclamation\1\
---------------------------------------------------------------------------
\1\ Unanimously approved by 33 political parties from 22 nations
attending the Congress.
---------------------------------------------------------------------------
Commemorating 180 years of the Peoples' Associative Congress of
Panama called by the Liberator, Simon Bolivar, to finalize and secure
our America's Independence, the Latin American and Caribbean political
parties gathered in Panama City in support of Puerto Rico's
Independence, and in harmony with the convocation for this event hereby
Resolve:
To reiterate to the World our solidarity and support for the cause
of Puerto Rico's independence, an historic and principled claim of our
America. Latin America and the Caribbean will not be truly independent
until all its nations are.
To create a Permanent Working Committee for Puerto Rico's
Independence\2\ to coordinate and implement this Congress' resolutions.
---------------------------------------------------------------------------
\2\ The Committee was constituted by senator Ricardo Nunez, of
Chile's Socialist Party; the Hon. Raul Alfonsin, former President of
Argentina; the Hon. Ricardo Alarcon, President of the National Assembly
of Cuba; Horacio Serpa, of Colombia's Liberal Party; Rolando Araya,
President of the Socialist International for Latin America; Gustavo
Carvajal, Founding President of the Permanent Conference of Latin
American Political Parties (COPPPAL); senator Hugo Rodriguez Filippi,
of Uruguay's Socialist Party; Ruben Giustiniani, President of the
Socialist Party of Argentina; Tomas Borges, of the Sandinista Front of
National Liberation of Nicaragua; Nils Castro, Secretary for
International Affairs of Panama's Revolutionary Democratic Party (PRD);
Cuauhtemoc Cardenas, of Mexico's Foundation for Democracy, Alternatives
and Debates; senator Antonio Cafiero, of Argenitna' s Justicialista
Party and President of COPPPAL; and Ruben Berrios Martinez and Fernando
Martin, President and Executive President, respectively, of the Puerto
Rican Independence Party. Subsequently, an additional and final member
from Brazil's Workers Party (PT) will be selected by that party and
join the Committee.
---------------------------------------------------------------------------
To establish Solidarity and Support Committees in each of our
nations to educate and create awareness regarding the need to integrate
Puerto Rico, through its full sovereignty and independence, to the
concert of free nations and thereby promote the best relations among
the nations of this Hemisphere.
To offer to both the Puerto Rican nation as well as the Government
of the United States, our cooperation and good offices, including the
role of interlocutors and the tasks to lay the groundwork that may be
necessary at the several levels of the Government of the United States,
leading to a Hemispheric dialogue to resolve Puerto Rico's colonial
problem.
To urge our respective governments that the Latin American and
Caribbean community of nations promotes, as a region, the General
Assembly of the United Nations Organization's urgent re-examination of
the case of Puerto Rico in light of new international and regional
conditions.
To espouse by all possible means the cause of Puerto Rico's
independence.
To support the liberation of Puerto Rican political prisoners, a
claim already made by the most diverse ideological sectors of the
people of Puerto Rico.
To express to the Puerto Rican Independence Party our support,
solidarity, and recognition, upon its 60th anniversary, for its
constant and selfless struggle for Puerto Rico's freedom.*
---------------------------------------------------------------------------
* Translated by the Secretariat for North American Relations of the
Puerto Rican Independence Party.
---------------------------------------------------------------------------
Original in Spanish follows:
proclama de panama\3\
---------------------------------------------------------------------------
\3\ Al conmemorarse 180 anos del Congreso Anfictionico de Panama
convocado por el Libertador Simon Bolivar para completar y garantizar
la independencia de Nuestra America, los partidos politicos de America
Latina y el Caribe reunidos en Ciudad de Panama en el Congreso
Latinoamericano y Caribeflo por la Independencia de Puerto Rico, y en
consonancia con la Convocatoria para el mismo.
---------------------------------------------------------------------------
Resolvemos:
Aprobada por unanimidad por 33 partidos politicos de 22 paises
reunidos en el Congreso.
Reiterar ante el mundo nuestra solidaridad y apoyo a la causa de la
independencia de Puerto Rico, reclamo historico y de principios de
nuestra America. America Latina y el Caribe no seran verdaderamente
independientes hasta que todas sus naciones lo sean.
Crear un Comite Permanente de Trabajo por la Independencia de
Puerto Rico\4\ para coordinar y hacer valer las determinaciones de este
Congreso.
---------------------------------------------------------------------------
\4\ El Comite de Trabajo se constituyo con Ricardo Nunez, Senador
por el Partido Socialista de Chile; Raul Alfonsin, Ex Presidente de
Argentina; Ricardo Alarcon, Presidente de la Asamblea Nacional del
Poder Popular en Cuba; Horacio Serpa, del Partido Liberal Colombiano;
Rolando Araya, Presidente para America Latina de la IS; Gustavo
Carvajal, Presidente Fundador de la COPPPAL; Hugo Rodriguez Filippi,
Senador y delegado por el Partido Socialista de Uruguay; Ruben
Giustiniani, Presidente del Partido Socialista de Argentina; Tomas
Borges, Frente Sandinista de Liberacion Nacional de Nicaragua; Nils
Castro, Secretario de Asuntos Internacionales del PRD de Panama;
Cuauhtemoc Cardenas, Fundacion para la Democracia, Alternativa y
Debate, Mexico; Antonio Cafiero, Presidente de la COPPPAL; Ruben
Berrios Martinez y Fernando Martin por el PIP de Puerto Rico.
Posteriormente un ultimo miembro adicional se integrara al Comite por
parte de Brasil cuando la delegacion de ese pals lo seleccione.
---------------------------------------------------------------------------
Establecer Comites de Apoyo y Solidaridad en calla uno de nuestros
paises para educar y crear conciencia sobre la necesidad de integrar a
Puerto Rico, mediante su plena soberania e independencia, al concierto
de naciones libres y asi promover las mejores relaciones entre las
naciones de este hemisferio.
Ofrecer, tanto a la nacion puertorriquefla como al gobiemo de los
Estados Unidos, las cooperaciones y buenos oficios, incluyendo las
interlocuciones y gestiones necesarias ante las diversas instancias del
gobiemo de los Estados Unidos, que conduzcan al dialogo hemisferico
para la solucion del problema colonial de Puerto Rico.
Instar a nuestros respectivos gobiernos para que la comunidad de
naciones latinoamericana y caribena promueva, como grupo, que la
Asamblea General de la ONU reexamine con premura el caso de Puerto Rico
a la luz de las nuevas condiciones internacionales y regionales.
Difundir por todos los medios posibles la causa de la independencia
de Puerto Rico.
Apoyar la liberacion de los presos politicos puertorriquenos,
reclamo que ya han hecho suyo los mas diversos sectores ideologicos del
pueblo puertorriqueno.
Expresar nuestro apoyo, solidaridad y reconocimiento al Partido
Independentista Puertorriquefio al cumplir 60 anos de su fundacion, por
su lucha sacrificada y consecuente por la libertad de Puerto Rico.
______
Response of Ruben Berrios Martinez to Question From Senator Craig
Question 1. You testified that ``Congress has refused to act'' to
``decolonize Puerto Rico.'' In 2000, a law was enacted providing
funding for a Puerto Rican status choice among options proposed by
Puerto Rico's tri-partisan Elections Commission as agreed to by the
President of the United States, a responsibility delegated to the Task
Force. In addition, serious legislative efforts were made between 1989
and '91 and 1996 and '98 that resulted in House-passed bills and
bipartisan Senate support but were dropped due to lobbying by Puerto
Ricans.
Isn't there really substantial Puerto Rican responsibility as well
for the issue not being resolved?
Answer. Senator Craig, you are correct in pointing out that serious
legislative efforts have been made since the end of the Cold War. I
recall your involvement back in the late 80s and early 90s in this
Committee. And it is true that paid lobbyists of those who oppose
decolonization and change to a non-territorial status--particularly the
commonwealth party leadership--worked to have Congress drop all
efforts. It is also true that in those instances Congress as a whole--
where the power over territories resides--has been ``effectively
lobbied'' into inaction. The responsibility for colonialism, however,
like any other form of subordination, can never be attributed to its
victims.
Responsibility is a function of power. The United States, like any
metro-political power, has the legal responsibility to dispose of its
colonies. This translates in U.S. constitutional terms to the
congressional power to rule and ultimately dispose of territories.
Congress has acted several times with regard to Puerto Rico--
prominently in the Foraker Act of 1900, the Jones Act of 1917, and the
Law of Federal Relations (1950-1952) establishing the commonwealth
arrangement. More than 50 years since the last time, Puerto Rico is
still an unincorporated territory under the plenary powers of the
United States Congress.
Before your Committee is a bill proposed by senators Martinez and
Salazar--a good working document that could break the stalemate and
allow a natural majority to respond to a simple question: Do the people
of Puerto Rico wish to remain a colonial territory, Yes or No?
The time will come for fine-tuning acceptable status options for
both Puerto Rico, a Spanish-speaking, Latin American nation of the
Caribbean, and the United States, faced from an international policy
perspective, with a call for decolonization by Latin America and the
Caribbean. As Panama's President Martin Torrijos phrased it last
November in Panama:
[T]he basic problem is that Puerto Rico is the only Hispanic
American nation that remains under a colonial regime. For Latin
Americans, forever correcting this anomaly must be a matter of
principle and a priority of continental proportions. What
remains is to agree on whatever is necessary to concrete the
Puerto Rican right to constitute an independent republic.
(See: President Torrijos, Keynote Address from THE LATIN AMERICAN
AND CARIBBEAN CONGRESS IN SOLIDARITY WITH PUERTO RICO'S INDEPENDENCE,
Panama City 2006; and accompanying annex, which I hereby request be
added to the record).
But right now, as those who held the plenary powers over Puerto
Rico's decisions, it is the U.S. Government and the Congress that have
the primary responsibility to initiate the process to dispose of the
territory.
______
Latin American and Caribbean Congress in Solidarity
With Puerto Rico's Independence
keynote address by the honorable martin torrijos espino\1\
---------------------------------------------------------------------------
\1\ President of the Republic of Panama and Secretary General of
the Revolutionary Democratic Party (PRD).
---------------------------------------------------------------------------
Dear Latin American and Caribbean friends, cherished Puerto Rican
brothers and sisters:
A warm welcome to you on behalf of the Panamanian people; and,
particularly on behalf of the members of the Revolutionary Democratic
Party, a warm and fraternal welcome.
You arrive at a special moment for Panama: barely three weeks ago,
by an overwhelming majority, our citizens approved the enlargement of
the Canal through a third set of floodgates. And last week, also by a
very wide margin of the General Assembly of the United Nations, Panama
was elected to represent Latin America and the Caribbean, as a member
of the Security Council for the 2007-2008 term.
These are two manifestations of one single destiny: the confluence
of wills to carry great causes forward. Our region becomes more
competitive with a widened canal; and Latin America and the Caribbean
win when they put forward a consensus position before an international
forum.
Indeed. Panama has been constantly mentioned in international
informative media and I trust that again they will look in our
direction, now that the independence of Puerto Rico has been brought to
the table at an extraordinarily representative international conclave.
The full incorporation of Puerto Rico into the family of Latin
American and Caribbean republics has been present in the discourse of
almost all ideological and political tendencies of our America for over
a century.
For 23 years, this has been a recurring issue in the Resolutions of
the Special Committee of the United Nations Organization to eliminate
colonialism. This year, as in the preceding years, the UN resolution on
Puerto Rico was again passed by consensus; that is, without opposition
or reservations of any of the member States--which also means, without
opposition or objections on the part of the United States.
The point is that for a century, our aspirations regarding Puerto
Rico's independence have been part of a moral and cultural indebtedness
dating back to Simon Bolivar and Jose Marti, but which we had not
honored until now. Among other reasons, because this issue, like many
others, became cloaked in Cold War rhetoric.
That rhetoric entangled the Puerto Rican question, over and over,
throughout the past century, and has left it unresolved before us in
the 21st century when no form of colonialism can be justified.
But now the situation is different. The Cold War is behind us and
it need no longer contaminate our evaluation of the present and of the
future. Foreign military bases, one aspect affecting Puerto Rico's
situation much as they affected that of Panama, have disappeared. With
changing times, the Isle of Enchantment lost the geopolitical or
strategic value that was once attributed to it.
In that context, the last Resolution of the UN Special Committee on
Decolonization has again pointed out (and I quote) that, ``the Puerto
Rican people constitute a Latin American and Caribbean nation that
possesses its own unmistakable national identity''. On the basis of
this reality, the said Resolution once more calls on the Government of
the United States to initiate a process directed towards the Puerto
Rican people's recovery of the full enjoyment of its sovereignty.
The U.S. government has been sensitive to this call. Six years ago,
thanks to an initiative by Ruben Berrios\2\ at the White House,
President Clinton created a Task Force, subsequently ratified by
President Bush, on Puerto Rico's Status and its options.
---------------------------------------------------------------------------
\2\ President of the Puerto Rican Independence Party, Founding
Vice-President of the Permanent Conference of Latin American Political
Parties (COPPPAL) and Honorary President of the social democratic
parties of the Socialist International (SI).
---------------------------------------------------------------------------
Last December, the Presidential task force finally reported that
the present Puerto Rican commonwealth status [Estado Libre Asociado] is
of a colonial and transitory nature. Consequently, it established that
as long as that status lingers, the Island remains subject to the
powers of the US Congress that must legislate, in a definitive manner,
to end the current situation.
But this also has other implications. While several forums in the
United States are already discussing the relevance and replacement of
the Puerto Rican regime, Latin America and the Caribbean are still
absent from that debate. As the UN Resolutions clearly underscore,
Puerto Rico is a Latin American and Caribbean nation and therefore we,
the great family of Latin American and Caribbean nations, cannot remain
indifferent to that discussion, nor be absent from it. On the contrary,
it is our obligation to be an active part towards its adequate
solution.
The gathering inaugurated here today is a step in that direction.
Why have the Socialist International, COPPPAL,\3\ and the Puerto
Rican Independence Party preferred to hold this Congress here in
Panama? Precisely because this country is important as an example of
how a controversy of a colonial origin can indeed be resolved through a
negotiated agreement and a schedule or timetable for decolonization.
---------------------------------------------------------------------------
\3\ Spanish acronym for the Permanent Conference of Political
Parties of Latin America.
---------------------------------------------------------------------------
That is the example which the Torrijos-Carter Treaties demonstrated
to the world: how a conflict between a small nation and a world-power
could be resolved through mutual agreement, with the solidarity and
support of the peoples of our sister nations from Latin America and the
Caribbean.
Even if in the present situation definite historical
responsibilities could be assigned, it is no longer a matter of using
the issue of Puerto Rico to strengthen anti-imperialist charges and
allow the basic problem to go unresolved.
And the basic problem is that Puerto Rico is the only Hispanic
American nation that remains under a colonial regime. For Latin
Americans, forever correcting this anomaly must be a matter of
principle and a priority of continental proportions. What remains is to
agree on whatever is necessary to concrete the Puerto Rican right to
constitute an independent republic.
In the 21st century, the Island has become a problem for Puerto
Ricans and North Americans, as much as for Latin America and the
Caribbean. The decline of Puerto Rico's productive economy is a
consequence of that distortion and the elimination of military bases.
But the solution now is not the sudden proclamation of an
independent republic without duly assured sustenance or guarantees for
the welfare of its people.
Rather it is a matter of launching a hemispheric dialogue on the
subject, in order to agree as soon as possible on a transition schedule
that will--once and for all--solve the problem in a dignified and
efficient manner for all involved. Latin America can offer its good
offices, promote that agreement, and guarantee compliance and the
durability of that schedule.
Dear friends:
These are barely sketched ideas and it is up to you to complete the
picture and delve more deeply into the subject, and make concrete
proposals for the matter at hand. We must leave the Wailing Wall
behind. Our motto must be to contribute realistic proposals to solve
the root problem and to commit our permanent solidarity to that effort.
Thank you for coming to Panama to make that hope real. I hope you
enjoy happy and fruitful days in Panama.
Thank you.*
---------------------------------------------------------------------------
* Translated by the Secretariat for North American Relations of the
Puerto Rican Independence Party
---------------------------------------------------------------------------
Original in Spanish follows:
Congreso Latino-americano Y Cabeo en Solidaridad Por la Independencia
de Puerto Rico
discurso de apertura del honorable martin torrijos espino\1\
---------------------------------------------------------------------------
\1\ Presidente de la Republica de Panama y Secretario General del
Partido Revolucionario Democratico (PRD).
---------------------------------------------------------------------------
Queridas amigas y amigos latinoamericanos y caribeflos, Apreciadas
hermanas y hermanos puertorriquenos:
Reciban, en nombre del pueblo panameflo una calida bienvenida, y en
particular de los militantes del Partido Revolucionario Democratico,
una calida y fraternal bienvenida.
Llegan en un momento especial para Panama: hace apenas tres semanas
se aprobo, por abrumadora mayoria ciudadana, la ampliacion del Canal
mediante un tercer juego de esclusas. Y la semana pasada, tambien por
una amplisima mayoria de la Asamblea General de las Naciones Unidas,
Panama fue elegida en representacion de America Latina y el Caribe,
como miembro del Consejo de Seguridad para el periodo 2007-2008.
Son dos expresiones de un mismo destino: el concurso de voluntaries
para llevar adelante grandes causas. La region se vuelve mas
competitiva con un canal ampliado, y America Latina y el Caribe ganan
cuando pueden presentar ante un foro mundial una posicion consensuada.
Si. Panama ha tenido una mencion constante en los medios
informativos intemacionales y confio en que otra vez volveran la mirada
hacia aqui, ahora que se trae al tapete, en un conclave internacional
de extraordinaria representatividad, la independencia de Puerto Rico.
La plena incorporacion de Puerto Rico a la familia de las
republicas latinoamericanas y caribenas, tiene mas de un siglo de estar
presente en el discurso de casi todas las tendencias ideologicas y
politicas de nuestra America.
Hace ya 23 anos que este asunto se reitera en las resoluciones del
Comite Especial de la Organizacion de las Naciones Unidas para eliminar
el colonialismo. En el presente ano, tal como en los anteriores, la
resolucion de la ONU sobre el caso de Puerto Rico volvio a adoptarse
por consenso, es decir, sin oposicion ni reservas de ninguno de los
Estados miembros, lo que tambien significa que sin oposicion ni
objeciones norteamericanas.
El punto es que por un siglo nuestras aspiraciones sobre la
independencia de Puerto Rico han sido parte de una deuda moral y
cultural que se remonta a Simon Bolivar y Jose Marti, pero que hasta
ahora no hemos sabido honrar. Entre otras cosas, porque este tema, como
muchos otros, quedo envuelto en la retorica de la Guerra Fria.
Esa retorica enmarano, una y otra vez, durante el siglo pasado la
cuestion puertorriquena, y nos la envio sin resolver al siglo XXI,
cuando ninguna forma de colonialismo puede justificarse.
Pero ahora la situacion es otra. La Guerra Fria quedo atras y ya no
tiene por que contaminar nuestra evaluacion del presente y el futuro.
Desaparecieron las bases militares extranjeras, uno de los aspectos que
afectaban la situacion de Puerto Rico asi como en su tiempo afectaron
la de Panama. Con el cambio de los tiempos, la Isla del Encanto perdio
el interes geopolitico o estrategico que antes se le atribuyo.
En ese contexto, la ultima resolucion del Comite Especial de
descolonizacion de la ONU ha vuelto a sefralar que (cito), ``el pueblo
puertorriqueno constituye una nacion latinoamericana y caribena que
tiene su propia e inconfundible identidad nacional''. Con base en esta
verdad, una vez mas dicha resolucion llama al gobierno de los Estados
Unidos a emprender un proceso dirigido a que el pueblo puertorriqueno
recuperar el pleno disfrute de su soberania.
El gobierno norteamericano ha silo sensible a ese llamado. Hace
seis afros, gracias a una gestion personal de Ruben Berrios\2\ ante la
Casa Blanca, el Presidente Clinton creo un Grupo de Trabajo sobre el
estatus de Puerto Rico y sus opciones, que posteriormente fue
ratificada por el Presidente Bush.
---------------------------------------------------------------------------
\2\ Presidente del Partido Independentista Puertorriqueno,
Vicepresidente Fundador de la Conferencia de Partidos Politicos de
America Latina (COPPPAL) y Presidente Honorario de los partidos
socialdemocratas de la Internacional Socialista (IS).
---------------------------------------------------------------------------
En diciembre pasado, dicho Grupo presidencial dictamino,
finalmente, que el actual estatus puertorriqueno de Estado Libre
Asociado es de naturaleza colonial y transitoria. Por consiguiente,
establecio que mientras ese estatus persista la Isla debe quedar sujeta
a los poderes del Congreso norteamericano, el cual debera legislar para
poner fin, de manera definitive, a esta situacion.
Pero eso tiene otras implicaciones. Mientras que varias instancias
norteamericanas ya discuten la pertinencia y el reemplazo del regimen
puertorriquefro, America Latina y el Caribe todavia estan ausentes del
debate. Como bien to recalcan las resoluciones de la ONU, Puerto Rico
es una nacion latinoamericana y caribena y, en consecuencia, nosotros,
la gran familia de las naciones latinoamericanas y caribenas, no
podemos ser indiferentes a esa discusion ni estar ausentes de ella. Por
lo contrario, nos corresponde ser parte activa de su adecuada solucion.
El encuentro que hoy se inaugura en un paso en esa direccion.
Por que la Internacional Socialista, la COPPPAL y el Partido
Independentista Puertorriqueno han preferido celebrar este Congreso
aqui en Panama? Precisamente porque este pals es un importante ejemplo
de como una controversia de origen colonial si puede resolverse a
traves de una concertacion pactada y de un programa o calendario de
descolonizacion.
Ese ejemplo se lo dieron al mundo los Tratados Torrijos-Carter, a
traves de los cuales un conflicto entre una nacion pequena y una gran
potencia se pudo resolver de comun acuerdo, con el respaldo solidario
de los hermanos pueblos de America Latina y el Caribe.
Aunque la actual situacion haya tenido determinados responsables
historicos, ya no se trata de usar el tema de Puerto Rico para redoblar
denuncias antiimperialistas sin resolver el problema de fondo.
Y el problema de fondo es que Puerto Rico es la unica nacion
hispanoamericana que permanece bajo regimen colonial. Para los
latinoamericanos, corregir para siempre esta anomalia debe ser una
cuestion de principios y una prioridad continental. Lo que toca es
acordar lo necesario para materializar el derecho puertorriqueno de
constituir una republica independiente.
En el siglo XXI, el estatus de la Isla se ha vuelto un problema,
tanto para los borinquenos y los norteamericanos, como para America
Latina y el Caribe. El declive del la economia productiva de Puerto
Rico es consecuencia de esa distorsion y de la eliminacion de las bases
militares.
Pero la solucion no es plantear ahora la repentina proclamacion de
una republica independiente que no tenga debidamente asegurada su
sustentabilidad, ni garantice el bienestar de su pueblo.
Antes bien, de lo que se trata es impulsar un dialogo hemisferico
sobre este tema, a fin de concertar cuanto antes un programa de
transicion que ??de una vez por todas?? solucione ese problema de
manera igualmente digna y eficiente para todos los involucrados.
America Latina puede ofrecer sus buenos oficios, alentar ese acuerdo y
ser garante del cumplimiento y la sostenibilidad de ese programa.
Queridas amigas y amigos:
Estas son apenas unas ideas en borrador y es a ustedes a quien les
toca completar y profundizar en el tema, y construir las propuestas del
caso. Hay que dejar atras el muro de las lamentaciones. La consigna
debe ser aportar propuestas realistas para resolver el problema de
fondo, y comprometer nuestra solidaridad permanente en ese esfuerzo.
Gracias por venir a Panama para materializar esa esperanza. Que
tengan ustedes unos dias felices y provechosos en Panama.
Muchas gracias.
Response of Ruben Berrios Martinez to Question From Senator Landrieu
Question 1. You support the Task Force recommendation for a
plebiscite between continuing the current territory status and seeking
a non-territory status but then propose that there be a convention to
choose among the options for a governing arrangement that would be
democratic at the national government level instead of a plebiscite as
recommended by the Task Force.
Wouldn't a plebiscite be more democratic as the people would
directly choose the status they prefer vs. having the choice made by a
small group of people on their behalf? Also, wouldn't a plebiscite give
assurance of reflecting the popular will because people would vote for
the option they prefer and delegates in a convention could potentially
form a majority that went beyond the popular will through a coalition
of minorities?
Answer. The short answer to both questions is, No.
What we propose is NOT a bogus constituent assembly or convention
such as that proposed by the Governor of Puerto Rico, which would
propose changes to the existing commonwealth arrangement within the
parameters of federal Public Law 600 (1950) that created it. That is
not a change in the colonial nature of our present condition, but--at
best--a change in form.
A constituent assembly or convention such as we propose would be
made up of delegates directly chosen by the people, proportionally
representing the non-colonial, non-territorial status of their choice,
since colonialism would have been rejected in the first vote, as
contemplated by S. 2661. Therefore the assembly delegates elected by
the people would directly represent the people's status preference.
Whoever has a majority will draft a proposal to be negotiated with
the United States government. The proposal negotiated and agreed upon
by both the assembly and the U.S. government would have to be ratified,
first by the assembly and, subsequently, by the people directly. A
``coalition of minorities'' elected by the people could add up to a
majority coalition that then represents the majority of the people.
However, its negotiated proposal would also be subject to a vote by the
people, just as in the case of a single majority's negotiated proposal.
The problem with a direct vote on non-colonial, non-territorial
status options is that, if the legislation is enacted by Puerto Rico's
Legislative Assembly, people would end up voting for ``wish-lists,''
like that of territorial commonwealth appearing on the ballot in a 1993
referendum touted as ``the best of both worlds.'' Similarly, statehood
with a guaranteed separate Olympic Team from that of the United States,
or a separate Miss Universe contestant, or a guarantee that Spanish
would continue to be the language of the courts, the legislature, the
executive branch, and the language of instruction in our public schools
is as much pie-in-the-sky as the commonwealth proposals.
As we know, of course, such proposals are either unconstitutional
or unacceptable to the United States. Similarly, proposals acceptable
to the United States could be unacceptable to the people of Puerto
Rico.
If the proposed alternatives are left to Congress to define, there
is a risk that no legislation may be approved. Congress has
traditionally balked at any legislation that could be interpreted as a
prior commitment to grant statehood. The inclusion of statehood in such
prior legislation is the poison pill that would leave the status
process in deadlock and continued inaction. It is therefore preferable
for Congress to react to a non-colonial, non-territorial option
proposed by a majority of representatives of the Puerto Rican people
through the deliberative process of a constituent assembly.
As the American Patriot, Patrick Henry, said, ``I know of no way of
judging the future but by the past.'' And to avoid enormously false
promises and even greater disappointments that the past has produced,
the constituent assembly that should be convoked once the people of
Puerto Rico have rejected continuing as a colonial territory should
present a feasible option, consistent with international law, to be
mutually agreed upon by the people of Puerto Rico and the Government of
the United States.
As far as statehood and free association are concerned, the US,
after all, also has a right to self-determination. Clearly, the U.S.
recognizes that the Cold War is over, and that its colonial creature is
one that must be left behind. And it has the obligation to say if the
United States, a unitary federation, wishes to become a multi-national
country by incorporating as a state of the Union a culturally distinct,
Spanish-speaking, Latin American nation of the Caribbean whose primary
allegiance is to itself, and not to the United States.
______
[Responses to the following questions were not received at
the time this hearing went to press:]
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC, December 15, 2006.
Mr. Jim Clinger,
Acting Assistant Attorney General, Office of Legislative Affairs,
Department of Justice
Dear Mr. Clinger: As I stated during the hearing on Puerto Rico's
Status on November 15, I have allowed members 30 days to submit
additional questions for the record.
Enclosed herewith please find a list of additional questions which
have been submitted. If possible, I would like to have your response to
these questions by Monday, January 15, 2007.
Thank you in advance for your prompt consideration.
Sincerely,
Pete V. Domenici,
Chairman.
[Enclosure.]
Questions for C. Kevin Marshall From Senator Craig
Question 1. In addition to claiming that there is an irrevocable
compact between Puerto Rico and the U.S., Gov. Acevedo asserts that
there can be such an arrangement without the territory becoming a
State. Gov. Acevedo submitted an extensive legal brief to the Task
Force in support of these contentions.
Did the Task Force seriously consider the Governor's legal
contentions?
Question 2. Gov. Acevedo claims that Puerto Rico is not a
territory.
Does the Department of Justice agree with the Supreme Court, the
Department of State, this Committee, the House, the Government
Accountability Office, the Congressional Research Service, and the
legislative history of the laws authorizing and approving Puerto Rice's
local constitution that Puerto Rico remains subject to congressional
powers under the Constitution's Territory Clause?
Is ``Commonwealth'' a word in the formal name of four States and
another territory?
Question 3. Some associates of Gov. Acevedo claim that Congress can
partially dispose of its Territory Clause power over a territory,
ceding some, but not all, of the power to the territory, without making
the territory a State or a nation, and limiting the Territory Clause
power of future Congresses regarding the territory.
Does the Department of Justice agree?
Question 4. Gov. Acevedo argues that the Task Force report ignores
jurisprudence, in particular noting the Supreme Court statement in
Rodriguez v. PDP to the effect that Puerto Rico has authority over
matters not ruled by the federal government, saying this proves that
Puerto Rico is not a territory.
Does the report conflict with that ruling? Does Rodriguez v. PDP
conflict with the Supreme Court's rulings that the Territory Clause
continues to apply to Puerto Rico?
Question 5. Before the Task Force report was completed, the
Governor complained to State Department officials that the prospective
report would contradict some statements by some U.S. representatives
during a U.N. debate in 1953. The Governor has the same complaint about
the final report.
Did the State Department's representative on the Task Force agree
to the report?
Questions From Senator Landrieu for C. Kevin Marshall
Question 1. S. 2304 was introduced at the request of the Gov.
Acevedo. It would support a convention in Puerto Rico choosing
statehood, independence, or a new form of what the bill calls the
current ``association'' between the U.S. and Puerto Rico. Puerto Rico
is, of course, unincorporated territory of the U.S. but the Governor
disputes this, contending that it is a ``commonwealth.'' Gov. Acevedo
has proposed a ``Development of the Commonwealth'' which he hopes will
be the new form of ``association'' that the convention will choose.
This proposal would permanently bind the United States to terms that
include the Commonwealth having the powers to nullify federal laws and
federal court jurisdiction and to enter into international trade and
other agreements and organizations that States cannot. It would also
require the U.S. to grant an additional subsidy to the insular
government, new incentives for U.S. investment, and to continue to
grant all current assistance to Puerto Ricans, free entry to any goods
shipped from Puerto Rico, and citizenship.
Knowing Gov. Acevedo's intent that his ``Development of the
Commonwealth'' proposal be the convention's choice for Puerto Rico's
status, should the federal government support the territory choosing a
new form of the current status as its status preference?
Question 2. The bill introduced at Gov. Acevedo's request would
support a convention in Puerto Rico choosing statehood, independence,
or a new form of what the bill calls the current ``association''
between the U.S. and Puerto Rico. This proposal is intended to be Gov.
Acevedo's proposal that Puerto Rico be recognized as a nation in a
permanently binding relationship with the U.S. under which the
Commonwealth could determine the application of federal laws and
federal court jurisdiction and enter into foreign trade, tax, and other
agreements and the U.S. would continue to grant citizenship, all
current aid to Puerto Ricans, and totally free entry to products
shipped from Puerto Rico and grant an additional annual subsidy to the
insular government and new incentives for U.S. investment:. A majority
of votes in the convention would determine Puerto Rico's status
proposal to the U.S., even if the majority included some delegates who
were elected favoring another status.
Would adoption of the Governors ``Development of the Commonwealth''
proposal by a majority ire a convention make the proposal acceptable if
the proposal were said to represent the self-determination will of
Puerto Ricans?
Appendix II
Additional Material Submitted for the Record
----------
[Due to the amount of materials received, only a
representative sample of statements follows. Additional
documents and statements have been retained in committee
files.]
Puerto Rico-USA Foundation,
San Juan, PR, December 11, 2006.
Hon. Pete Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Senator Domenici: We thank you for the holding of public
hearings on November 15, 2006 to discuss the findings of the
President's Task Force for Puerto Rico's Status. The hearings were well
run and extremely interesting.
We also want to thank you for giving us the opportunity to present
our point of view by submitting the attached testimony which I hope
will be made a part to the testimonies delivered at the hearings.
Your efforts as well of that of all members of the committee will
help provide Puerto Rico with the proper mechanism to reach a final and
permanent status which will be of great help in improving the economic
development and improving the quality of like for island residents.
I hope you have a great Holiday Season.
Very truly yours,
John A. Regis Jr,
President.
[Enclosure.]
Statement of John A. Regis, Jr., President, Puerto Rico-USA Foundation
Mr. Chairman and Members of this Committee: I want to express my
deepest gratitude for the opportunity to express our point of view
related to the findings of the President's Task Force for Puerto Rico
Status, and our gratitude for the time and effort by the Chairman and
members of this committee to review this very important subject.
Having been present at the hearing on November 15, 2006, I find it
necessary to address our testimony on three specific topics which were
mentioned or discussed during the hearing. These are:
1. The suggested plebiscite as suggested by the White House
task force, and as included in bill S. 2661, vs. a constituents
assembly as proposed by the Governor of Puerto Rico and as
included in S. 2304.
2. The consideration of Free Association as an alternative
for Puerto Rico's future.
3. The suggestion by Senator Bob Melendez of designing the
plebiscite based on three alternatives; statehood, independence
and a third ``commonwealth'' formula.
s. 2304 vs. s. 2661
Governor Acevedo-Vila rejects the President's Task Force for Puerto
Rico Status Report, as well as bill S. 2661 as he claims they are in
favor of statehood. Governor Acevedo Vila is in favor of S. 2304 which
promotes a constituents assembly as a method of solving Puerto Rico's
status dilemma.
To the contrary of Acevedo-Vila's claim, S. 2661 protects the
Commonwealth against a coalition of state and independence supporters.
Quite the opposite has happened in recent electoral activities. As a
way of avoiding statehood independence voters have always supported the
Commonwealth option, as evidenced during the 1998 plebiscite where only
0.2% out of the usual 5.0% of independence voters remained loyal to
that status, and recent elections including Acevedo-Vila's own election
in 2004 where 2.43% of independence voters voted under Commonwealth
giving Acevedo-Vila a narrow 0.2% victory over the statehood candidate.
If anything, S. 2661 and the President's Task Force might be favoring
the status quo.
Most important, in the recommendation of creating a constituent
assembly the process does not have any representation of our present
American sovereignty. The participation of the Federal Government is
essential and must be a part in the negotiations of what items are
acceptable not only for statehood, but for commonwealth as well. The
absence of the Federal Government leaves a big part out of the status
formula. In due time, and after the process has been designed,
ultimately the people of Puerto Rico will make the decision.
Commonwealth proponents have tried unilateral efforts to modify or
improve commonwealth with unconstitutional and/or unacceptable
recommendations on thirteen previous occasions since 1952. On every
occasion the Federal Government has either rejected the new suggestions
or ignored the requests.
A constituent assembly will again go through extensive actions and
end with the same results. Nothing achieved, but the status quo or
commonwealth again remains. Nothing is solved.
free association is not a status alternative
AN OPTION UNDER INDEPENDENCE--NOT A PERMANENT STATU.S. Some have
suggested that a Free Association is a viable option to be considered
in this process. Free Association cannot be an option as a final status
for Puerto Rico. In 1962 the United Nations under Resolution 1514
created the Decolonizing Committee to eliminate over 80 colonial states
worldwide. In an attempt to lure some colonial states to become
independent, the Free Association model was developed. It offered a
cushion of benefits to help in a transition to independence. Free
Association can be terminated by either side. Thus Free Association is
not a permanent status. Once established, there is no turning back.
While it may last 20, 30, or 40 years, the end result can only be
independence.
Under a Free Association state, American sovereignty would be
irreversibly terminated and under these conditions American citizenship
is not possible.
Some Free Association sympathizers state American citizenship is
viable under that status. Under some conditions it may be, but only for
those living and having citizenship at the time. American citizenship
cannot not apply to people born after the change of sovereignty.
Puerto Rican residents overwhelmingly treasure and persist on
maintaining their American citizenship. Surveys on the subject would
place figures of these wanting to retain American citizenship well over
90%. The loosing of American citizenship is not acceptable to Puerto
Rican residents.
a two or three way plebiscite?
During the hearings Seiator Bob Melendez suggested the holding of a
plebiscite including the three status formulas as a better process.
While we believe the process under the recommendations of the
President's Task Force is the best and fairest method to solve Puerto
Rico's 108 year problem, a three way plebiscite could work as an
alternative, but only after all three options are fully defined, and
under the commonwealth formula two considerations must be made.
The first consideration is if the plebiscite process should follow
the recommendations of the President's Task Force for Puerto Rico
Status that the options be non-territorial and meet all constitutional
requirements. Under this consideration the question is if the existing
commonwealth should be included or not.
The second consideration is the definition of commonwealth to be
used if commonwealth was to be included as one of the options. The
definition to be used should be the definition accepted by the federal
government, including the Department of Justice, President's Task
Force, bills approved by the U.S. House of Representatives H.R. 856
(1998), U.S. Supreme Court and all other agencies, except a portion of
the pro-Commonwealth Party who now claim attributes like permanency of
status and citizenship, bilateral packs, and some nation like
attributes that do not and have never existed.
In the event that a three way plebiscite process is chosen, the
U.S. Government must decide how much more time they are willing to
continue with this territorial, colonial status and continue the
recommended number of plebiscites under the Task Force Report. After
the number of years the U.S. is willing to continue maintaining a
colony, then the plebiscite should automatically be changed to the
ultimate decision of the Puerto Rican people between Statehood and
Independence.
Thank you very much Mr. Chairman to allow us to deliver or point of
view in this matter.
______
Statement of Zoraida Fonalledas, Republican Party National
Committeewoman for Puerto Rico
summary
The Republican Party of Puerto Rico concurs fully with the findings
and recommendations of the Report of the President's Task Force on
Puerto Rico's Status. Legislation introduced in the 109th Congress to
implement the recommendations of the White House report includes S.
2661 and H.R. 4867. These measures are consistent with the findings and
recommendations of the White House report and should be enacted as the
first step in the journey of 4 million U.S. citizens in Puerto Rico
from territorial dependency and restricted citizenship rights to full
democracy and prosperity.
the president's task force report
In accordance with Executive Order 13183, as amended on December 3,
2003, the members of the Task Force engaged in research and
consultations involving a broad spectrum of expertise and opinion, in
order to prepare and submit a report to the President in 2005 on the
legally valid political status alternatives available to the U.S. and
Puerto Rico to achieve status resolution. In addition to other on-going
efforts to prepare this report, on May 24, 2004, the Co-Chairmen of the
Task Force visited Puerto Rico to discuss the status resolution process
with leaders of the local government, local political parties, non-
governmental organizations and others. The final report was presented
to the President on December 22, 2006.
The Task Force report's historical analysis and findings are
consistent with the Republican Party's recognition that this nation was
born when the aspirations of the people for consent of the governed to
the law of the land made continued colonial status intolerable.
Accordingly, under the federal constitution adopted in 1789 an anti-
colonial and anti-imperial tradition began that has included
incorporation of territories into the union to redeem the promise of
equality and consent of the governed through admission to statehood.
With the emergence of the United States as a world power and
extension of American sovereignty to noncontiguous territories
classified as unincorporated, both separate sovereign nationhood
outside the United States constitutional system and incorporation into
the union leading to statehood have remained legally valid territorial
status resolution options. The United States has recognized the
principle of democratic self-determination as a part of the status
resolution process for all territories.
The principle of government by consent of the citizens has been
implemented in the Commonwealth of Puerto Rico under a locally adopted
constitution as to local matters not otherwise governed by federal law.
The Task Fore report recognizes that United States citizens of the
territory properly should have access to a democratic status resolution
process through which consent of the governed can be achieved as to
national law as well. Specifically, there should be a mechanism
recognized under both federal and local law through which the United
States citizens of Puerto Rico can express their wishes with respect to
continuation of the current status, as well as status options through
which equal enfranchisement and consent of the governed can be fully
implemented.
With these anti-colonial and anti-imperialist American principles
in mind, the Task Force undertook comprehensive consultations and on-
going research required to prepare and submit its report to the
President. All political parties, representatives of local government
and non-government organizations and interested individuals were given
full access to the Task Force.
bipartisan status resolution policy
The White House report represents a bipartisan series of policy
initiatives that include the Bush Memo of November 30, 1992 (Appendix
A), and Executive Order 13183, signed by President Clinton on December
23, 2000 (Appendix B). These bipartisan efforts have been consistent
with recent Republican and Democratic party platforms.
For example, the Republican Party Platform adopted at the historic
2004 GOP Convention in New York sets forth clear and compelling
principles for resolving the political status of Puerto Rico. As the 4
million United States citizens of Puerto Rico act democratically to
advance status resolution through the local constitutional process, the
2004 GOP Platform provides a road map for both territorial and federal
policy measures to address Puerto Rico's status.
First, the GOP Platform recognizes that each of the five U.S.
unincorporated territories must follow its own path in relations with
the federal government. Each territory faces unique social, political
and economic development challenges and opportunities, and historically
Congress and the President have addressed the status of each territory
as it became ready for transition to a permanent status. However, the
2004 GOP Platform recognizes the right of U.S. citizens in all the
territories to seek extension of increased rights and responsibilities
under U.S. Constitution to the fullest extent consistent with their
current status and readiness for greater self government.
In the case of Puerto Rico, the meaning of this GOP policy on
status resolution could not be more clear or decisive. In the platform
section entitled ``Americans in the Territories'' the policy of the
Republican Party regarding the status of Puerto Rico is unequivocal:
<bullet> ``We support the right of the United States citizens of
Puerto Rico to be admitted to the Union as a fully sovereign
state after they freely so determine.''
<bullet> ``We recognize that Congress has the final authority to
define the Constitutionally valid options for Puerto Rico to
achieve a permanent non-territorial status with government by
consent and full enfranchisement.''
<bullet> ``As long as Puerto Rico is not a state, however, the will
of its people regarding their political status should be
ascertained by means of a general right of referendum or
specific referenda sponsored by the United States Government.''
These three policy statements define the political and legal
procedures to address Puerto Rico's unique political status problem in
accordance with historical and constitutional norms.
Specifically, it is culturally as well as historically significant
that the platform of the national party of the President and the
majority in Congress at that time stated that Puerto Rico is
sufficiently integrated with the rest of our nation, socially,
politically and economically, that its U.S. citizen population has
earned the right to statehood, if that is the ultimate status they
freely determine and choose.
The platform also states truthfully, to the U.S. citizens in Puerto
Rico and the world, that under the current status Puerto Rico remains
in a territorial condition, in which according to the federal
constitution Congress is the repository of supreme sovereignty in
Puerto Rico, with final authority to determine the legally valid status
options available to Puerto Rico. However, the same statement also
commits the national party to an ultimate status that is ``non-
territorial''.
The term ``non-territorial'' is then defined in the same sentence
as one in which the people are ``enfranchised'' with full and equal
voting rights in the national law-making process, so that the principle
of government by the consent of the governed is fully implemented at
the national as well as local level.
Finally, the GOP platform recognizes that the U.S. citizens of
Puerto Rico have not yet been afforded the opportunity for an informed
act of self-determination on political status based on legally valid
options recognized by federal law. Thus, the policy adopted in the
platform calls for federal sponsorship of a referendum in which those
eligible to vote under the laws of Puerto Rico can freely determine and
express their wishes as to political status options that the President
and Congress accept as legally valid.
It is also historically significant that the 2004 GOP Platform
reflects Republican leadership that seeks bipartisan convergence based
on the principles of the U.S. Constitution and political realism.
This is demonstrated by the fact that the National Democratic Party
2004 Platform language on Puerto Rico status resolution is less
specific but nearly identical to the GOP platform language reviewed
above. Specifically, the Democratic Party Platform states that:
<bullet> ``We believe that four million disenfranchised American
citizens residing in Puerto Rico have the right to the
permanent and fully democratic status of their choice.''
<bullet> ``The White House and Congress will clarify the realistic
status options for Puerto Rico and enable Puerto Ricans to
choose among them.''
Where the GOP platform calls for full enfranchisement through equal
voting rights, the Democratic Party platform calls for an end to denial
of equal voting rights through ``disenfranchisement''. Where the GOP
platform recognizes the need for Congress and the President to define
the legally valid options and sponsor a referendum, the Democratic
Party platform calls for the White House and the President to
``clarify'' the ``realistic options'' and ``enable'' a vote between
them.
The true meaning of these two national party platforms is the same.
This represents bipartisan support for the principle that status
resolution requires an informed act of self determined recognized by
the federal government, based on options that are non-territorial,
defined to mean full enfranchisement at the national and not just the
local level of government.
Any locally adopted legislation to advance the status resolution
process should fully take into account the clearly expressed principles
of the GOP 2004 Platform, confirmed in a nearly identical but less
explicitly defined policy statement in the 2004 Democratic Party
Platform.
Accordingly, the Republican Party of Puerto Rico supports federal
and local legislation that satisfies the following criteria:
<bullet> Local law and policy on status must unite Puerto Rico in
supporting the principle that status resolution must be based
on a non-territorial status as recognized under federal as well
as local law and policy.
<bullet> Local status resolution procedures and options must not
divide the voters in Puerto Rico on party lines, based on
options that are not recognized at the federal as well as local
level to be legally valid or politically realistic, as called
for in both national party platforms.
<bullet> Puerto Rico status law must recognize that the current
status is defined by federal law, not the local constitution
which was adopted in 1952 without a choice of permanent or non-
territorial status options, so that any status solution must be
the result of a process recognized and ultimately approved by
changes to federal rather than operation of local law alone.
<bullet> We must recognize the need for joint local and federal
measures that are coordinated to produce a non-territorial
permanent status, and that a majority vote for a non-
territorial solution is the most effective step to make the
federal government politically, legally and morally accountable
for its responsibility to sponsor informed self-determination
<bullet> We must not mislead the public to believe that a local
status assembly created under local law can substitute for the
duly-constituted Legislative Assembly for purposes of
coordinating status resolution procedures with the federal
government.
<bullet> We must not mislead the public to believe a convention
called under Article VII of the local constitution can properly
address issues of federal law governing the status of Puerto
Rico that are outside the scope of amendments to the local
constitution. Article VII does not authorize such a local
convention on status, and the attempt to call one would be
unconstitutional.
______
Statement of Nestor R. Duprey Salgado, Movimiento Autonomista
Socialdemocrata (Puerto Ricans for Free Association and Social Justice)
Chairman Domenici, Ranking Minority Member Bingaman, Senators
Martinez and Salazar, and other Distinguished Members: Thank you for
this hearing concerning the unfinished task of defining a non-colonial,
non-territorial status for the people of Puerto Rico.
Movimiento Autonomista Socialdemocrata (M.A.S.) or Puerto Ricans
for Free Association and Social Justice, is primarily comprised of
members of what is commonly called Puerto Rico's ``commonwealth''
party, the Popular Democratic Party, who advocate the governing
arrangement desired by the founders of the party and by a growing
faction of its current members: free association between sovereign
nations of Puerto Rico and the United States.
We have two main complaints about the Task Force report:
1) It considers free association to be a form of
independence.
2) It does not clearly recommend that free association be an
option if Puerto Ricans vote to seek a non-territory status.
Our complaints stems from the fact that free association and
independence are recognized as being different forms of national
sovereignty.
There are not many territories that have become nations in free
association with other nations but there are some. Since 1985, the
United States is in free association with three: the Federated States
of Micronesia and the Republics of the Marshall Islands and Palau.
The United Nations has identified three statuses as options for
decolonizing a territory: free association, independence, and
integration with another nation, i.e., statehood. (General Assembly
Resolution 1541, which was passed after Puerto Rico was taken off the
list of non-self-governing territories for which countries have to
report annually.)
Free association and independence have been recognized as different
forms of national sovereignty in legislation sponsored by 15 senators,
including three current Members of this Committee--Senators Craig,
Akaka, and Landrieu--and seven other current senators--Reid, Stevens,
Kerry, Warner, Lieberman, Hatch, and Allard (105th Congress S. 472).
There was similar recognition in a bill passed by the House (105th
Congress H.R. 856).
President Clinton recognized free association and independence as
two separate and distinct options. His Administration's representative
also testified to this Committee that the option of free association
should be clarified and should be at least as similar in the case of
Puerto Rico as in the case of the Pacific islands in free association
with the U.S., given the deeper and longer relationship that Puerto
Rico has had with the U.S. than the Pacific islands did.
The United States defines itself as history's champion of
democracy. But it took Puerto Rico through an act of war 108 years ago
and since then the territory's status has not fundamentally changed.
Since the establishment of the present Commonwealth arrangement in
1952, the people of Puerto Rico have requested, in 1967, 1993 and 1998,
the development of the present relationship into a non-colonial, non-
territorial compact or treaty based on the sovereignty of the people of
Puerto Rico. However, the status of Puerto Rico has remained unchanged
and undemocratic.
Further, as former Governor Rafael Hernandez Colon of our party has
written of Puerto Rican views on the issue, ``All factions do agree on
the need to end the present undemocratic arrangement, whereby Puerto
Rico is subject to the laws of Congress but cannot vote in it.''
Governor Hernandez Colon has also written that, ``The status debate
has raged in Puerto Rico for half a century, dividing the people and
breeding unending conflict--at worst bloody, at best bitter and
destructive.''
Additionally, ``It is morally unacceptable, unfair, and harmful to
Puerto Rico and the United States for Congress to relegate the issue to
business as usual--that is, do nothing, wait for a Puerto Rican
initiative, play with it for a while but take no action, wait for the
next initiative, and repeat the cycle. Such insensitivity undermines
Puerto Rico's capacity for self-government, inflicts considerable
hardship on its society, and drains the U.S. Treasury.''
``Movimiento Autonomista Socialdemocrata'' (M.A.S.), or Puerto
Ricans for Free Association and Social Justice, urges the Committee to
act next year to enable the issue to be resolved in accordance with the
aspirations of the people of Puerto Rico (in addition to the desires of
the United States). In doing so, we respectfully request that it
clarify that free association is among Puerto Rico's true options.
Thank you.
______
Bufete Igartua,
San Juan, PR, November 14, 2006.
Hon. Senator Pete Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Senator Doemnici: I am an American citizen resident of Puerto
Rico, and have been pursuing the right to vote in Presidential
Elections for the American citizens of Puerto Rico since 1991. Tomorrow
your Committee will be holding a public hearing regarding Puerto Rico's
status issue, particularly, the procedures set forth in the white House
Report. I find it pertinent to bring to your attention, and that of the
other Members of the Committee, the following observations:
1. If you evaluate different reports concerning the political
status of Puerto Rico from Congressional and Executive sources,
including those by the White House, as well as the position
espoused. by national and local politicians, you will find them
to be generally contradictory and confusing. This may be due to
ignorance of the development of the legal relationship between
Puerto Rico and the United States and our present legal status
as an incorporated territory of the U.S.
2. The White House Report proposes a political solution for
the status of Puerto Rico that is not legally viable, that is,
a two tier referendum where the American citizens of Puerto
Rico would first decide on whether to stay as a territory of
the United States, and depending on the outcome of the first
referendum, to participate in a subsequent referendum to vote
for either statehood or independence. Any attorney should be
able to explain to the Committee, as the U.S. Attorney General
should, that you cannot involve American citizens by birth to
vote for an option that continues to subject them to government
without consent. It is legally and morally incomprehensible to
promote a system based upon the proposition that taxation
without representation is a valid option for American citizens.
In Puerto Rico's case to continue to be deprived of
Congressional representation and the right to vote in
Presidential Elections while being federally taxed for over 5
billion dollars annually.
I invite you and the other Members of the Committee to evaluate
first all of the legal documents and judicial opinions in the cases of
Igartua v. U.S., I, II, and III, litigated in the Federal Courts and
related to our right to vote in Presidential Elections. The U.S.
Department of Justice can provide you with the whole record. In any
case, I am at your disposition to provide these, or any documents you
deem pertinent.
Even under international treaties, particularly those to which the
United States is signatory, and under international customary law, the
proposal is not only legally unviable, but rather disrespectful to the
four million American citizens residents of Puerto Rico, which have
contributed so much to the Nation, inclusively in armed conflicts to
ironically defend the democratic rights (government by consent) of
citizens of other countries (Iraq and Afghanistan--More than 60
American citizens from Puerto Rico have died already in these
conflicts.) That is, defending our flag under the embarrassing
condition of being denied those same democratic rights.
I wonder, why so many people seem to be confused with the political
status of Puerto Rico? Everybody wants to propose solutions randomly.
Some Senators have even proposed a constitutional assembly, showing
total disregard for the one held in 1952, when we adopted a
constitution to govern our internal affairs, with a republican form of
government like in states, and where we expressed our loyalty to the
U.S. Constitution. Most probably many of these proposals are made out
of ignorance of Puerto Rico's legal relationship as an incorporated
territory of the United States, from where four million other former
residents have moved to the fifty states. To determine where we are
legally under the U.S. Constitution, and where we should go, is not
such a complicated. endeavor. In this regard, I would respectfully
propose to this Honorable Committee to match the requirements imposed
to other territories in order to become a state. After such analysis,
your Committee would find that Puerto Rico has complied with the
requirements to become a state as originally established in the
Northwestern Ordinance of 1789. Moreover, that Puerto Rico is already
more than 66% a state, if one considers that the Judicial Branch
operates fully in Puerto Rico as in the states, that all federal laws
apply to Puerto Rico as in the states, and that most of the Executive
Branch operates fully in Puerto Rico.
Furthermore, I would respectfully propose that the Committee should
rather evaluate the following: Why the four million American citizens
residents of Puerto Rico are still being denied their full rights as
other American citizens in their states to have government by consent?
Wily the U.S. Department of Justice has opposed our claim for voting
rights in Presidential elections by arguing that treaties to which the
U.S. is signatory are merely aspirational and not legally binding? Why
an attorney in the U.S. Department of Justice dares to tell a Federal
Judge in Puerto Rico not to grant our request even if found to be
viable constitutionally? What steps can be taken to grant us our eight
Congressmen? Why still opening hopes to pro-independence backers who
have shown only a three percent support in elections since 1956? Why
maintaining hopes to the pro-comrnonweaIth status supporters when the
White House has already established that it is a non existent, none
legally viable alternative?
Senator Dominici, and other fellow Senators of the Committee: I
urge you to analyze the relationship of Puerto Rico with the United
States within its proper legal context. This Committee can contribute
to our human rights and make history by promoting a process that fully
recognizes our legally acquired rights as American citizens by birth
and provides us with all the benefits conferred by statehood. (Enclosed
are three articles published by me in the San Juan Star.) I
respectfully request that this communication and its annexes be made
past of the official record of the Committee Hearing on Puerto Rico.
Sincerely yours,
Gregorio Igartua,
Attorney-at-Law.
[Enclosure.]
Why Puerto Rico Is Not Yet the 51st State?
Puerto Rico was acquired by the United. States in 1898, at its own
initiative, by the Treaty of Paris. Article IX of the Treaty provided
that ``. . . Congress would dispose of the political rights of the
inhabitants . . .'' This was correctly in agreement with Art. IV-3 of
the U.S. Constitution, which provides for Congress to regulate
territories. In view of this constitutional authority, and of other
constitutional dispositions, can we identify what the Federal
Government has done legally for Puerto Rico, in order to determine
exactly where and how it fits within the Federal political framework?
Several, federal policies that have been adopted for Puerto Rico,
``like for states'', answer this question simply without confusion, and
are the following:
a. Puerto Rico was organized by Congress into a republican
form of government at the outset in 1900 by the Foraker Act
(like states are).
b. In 1917 Congress granted us American citizenship by the
Jones Act, and in 1950 by birth, retroactively to 1941. (Like
to citizens born in states).
c. In 1948 Congress gave us the right to vote for the
governor of Puerto Rico (like citizens of states who vote for
their governor),
d. In 1952 we adopted by direct vote a Constitution for local
autonomy, that is to rule our internal affairs, and we swore
our loyalty to the U.S. Constitution. The Puerto Rico
Constitution was ratified by Congress and signed into law by
the President. (Each state has a Constitution for internal
applicability--U.S. Const. Art, IV-4.)
e. The Federal Judicial Branch operates in Puerto Rico like
in each state.
f. All laws adopted by Congress apply locally, except those
locally inapplicable.
g. The Federal Executive Branch operates in Puerto Rico like
in states.
h. We defend. American liberty and democracy abroad by active
service of our residents in the Armed Forces of the U.S. (like
residents in the states).
i. We pay more than $5 billion annually in federal taxes.
(IRS Reports)
j. We participate in the National Republican and Democratic
Parties, and raise thousands of dollars for these.
All of the above policies are clear evidence that Puerto Rico is a
territory that has been gradually incorporated to be like a state. In
short, today we are 4th, 5th, and 6th generation American citizens with
a federalist personality, one associated with Puerto Rico, and one
associated with the Nation (like citizens of states).
All the above policies constitute statehood requirements met by
Puerto Rico (since 1952) in excess of the requirements to other
territories to become state (13 colonies were a state in origin).
Notwithstanding how clearly the above policies make us fit squarely
into the American constitutional framework, or like a state, Puerto
Rico has not been granted the charter of statehood. Why we still are
not the 51st state of the Union we agreed by direct vote to join
permanently in 1952? The reasons are:
a. The confusion created by the U.S. Supreme Court opinions
in the 1901 Insular Cases (5-4) whereby it created two
classification of territories: ``incorporated territory'' to be
in possession of the United States to become a state at some
point in time; and, ``non incorporated territory'' to be in
possession of the United States not to become a state referring
to Puerto Rico in this classification. This classification
finds no legal support in the Constitution. Congressional
policies for Puerto Rico after 1901 (cited previously) ignored
these cases and incorporated Puerto Rico in the road to
statehood, just like even the majority opinion in the Insular
Cases predicted eventually would happen. Some politicians are
still confused and insist we are still a non incorporated
territory without acquired rights. These include, ironically,
some statehood supporters who propose that discriminating
against ourselves, sells statehood better.
b. The definitional confusion brought about by Governor Luis
Mufloz Malin (Popular Party) proposing that we adopted a
special status relation with the U.S. in 1952 (referred to as
the ELA) which he defined as a ``ball of energy'' which doesn't
fit legally like a state, nor fit legally like a Republic, but
could grow with imagination. He confused the Puertoricans by
making them disregard the legal step taken with the adoption of
our constitution with a definitional political act that never
took place. The federal, government has recently affirmed that
such status is non existent. Some ``Populaces'' continue to
insist in keeping alive the confusion with the same nonviable
proposal, or by pretending legal privileges for the American
citizens of Puerto Rico from the Federal government, like
treaty making power, which cannot be authorized for American
citizens residing in the states, and or that are not
constitutionally viable, This pretension was already decided by
the American Civil War against the states of the South.
c. Inaction after 1952 by the three Branches of the Federal
Government to continue moving Puerto Rico in the process of
incorporation to grant us all our, tights as American citizens
under statehood, considering only three percent of local
residents support independence.
d. Discriminatory conduct from some US Government officials,
who may have to legally respond one day for their actions, who
use or include wrong and misleading information about our
acquired rights, thereby promoting local and national confusion
about who we really are.
e. The practice of the leaders of the three political parties
of Puerto Rico, pro statehood--pro EJSA--pro independence--of
not promoting their political status preferences within their
proper legal, political, historical, and economic perspective,
leading to more confusion whereby local residents may not know
the real basis of the status they are supporting.
f. The adverse political influence of 936 corporations
operating in Puerto Rico since their existence from 1921,
opposing statehood in Congress that their lucrative tax
incentive of billions of dollars survive.
g, The legal inconsistency of some of the Federal Judges in
the U.S. District Court, in the U.S. Appeals Court (1st
Circuit), and in the U.S. Supreme Court, with judicial
disposition of cases treating Puerto Rico sometimes as if it
were a state, (applying U.S. Constitutional provisions
locally), while treating in others as discriminatorily as in
the Insular cases, by ignoring all Congress has done in the
road. of incorporating Puerto Rico as a state, and or
disregarding we are American citizens by birth.
h. The practice of, some journalists (both locally,
nationally) to write articles about Puerto Rico lacking any
sense of impartiality, in order to promote their own political
status preference.
Let Us Celebrate Federalism on July 25th
The American citizens of Puerto Rico are confused about the correct
legal political status of Puerto Rico. This state of confusion is
worsened by the ignorance of many politicians, the contradictory
opinions of local and federal courts, and particularly by the
insistence of the leaders of the Popular Democratic Party that Puerto
Rico has a political relation with the United States that does not fit
within the constitutional framework of the United States, one that the
Federal Government has already stated does not exist. The answer to our
political. dilemma can be traced and found by evaluating, and comparing
what Congress has done legally and politically for Puerto Rico with the
requirements it imposed upon former territories to qualify as states.
In the year 1787 the United States Congress adopted the Northwest
Ordinance which established the statehood requirements for the
territories west of the Ohio River. These requirements included a
specific geographical area, a minimum population, an organized
government with a governor, a legislature, and the nomination of a
territorial delegate or Resident Commissioner to Congress. If one
compares what Congress has done legally and politically with Puerto
Rico since 1898 with the aforementioned requirements, one can come to
the conclusion that Puerto Rico has been gradually moved by Congress to
a federalist relationship like that of the Northwest Territories.
Puerto Rico became a U.S. territory in 1898 by the Treaty of Pass,
which provided in part that ``the civil rights and political status of
the native inhabitants of the territories hereby ceded to the United
States shall be determined by Congress''. Since then, the United States
has gradually incorporated Puerto Rico, with the consent of the
American citizens of Puerto Rico, to be like a state. In 1900 Congress
adopted the Foraker Act which organized a government in Puerto Rico
with three branches, executive, judicial and legislative, as in the
states. In 1917 the Jones Act granted American citizenship to the
residents of Puerto Rico. Less than one thousand residents, out of more
than one million, declined American citizenship, and many of those who
declined were persons born in Europe. In 1948 Congress authorized the
first popular election of a governor in Puerto Rico. An act of Congress
in 1951 reaffirmed American citizenship by birth, retroactive to 1941.
In 1952 the American citizens of Puerto Rico constituted themselves
into a republican form of government, that is, a government with an
executive, a judicial, and a legislative branch, in compliance with
Article IV, Section 4 of the Constitution of the U.S., just like the
states. The Puerto Rico Constitution was adopted in 1952 to rule
internal affairs. The Constitution was freely approved by the American
citizens of Puerto Rico, and it was ratified by Congress in a law
signed by the President of the U.S. In the Preamble to the Puerto Rico
Constitution the American citizens of Puerto Rico swear their loyalty
to the Constitution of the U.S., affirm their permanent irreversible
union with the U.S., and subject themselves freely and voluntarily to
the Supremacy clause of the Constitution of the U.S., and to the
applicability of federal laws.
The American citizens residing in Puerto Rico are subject to the
jurisdiction of all three branches of the federal government. The U.S.
Census operates in Puerto Rico as in the states, In the 2000 census
Puerto Rico had four million inhabitants, which qualifies us for eight
electors for presidential elections, two senators, and six
Congresspersons. The American citizens of Puerto Rico have demonstrated
their loyalty to the U.S. by serving with dedication, distinction and
honor in the Armed Forces of the U.S. in all armed conflicts since
1917, All income from sources outside of Puerto Rico is subject to
federal taxation. Puerto Rico contributes annually to the U.S. Treasury
more than five billion dollars from various sources of revenue. As a
result Puerto Rico contributes more to the U.S. Treasury more than some
states.
All of the above constitutes evidence that the American citizens of
Puerto Rico have exceeded the requirements of the Northwest OrdinanCe
for the Congress of the United States to grant the Statehood Charter to
Puerto Rico. We have plenty of reasons to celebrate federalism. in
Puerto Rico on July the 25th, the date we completed all of the
requirements to become a state, and to pursue our full rights as
American citizens to vote in presidential elections and to elect two
senators and six Congress persons as in law and justice is our
democratic right.
______
Statement of Charles J. Cooper, Brian S. Koukoutchos, and David H.
Thompson, Cooper & Kirk, PLLC
The Power of Congress to Vest Juridical Status in Puerto Rico That Can
Be Altered Only by Mutual Consent
This memorandum examines the question whether the Constitution
permits the United States and the people of a United States territory
to enter into a bilateral and binding political relationship that can
be altered only by mutual consent. As we demonstrate below, Congress
has the legal authority to enter into a binding compact with a
territorial polity that confers a vested political or juridical status
upon that polity that can be altered or revoked only by the mutual
consent of the parties. Having established that proposition, we then
demonstrate that such a relationship was created by virtue of a 1952
compact between the United States and the people of the Commonwealth of
Puerto Rico.
introduction
For the first four decades after the 1952 compact between the
United States and the people of Puerto Rico, the United States
Department of Justice consistently recognized (1) the federal
government's general authority to enter into binding political compacts
with the people of United States territories and (2) the binding nature
of the commitments contained in the specific compact conferring
substantial sovereign autonomy on Puerto Rico. The Justice Department
recognized the plenary power of Congress and the President to fashion a
wide range of political arrangements that would be necessary to
effectuate the United States' varying global interests. Independence
was appropriate for the people of the Philippines, statehood was
appropriate for the people of Hawaii, and a state-like, autonomous
political union, called ``commonwealth,'' was appropriate for the
people of Puerto Rico. Each political status--statehood, independence,
and commonwealth--was acknowledged to be permanent: it had been created
by the mutual consent of the sovereign parties, and it could be altered
or revoked only by the mutual consent of the sovereign parties.
In 1990, however, the Department of Justice abruptly reversed
itself in testimony before Congress commenting on proposed legislation
relating to Puerto Rico's future political status. The testimony cited
no precedent for this reversal and offered no basis for distinguishing
OLC's prior analysis. In 1994, the Clinton Administration attempted to
provide a defense of this new position in a memorandum commenting on
the proposed legislation containing a provision conditioning future
amendments on the mutual consent of the governments of the United
States and Guam. Memorandum for the Special Representative for Guam
Commonwealth (Office of Legal Counsel, July 28, 1994) (hereafter ``1994
OLC Memo''). Emphasizing that Congress' legislative power over the
territories, ``like every other legislative power of Congress,'' is
``plenary,'' the 1994 OLC Memorandum concluded that any congressional
delegation of sovereign governing authority to the people of a
territory ``is necessarily subject to the right of Congress to revise,
alter, or revoke the authority granted.'' Id. at 4-5. According to the
1994 OLC Memorandum: ``[T]he retention of the power to amend or repeal
legislation delegating governmental powers to a non-state area is an
integral element of the delegation power. Congress therefore has no
authority to enact legislation under the Territory Clause that would
limit the unfettered exercise of its power to amend or repeal.'' Id. at
5-6.
But this narrow concept of the federal government's latitude with
respect to territories is inconsistent with the very ``plenary''
congressional power that the 1994 OLC Memorandum constantly invokes.
Far from supporting the proposition that Congress may not relinquish
some of its power over a territory, the cases on Congress' plenary
power over territories confirm that, when Congress chooses to exert its
plenary power to shape the federal government's political relationship
with the people of a territory, that power is as broad as it needs to
be to effectuate Congress' purpose, including the creation of a
political status that endures until altered or revoked by mutual
consent of the parties. If congressional power with respect to the
government of territories is truly plenary--``full, complete in all
aspects or essentials'' \1\--then how can it be limited to the creation
only of political relationships of a single, rigid form--that is,
territories of subservient and dependent status, forever subject, in
every aspect of their law and life, to unfettered, unilateral
congressional revision? Congress' power in this area is indeed plenary
and therefore is not so narrowly confined.
---------------------------------------------------------------------------
\1\ THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1006
(1971).
---------------------------------------------------------------------------
The courts, and the Justice Department before 1990, have long
recognized that the territorial power, like other federal powers,
demands flexibility on the part of Congress and hesitation on the part
of those who would confine the exercise of those powers to rigid or
arbitrary categories. In 1963 the Justice Department saw this very
clearly, and quoted a memorandum written by Mr. Felix Frankfurter in
1914 when he was a law officer in the executive branch:
``The form of relationship between the United States and
unincorporated territory is solely a problem of statesmanship.
1. History suggests a great diversity of relationships
between a central government and dependent territory. The
present day shows a great variety in actual operation. One of
the great demands upon inventive statesmanship is to help
evolve new kinds of relationship so as to combine the
advantages of local self-government with those of a
confederated union. Luckily, our Constitution has left this
field of invention open. The decisions in the Insular [c]ases
mean this, if they mean anything; that there is nothing in the
Constitution to hamper the responsibility of Congress in
working out, step by step, forms of government for our Insular
possessions responsive to the largest needs and capacities of
their inhabitants, and ascertained by the best wisdom of
Congress.''
Memorandum Re: Power of the United States to Conclude with the
Commonwealth of Puerto Rico a Compact Which Could Be Modified Only by
Mutual Consent (Office of Legal Counsel, July 23, 1963) at 5-6
(emphasis added) (hereafter ``1963 OLC Memo''). In 1971 the Justice
Department's Office of Legal Counsel, under then-Assistant Attorney
General William H. Rehnquist, revisited the issue and again repeatedly
relied upon and quoted Frankfurter's view. See Memorandum Re:
Micronesian Negotiations (Office of Legal Counsel, Aug. 18, 1971),
Attachments at 3-4, 8 (hereafter ``1971 OLC Memo'').\2\
---------------------------------------------------------------------------
\2\ See also 3 Political Status Referendum: 1989-1991 (General
Accounting Office) (1992) at 25 (``The U.S. Constitution grants
Congress broad authority over territories and permits it great
flexibility in admitting States or granting independence.''); id. at 27
(``the Congress' broad authority--combined with each state's unique
characteristics and the increased complexity of government
responsibilities--has led to many variations in admission procedures,
time elapsed before attaining statehood, prerequisite conditions, and
assistance provided.''); id. at 28 (``In short, a federal
relationship--whether it be commonwealth or statehood--is never
completely clear. Rather, there is a necessary and desirable obscure
fringe area which permits many legal, political, and practical
adjustments to take place.'')(quoting the 1966 report by the Commission
on the Status of Puerto Rico).
---------------------------------------------------------------------------
The President and Congress have engaged in such ``inventive
statesmanship'' for more than two centuries by adapting forms of
territorial government and fine-tuning the nature of political
relationships with particular territories. Indeed, Congress has been
making binding compacts with the inhabitants of territories--compacts
that could be changed or revoked only by mutual consent--since the very
days when the Constitution was written. There is no practice of
territorial administration--indeed, there may be no federal government
practice of any kind--that has a longer lineage or that is more closely
tied to the framing of the very constitutional provisions now said to
prohibit it. And nothing in the text of the Constitution or the
decisions of the Supreme Court requires Congress to foreswear that
practice. The conclusion reached by the Office of Legal Counsel in
1963, and reaffirmed in 1971 under then-Assistant Attorney General
William H. Rehnquist, remains sound today:
[T]he Constitution does not inflexibly determine the
incidents of territorial status, i.e., that Congress must
necessarily have the unlimited and plenary power to legislate
over it. Rather, Congress can gradually relinquish those powers
and give what was once a Territory an ever-increasing measure
of self-government. Such legislation could create vested rights
of a political nature, hence it would bind future Congresses
and cannot be ``taken backward'' unless by mutual agreement.
1971 OLC Memo at 1; id., Attachments at 4 (quoting 1963 OLC
Memo).
The new position advanced by the Justice Department in 1990--that a
compact such as that made with Puerto Rico in 1952 is unilaterally
revocable by Congress at will--is wholly inconsistent with the
contractual nature of a compact. Since the Northwest Ordinance of 1787,
both Congress and the Supreme Court have treated congressional compacts
with territories as binding and unalterable except by mutual consent.
The contrary position sometimes taken by the Justice Department
artificially limits the range of options available to the President and
Congress in exercising the Federal Government's power over U.S.
territories and in resolving delicate political issues touching upon
the fundamental right of self-determination.
The position on Puerto Rico's status taken by the Justice
Department in 1990 is also inconsistent with the consistent position of
the Department of Justice from the time of the Puerto Rico compact in
1952 until the early 1990's, and repeatedly reaffirmed in departmental
memoranda. Indeed, the proposition that Congress could revoke Puerto
Rico's commonwealth status was specifically presented to Congress in
the Meader amendment in 1952, but Congress did not adopt that amendment
and Public Law 600 was therefore deliberately enacted without any
reservation of congressional power to alter or repeal the grant of
authority made in that compact.
The Justice Department in the Clinton Administration nevertheless
argued--quite astonishingly--that Congress' enactment of Public Law 600
as a solemn compact with the people of Puerto Rico was ``illusory and
deceptive.'' (1994 OLC Memo at 12). The entire compacting process was
apparently a charade, Public Law 600 was an illusory and meaningless
legislative gesture, and Congress, we are told, simply perpetrated a
fraud upon the people of Puerto Rico. Unsurprisingly, the Supreme Court
has flatly refused to ``sanction . . . such a conception of the
obligations of our Government.'' Perry v. United States, 294 U.S. 330,
351 (1935). As the First Circuit has stated, ``[w]e find no reason to
impute to the Congress the perpetration of such a monumental hoax.''
Figueroa v. Puerto Rico, 232 F.2d 615, 620 (1st Cir. 1956).
In short, there is no support for a reading of the Constitution
that unnecessarily restricts the political arrangements available to
the President and Congress in fashioning binding consensual solutions
to the Nation's relations with the people of its territories. And, with
respect specifically to Puerto Rico, the historical record is clear
that the United States exercised its broad power to create a permanent
political union with the people of Puerto Rico that can be altered only
by mutual consent.
analysis
I. Congress Can Confer Vested Political Status On A Territorial Polity
Pursuant To A Compact That Can Be Revoked Only By The Mutual
Consent Of The Parties
The United States has been making compacts containing mutual
consent clauses with territories since before the Constitution was
written. The first such compact can be found in the Northwest Ordinance
of 1787, which applied to the territories that later became the States
of Ohio, Indiana, Illinois and Michigan. See 1 Cong. Ch. 8, 1 Stat. 50
n.(a) (1789). The Supreme Court recognized as early as 1810 that
Congress can vest irrevocable rights through its legislative acts. See
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). Consistent with this
well established practice, the Justice Department has traditionally
espoused the view that a mutual consent provision is constitutional
because Congress can vest rights in political status. As noted earlier,
the Justice Department took this position in 1963 and adhered to it in
1971. The same position was again taken in 1975 with specific reference
to Puerto Rico. See Letter to Rep. Marlow Cook, Co-Chairman, Ad Hoc
Advisory Group On Puerto Rico, from Asst. Atty. General Mitchell
McConnell (Office of Legislative Affairs, May 12, 1975) (hereafter
``1975 OLA Memo'').
In the early 1990's, however, the Department of Justice abandoned
the Rehnquist analysis and took the opposite position. In hearings on a
bill proposing a referendum on the status of Puerto Rico, Attorney
General Richard Thornburgh raised the issue of mutual consent clauses
and conceded that ``there are statutory precedents for attempting to
make such limitations in certain restricted circumstances--commitments
which this Administration believes must be honored.'' \3\ Yet General
Thornburgh nevertheless opined, without reference to any authority,
that mutual consent clauses ``remain[] subject to serious legal
question.'' \4\ The Attorney General acknowledged that, ``in the past
the Department of Justice has taken the position that Congress can
agree'' to be bound by a mutual consent restriction on future
congressional action, but he cautioned that those ``earlier opinions .
. . are subject to serious question.'' \5\ No explanation was offered
for the Justice Department's change in position, nor was the analysis
contained in the Department's prior memoranda reviewed or disputed, nor
was any new authority offered, either by the Attorney General or any of
the other seven administration witnesses who followed him.\6\
---------------------------------------------------------------------------
\3\ To Provide for a Referendum on the Political Status of Puerto
Rico: Hearings Before the Senate Comm. on Energy and Natural Resources
on S. 244, 102nd Cong., 1st Sess., (Jan. 30 and Feb. 7, 1991) at 210
(Statement of Attorney General Richard Thornburgh) (hereafter, ``1991
Senate Hearings'').
\4\ 1991 Senate Hearings at 210.
\5\ 1991 Senate Hearings at 211.
\6\ Indeed, Assistant Attorney General Stuart Gerson admitted
during questioning that the Department had no objection whatever to the
position that the'' `Commonwealth of Puerto Rico is a unique juridical
status . . . created as a compact between the people of Puerto Rico and
the United States.' '' 1991 Senate Hearings at 218 (quoting from the
language of the proposed bill).
---------------------------------------------------------------------------
The Department subsequently provided similar testimony to the House
of Representatives on another Puerto Rico bill, and drew strong
criticism from members of the committee for offering ``very broad
statements of a political nature'' rather than ``some kind of legal
analysis.'' \7\ Reference was made to the 1962 report of the bipartisan
United States Commission on the Status of Puerto Rico, which studied
the compact issue and concluded: `` `The entire history of the United
States/territorial relationship and the Federal Government/citizens
relationship sustains innovation and change in accordance with needs.
We can see no constitutional bar to prevent Congress, under the
existing Constitution of the United States, from entering into
innovative forms of relationships within the Federal structure,
including a binding relationship entered to meet the needs and desires
of the Puerto Rican people.' '' \8\ Noting that no explanation or
authority had been offered for the change in the Justice Department's
position, a Congressman inquired, ``Are we to think that the consistent
constitutional practice of the Congress for many years was
unconstitutional, just because now it is so claimed by the Justice
Department? Where is the analysis about what happened in the past?''
\9\
---------------------------------------------------------------------------
\7\ Puerto Rico Self-Determination Act. Hearing Before the Subcomm.
on Insular and International Affairs of the House Comm. on Interior and
Insular Affairs on H.R. 4765, 101st Cong., 2d Sess. (June 28, 1990) at
113 (remarks of Rep. Fuster) (hereafter, ``1990 House Hearing'').
\8\ 1990 House Hearing at 114 (Remarks of Rep. Fuster)(quoting the
1962 Commission Report by Senator Henry Jackson and others).
\9\ 1990 House Hearing at 113-14 (Remarks of Rep. Fuster). See also
id. at 114 (``In the face of this, the Justice Department comes and
makes an affirmation about the alleged unconstitutionality of our
proposal with not even a footnote to support its claim.''). The Justice
Department explained that it had relatively little time to prepare its
testimony, but nonetheless insisted that its testimony was ``more than
adequate . . . for these purposes.'' Id. at 115 (Remarks of Assistant
Attorney General Stuart Gerson).
---------------------------------------------------------------------------
The Justice Department again took this position on mutual consent
clauses in a 1994 memorandum addressing the status of Guam\10\ and in
congressional testimony in 2000.\11\ The 1994 Guam memorandum merely
mentions the Department's prior opinions in passing, without citation,
and the Justice Department's congressional testimony in 2000 does not
even acknowledge the Department's prior, conflicting opinion--an
opinion that traces its origins to Felix Frankfurter and that was
endorsed by William H. Rehnquist.
---------------------------------------------------------------------------
\10\ See 1994 OLC Memo. See also Puerto Rico-United States
Bilateral Pact of Non-Territorial Permanent Union and Guaranteed
Citizenship Act: Hearing on H.R. 4751 Before the House Comm. on
Resources, 106 Cong. (Oct. 4, 2000) (written statement of William M.
Treanor, Dep. Asst. Atty. Gen., Office of Legal Counsel), available at
http://resourcescommittee.house.gov/archives/106cong/fullcomm/00oct04/
treanor.htm (hereafter ``2000 OLC Testimony''); Puerto Rico-United
States Bilateral Pact of Non-Territorial Permanent Union and Guaranteed
Citizenship Act: Hearing on H.R. 4751 Before the House Comm. on
Resources, 106th Cong. (Oct. 4, 2000) (written statement of Richard
Thornburgh), available at http://resourcescommittee.house.gov/archives/
106cong/fullcomm/00oct04/thornburgh.htm (hereafter ``Thornburgh
Testimony'').
\11\ 2000 OLC Testimony. A recent report issued by the
Congressional Research Service (``CRS'') likewise proceeds without
mention of this consistent, well-reasoned opinion that the Justice
Department adhered to for forty years. The CRS all but ignores the
issue of binding congressional compacts with territories, noting only
in passing (in a single footnote) the existence of questions about the
constitutionality and enforceability of mutual consent provisions in
compacts. CRS Report For Congress--Political Status of Puerto Rico:
Background, Options, and Issues in the 109th Congress (May 25, 2005) at
19 n.65 (hereafter ``2005 CRS Report''). The CRS does not elaborate on
this point, nor offer any authority.
---------------------------------------------------------------------------
The Justice Department memoranda and testimony opining that mutual
consent clauses are unconstitutional and unenforceable do not identify
any intervening judicial authority, nor any change in long-standing
congressional practice, that would justify the Department's change in
position. Nor are we aware of any such intervening authority. No court
has held that Congress cannot bind the United States to a bilateral
compact with a territorial polity that can be repealed or amended only
by mutual consent. Nor has any court held that a solemn congressional
agreement with the people of a territory is at best illusory and at
worst deceitful.
Instead, the argument advanced by those who believe that Congress
has no power to make binding commitments on the political status of a
territory proceeds from two premises: (1) as a general matter, one
Congress cannot bind a subsequent Congress; and (2) the terms of the
Constitution supposedly recognize only three options for governance of
an area--namely statehood, territorial status, or independence--and
Congress has no power to agree to different terms with the people of an
area that, like Puerto Rico, remains within the sovereign power of the
United States. The first premise simply recites a legal maxim, while
the second partakes of an abstract categorical approach to
constitutional analysis that has been consistently rejected by the
Supreme Court and that is inconsistent with 200 years of history. We
address these propositions in turn.
A. Congress Can By Compact Vest Political Status in a
Territorial Polity That Can Be Revoked Only By
Mutual Consent.
Those who invoke the maxim that one Congress cannot bind a
subsequent Congress usually overlook the fact that the seminal opinion
of Chief Justice Marshall that announced the maxim also noted the
exception to it:
The principle asserted is, that one legislature is competent
to repeal any act which a former legislature was competent to
pass; and that one legislature cannot abridge the powers of a
succeeding legislature.
The correctness of this principle, so far as respects general
legislation, can never be controverted. But, fan act be done
under a law, a succeeding legislature cannot undo it. The past
cannot be recalled by the most absolute power. Conveyances have
been made, those conveyances have vested legal estates, and, if
those estates may be seized by the sovereign authority, still,
that they originally vested is a fact, and cannot cease to be a
fact.
When, then, a law is in its nature a contract, when absolute
rights have vested under that contract, a repeal of the law
cannot devest (sic) those rights.
Fletcher, 10 U.S. at 135 (emphases added). Such legislative
``acts'' include the making of contracts or compacts, see id. at 137;
Green v. Biddle, 21 U.S. (8 Wheat.) 1, 92 (1821), and such
congressional compacts can bind a subsequent Congress if the compact
confers vested rights, including political rights. ``There are steps
which can never be taken backward.'' Downes v. Bidwell, 182 U.S. 244,
261 (1901).
It is well-established that ``the right to make binding obligations
is a competence attaching to sovereignty.'' Perry v. United States, 294
U.S. 330, 353 (1935). ``The United States are as much bound by their
contracts as are individuals. If they repudiate their obligations, it
is as much repudiation, with all the wrong and reproach that term
implies, as it would be if the repudiator had been a State or
municipality or a citizen.'' Sinking Fund Cases, 99 U.S. 700, 719
(1879). As Alexander Hamilton explained:
When a Government enters into a contract . . . it deposes as
to the matter of the contract, its constitutional authority,
and exchanges the character of legislator for that of a moral
agent, with the same rights and obligations as an individual.
Its promises may be justly considered as excepted out of its
power to legislate, unless in aid of them. It is, in theory,
impossible to reconcile the two ideas of a promise which
obliges with a power to make a law which can vary the effect of
it.
Alexander Hamilton, Report on the Public Credit (1795), reprinted
in 3 THE WORKS OF ALEXANDER HAMILTON 518-19 (John C. Hamilton ed.
1850).
The Supreme Court has consistently rejected the notion that, when
Congress has made a pledge in a compact or contract, ``it is free to
ignore that pledge and alter the terms of its obligations in case a
later Congress finds their fulfillment inconvenient.'' Perry, 294 U.S.
at 350. The Court refused to ``sanction . . . such a conception of the
obligations of our government.'' Id at 351. The Court explained in
Murray v. City of Charleston, 96 U.S. 432 (1878), that the notion of an
inherent legislative power to renege on solemn contractual commitments
could not be reconciled with the legislative power to make that
commitment in the first place: ``[H]ow an express contract can contain
an implication, or consist with a reservation directly contrary to the
words of the instrument, has never yet been discovered.'' Id. at 444.
Squarely rejecting the notion that a sovereign government cannot make
commitments binding on its successors, the Court quoted Alexander
Hamilton's observation that a revocable government contract would ``
`involve two contradictory things: an obligation to do, and a right not
to do . . . . It is against the rules, both of law and of reason, to
admit by implication in the construction of a contract a principle
which goes in destruction of it.' '' Id. at 445 (quoting Alexander
Hamilton).
Therefore, Congress enjoys the power to bind the United States by
the creation of a variety of vested rights, and subsequent legislative
efforts to repeal the vesting of those rights are ultra vires. For
example, Congress can create vested rights of a contractual nature.
See, e.g., United States v. Winstar, 518 U.S. 839, 895-97 (1996); Lynch
v. United States, 292 U.S. 571, 579 (1934); Fletcher, 10 U.S. at 135.
As the Court held in Perry v. United States, Congress' enactment of a
statute purporting to invalidate clauses in bonds previously issued by
the United States ``went beyond the congressional power.'' 294 U.S. at
354. Congress can also create vested rights in property that cannot be
unilaterally rescinded by a subsequent Congress--for example, by
enacting land grants. See Fletcher, 10 U.S. at 132, 134. And Congress
is also empowered to create vested rights in a particular legal
framework. If Congress authorizes particular acts--for example, by
enacting a rule that a particular financial stream does not count as
taxable income--a subsequent Congress can of course repeal that statute
and make that category of income taxable. But Congress cannot undo the
prior law and go back and reclassify that income as taxable ex post
facto and prosecute taxpayers for failure to report and pay tax on that
income. Doing so would violate both the Due Process Clause and the Ex
Post Facto Clause. A future Congress is bound as to that prior tax law
with respect to those taxpayers at that time.
Finally, Congress can create vested rights of a political or
juridical nature. That is, one Congress can bind its successors by the
act of conferring a particular political status on a territorial polity
pursuant to an agreement with that polity, thus making the agreed-upon
status irrevocable except by mutual consent. Thus, as the Justice
Department consistently recognized for 30 years, ``The maxim that a
legislature cannot limit or preclude the power of amendment of a
subsequent legislature must, like any other legal maxim, be taken with
a grain of salt.'' 1963 OLC Memo at 4 (internal citation omitted). See
also 1971 OLC Memo, Attachments at 2. ``[V]ested rights or accomplished
facts can be created in the political field, and, indeed, in the
specific area of the political evolution of the Territories of the
United States.'' 1963 OLC Memo at 5; 1971 OLC Memo, Attachments at 3.
For example, when a United States territory (e.g., the Wisconsin,
Oklahoma or Arizona Territories) or an independent nation (e.g., the
Republic of Texas) petitions to join the Union as a State, the typical
path to statehood is that negotiations between the parties ensue,
Congress imposes conditions, the people of the territory or nation
accept the conditions and draft a constitution, and Congress eventually
enacts an admission or annexation statute. Thus the power of the United
States to ``conclude[] compacts with its Territories . . . cannot be
questioned at this late date.'' 1963 OLC Memo at 3.\12\ A compact on
statehood between Congress and the people of a territory (or nation)
cannot be entered unilaterally and cannot be undone unilaterally by
either party. Once a State is in the Union, it cannot change its mind
and leave: there is no right of secession. See Texas v. White, 74 U.S.
(1 Wall.) 700, 725-26 (1869). A State's acceptance of juridical status
as a State is irrevocable except ``through consent of the States.'' Id.
at 726. Similarly, Congress cannot undo the act of union and return a
State to its prior status of territory or independent republic by
repealing the original admission statute. The ``tie'' that binds a
State to the Union cannot be severed ``without at least the consent of
the Federal and state governments to a formal separation.'' Downes, 182
U.S. at 261.
---------------------------------------------------------------------------
\12\ The CRS recently acknowledged that Congress has the power to
make compacts with territories, 2005 CRS Report at 16, and that many
different models for territorial status have been employed by Congress
through the years, id.1 at 13-14.
---------------------------------------------------------------------------
Equally irrevocable is the legislative act of granting a territory
independence. The Philippine Islands became United States territory by
a treaty of cession from Spain at the same time as Puerto Rico,
following the Spanish-American War in 1898. The Philippines became a
Commonwealth pursuant to congressional enactment and then were granted
independence by the United States after World War Two. Congress cannot
annex the Philippines and reestablish U.S. sovereignty over them by the
simple expedient of unilaterally repealing the statute recognizing
Philippine independence. The people of the Philippines would have to
consent. Thus, as the Justice Department explained in 1963, the ``grant
of statehood or independence to a Territory by one Congress
unquestionably has the effect of precluding all subsequent Congresses
from exercising any further powers under Article IV of the Constitution
with respect to that Territory. The repeal of an act granting statehood
or independence cannot undo the past and restore territorial status.''
1963 OLC Memo at 5; 1971 OLC Memo, Attachments at 3.
The Justice Department in 1963 anticipated that ``[t]he argument
could be made that this example is not conclusive because a Territory
loses that status by virtue of the grant of statehood or of
independence, but that the unlimited and plenary power of Congress over
a Territory may not be bargained away, as long as territorial status is
retained.'' 1963 OLC Memo at 5; 1971 OLC Memo, Attachments at 3. The
memorandum then disposed of this objection: ``In at least one field,
however, such a contention would be clearly incorrect. . . . Congress
can limit its plenary power over a Territory by extending the
Constitution to it either by express statute, or by incorporating it
into the Union. And this step which does not terminate territorial
status as such cannot `be taken backward.' '' 1963 OLC Memo at 5
(quoting Downes, 182 U.S. at 261); 1971 OLC Memo, Attachments at 3
(same).
Thus, in Springville v. Thomas, 166 U.S. 707, 708-09 (1897), the
Supreme Court held that a congressional enactment would be
unconstitutional if it were read to authorize the legislature of the
Utah Territory to provide for jury trials as the territorial government
wished. Such a congressional enactment was beyond Congress' power
insofar as Congress had already extended the full protection of the
Constitution to that territory, including the Seventh Amendment's
requirement of civil juries. ``[T]he organic act of that Territory had
expressly extended to it the Constitution and laws of the United
States. As we have already held, that provision once made could not be
withdrawn.'' Downes, 182 U.S. at 270. See also id. at 271 (``where the
Constitution has been once formally extended by Congress to
territories, neither Congress nor the territorial legislature can enact
laws inconsistent therewith''). Thus a federal law enacted by one
Congress to incorporate a territory thereafter imposes ``limitations
upon the power of Congress in providing a government for [the]
territory.'' Dorr v. United States, 195 U.S. 138, 144 (1904).\13\
---------------------------------------------------------------------------
\13\ See also Rassmussen v. United States, 197 U.S. 516, 526 (1905)
(``where territory was a part of the United States the inhabitants
thereof were entitled to the guarantees of the Fifth, Sixth and Seventh
Amendments,'' and the ``acts of Congress purporting to extend the
Constitution were considered as declaratory merely of a result which
existed independently''); id. at 529 (Harlan, J., concurring)
(``Immediately upon the ratification in 1867 of the treaty by which
Alaska was acquired from Russia, that Territory . . . came under the
complete, sovereign jurisdiction and authority of the United States
and, without any formal action on the part of Congress in recognition
or enforcement of the treaty, and whether Congress wished such a result
or not, the inhabitants of that Territory became at once entitled to
the benefit of all the guarantees found in the Constitution.''); id. at
536 (Brown, J., concurring) (when Congress ``has seen fit to extend the
provisions of the Constitution to [the territories]'' that step ``is
irrevocable'').
---------------------------------------------------------------------------
Given that ``one Congress can restrict the plenary power of its
successors over Territories by extending the Constitution to it,'' it
follows, as the OLC explained in 1963 and reaffirmed in 1971, ``that
such a limitation is not inconsistent with the view that Congress may
take other irreversible steps on the road of a Territory toward
statehood, independence, or some intermediate or novel status.'' 1963
OLC Memo at 5; 1971 Rehnquist Memo, Attachments at 3. In 1971, this
analysis led the future Chief Justice to conclude:
[O]ne Congress could bind subsequent ones where it creates
interests in the nature of vested rights, e.g., where it makes
a grant or brings about a change in status. Thus we concluded
in the early 1960's that a statute agreeing that the United
States would not unilaterally change the status of Puerto Rico
would bind subsequent Congresses.
1971 OLC Memo at 1 (citing the 1963 OLC Memo at 3-6). See also 1963
OLC Memo at 1 (``Congress has the power to work out forms of government
for Puerto Rico which involve grants of self-government which can be
modified only by mutual consent.'').
Similarly, in 1975 then-Assistant Attorney General Mitchell
McConnell advised Congress: ``[I]t is possible for Congress to bind
future Congresses with respect to Puerto Rico by means of a `compact.'
This may be viewed either as the vesting of certain rights, see, e.g.,
Downes v. Bidwell, 182 U.S. 244, 261-71 (1901), or as the granting of a
certain measure of independence which once granted cannot be
retrieved.'' 1975 OLA Memo at 1. Indeed, the Justice Department
cautioned Congress that the ``binding effect of the proposed Compact,
it should be emphasized, extends to all its provisions, . . . and
therefore extreme care should be taken in analyzing each provision and
assessing its potential for unwanted effects resulting from
unanticipated changes in other laws.'' 1975 OLA Memo at 2.
The views of Messrs. Frankfurter and Rehnquist were grounded in
more than two hundred years of historical practice. Congress has, in
fact, been making binding compacts with territories since before the
Constitution was written. The Northwest Ordinance of 1787, enacted by
the Confederation Congress while the Constitution was still being
drafted in Philadelphia, created ``articles of compact'' between the
United States ``and the people'' in the Northwest Territory, ``forever
unalterable, unless by mutual consent.'' Cong. Ch. 8, 1 Stat. 50, 52
n.(a) (1789). The Ordinance was reenacted by the First Congress when it
convened in 1789. 1 Cong. Ch. 8, 1 Stat. 50, 50-51. The ``unalterable''
terms of the Ordinance included certain conditions of eligibility for
the territories to become States, such as a guarantee that no fewer
than three, nor more than five, States could be created from those
lands and the pledge that any territory ``shall be admitted'' as a
State whenever it had 60,000 inhabitants. 1 Cong. Ch. 8, 1 Stat. 50, 53
n.(a) (Art. V of the Northwest Ordinance of 1787). Even those who have
interpreted Article IV, section 3 of the Constitution to confer
sweeping powers upon Congress over territories have recognized that
such power is limited when Congress thus voluntarily agrees to limits
on its power. Joseph Story, for example, deemed the provisions of the
Northwest Ordinance to be irrevocable except by mutual consent, just as
that statute provided. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION
section 1322 (1833) (``The power of congress over the public territory
. . . is absolute, and unlimited, unless so far as it is affected by
stipulations in the cessions, or by the ordinance of 1787, under which
any part of it has been settled.'').
Thus, as the Department of Justice explained when it examined the
Puerto Rico compact issue in 1975, it is precisely the plenary nature
of congressional territorial power that makes such an irrevocable grant
to Puerto Rico possible: ``Such autonomy may be granted Puerto Rico
because Congress under the Constitution (Article IV, section 3) has
plenary power over the territories of the United States . . . .'' 1975
OLA Memo at 1. See also 1963 OLC Memo at 3-4 (plenary power under Art.
IV permits Congress to make binding compacts); 1971 OLC Memo,
Attachments at 1-2 (same).
Throughout American history, Congress routinely made binding
compacts with territorial polities, and the courts enforced them.
Beecher v. Wetherby, 95 U.S. 517 (1877), involved competing federal and
Wisconsin land grants. The Supreme Court held that the federal grant
was invalid because it came after Congress' Act of August 6, 1846,
which authorized the people of the Wisconsin Territory to organize a
State government and pledged that, among other things, certain lands
would be reserved for the new State if the constitution to be proposed
by the State contained particular provisions. Id. at 523. Because the
people of Wisconsin agreed to those provisions--the quid pro quo--the
Supreme Court held that the federal reservation of lands exclusively to
Wisconsin became an ``unalterable condition of the admission,
obligatory upon the United States.'' Id. at 523. See also id. (once
accepted by the people of Wisconsin in exchange for including certain
provisions in the new Wisconsin constitution, the terms of Congress'
admission statute became ``obligatory upon the United States'').
Although the object of the dispute in Beecher was real estate, the
Court did not approach the case as one involving enforcement of a land
transaction that could not be repealed without implicating the Takings
Clause of the Fifth Amendment--indeed, Fletcher v. Peck was not even
cited by the Court. Instead, the Court treated the problem as one of
binding commitments made by Congress in a statute, which could not be
revoked by subsequent congressional legislation once the other party
(the people of Wisconsin Territory) had fulfilled the condition
precedent of the original admission statute. The Court thus explained
that ``[i]t matters not whether the words of the compact be considered
as merely promissory on the part of the United States, and constituting
only a pledge of a grant in [the] future, or as operating to transfer
the title to the State upon her acceptance of the propositions.'' In
either case, whether property rights in the land had vested or not, the
lands were withdrawn from federal control and ``no subsequent'' federal
law could embrace them. Id. at 523-24. See also Cooper v. Roberts, 59
U.S. (18 How.) 173, 179 (1856) (the Territory of Michigan was admitted
to the Union under the ``unalterable condition'' that certain lands
were reserved to the State for the use of schools, and until certain
essential steps were taken under state law to vest those property
rights, ``the right of the State rests in compact--binding, it is true,
the public faith'').
Congress can restrict its subsequent exercise of its territorial
powers not only by making compacts with the people of territories
themselves, but also by making compacts with other sovereigns about
those territories. As Chief Justice Marshall explained, when territory
is acquired by the United States pursuant to a treaty with a foreign
power, ``the ceded territory becomes a part of the nation to which it
is annexed; either on the terms stipulated in the treaty of cession, or
on such as its new master shall impose.'' American Ins. Co. v. Canter,
26 U.S. (1 Pet.) 511, 542 (1828). The treaty at issue in Canter--the
1819 treaty with Spain ceding the Florida territory--did not leave
Congress free to choose the terms of Florida's relationship with the
United States. Article Six of the treaty of cession expressly provided
that the'' `inhabitants of the territories, which his Catholic majesty
cedes to the United States by this treaty, shall be incorporated in the
Union of the United States.' '' Id. at 542 (quoting the treaty). The
Court ruled that the Senate's ratification of this treaty made it ``the
law of the land'' which, without more, ``admit[ted] the inhabitants of
Florida to the enjoyment of the privileges, rights, and immunities, of
the citizens of the United States.'' Id. As previously explained, such
an extension of the Constitution to the inhabitants of a territory
cannot be withdrawn, and therefore the treaty's designation of Florida
as an incorporated territory restricted the power of subsequent
Congresses to legislate for that territory. See Downes, 182 U.S. at
270. It is noteworthy that neither Congress nor the Supreme Court
perceived any forbidden diminution of United States sovereignty.
Similarly, in Rassmussen v. United States, 197 U.S. 516 (1905), the
Court held that the source of Alaska's status as an incorporated
territory was the intent of the Senate and the Tsar of Russia as
expressed in the words of the treaty of acquisition. The Court
explained that ``[t]he treaty concerning Alaska, instead of exhibiting,
as did the treaty respecting the Philippine Islands, the determination
to reserve the question of the status of the acquired territory for
ulterior action by Congress, manifested a contrary intention'' that the
`` `inhabitants of the ceded territory shall be admitted to the
enjoyment of all the rights, advantages and immunities of citizens of
the United States.' '' Id. at 522. See also Dorr, 195 U.S. at 143 (also
contrasting the Alaska treaty of cession with that of the Philippines
from Spain, which expressly provided that `` `the civil rights and
political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress' '');
Cincinnati Soap Co. v. United States, 301 U.S. 308, 314 (1937)
(explaining that congressional power over Philippines is limited ``by
the terms of the treaty of cession''). Thus, under this consistent and
venerable line of authority it is clear that Congress may, by compact,
restrict its future exercise of plenary authority over territories, and
that Congress has been doing so for more than two centuries.
The very longevity of the congressional practice of making such
compacts with territories is itself strong evidence that such compacts
are binding, constitutional, and enforceable. ``A legislative practice
such as we have here, evidenced not by only occasional instances, but
marked by the movement of a steady stream for [more than two centuries]
of time, goes a long way in the direction of proving the presence of
unassailable ground for the constitutionality of the practice . . . .''
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327-28
(1936). See also Cincinnati Soap, 301 U.S. at 315 (upholding statute in
part because ``[l]egislation of this character has been so long
continued and its validity so long unquestioned'').
Indeed, as noted above, the first such ``unalterable'' compact
between Congress and the people of a territory was the Northwest
Ordinance, originally enacted before the Constitution was written. The
fact that the Ordinance was reenacted by the First Congress in 1789
cements the proposition that congressional compacts with territories
are binding and constitutional. ``An Act `passed by the first Congress
assembled under the Constitution, many of whose members had taken part
in the framing of that instrument, . . . is contemporaneous and weighty
evidence of its true meaning,' '' and powerful confirmation of its
consistency with the Constitution. Marsh v. Chambers, 463 U.S. 783, 790
(1983) (quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297
(1888)).
To be sure, ``no one acquires a vested or protected right in
violation of the Constitution by long use, even when that span of time
covers our entire national existence and indeed predates it. Yet an
unbroken practice . . . is not something to be lightly cast aside.''
Walz v. Tax Comm'n, 397 U.S. 664, 678 (1970). The propriety of Congress
making binding compacts with territories is established by ``[t]he
unbroken practice for two centuries in the National Congress.'' Marsh,
463 U.S. at 795. Indeed, the Supreme Court ruled more than a century
ago that the practices of the First Congress in dealing with the
territories were a reliable confirmation of the constitutionality of
those practices and served to remove any ``doubt'' about them. See
National Bank v. County of Yankton, 101 U.S. 129, 132-33 (1880).
It is noteworthy that the ability of Congress to confer vested
political rights by compact, and the venerable line of authority
supporting it, are not even mentioned, let alone refuted, by any of the
Justice Department analyses concluding that such bilateral compacts are
illusory and unenforceable. These contrary 1990's memoranda, however,
offer three arguments that are in conflict with this well-established
doctrine--all three are without merit.
First, the 1994 OLC Memorandum and the 2000 OLC Testimony assert
that Congress is empowered to vest irrevocable rights only in property
interests, and because ``a specific political relationship does not
constitute `property' within the meaning of the Fifth Amendment,''
Congress cannot restrict its own plenary legislative power to
unilaterally alter or revoke its bilateral compacts conferring such
political rights. 1994 OLC Memo at 10. But no case supports this
``property rights only'' restriction on congressional power to confer
vested rights, and as previously demonstrated, many cases squarely
refute it. Nor does the Justice Department offer any explanation as to
why the Constitution would permit Congress to confer irrevocable
property rights, but not irrevocable political rights, on the people of
a territory.
Second, the 1994 OLC Memorandum contends that Supreme Court
doctrine on congressional power to vest rights changed dramatically in
1986 with the decision in Bowen v. Public Agencies Opposed to Social
Security Entrapment, 477 U.S. 41 (1986). See 1994 OLC Memo at 2 n.2,
11-12; 2000 OLC Testimony.\14\ Bowen was a sea change in the law, says
the Justice Department, that required the Department to repudiate its
long established position that Congress can make binding commitments to
the people of a territory about political status. This position cannot
withstand examination.
---------------------------------------------------------------------------
\14\ Bowen was the centerpiece of the Justice Department's Guam
analysis in 1994. By 2000, however, the citation to Bowen had been
reduced to a mere ``cf.,'' even though Bowen was still the only
authority offered by OLC. See 2000 OLC Testimony. Presumably the
Department's reduced emphasis on Bowen in 2000 is an implicit bow to
the Supreme Court's intervening decision in United States v. Winstar,
518 U.S. 839 (1996), see note 10, infra, which rejected the
Department's overreading of Bowen.
---------------------------------------------------------------------------
Bowen held that state governments had no vested contract right in a
prior legislative scheme that allowed them to opt out of the Social
Security system. 477 U.S. at 52-55. The 1994 OLC memorandum relies on
Bowen for the proposition that the Due Process Clause of the Fifth
Amendment protects only individuals, not states, territories, or other
political entities. 1994 OLC Memo at 11-12; 2000 OLC Testimony. This is
true, but irrelevant. The doctrine relied on here--and relied on by the
Justice Department itself before it had a change of heart--is not that
the Due Process Clause or some other particular provision of the
Constitution prevents Congress from repealing vested rights, but that
Congress itself relinquished that power when it acted to vest those
rights in the first place. Bowen never mentions, let alone purports to
overrule, Fletcher, Downes, Dorr, Rassmussen and their progeny.\15\
---------------------------------------------------------------------------
\15\ Even accepting the government's argument on its own terms, it
is clear that the Due Process Clause would protect the vested political
rights of the people of Puerto Rico, whose specific approval was a
necessary requirement for entry into the 1952 compact.
---------------------------------------------------------------------------
In fact, Bowen undermines the 1994 OLC Memorandum's argument and
buttresses Congress' power to relinquish unilateral repeal power when
it chooses to do so. The Bowen Court unanimously and expressly
confirmed that ``the Federal Government, as sovereign, has the power to
enter contracts that confer vested rights, and the concomitant duty to
honor those rights.'' 477 U.S. at 52 (citations omitted). The state
lost the case only because Congress had not made any such compact with
them when they entered the Social Security system.
The contract at issue in Bowen governed California's participation
in the social security system. The agreement was expressly made subject
to the provisions of the Social Security Act, which at the time the
agreement was entered permitted states to withdraw from participation
in the program. A subsequent amendment to the Act prohibited states
from withdrawing from the system. The Supreme Court held that neither
the statute nor the State's contract obliged the government to permit
the State's withdrawal because Congress had expressly reserved in the
statute the ``right to alter, amend, or repeal'' any of its provisions.
477 U.S. at 52. See also id. at 44 & n.2, 52, 53, 54. Thus, the Act
itself obviously ``created no contractual rights,'' and because the
contract conformed to the Act, it too created no contractual right to
withdraw. Id. at 52. It is hardly necessary to point out that the Bowen
Court would not have so thoroughly analyzed whether Congress had made a
binding contractual commitment, and have so frequently repeated
Congress' explicit disavowal of any such commitment, if it believed
that Congress could not make such a commitment.\16\
---------------------------------------------------------------------------
\16\ The reading of Bowen offered by the OLC memoranda is precisely
the reading advanced by the Justice Department in United States v.
Winstar, 518 U.S. 839 (1996), and rejected by seven members of the
Supreme Court. The plurality and two concurring opinions recognized and
upheld the power of Congress to bind itself under Bowen and other
precedent. See Winstar, 518 U.S. at 895-97 (plurality); id. at 910
(Breyer, J., concurring); id. at 919 (Scalia, J., concurring).
---------------------------------------------------------------------------
The third argument advanced during the 1990's for why Congress
cannot vest political rights likewise ignores Downes and the long line
of cases dealing with the territorial power. The 1994 OLC Memorandum
contends that Congress cannot relinquish its power to repeal
legislation pertaining to the territories because that would somehow
diminish Congress' sovereign powers and be inconsistent `` `with the
supremacy and supervision of National authority.' 1994 OLC Memo at 5
(quoting Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441 (1872)).
``The requirement that the delegation of governmental authority to the
non-state areas be subject to federal supremacy and federal
supervision,'' says the Justice Department, ``means that such
delegation is necessarily subject to the right of Congress to revise,
alter, or revoke the authority granted.'' 1994 OLC Memo at 5. See also
2000 OLC Testimony.
The Justice Department distilled this concept of sovereignty from
broad statements in opinions that congressional power over the
territories is ``supreme'' and, in particular, ``plenary''--a maxim
that the OLC memoranda repeat as a mantra. See 1994 OLC Memo at 2-4, 6;
2000 OLC Testimony. But the Supreme Court has specifically warned
against this facile mode of analysis: ``too much weight must not be
given to general expressions found in several opinions that the power
of Congress over territories is complete and supreme.'' Downes, 182
U.S. at 258. ``[G]eneral expressions'' do not control cases. Id. And
limitations on Congress' territorial power ``must be decided as
questions arise.'' Rassmussen v. United States, 197 U.S. 516, 521
(1905). Not one of the cases relied upon by the OLC even presented a
congressional compact with a territory, let alone held that Congress
cannot make such a compact expressly alterable only by mutual
consent.\17\
---------------------------------------------------------------------------
\17\ Therefore, none of the cases cited by the OLC memoranda is
remotely apposite. See 1994 OLC Memo at 5 & n.5; 2000 OLC Testimony.
Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441 (1872), states only
that the power exercised there was ``consistent with the supremacy and
supervision of National authority.'' The issue of a compact repealable
only by mutual consent was not presented, and there is no holding, nor
even any dictum, on that question. Puerto Rico v. Shell Co., 302 U.S.
253, 260-62 (1937), merely quoted Clinton, and is equally bereft of any
holding on the ``supremacy'' point. There is no indication that
Congress cannot bind itself in a compact creating vested political
rights. Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), did
not hold, nor even offer dictum, that Congress cannot relinquish power
to unilaterally revoke compacts with the people of territories. It
noted merely that Congress has usually retained power to repeal grants
of authority to territories, which suggests that Congress has the
option not to do so. Christianson v. King County, 239 U.S. 356 (1915),
is to the same effect, holding that Congress has the right to retain
revision power, which suggests that Congress likewise has the right not
to do so. District of Columbia v. Thompson Co., 346 U.S. 100, 106
(1953), upheld a broad delegation by Congress of local government
authority, while noting that Congress has the right to retain the power
to revise or repeal such delegations. Like the other cases cited, it
did not hold (nor even suggest) that Congress has no choice but to
retain repeal power, and most importantly it did not involve a compact
that Congress had entered with the people of the District of Columbia.
Fireman's Ins. Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973),
simply quoted Thompson. United States v. Sharpnack, 355 U.S. 286, 296
(1958), affirmed congressional power to delegate authority, and did not
hold that Congress must retain the power to revise and repeal. It
simply cited Thompson, King County, and Hornbuckle. Finally, Harris v.
Boreham, 233 F.2d 110,113 (3d Cir. 1956), held that Congress may
delegate to a territorial government such powers as Congress sees fit.
If anything, the case suggests that Congress may delegate and waive the
right to unilaterally revise such delegation, although--as with all of
OLC's other authorities the compact issue was not presented and
therefore there is no holding, nor even any dictum, on the issue.
---------------------------------------------------------------------------
There are two compelling explanations for this glaring dearth of
authority for the Justice Department's opposition to mutual consent
clauses. First, as noted above, two hundred years of history
contravenes this view. The second is that the proposition at the heart
of the 1994 OLC Memorandum--that a sovereign is no longer sovereign if
it makes a binding contractual commitment--simply makes no sense. As
explained at length above, ``the right to make binding obligations is a
competence attaching to sovereignty.'' Perry, 294 U.S. at 353. For
example, under Article I, section 10 of the Constitution, States
surrender their unilateral power to legislate on an issue when they
make compacts with one another on that subject. See, e.g., State ex
rel. Dyer v. Sims, 341 U.S. 22, 28 (1951) (``It requires no elaborate
argument to reject the suggestion that an agreement solemnly entered
into between States by those who alone have political authority to
speak for a State can be unilaterally nullified . . . .''). It was
argued in a challenge to a compact between Virginia and Kentucky that
Kentucky could repeal its assent to a provision of that compact,
because to rule otherwise would be to accept that a sovereign could
``surrender[] . . . rights of sovereignty which are unalienable.''
Green, 21 U.S. at 85. The Supreme Court gave this objection the back of
its hand, because it ``rests upon a principle, the correctness of which
remains to be proved'':
It is practically opposed by the theory of all limited
governments, and especially those which constitute this Union.
The powers of legislation granted to the government of the
United States, as well as to the several State governments, by
their respective constitutions, are all limited. The article of
the Constitution of the United States, involved in this very
case [the Compact Clause], is one, amongst many others, of the
restrictions alluded to. If it be answered, that these
limitations were imposed by the people in their sovereign
character, it may be asked, was not the acceptance of the
compact the act of the people of Kentucky in their sovereign
character? If, then, the principle contended for be a sound
one, we can only say, that it is one of a most alarming nature,
but which, it is believed, cannot be seriously entertained by
any American statesman or jurist.
21 U.S. at 87-88 (emphases added).
When a State makes a binding compact with another and gives up the
right of unilateral revocation of its commitments, it does not thereby
suffer some diminution of its sovereignty, it does not become something
less than a State. Similarly, when Congress irrevocably gives up the
local police power over a territory when it admits that territory as a
State of the Union--something Congress has done 30-odd times--Congress
is not thereby diminished, and the Federal Government is not somehow
reduced in stature. The Court has rejected as ``unsound'' the
contention that when a sovereign binds itself in a compact that it
cannot unilaterally abrogate it has'' `renounced the plentitude of
power inherent in her statehood.' '' United States v. Bekins, 304 U.S.
27, 53 (193 8) (citation omitted). Rather, ``[i]t is the essence of
sovereignty to be able to make contracts and give consents bearing upon
the exertion of governmental power.'' Id. at 51-52.
B. Article IV, Section 3's Reference to ``Territory'' Does
Not Bar Congress from Making Compacts with the
People of a Territory that May Be Altered or
Revoked Only by Mutual Consent
The second premise underlying opposition to congressional power to
make binding compacts with territorial polities is that the terms of
the Constitution supposedly recognize only two forms of association
with the United States: statehood and territory. ``There is no
intermediary status as far as the Congressional power is
concerned.''\18\ Assuming for the sake of argument that this is true,
it proves nothing. One can posit that the Ohio Territory, the Wisconsin
Territory, the Alaska Territory and the Commonwealth of Puerto Rico
were all ``territories,'' without accepting the conclusion that
Congress was forbidden to make binding compacts with the people of
those territories. To reach that conclusion, one must posit an
additional premise--that Congress may not restrict its plenary power
over a ``territory'' by entering a compact with the people of the
territory.\19\ Under this view, Congress cannot relinquish or restrict
its absolute power to unilaterally repeal or amend legislation
pertaining to the territories because that would somehow diminish
Congress' sovereignty. But as discussed above, the Supreme Court long
ago rejected that proposition as one that ``cannot be seriously
entertained by any American statesman or jurist.'' Green, 21 U.S. at
88.\20\
---------------------------------------------------------------------------
\18\ 1994 OLC Memo at 6. See also 2000 Thornburgh Testimony at 1
(``There is statehood and there is territorial status.''). See also id.
at 2-3, 5; 2000 OLC Testimony at 1-2, 5.
\19\ See 1994 OLC Memo at 2-4; 2000 OLC Testimony; 2000 Thornburgh
Testimony.
\20\ When they repeat their ``inalienable supremacy'' point, the
Justice Department memoranda rely on different authorities than they
invoked before, but the new cases are equally inapposite. See 1994 OLC
Memo at 2-3; 2000 OLC Testimony. Once again, none of the cases even
presented a territorial compact that could be revised only by mutual
consent, and consequently none contains a holding, nor even dictum,
that Congress cannot bind itself with such a compact. Thus National
Bank v. County of Yankton, 101 U.S. 129, 133 (1880), held only that
Congress could override the enactments of the Dakota Territorial
Legislature, even though ``[i]n the Organic Act of Dakota there was not
an express reservation of power in Congress to amend the acts of the
Territorial Legislature,'' because such a reservation was not
``necessary.'' ``Such a power'' of congressional override, the Court
explained, is ``an incident of sovereignty, and continues until granted
away.'' Id. (emphasis added). Yankton thus indicates that Congress may
``grant[] away'' to the people of a territory its unilateral power to
amend and repeal legislation enacted by that territory.
---------------------------------------------------------------------------
Article IV, section 3 of the Constitution provides: ``The Congress
shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the
United States; and nothing in this Constitution shall be so construed
as to Prejudice any Claims of the United States, or of any particular
State.'' Notwithstanding the Eighteenth Century habit of capitalizing
all nouns, ``Territory'' in Article IV is not a proper noun, nor even a
term of art. Indeed, in United States v. Gratiot, 39 U.S. (14 Pet.)
526, 537 (1840), the Supreme Court held that ``[t]he term territory, as
here used, is merely descriptive of one kind of property; and is
equivalent to the word lands.''
The Framers drafted Article IV, section 3 to respond to the issues
created by the enormous unsettled tracts of western lands originally
held by the individual States, which were then ceded to the federal
government. See 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES, App.
283-86 (1803).\21\ The references in section 3 to multiple forms of
``property'' that Congress may ``dispose'' of, and the caveat that
nothing therein should be construed to prejudge any federal or state
land ``claims,'' make clear that this section was broadly drafted to
ensure federal ``regulation of all other personal and real property
rightfully belonging to the United States.'' 3 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION section 1319 (1833). See also
Ashwander v. T.V.A., 297 U.S. 288, 331 (1936). The Framers saw
congressional power to provide for governments in these vast tracts of
land as incidental to the power over the property itself. See Story,
supra, at section 1318; Sere & Laralde v. Pitot, 10 U.S. (6 Cranch)
332, 336 (1810); Gratiot, 39 U.S. at 537; American Ins. Co., 542-43.
Unsurprisingly, section 3 of Article IV is therefore most often
referred to as ``The Property Clause,'' even when power to govern
territories is being discussed. See, e.g., Kleppe v. New Mexico, 426
U.S. 529, 539-40 (1976) (``It is the Property Clause, for instance,
that provides the basis for governing the Territories of the United
States.'') (citations omitted). All of this negates any inference that
the Framers intended the term ``territory'' to rigidly define a
particular political entity with a particular degree of (or lack of)
autonomy from Congress.
---------------------------------------------------------------------------
\21\ Reprinted in 4 PHILIP KURLAND & RALPH IaERNER, THE FOUNDERS'
CONSTITUTION 555 (19 87).
---------------------------------------------------------------------------
Over the course of the last two centuries, the term ``territory''
has encompassed a remarkable array of local governments and a wide
variety of relationships with the federal government. It is a catch-all
term, covering everything from Johnston Atoll, a tiny Pacific island
with neither a native population nor a local government, to the Indiana
Territory, an organized area in the continental United States that was
predetermined to achieve Statehood, to the Commonwealth of Puerto Rico,
a self-governing, autonomous sovereign entity with its own
congressionally approved constitution. As the GAO noted in a 1997
report, each of the United States territories ``has a unique historical
and legal relationship with the United States.'' \22\
---------------------------------------------------------------------------
\22\ GAO/OGC-98-5, U.S. General Accounting Office, Report to the
Chairman, Committee on Resources, House of Representatives: U.S.
Insular Areas--Application of the U.S. Constitution 1 n.1 (1997).
---------------------------------------------------------------------------
This historical record explodes the assumption, which is the
foundation of the Justice Department's 1990's pronouncements on the
compact issue, that all ``territories'' are the same and all are
equally subject to congressional authority. The Supreme Court has long
recognized well-established gradations among territories. For example,
the Court has repeatedly emphasized the differences between
incorporated and unincorporated territories, with corresponding
differences with respect to Congress' ability to regulate them. See
Granville-Smith v. Granville-Smith, 349 U.S. 1, 5 (1955) (``A vital
distinction was made between `incorporated' and `unincorporated'
territories. The first category had the potentialities of statehood
like unto continental territories. The United States Constitution,
including the Bill of Rights, fully applied to an `incorporated'
territory. The second category described possessions of the United
States not thought of as future states. To these only some essentials,
withal undefined, of the Constitution extended.'') (internal citations
omitted); Balzac v. Porto Rico, 258 U.S. 298, 304-05 (1922) (``It is
well settled that these provisions for jury trial in criminal and civil
cases apply to the Territories of the United States. . . . But it is
just as clearly settled that they do not apply to territory belonging
to the United States which has not been incorporated into the Union.'')
(internal citations omitted); Rassmussen, 197 U.S. at 520 (``[The
Philippines] had not been incorporated into the United States as a part
thereof, and therefore Congress, in legislating concerning them, was
subject only to the provisions of the Constitution applicable to
territory occupying that relation.'').
Accordingly, the Court has explained that the ``limitations [upon
Congress] which are to be applied in any given case involving
territorial government must depend upon the relation of the particular
territory to the United States, concerning which Congress is exercising
the power conferred by the Constitution.'' Dorr, 195 U.S. at 142.
Congress is free to treat with different territories on different
terms, and to accord them different degrees of autonomy, because unlike
States, which are guaranteed to join the Union on ``an equal footing''
with existing States, Coyle v. Smith, 221 U.S. 559, 563-69 (1911), the
territories are not guaranteed equal status and Congress may adapt the
status of individual territories as it sees fit.
In its memoranda opposing compacts with territories, the Justice
Department urged that Congress may not delegate government power to a
territory and relinquish the power unilaterally to amend or revoke that
delegation at will, because the resulting territory would be
incompatible with a rigid, idealized notion of ``Territory'' supposedly
derived from Article IV, section 3. The same response is again in
order--there is no one, pure form of a ``Territory'' that Congress must
adhere to when it agrees to confer the power of self-government on the
people of a territory. The contours of the territorial power are not
something that can be divined from an abstract theory--they must be
worked out ``as questions arise.'' Rassmussen, 197 U.S. at 521.
In light of the Justice Department's effort to fashion a
constitutional straightjacket for Congress from the single term
``Territory,'' it is worth remembering that Congress' power over the
territories is not merely another enumerated power such as those listed
in Article I. The power of the United States to control relations with
the people in its territories inheres in national sovereignty and would
exist even without Article IV, section 3. In the words of Chief Justice
Marshall, the ``power of governing and of legislating for a territory
is the inevitable consequence of the right to acquire and to hold
territory.'' Sere Laralde v. Pitot, 10 U.S. at 336. This power
``result[s] necessarily from the facts that [a territory] is not within
the jurisdiction of any particular state, and is within the power and
jurisdiction of the United States.'' American Ins. Co., 26 U.S. at 542-
43 (Marshall, C.J.). See also Dorr, 195 U.S. at 140-41. Although
congressional power over territories is confirmed by Art. IV, section
3, it actually arises ``from the ownership of the country in which the
[t]erritories are, and the right of exclusive sovereignty which must
exist in the National Government, and can be found nowhere else.''
United States v. Kagama, 118 U.S. 375, 380 (1886) (citation omitted).
The Justice Department recognized the need for congressional
flexibility in this area in its original 1963 memorandum when it
embraced Felix Frankfurter's rule of ``inventive statesmanship.'' 1963
OLC Memo at 5-6. William H. Rehnquist likewise relied on Frankfurter's
analysis in 1971. See 1971 OLC Memo, Attachments at 3-4, 8, and also
quoted the testimony of Harvard professor Abe Chayes, the former State
Department Legal Adviser, on the status of Puerto Rico: ``[T]he Insular
Cases themselves were cases in which a new arrangement was developed''
to ``meet a new situation,'' and the Supreme Court flatly ``rejected
old and rigid dogmatic categor[ies].'' 1971 OLC Memo, Attachments at 5
(Status of Puerto Rico: Hearings Before United States--Puerto Rico
Comm'n on Status of Puerto Rico, S. Doc. No. 108, 89th Cong., 245-46).
Professor Chayes explained that ``the facts of international life in
the world today are such that we all should be very hesitant, and I
think the Supreme Court would be very hesitant, to confine the Congress
to the categories of independence, statehood, and territories. . . . As
a former State Department official, it is perfectly clear [to me] that
the United States has . . . territories and possessions around the
world: many of those territories and possessions are not suitable
either for statehood or for independence. If we establish a
constitutional category that says: All you can be is a territory in
which case you are totally subservient and there is . . . a colonial
relationship to the Federal Government, or else you must be either a
State or independent, it would be impossible really for the United
States to fulfill its obligations under the U.N. Charter with respect
to many of its territories.'' 1971 OLC Memo, Attachments at 5-6.
II. The United States And Puerto Rico Entered Into A Binding Compact In
1952 That Conferred Vested Political Rights On The People of
Puerto Rico
Puerto Rico was ceded to the United States by Spain in the
aftermath of the Spanish-American War. Pursuant to Article IX of the
Treaty of Paris, the United States and Congress agreed that ``[t]he
civil rights and political status of the native inhabitants of the
territories hereby ceded to the United States shall be determined by
Congress.'' See 30 Stat. 1754 (1898). Since then, Congress has
gradually granted Puerto Rico an increasing degree of self-
determination.
In 1900, Congress passed the Foraker Act, see 56 Cong. Ch. 191, 31
Stat. 77 (1900), which enabled the lower house of the Puerto Rico
Legislature to be elected by a limited electorate. This Act was
followed in 1917 by the Jones Act, which provided for the popular
election of both houses of the Puerto Rico Legislature. See Pub. L. No.
64-368, 39 Stat. 951 (1917). The Jones Act also served as an organic
government charter for Puerto Rico and gave Puerto Rico citizens
American citizenship. See id. And under the Elective Governor Act, the
governor of Puerto Rico was popularly elected. See Pub. L. No. 80-362,
61 Stat. 770 (1947).
In 1948, the successful candidates for Governor and Resident
Commissioner ran on a platform calling for a constitution drafted by
the people of Puerto Rico, and for a continued relationship with the
United States to be consented to by the people of Puerto Rico. In
recognition of the wishes of the people of Puerto Rico, on July 3,
1950, Congress enacted a bill, Public Law 600, to enable the people of
Puerto Rico to establish a constitution. Pub. L. No. 81-600, 64 Stat.
319 (1950).
Public Law 600 specifically declared that, ``recognizing the
principle of government by consent, this Act is now adopted in the
nature of a compact so that the people of Puerto Rico may organize a
government pursuant to a constitution of their own adoption.'' Id.
(emphases added). By its own terms, Public Law 600 was to be submitted
to the voters of Puerto Rico for acceptance or rejection. See id. If a
majority of the voters accepted the Act, the Puerto Rico Legislature
would call a constitutional convention to draft a constitution. See id.
The constitution would then be effective upon: (1) adoption by the
people of Puerto Rico, (2) approval by Congress, and (3) determination
by the President that the proposed constitution conformed with Public
Law 600 and the Constitution of the United States. See id. In addition,
those provisions of the Jones Act relating to local government of
Puerto Rico would be repealed under Public Law 600, and the remaining
Jones Act provisions relating to Puerto Rico's economic relationship to
the United States, to the application of Federal laws, and to
representation in Washington, would be known as the Puerto Rican
Federal Relations Act. See id. Congress's sole requirement as to the
constitution's content was that it ``shall provide a republican form of
government and shall include a bill of rights.'' Id.
On June 4, 1951, an overwhelming majority of the Puerto Rican
electorate voted in favor of Public Law 600. The constitutional
convention that followed produced a draft constitution in February
1952, and on March 3, 1952, it too was supported by an overwhelming
majority of Puerto Rico's voters. The Preamble of the Constitution of
Puerto Rico declared: ``We the People of Puerto Rico . . . do ordain
and establish this Constitution for the Commonwealth which, in the
exercise of our natural rights, we now create within our union with the
United States of America.'' And Article I, section 1 of the proposed
constitution provided that ``political power emanates from the people
and shall be exercised in accordance with their will, within the terms
of the compact agreed upon between the people of Puerto Rico and the
United States of America.'' P.R. CONST. art. I, 1 (emphasis added).
The Preamble and Article I thus made plain to all concerned---
including the Congress--that the proposed new government of Puerto Rico
would owe its existence to an act of popular sovereignty by the people
of Puerto Rico, rather than to an exercise of congressional territorial
power under Article IV of the Federal Constitution. Government power in
this proposed Commonwealth would ``emanate[] from the people'' and
would be bound only by ``the terms of the compact'' between the United
States and the people of Puerto Rico. P. R. CONST., art I, 1.
Congress expressly and formally approved these terms under Public Law
82-447, 66 Stat. 327 (1952), which stated that Public Law 600 ``was
adopted by the Congress as a compact with the people of Puerto Rico, to
become operative upon its approval by the people of Puerto Rico.'' See
Pub. L. No. 82-447, 66 Stat. 327 (emphasis added). See also Americana
of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431, 435 (3d Cir. 1966) (``The
government of the Commonwealth derives its powers not alone from the
consent of Congress, but also from the consent of the people of Puerto
Rico.'').
Thus, one need not look beyond the express terms of the legislative
and constitutional instruments to determine conclusively that this was
a compact between the United States and the people of Puerto Rico. The
contractual nature of the United States' new relationship with Puerto
Rico is reiterated in Public Law 600, in Public Law 447, and in the
Constitution of Puerto Rico itself, which was specifically reviewed and
expressly endorsed by Congress.
Indeed, Congress took pains to underscore the contractual nature of
Puerto Rico's new Commonwealth status, and to enumerate the only
federal laws to which the new Puerto Rico Constitution would be
subject. Congress conditioned its approval of the proposed constitution
on the addition by Puerto Rico of the following language to Article
VII--language drafted by Congress itself: ``Any amendment or revision
of this Constitution shall be consistent with the resolution enacted by
the Congress of the United States approving this Constitution, with the
applicable provisions of the Constitution of the United States, with
the Puerto Rican Federal Relations Act and with Public Law 600, Eighty-
first Congress adopted in the nature of a compact.'' P.R. CONST. art.
VII, 3 (as translated from the Spanish version) (emphasis added).\23\
---------------------------------------------------------------------------
\23\ Congress further conditioned approval of the Puerto Rican
Constitution on the deletion of several provisions of the proposed
constitution on policy grounds. Section 20 of Article II (providing the
right to obtain work, an adequate standard of living, and medical care)
was removed, and section 5 of Article II (dealing with public
education) was amended to explicitly protect the rights of those
attending private elementary schools. See Pub. L. No. 82-447, 66 Stat.
327 (1952). The Puerto Rican constitutional convention considered and
accepted these conditions and made the necessary changes to the draft
document. Even those who dispute the binding nature of the Puerto Rico
compact concede that, in Public Law 447 and Public Law 600, Congress
and Puerto Rico deliberately and jointly negotiated the terms of the
new relationship. 1991 Senate Hearings at 200 (Statement of Attorney
General Richard Thornburgh) (``Public Law 447 did not unconditionally
accept, ratify, and confirm the June 4, 1951 Constitution but mandated
several amendments that became effective on January 29, 1953.'').
---------------------------------------------------------------------------
The Puerto Rican Constitutional Convention accepted these terms,
thereby confirming the status of Public Law 600 as a negotiated
compact. The Convention approved the Constitution with Congress'
proposed changes, and on July 25, 1952, the Governor of Puerto Rico
announced the establishment of the Commonwealth of Puerto Rico. The
bargained-for commitment under Public Law 600 was the passage of the
Puerto Rican Constitution, a consideration which Congress accepted when
it enacted the compact into law. Insofar as the people of Puerto Rico
fully executed their part of the compact, Congress accordingly
relinquished its power to strip them of their political rights, and to
extinguish Puerto Rico's commonwealth status without mutual consent.
Puerto Rico's new juridical status was thus conferred by compact,
and it has long been understood that a ``compact'' is a binding
contractual commitment. See, e.g., Fletcher, 10 U.S. at 137. See also
Green, 21 U.S. at 92 (``the terms compact and contract are
synonymous''). As demonstrated above, the Supreme Court has scorned the
notion that, when Congress has made a pledge in a compact, ``it is free
to ignore that pledge and alter the terms of its obligations in case a
later Congress finds their fulfillment inconvenient.'' Perry, 294 U.S.
at 350. See also Murray, 96 U.S. at 444-45 (rejecting proposition that
a contract should be assumed to contain an implicit reservation of a
right to renege). And unlike the statute upheld in Bowen v. POSSE,
which contained a provision expressly reserving congressional power
``to alter, amend, or repeal any provision of the Act,'' 477 U.S. at
51-52, there is nothing remotely resembling such a reservation of
rights in Public Law 600, in Public Law 447, or anywhere else in
Congress' enactments pertaining to Puerto Rico's status as a
commonwealth.\24\
---------------------------------------------------------------------------
\24\ The congressional decision not to include such a reservation
of unilateral power over Puerto Rico was plainly a deliberate one,
because Congress did make a different reservation of rights. As
explained above, Congress demanded that Puerto Rico include in its new
Constitution a provision (Article VII) expressly making the right of
the people of Puerto Rico to amend their constitution subject to: (1)
the Federal Constitution, (2) the resolution enacted by the Congress
approving the Puerto Rican Constitution, (3) the Puerto Rican Federal
Relations Act, and (4) Public Law 600.
---------------------------------------------------------------------------
The new political status wrought by the 1952 compact and the new
political rights it conferred have been confirmed by the Supreme Court.
In Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982), the Court
accorded the same deference to the Puerto Rico Legislature that it
accords to states: ``Puerto Rico, like a state, is an autonomous
political entity, `sovereign over matters not ruled by the
Constitution.' '' 457 U.S. at 8 (quoting Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663, 673 (1974)) (internal quotation marks
omitted). In reaching this conclusion, the Court cited approvingly the
following passage in Cordova & Simonpietri Ins. Agency Inc. v. Chase
Manhattan Bank N.A.:
[In 1952] Puerto Rico's status changed from that of a mere
territory to the unique status of Commonwealth. And the federal
government's relations with Puerto Rico changed from being
bounded merely by the territorial clause, and the rights of the
people of Puerto Rico as United States citizens, to being
bounded by the United States and Puerto Rican Constitutions,
Public Law 600, the Puerto Rican Federal Relations Act and the
rights of the people of Puerto Rico as United States citizens.
649 F.2d 36, 39-42 (1st Cir. 1981) (emphasis added). See also
United States v. Valentine, 288 F. Supp. 957, 981 (D.P.R. 1968) (``It
is clear, however, that the compact does exist as a binding agreement,
irrevocable unilaterally between the people of Puerto Rico and the
Congress of the United States, transforming Puerto Rico's status from
territory to commonwealth, or Estado Libre Asociado.'').
Where the statutory enactments are themselves so clear on their
face that the United States' relationship with Puerto Rico derives from
and is governed by a compact, the inquiry is at an end, and it is
unnecessary to consult other sources. See, e.g., Freytag v. Comm'r, 501
U.S. 868, 873 (1991) (``When we find the terms of a statute
unambiguous, judicial inquiry should be complete except in rare and
exceptional circumstances.''). But even if other sources as to the fact
and nature of the compact are consulted, they confirm the congressional
intent that inheres in the statutes themselves. Thus the formal
submissions made by the United States to the United Nations publicly
confirmed that the United States understood itself to be deliberately
and irrevocably binding itself in a compact with the people of Puerto
Rico.
Specifically, in 1953 the United States advised the United Nations
that it would no longer report on Puerto Rico as a ``non-self-governing
territory'' under Article 73(e) of the United Nations Charter.\25\ See
Memorandum by the Government of the United States of America concerning
the Cessation of Transmission of Information under Article 73(e) of the
Charter with Regard to the Commonwealth of Puerto Rico (``Cessation
Memorandum''), reprinted in PUERTO RICO FEDERAL AFFAIRS ADMINISTRATION,
DOCUMENTS ON THE CONSTITUTIONAL RELATIONSHIP OF PUERTO RICO AND THE
UNITED STATES, 616 (3d ed. 1988). In the Cessation Memorandum, the
``Government of the United States of America'' formally advised the
United Nations that the incremental process of ``vesting of powers of
government in the Puerto Rican people and their elected
representatives'' had ``reached its culmination with the establishment
of the Commonwealth of Puerto Rico and the promulgation of the
Constitution of this Commonwealth on July 25, 1952.'' Cessation
Memorandum at 616. The Cessation Memorandum declares unequivocally:
``With the establishment of the Commonwealth of Puerto Rico, the people
of Puerto Rico have attained a full measure of self-government.'' Id.
---------------------------------------------------------------------------
\25\ After the United States became a party to the United Nations
Charter, Puerto Rico was classified as a non-self-governing territory
under Chapter XI of the Charter, ``Declaration Regarding Non-Self-
Governing Territories.'' The United States was obligated under Chapter
XI of the Charter to adhere to United Nations decolonization procedures
with respect to Puerto Rico, including the specific requirement to
transmit reports to the United Nations regarding conditions in the
territory under Article 73(e) of Chapter XI of the Charter.
---------------------------------------------------------------------------
In describing the gradual process that lead to the establishment of
the Commonwealth, the Cessation Memorandum noted that Public Law 600
had ``expressly recognized the principle of government by consent, and
declaring that it was `adopted in the nature of a compact,' required
that it be submitted to the voters of Puerto Rico in an island-wide
referendum for acceptance or rejection.'' Id. at 618. The Cessation
Memorandum also noted that Public Law 447, ``in its preambular
provisions, recalled that the [Public Law 600] `was adopted by the
Congress as a compact with the people of Puerto Rico . . . .' '' Id. at
619. ``The operative part of Public Law 447'' recorded Congress's
approval of the Commonwealth's new Constitution on the condition, among
others, that the following sentence be added thereto: ``Any amendment
or revision of this Constitution shall be consistent with . . . Public
Law 600, 81st Cong. adopted in the nature of a compact.'' Id. at 620.
In describing the ``principle features of the Constitution of the
Commonwealth,'' the Cessation Memorandum noted that the new
Constitution, as specifically approved by Congress, expressly provides
that it ``shall be exercised in accordance with [the people's] will,
within the terms of the compact agreed upon between the people of
Puerto Rico and the United States of America.'' Id. at 620, quoting
P.R. CONST. art. I, 1. The Memorandum also advised the United Nations
that the Puerto Rico Legislature had been given ``full legislative
authority with respect to local matters.'' Id.
Under the heading ``Present Status of Puerto Rico,'' the Cessation
Memorandum declared:
By the various actions taken by the Congress and the people
of Puerto Rico, Congress has agreed that Puerto Rico shall
have, under that Constitution, freedom from control or
interference by the Congress in respect of internal government
and administration, subject only to compliance with applicable
provisions of the Federal Constitution, the Puerto Rican
Federal Relations Act and the acts of Congress authorizing and
approving the Constitution, as may be interpreted by judicial
decision.
Id. at 622-3 (emphasis added). It further noted that ``[t]he people
of Puerto Rico have complete autonomy in internal economic matters and
in cultural and social affairs under a Constitution adopted by them and
approved by the Congress.'' Id. at 623. The Memorandum concluded that
``it is no longer appropriate for the United States to continue to
transmit information to the United Nations on Puerto Rico under Article
73(e) of the Charter'' in light of Puerto Rico's ``new constitutional
arrangements.'' Id. at 624. Specifically, the Memorandum emphasized the
following declaration of the Puerto Rico Constitutional Convention:
``When this Constitution takes effect, the people of Puerto
Rico shall thereupon be organized into a commonwealth
established within the terms of the compact entered into by
mutual consent, which is the basis of our union with the United
States of America.
Thus we attain the goal of complete self-government, the last
vestiges of colonialism having disappeared in the principle of
Compact, and we enter into an era of new developments in
democratic civilization.''
Id. at 624.
Finally, Mason Sears, the United States Representative to the
Committee on Information from Non-Self-Governing Territories, explained
the legal significance under American law of the fact that Puerto
Rico's Constitution was the result of a compact:
A most interesting feature of the new constitution is that it
was entered into in the nature of a compact between the
American and the Puerto Rican people. A compact, as you know,
is far stronger than a treaty. A treaty usually can be
denounced by either side, whereas a compact cannot be denounced
by either party unless it has the permission of the other.
Press Release No. 1741, United States Mission to the United
Nations, at 2 (Aug. 28, 1953) (emphasis added).
The legislative history of Public Law 600 is consistent with these
contemporaneous, formal statements by the United States. In response to
Representative Meader's question whether Congress's approval of the
proposed Puerto Rico Constitution would result in ``an irrevocable
delegation of authority to Puerto Rico, similar to that granted when we
admit a State into the Union.'' CONG. Rec. 6189-90 (daily ed. May 28,
1952), Representative Bentsen responded: ``Yes. In my interpretation, I
think we are doing that. I think that is what we should be doing for
Puerto Rico . . .'' Id. at 6190. Representative Meader read Public Law
600 precisely the same way, but he opposed an irrevocable grant of
commonwealth status, and he therefore introduced an amendment to the
House Resolution which contained language declaring ``[t]hat nothing
herein contained shall be construed as an irrevocable delegation,
transfer, or release of the power of the Congress granted by Article
IV, section 3, of the Constitution of the United States.'' This
amendment was not adopted. See id. at 6203-04.
The compact of 1952 thus wrought a fundamental change in the
relationship between Puerto Rico and the United States, and the federal
courts have repeatedly recognized this. In Calero-Toledo v. Pearson
Yacht Leasing Co., 416 U.S. 663, 672 (1974), the Supreme Court looked
to the compact enacted by Public Law 600 and concluded that ``[Puerto
Rico] is a political entity created by the act and with the consent of
the people of Puerto Rico and joined in union with the United States of
America under the terms of the compact.'' Calero-Toledo, 416 U.S. at
672 (emphasis added). ``The authority exercised by the federal
government emanated thereafter from the compact itself. Under the
compact between the people of Puerto Rico and the United States,
Congress cannot amend the Puerto Rico Constitution unilaterally, and
the government of Puerto Rico is no longer a federal government agency
exercising delegated power.'' United States v. Quinones, 758 F.2d 40,
42 (1st Cir. 1985) (emphasis added).\26\ Thus the courts now look to
the compact to determine the scope of congressional power over Puerto
Rico. See Moreno Rios v. United States, 256 F.2d 68, 71 (1st Cir.
1958). For example, in Mora v. Torres, 113 F. Supp. 309, 314 (D.P.R.
1953), the court explained that, ``[u]nder Law 600, the previous power
of the Congress to annul laws approved by the Legislature of Puerto
Rico was expressly repealed and eliminated. . . . It was clearly the
intention of Congress as to that clause to deprive itself of that
power, and that deprivation was within the terms of the compact made
with the people of Puerto Rico.'' \27\
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\26\ The Department of Justice has sometimes taken the position
that the holding in United States v. Quinones, 758 F.2d 40 (1st Cir.
1985), as opposed to its language, supports the view that Puerto Rico
is an unincorporated territory subject to Congress's plenary power
because the court ``upheld a Federal law unilaterally altering the 1952
constitution and PRFRA without the consent of Puerto Rico.'' H.R. REP.
No. 105-131, at 26 (1997) (citing GAO/HRD-91-18, The U.S. Constitution
and the Insular Areas; Apr. 12, 1991, Letter to GAO from Assistant
Attorney General of the United States, App. VIII, H.R. REP. No. 104-
713, pt. 1.). In fact, Quinones holds only that Puerto Rico's laws,
just as the laws of a state, are subject to the supremacy of federal
laws in certain areas of exclusive federal jurisdiction, such as the
question of admissibility of evidence in a federal court. See Quinones,
758 F.2d at 43 (``It is well settled that in federal prosecutions
evidence admissible under federal law cannot be excluded because it
would be inadmissible under state law.'') (emphases added) (citing
United States v. Butera, 677 F.2d 1376, 1380 (11th Cir. 1982)). Thus,
as Quinones specifically notes, the same result would have been reached
in that case if Puerto Rico were a state. Therefore, Quinones in no way
suggests that Puerto Rico's rights of self-governance are those of an
unincorporated territory subject to Congress' plenary power.
Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464 (1st Cir.
2000), is equally inapposite. There the court examined a complex,
rather technical statutory issue and held that the defendant was immune
from suit under the Longshore and Harbor Workers' Compensation Act,
pursuant to a provision of the Defense Base Act. The case did not
present the issue of congressional power to make binding compacts with
Puerto Rico, nor even address the question whether Puerto Rico is an
incorporated or unincorporated territory. Indeed, as pointed out in
United States v. Martinez, 106 F. Supp. 2d 311, 314 (D.P.R. 2000),
Davila-Perez ``is a narrow ruling concerning statutory interpretation
of the definitions within the Defense Base Act.''
Nor is there any genuine tension between Quinones and Rodriguez v.
Puerto Rico Federal Affairs Administration, 338 F. Supp. 2d 125 (D.D.C.
2004). The case dealt with a claim under the Fair Labor Standards Act
(``FLSA'') against a Puerto Rican agency, and held that Puerto Rico did
not enjoy sovereign immunity from FLSA claims. To be sure, the opinion
contains dictum that ``[w]hat Congress giveth, Congress may take
away,'' 338 F. Supp. 2d at 128, but the opinion does not even mention,
let alone attempt to rebut, the change in Puerto Rico's political
status in 1952, the effect of congressional endorsement of Puerto Rican
sovereignty in Public Law 600 and Public Law 447, the binding nature of
congressional compacts, nor any of the many cases decided since 1952
holding that Puerto Rico enjoys a unique territorial status. The case
presented only a narrow question of sovereign immunity under a
particular statute, and elsewhere acknowledged that it is up to
Congress to shape federal relations with Puerto Rico: ``It is for
Congress, and not this court, to decide . . . .'' Id. at 130.
\27\ Although the recent CRS Report agrees that Congress made a
compact with Puerto Rico in 1952, 2005 CRS Report at 1-2, 2-3, it
inexplicably asserts that Public Law 600 and the Puerto Rico
Constitution approved by Congress ``did not materially change the
relationship of Puerto Rico to the federal government.'' See also id.
at 2 (``while the approval of the Commonwealth Constitution marked a
historic change in the civil government for the islands, neither it,
nor the public laws approved by Congress in 1950 and 1952, revoked
statutory provisions concerning the legal relationship of Puerto Rico
to the United States.''). This ipse dixit is unadorned by any analysis
or citation, and it totally ignores the body of Supreme Court authority
discussed in the text above, not to mention Congress's own legislative
endorsement (in Pub. L. No. 82-447) of article I, 1 of the Puerto
Rico Constitution, which provides that government power in Puerto Rico
now ``emanates from the people'' and that federal relations are bound
by the ``terms of compact.''
For additional authority on the fundamental change in Puerto Rico's
status in 1952, see Romero v. United States, 38 F.3d 1204, 1208 (Fed.
Cir. 1994) (``Congress approved the proposed Constitution of the
Commonwealth of Puerto Rico, which thenceforth changed Puerto Rico's
status from that of an unincorporated territory to the unique one of
Commonwealth.''); United States v. Lopez Andino, 831 F.2d 1164, 1168
(1st Cir. 1987) (``Puerto Rico, like a state, is an autonomous
political entity.'') (quoting Rodriguez v. Popular Democratic Party,
457 U.S. 1(1982)); First Fed. Sav. & Loan Ass'n v. Ruiz De Jesus, 644
F.2d 910, 911 (1st Cir. 1981) (``Puerto Rico's territorial status
ended, of course, in 1952. Thereafter it has been a Commonwealth with a
particular status as framed in the Puerto Rican Federal Relations
Act.''); Mora v. Mejias, 206 F.2d 377, 387 (1st Cir. 1953) (``Puerto
Rico has thus not become a State in the federal Union like the 48
States, but it would seem to have become a State within a common and
accepted meaning of the word.''); United States v. de Modesti, 145 F.
Supp. 2d 171, 174 (D.P.R. 2001) (``Puerto Rico is to be afforded the
degree of autonomy and independence normally associated with a state of
the union.''); United States v. Vega Figueroa, 984 F. Supp. 71, 76-77
(D.P.R. 1997) (rejecting the argument that Puerto Rico is an
unincorporated territory); Hilton Hotels Int'l Inc., 2 P.R. Labor Rel.
Bd. 888 (1955) (``With the creation of the Commonwealth, Puerto Rico
ceased to be a territory within the meaning of that term in the
Constitution of the United States and its judicial interpretation.'').
---------------------------------------------------------------------------
Accordingly, the Supreme Court has squarely held that ``Puerto
Rico, like a state, is an autonomous political entity, `sovereign over
matters not ruled by the Constitution.' '' Rodriguez, 457 U.S. at 8.
Similarly, in Examining Bd. of Eng'rs, Architects & Surveyors v. Flores
de Otero, 426 U.S. 572, 597 (1976), the Court held that Puerto Rico is
a ``state'' rather than a ``territory'' for purposes of jurisdiction
under 42 U.S.C. section 1983, pointing out that ``Congress relinquished
its control over the organization of the local affairs of the island
and granted Puerto Rico a measure of autonomy comparable to that
possessed by the States.''\28\ Thus, ``Puerto Rico occupies a
relationship to the United States that has no parallel in our
history.'' Flores de Otero, 426 U.S. at 596.
---------------------------------------------------------------------------
\28\ Harris v. Rosario, 446 U.S. 651 (1980), is not to the
contrary. See, e.g., Vega Figueroa, 984 F. Supp. at 76-77. The narrow
issue there was whether Puerto Rico may constitutionally be treated
differently than the states under a federal welfare program. In holding
that Puerto Rico could be provided less welfare benefits than the
states receive, the Court merely reaffirmed that Puerto Rico is not
treated as a state for all purposes. Id. at 651-52. But the Court did
not even suggest that Congress may legislate for the Commonwealth of
Puerto Rico as it does for unincorporated territories, nor did it
question in any way Puerto Rico's autonomy under Public Law 600 and the
Puerto Constitution that Congress endorsed.
---------------------------------------------------------------------------
In short, both the history of the relationship between the United
States and Puerto Rico and the relevant Supreme Court cases confirm
that Puerto Rico's commonwealth status is predicated upon a binding
compact, created through the mutual consent of the sovereign parties
and revocable, likewise, only by the mutual consent of the parties.
______
Study of W. Michael Reisman, Myers S. McDougal Professor of
International Law, Yale Law School and Robert D. Sloane, Associate
Professor of Law, Boston University School of Law
Future Status Options and Processes for Preserving the Right to Self-
Determination of the Commonwealth of Puerto Rico
a study prepared for the status commission of the popular democratic
party of puerto rico
introduction
In 1975, W. Michael Reisman, coauthor of the present report, wrote
a study of Puerto Rico's status under international law as an
associated state and participation in the international legal
process.\1\ Recent developments in the executive and legislative
branches of the United States government in particular, (1) H.R. 856,
the ``United States-Puerto Rico Political Status Act,'' which died in
the Senate;\2\ (2) the 2005 Report of the President's Task Force on
Puerto Rico's Status;\3\ and, most significantly, (3) S. 2304,\4\ the
``Puerto Rico Self Determination Act of 2006,''--as well as the
evolution of international and constitutional law since then invite an
updated appraisal of Puerto Rico's political and legal status and a
consideration of future options for preserving and implementing its
internationally secured right to self-determination. This report, which
has been prepared at the request of Mr. William Miranda Marin, as
President of the Subcommittee on International Options of the Status
Commission of the Popular Democratic Party, evaluates Puerto Rico's
legal status under both international and U.S. constitutional law and
considers the processes available to maintain and fully realize that
right.
---------------------------------------------------------------------------
\1\ W. MICHAEL REISMAN, PUERTO RICO AND THE INTERNATIONAL PROCESS:
NEW ROLES IN ASSOCIATION (1975).
\2\ H.R. 856, 105th Cong., 2d Sess. (1998).
\3\ REPORT BY-THE PRESIDENT'S TASK FORCE ON PUERTO RICO'S STATUS
(2005) [hereafter 2005 TASK FORCE REPORT]; see Exec. Order No. 13183,
65 Fed. Reg. 82889 (Dec. 23, 2000) (establishing the Task Force); see
also Exec. Order No. 13209, 66 Fed. Reg. 22105 (Apr. 30, 2001); Exec.
Order No. 13319, 68 Fed. Reg. 68233 (Dec. 3, 2003).
\4\ S. 2304, 109th Cong., 2d Sess. (2006).
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Part I offers an overview of associated states in international
law. Part II considers Puerto Rico's history and status, with a focus
on the political and legal developments culminating in its present
position of association with the United States. Part III then compares
and contrasts the status and experiences of the four other states
associated internationally with the United States: the Northern Mariana
Islands, the Republic of the Marshall Islands, the Federated States of
Micronesia, and the Republic of Palau.\5\ Part IV examines the
constitutional law pertinent to different associated states. Parts V
and VI analyze the right to self-determination under, respectively,
contemporary international law and U.S. constitutional law. Part VII,
finally, considers potential for and processes available to Puerto Rico
to preserve or realize this right fully in view of future developments
in the United States and the freely expressed wishes of the Puerto
Rican people.
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\5\ Parts I, II, and III of this report have been liberally
excerpted, paraphrased or adapted and updated from both REISMAN, supra
note 1, and W. Michael Reisman and Chimene I. Keitner, Free
Association: The United States Experience, 39 TEX. INT'L L.J. 1 (2003).
---------------------------------------------------------------------------
i. associated states in international law
Contemporary international law guarantees to all ``peoples'' the
right to self-determination. The U.N. Charter proclaimed as one of its
paramount principles and purposes the development of ``friendly
relations among nations based on respect for the principle of equal
rights and the self-determination of peoples.'' \6\ Resolutions of the
General Assembly and the Security Council, widely subscribed human
rights treaties, decisions of the International Court of Justice (ICJ),
and the activities of the United Nations (particularly during the era
of decolonization) alike confirm that the right to self-determination
has achieved and retained the status of a fundamental norm of
international law.\7\ But that is not to say that the conditions for
and content of the right to self-determination have remained unchanged.
Self-determination, in its current legal meaning, does not require or
imply a single political status or arrangement for all entities
entitled to the exercise of this right;\8\ rather, international law
offers self determining entities, and in particular former colonies,
three options: emergence as a sovereign independent state, free
association with an independent state, and integration with an
independent state. Insofar as these options represent the clear wish of
the inhabitants of the self determining entity, international law deems
each of these political arrangements to entail ``a full measure of self
government,''\9\ even though two of them do not involve full
independence. Territorial communities exercise their right to self-
determination by choosing among these options.
---------------------------------------------------------------------------
\6\ U.N. CHARTER art. 1, para. 2; see also U.N. CHARTER art. 55.
\7\ See G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66,
U.N. Doc. A/4684 (1960); G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp.
No. 16, at 29, U.N. Doc. A/4684 (1960); G.A. Res. 2621, U.N. GAOR, 25th
Sess., Supp. No. 28, at 2, U.N. Doc. A/8028 (1970); G.A. Res. 2878,
U.N. GAOR, 26th Sess., Supp. No. 29, at 16, U.N. Doc. A/8429 (1971);
G.A. Res. 82, U.N. GAOR, 47th Sess., at 1, U.N. Doc. A/RES/47/82
(1992); S.C. Res. 384 (Dec. 22, 1975); International Covenant on Civil
and Political Rights, Art. 1, Dec. 16, 1966, 999 U.N.T.S. 171;
International Covenant on Economic, Social and Cultural Rights, Art. 1,
Dec. 16, 1966, 9993 U.N.T.S. 3; Advisory Opinion No. 53, Legal
Consequences for States of the Continued Presence of South Africa in
Namibia, 1971 I.C.J. 16, 57-58 (June 21); see also Vienna Declaration
and Programme of Action, June 25, 1993, para. 2, U.N. Doc. AJConf.157/
24 (Part I) (1993), 32 I.L.M. 1661, 1665 (1993) (declaring the denial
of self-determination a human rights violation); Rupert Emerson, The
New Higher Law of Anti-Colonialism, in THE RELEVANCE OF INTERNATIONAL
LAW 153 (Karl W. Deutsch & Stanley Hoffmann eds., 1968).
\8\ The right to self-determination belongs to ``peoples,'' but the
definition of that term in international law remains elusive. See,
e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 123.
For present purposes, this debate is not relevant; no one denies that
the peoples of former colonies such as Puerto Rico enjoy the right to
self-determination.
\9\ G.A. Res. 1541, supra note 7, at 29.
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Although the Montevideo Convention enumerates formal criteria for
statehood under international law,\10\ the word ``state'' has been and
continues to be used to refer to a range of territorial phenomena.
Notwithstanding the principle of the sovereign, juridical equality of
states enshrined in the U.N. Charter,\11\ factual inequalities and
hence patterns of political superordination and subordination persist
and receive a degree of legal cognizance. Some institutional
arrangements and practices strive to implement the de lure equality of
states;\12\ others recognize and take account of these de facto
inequalities.\13\ The international decision-making process constantly
strives to accommodate the exigencies of power allocation with the
major normative goals articulated and pursued by actors in the
international system.
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\10\ Convention on the Rights and Duties of States, Dec. 26, 1933,
165 L.N.T.S. 19.
\11\ U.N. CHARTER art. 2, para. 1.
\12\ See, e.g., U.N. CHARTER art. 18, para. 1 (giving each member
of the General Assembly one vote).
\13\ See e.g., U.N. CHARTER ch. V (establishing the Security
Council); Advisory Opinion No. 43, Constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative Organization,
1960 I.C.J. 150 (June 8).
---------------------------------------------------------------------------
Where two states of unequal power establish formal and durable
links, we may speak of an ``association.'' While hardly novel in terms
of the power relationships just described, associations enable
significant innovations in their allocation of authority. A
relationship of association in contemporary international law involves
the subordination of and delegation of significant competence by one of
the parties (the associate) to the other (the principal), while
preserving the international statehood of each.\14\ Associations,
despite their domestic or internal features, remain a matter of
inclusive concern for the international community, for many policies of
modem international law, some of them peremptory, now reach communities
and individuals in them regardless of the formal status established by
authoritative or effective national elites. Self-determination and
human rights, for example, clearly cannot be denied by claims that.
these matters remain, to paraphrase Article 2(7) of the U.N. Charter,
solely within the domestic jurisdiction of states.\15\ An association,
precisely because it is a pattern characterized by the continuing
subordination of one community, remains subject at all times to the
invocation of international scrutiny.
---------------------------------------------------------------------------
\14\ See Margaret Broderick, Associated Statehood--A New Form of
Decolonisation, 17 INT'L & COMP. L.Q. 368 (1968).
\15\ See, e.g., Myres S. McDougal and W. Michael Reisman, Rhodesia
and the United Nations: The Lawfulness of International Concern, 62 AM.
J. INT'L L. 1, 16 (1968).
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Invocation, however, does not necessarily import condemnation. Not
all associations should be deemed unlawful or pathological under
international law. To the contrary, many associations appear to be
lawful and mutually beneficial relationships, though they often also
involve certain costs and uncertainties. Associations as such cannot,
therefore, be deemed unlawful, either under past doctrines or under the
regime established by General Assembly Resolutions 1514 (XV) and 1541
(XV).\16\ Nor, however, can the mere appellation of association conceal
circumstances of de facto colonial subordination or transform them into
a lawful arrangement. The key to legality resides in the substance of
the relationship, not its label. No one, for example, assumed that the
colonial wars in Portuguese Africa ceased to be such because
metropolitan Portugal proclaimed its overseas territories integral
parts of Portugal, or that the character of the Algerian war of
independence should be characterized differently because France
solemnly insisted that Algeria remained an integral part of
metropolitan France. Content, not form, is determinative.
---------------------------------------------------------------------------
\16\ G.A. Res. 1514, supra note 7, at 66; G.A. Res. 1541, U.N.
GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960). See,
e.g., G.A. Res. 2064, U.N. GAOR, 20th Sess., Supp. No. 14, at 56, U.N.
Doc. A/6014 (1965) (approving associated status of Cook Islands); G.A.
Res. 1626, U.N. GAOR, 16th Sess., Supp. No. 17, at 33, U.N. Doc. A15100
(1962) (revoking the Trusteeship Agreement for Western Samoa).
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Resolution 1541 (XV),\17\ which the General Assembly adopted on the
same day as its historic ``Declaration on the Granting of Independence
to Colonial Countries and Peoples,'' \18\ can for that reason be
Understood as an authoritative embodiment of the key conditions that
render associations a lawful and appropriate discharge of the duty to
provide former colonies and peoples with a genuine form of self-
determination. It includes the following indicia of lawfulness:
---------------------------------------------------------------------------
\17\ G.A. Res. 1541, supra note 7, at 29. The General Assembly
declared 1990-2000 the ``International Decade for the Eradication of
Colonialism,'' and 2001-2010 the ``Second International Decade for the
Eradication of Colonialism.'' G.A. Res. 43/47, U.N. GAOR, 43d Sess.,
Supp. No. 49, at 49, U.N. Doc. A/43/49 (1988); G.A. Res. 55/146, U.N.
GAOR, 55th Sess., Supp. No. 49, at 96, U.N. Doc. A/55/49 (2000).
\18\ G.A. Res. 1514, supra note 7, at 66.
First, the extent of the associate population's consent. Principle
---------------------------------------------------------------------------
VII of the annex to Resolution 1541 (XV) states:
(a) Free association should be the result of a free and
voluntary choice by the peoples of the territory concerned
expressed through informed and democratic processes. It should
be one which respects the individuality and the cultural
characteristics of the territory and its peoples, and retains
for the peoples of the territory which is associated with an
independent State the freedom to modify the status of that
territory through the expression of their will by democratic
means and through constitutional processes.
(b) The associated territory should have the right to
determine its internal constitution without outside
interference, in accordance with due constitutional processes
and the freely expressed wishes of the people. This does not
preclude consultations as appropriate or necessary under the
terms of the free association agreed upon.\19\
---------------------------------------------------------------------------
\19\ G.A. Res. 1541, supra note 7, at 29-30.
Note here how the contemporary associated state differs from the
classic protectorate. For the latter, the consent of the elite or the
effective authority sufficed regardless of either the degree of popular
support for that authority or for a decision to self subordinate to a
more powerful state. Associations under contemporary international law,
by contrast, require a plebiscite or some other reliable indicia of the
popular will. The disposition of a territorial community can be
effected lawfully only with the free and informed consent of its
members.\20\
---------------------------------------------------------------------------
\20\ See Lung-chu Chen & W. Michael Reisman, Who Owns Taiwan: A
Search for International Title, 81 YALE L.J. 599, 660-69 (1972). The
Annex to the Report of the Secretary-General on the Implementation of
the Declaration on the Granting of Independence to Colonial Countries
and Peoples emphasizes the importance of the free, uncoerced, and well-
informed exercise of the right to self-determination, and in particular
the right of peoples of Non-Self-Governing Territories to ``decide
their future political status with complete knowledge and awareness of
the full range of political options available-to them, including
independence.'' Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, U.N. GAOR, 46th Sess.,
Annex, Agenda Item 19, at 3, U.N. Doc. A/46/634/Rev.l (1991). Following
this, the General Assembly, at its 78th plenary meeting in 1991,
adopted an Action Plan for the International Decade for the Eradication
of Colonialism, in which it declared ``that exercise of the right to
self-determination should be carried out freely and without outside
pressure, in a form reflecting authentic interests and aspirations of
the peoples of Non-Self-Governing Territories and with the United
Nations playing an appropriate role.'' G.A. Res. 46/181, U.N. GAOR,
46th Sess., Supp. No. 49, at 49, U.N. Doc. A/46/49 (1991).
---------------------------------------------------------------------------
Second, the extent to which the association conduces to the
fulfillment of the human, including economic and social, rights that
international law now regards as minimum standards. The significance of
this criterion is reflected in the express language of mandate and
trust agreements, as well as Article 73 of the U.N. Charter, which
stipulates how U.N. member states responsible for non-self-governing
territories must exercise their authority:
Members of the United Nations which have or assume
responsibilities for the administration of territories whose
peoples have not yet attained a full measure of self-government
recognize the principle that the interests of the inhabitants
of these territories are paramount, and accept as a sacred
trust the obligation to promote to the utmost, within the
system of international peace and security established by the
present Charter, the well-being of the inhabitants of these
territories, and, to this end:
a. to ensure, with due respect for the culture of the peoples
concerned, their political, economic, social, and educational
advancement, their just treatment, and their protection against
abuses;
b. to develop self government, to take due account of the
political aspirations of the peoples, and to assist them in the
progressive development of their free political institutions,
according to the particular circumstances of each territory and
its peoples and their varying stages of advancement;
c. to further international peace and security;
d. to promote constructive measures of development, to
encourage research, and to cooperate with one another and, when
and where appropriate, with specialized international bodies
with a view to the practical achievement of the social,
economic, and scientific purposes set forth in this Article;
and
e. to transmit regularly to the Secretary-General for
information purposes, subject to such limitation as security
and constitutional considerations may require, statistical and
other information of a technical nature, relating to economic,
social, and educational conditions in the territories for which
they are respectively responsible other than those territories
to which Chapters XII and XIII apply.\21\
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\21\ U.N. CHARTER art. 73.
International law uses various criteria to determine whether
particular associations meet these two key, requirements of lawfulness.
These include cultural, linguistic or ethnic, identity between the
associate and its principal and relative social and economic
development. But such criteria constitute indicia rather than formal
prerequisites of lawfulness. Where cultural or linguistic differences
between principal and associate exist but have been ignored in the
association arrangement, the international community will tend to
evince. greater concern that the possibilities of self-determination
for the associate may be limited or its autonomous cultural development
impeded. Official attitudes of ethnic superiority on the part of the
principal, similarly, may well interfere with or prevent the associate
from enjoying its internationally guaranteed human rights. In part for
this reason, Principle IV of Resolution 1541 (XV) shifts the burden of
proof in such circumstances to the principal through the legal device
of presumption. The principal ``[p]rima facie'' must transmit
information in respect of a territory which is geographically separate
and is distinct ethnically and/or culturally from the country
administering it.'' \22\
---------------------------------------------------------------------------
\22\ G.A. Res. 1541, supra note 7, at 29.
---------------------------------------------------------------------------
Where a prima facie obligation exists, other criteria must be
examined, including ``elements . . . of an administrative, political,
juridical, economic or historical nature,'' and if these elements
``affect the relationship between the metropolitan State and the
territory concerned in a manner which arbitrarily places the latter in
a position or status of subordination, they support the presumption
that there is an obligation to transmit information under Article 73e
of the Charter.'' \23\ Equally, because socioeconomic and developmental
disparities may limit the real ability of a community fully to
participate in the relationship of association despite formal
guarantees of broad participatory rights, Principle VIII of Resolution
1541 (XV) indicates a reluctance to terminate non-self-governing status
by integration where socioeconomic disparities exist and implies that
closer international scrutiny will be appropriate for putative
associations characterized by imbalances of this sort.\24\ Principle
IX(a) thus stipulates that genuine integration should be realized only
where the former non-self-governing territory has ``attained an
advanced stage of self-government with free political institutions, so
that its people have the capacity to make a responsible choice through
informed and democratic processes.'' \25\ Still, cultural, ethnic,
social, and economic differences do not, ipso facto, violate the
associate relationship, rendering it unlawful as such or subject to
intense and continuing international scrutiny.
---------------------------------------------------------------------------
\23\ Id.
\24\ See id. at 30 (emphasizing that integration ``should be on the
basis of complete equality between the peoples of the erstwhile Non-
Self-Governing Territory and those of the independent country with
which it is [to be] integrated,'' meaning that the peoples of both
should enjoy, without discrimination of distinction of any kind, equal
status, citizenship, fundamental right and freedoms, and
``opportunities for representation and effective participation at all
levels . . . of government'').
\25\ Id. Accordingly, Principle IX(b) provides that integration
should be realized by impartial and informed democratic processes
``based on universal adult suffrage,'' with the United Nations acting,
where necessary, to supervise those processes. Id.
---------------------------------------------------------------------------
Besides voluntary, de jure, integration under Principle VI(c), is
there a stage in the evolution of the associate-principal relationship
beyond which the associate can no longer be considered a state, as a
matter of international law but must instead be deemed an integral part
of the principal?\26\ A survey of international practice does not
indicate any bright-line rules; rather, the determination must be made
based on contextual features and tested against a number of
international policies and norms. Several examples show how unreliable
certain seemingly obvious indicia of integration can be:
---------------------------------------------------------------------------
\26\ De facto incorporation would presumably bar the former
associate from access to certain international fora and arenas but
would not preclude its status as a claimant in some situations. The
ability to be a claimant is not limited to nation-states.
First, common citizenship or nationality might be thought to
indicate integration. But shared citizenship with the principal, has
not been deemed to extinguish the separate international legal
existence of the associate. The British Nationality Act of 1948, for
---------------------------------------------------------------------------
example, provided:
1.--(I) Every person who under this Act is a citizen of the
United Kingdom and Colonies or who under any enactment for the
time being in force in any country mentioned in subsection (3)
of this section is a citizen of that country shall by virtue of
that citizenship have the status of a British subject.
(2) Any person having the status aforesaid may be known
either as a British subject or as a Commonwealth citizen; and
accordingly in this Act and in any other enactment or
instrument whatever; whether passed or made before or after the
commencement of this Act, the expression ``British subject''
and the expression ``Commonwealth citizen'' shall have the same
meaning.
(3) The following are the countries herein before referred
to, that is to say, Canada, Australia, New Zealand, the Union
of South Africa, Newfoundland, India, Pakistan, Southern
Rhodesia and Ceylon.\27\
---------------------------------------------------------------------------
\27\ British Nationality Act, 1948,11 & 12 Geo. 6, c. 56, 1
(Eng.).
Article 77 of the 1958 French Constitution, as amended in 1960,
provided similarly.\28\ Notwithstanding these provisions, the United
Nations admitted as member states many territorial entities of the
British Commonwealth and the French, metropolitan community.\29\
---------------------------------------------------------------------------
\28\ 28 CONST. art. 77 (Fr.).
\29\ While rejection of an applicant to the United Nations does not
necessarily mean that it is not a state, the converse--admission as a
U.N. member as opposed to, for example, an observer--would appear to
indicate international acceptance of the applicant as a state.
---------------------------------------------------------------------------
Second, common trade or currency agreements, which might also be
thought to indicate integration, have not been deemed to extinguish the
separate international legal personality of associates. In the Austro-
German Customs Regime case,\30\ the Permanent Court of International
Justice (PCIJ) struck down a proposed customs regime between Austria
and Germany because it violated specific prohibitions imposed on
Austria by the Treaty of St. Germain, not because a customs regime per
se involved an alienation of independence. In fact, the Court explained
that
---------------------------------------------------------------------------
\30\ Advisory Opinion No. 41, Customs Regime Between Germany and
Austria, 1931 P.C.I.J. (ser. A/B) No. 41, at 37 (Sept. 5).
the establishment of this regime does not in itself
constitute an act alienating Austria's independence, for
Austria does not thereby cease, within her own frontiers, to be
a separate State, with its own government and administration;
and, in view, if not of the reciprocity in law, though perhaps
not in fact, implied by the projected treaty, at all events of
the possibility of denouncing the treaty, it may be said that
legally Austria retains the possibility of exercising her
independence.\31\
---------------------------------------------------------------------------
\31\ Id. at 52; see also id. at 48-49 (observing that Austria must
abstain from compromising its independence). Of course, the word
``independence'' in the St. Germain Treaty conveyed a political
conception of European security, As the Court tersely put it at the
outset of its opinion, ``Austria, owing to her geographical position in
central Europe and by reason of the profound political changes
resulting from the late war, is a sensitive point in the European
system.'' Id. at 42.
Consider also a current example: Successive stages of European
integration following the establishment of the European Coal and Steel
Community by the Treaty of Paris, including the customs regime
established by the Treaty of Rome and the economic and monetary union
adopted at Maastrict by the Treaty on European Union, may have been
thought by some to foreshadow a ``United States of Europe.'' \32\ None
of these arrangements, however, has been deemed to extinguish the
independence or international legal personality of the European Union's
member states. Indeed, the recent rejection of the proposed
Constitution of Europe by the citizens of a number of the Union's
member states reflects, among other sentiments, popular resistance to
any implication that greater cooperation and union in economic and
other issues of common concern need presage the demise of the separate
political identities of those states.\33\
---------------------------------------------------------------------------
\32\ See Treaty on European Union, Feb. 7, 1992, 31 I.L.M. 247
(1992); Treaty Establishing the European Economic Community, Mar. 25,
1957, 298 U.N.T.S. 11 (Treaty of Rome); Treaty Establishing the
European Coal and Steel Community, Apr. 18, 1951 (Treaty of Paris).
\33\ Treaty Establishing a Constitution for Europe, Oct. 29, 2004.
On May 29 and June 1, 2005, respectively, French and Dutch voters
rejected the treaty, and other states have since suspended the
ratification process. See, e.g., The Europe that Died, ECONOMIST, June
4, 2005.
---------------------------------------------------------------------------
Third, a territorial community's delegation of foreign affairs
power has not been deemed to extinguish its international legal
personality. In Rights of Nationals of the United States of America in
Morocco, the ICJ noted that the France did not dispute ``that Morocco,
even under the Protectorate, has retained its personality as a State in
international law. The rights of France in Morocco are defined by the
Protectorate Treaty of 1912.'' \34\ The Court explained that ``[u]nder
[the Treaty of Fez of 1912], Morocco remained a sovereign State, but it
made an arrangement of a contractual character whereby France undertook
to exercise certain sovereign powers in the name and on behalf of
Morocco, and, in principle, all of the international relations of
Morocco.'' \35\ A line of English cases from the nineteenth century
supports the same view.\36\ And Cyprus's admission to the United
Nations shows that the reservation of broad military privileges or
``military servitudes'' \37\ by the former principal does not
extinguish independence.\38\ Even the peculiar and broad limitations on
the foreign affairs power built into the very existence of the Free
City of Danzig did not deprive that entity of statehood, as both
international practice and jurisprudence confirm.\39\ In short, state
practice confirms that the delegation of foreign affairs power to
another state does not alone extinguish a territorial entity's
international legal personality.
---------------------------------------------------------------------------
\34\ Rights of Nationals of the United States in Morocco (Fr. v.
U.S.), 1952 I.C.J.176, 185 (Aug. 27).
\35\ Id. at 188.
\36\ See, e.g., Mighell v. Sultan of Johore, [1894] 1. Q.B. 149,
154-62 (Eng. C.A. 1893) (explaining that the treaty of alliance with
England does not deprive Johore of its independence); Duff Dev. Co. v.
Gov't of Kelantan, [1924] A.C. 797, 808 (H.L. 1924) (Eng.)
(``[N]otwithstanding the engagements entered into by the Sultan of
Kelantan with the British Government . . . His Majesty does not
exercise or claim any rights of sovereignty or jurisdiction over that
country.'').
\37\ Albert J. Esgain, Military Servitudes and the New Nations, in
3 THE NEW NATIONS IN INTERNATIONAL LAW AND DIPLOMACY: THE YEARBOOK OF
WORLD POLITY 42, 42 (William V. O'Brien ed., 1965).
\38\ See, e.g., Treaty Concerning the Establishment of the Republic
of Cyprus, Aug. 16, 1960, U.K.-Greece-Turk.-Cyprus, 382 U.N.T.S. 9, 38.
\39\ For a survey of virtually all the decisions made in the League
on Danzig's status, see JOHN BROWN MASON, THE DANZIG DILEMMA: A STUDY
IN PEACEMAKING BY COMPROMISE 238-41 (1946). For a compendium of treaty
and diplomatic practice, see id. at 228-47. Issues related to Danzig's
status came before the Permanent Court on a number of occasions. See,
e.g., Advisory Opinion No. 18, Free City of Danzig and Int'l Lab. Org.,
1930 P.C.I.J. (ser. B) No. 18, at 13 (suggesting that notwithstanding
its special relationship with Poland, the Free City of Danzig remains
entitled to look out for its. own interests and to represent itself);
Advisory Opinion No. 44, Access to, or Anchorage in, the Port of
Danzig, of Polish War Vessels, 1931 P.C.I.J. (ser. AJB) No. 43, at 18
(detailing Danzig's treatment as an independent political entity);
Advisory Opinion No. 42, Treatment of Polish Nationals and Other
Persons of Polish Origin or Speech in the Danzig Territory, 1932
P.C.I.J. (ser. AB) No. 44, at 23-24 (suggesting that the sui generis
status of the Free City of Danzig does not preclude the application of
international over municipal laws in a dispute between Danzig and
Poland). In the War Vessels case, Danzig appointed an ad hoc judge.
Polish War Vessels, 1931 P.C.I.J. at 131.
---------------------------------------------------------------------------
Fourth, subordination of the associate state's judiciary to the
highest judicial body of the principal state has not been deemed to
extinguish the associate's independent international existence. Many of
the members of the British Commonwealth retained, and some still
retain, various ties to the Judicial Committee of the Privy Council,
yet none of these relationships has been thought to jeopardize their
recognition as independent entities.\40\
---------------------------------------------------------------------------
\40\ See, e.g., Agreement for the Reference of Appeals from the
Supreme Court of the Federation of Malaya to the Judicial Committee of
the Privy Council, Mar. 4, 1958, U.K.-N. Ir.-Malaya, 314 U.N.T.S. 253
(demonstrating ties between members of the Commonwealth and Great
Britain).
---------------------------------------------------------------------------
None of these four factors, then, necessarily terminates the
associate's independent existence or even offers prima facie evidence
indicating its de facto merger with the principal. Rather, in
contemporary international law, the paramount factor that would
indicate lawful transition from association to integration is the
genuine and freely expressed desire of the associate's people to
terminate an independent existence and merge with the principal. The
international community thus accepted overt and apparently uncoerced
demonstrations of popular sentiment in favor of merger in the cases of
Syria and the United Arab Republic and of the Northern Cameroons and
the Federation of Nigeria,\41\ But given the conceptual and logistical
difficulties in assessing the will of the relevant populace, the
international community may not always accept at face value a purported
expression of integrationist desires. Or, as in the case of West Papua
and Indonesia,\42\ it may be either misguided or simply disingenuous
for the international community to accept the results of a purportedly
free, but manifestly rigged, ``act of free choice.'' \43\
---------------------------------------------------------------------------
\41\ On Syria, see Note verbale dated 7 March 1958 from the
Secretary-General to the president of the Security Council, U.N. SCOR,
13th Sess., Supp. Jan.-Mar. 1958, at 31-32, U.N. Doc. S/3976 (1958);
see also Notification About United Arab Republic, 1958 U.N.Y.B. 106,
U.N. Sales No. 59.I.1. For the sequence of events involved in the
``reactivation'' of Syria's membership, see The Admission of New
Members and Related Matters, 1961 U.N.Y.B. 166, 168, U.N. Sales No.
62.I.1. On the Northern Cameroons, see G.A. Res. 1608, U.N. GAOR, 15th
Sess., Supp. No. 16A, at 10-11, U.N. Doc. A/4684/Add.1 (1961); see also
The Northern Cameroons (Cameroon v. U.K.), 1963 I.C.J. 15 ;Dec. 2).
\42\ Agreement between the Republic of Indonesia and the Kingdom of
the Netherlands concerning West New Guinea (West Irian), 18 U.N. GAOR
Annex 1 (Agenda Item 20), U.N. Doc. A/5578 (1963).
\43\ G.A. Res. 2504 (XXVI), 24 U.N. GAOR Supp. (No. 30) at 3, U.N.
Doc. A/7630 (1969). For a description of the purported act of free
choice, see Gregory H. Fox, The Right to Political Participation in
International Law, 17 YALE J. INT'L L. 539, 575-76 (1992); see also
Thomas M. Franck, Dulce et Decorum Est: The Strategic Role of Legal
Principles in the Falklands War, 77 AM. J. INT'L L. 109, 120 (1983)
(denouncing Indonesia's ``rigged `consultation' which a shamefaced
international community accepted as a fait accompli'').
---------------------------------------------------------------------------
Multiple and diverse forms of possible legal association exist. The
rights and duties of associated states in international law vary
according to, inter alia, activity, organizational setting, and the
terms of the association. As the ICJ said in the Reparations case,
``[t]he subjects of law in any legal system are not necessarily
identical in their nature or in the extent of their rights, and their
nature depends upon the needs of the community.'' \44\ Associated
states may, depending on their form and status, conclude treaties, join
the United Nations and specialized agencies, and be parties to
contentious cases before the ICJ.\45\ The Covenant of the League of
Nations explicitly allowed colonies to become members of the League. As
practice shows, the U.N. Charter, while not as explicit as the Covenant
on this point, also permits associated states to become members of the
United Nations.
---------------------------------------------------------------------------
\44\ Advisory Opinion No. 4, Reparations for Injuries Suffered in
the Service of the United Nations, 1949 I.C.J. 174, 178 (Apr. 11).
\45\ See Reisman & Keitner, supra note 5, at 58-61 (providing a
tabular comparison of the activities and involvement in various
international organizations and treaties of the freely associated
states of the Republic of the Marshall Islands, the Federated States of
Micronesia, and the Republic of Palau).
---------------------------------------------------------------------------
In the modern era, international actors have paid insufficient
attention to the potential contribution of associate status to the
public order of the world community. Association, as noted, involves
the recognition of the political dependence of an entity but insistence
on its continuing discrete identity under international scrutiny.
Especially during the Cold War, this status represented a potentially
beneficial option for small states that found themselves in the
comparatively uncontested sphere of one of the Great Powers; the
``balance of power'' might have availed the principal and its
counterparts, but it did not provide opportunities for survival and
minimum political effectiveness for associates. Today, the economic,
political, and military dominance of certain states may make
association worthwhile for smaller states. By seeking membership in
international organizations, they can concede dependence in one arena
while asserting their independence in another; membership itself
becomes a guarantee of continued independence. The Economist made the
point with characteristic bluntness in regard to Kuwait: ``[c]ertainly
Kuwait has built up a surer defence by getting itself accepted as an
independent state--or anyhow a fair imitation of one'' than by British
protection.\46\ The rallying of an international coalition in 1991 to
repel the Iraqi invasion of Kuwait would seem to confirm this
observation.
---------------------------------------------------------------------------
\46\ Phantom War in the Desert, ECONOMIST, May 21, 1966, at 802,
803.
---------------------------------------------------------------------------
A legal status is not a physical phenomenon; it is an artifact, a
human creation. Its content and social significance reflect its
designers' objectives within the constraints imposed by the political
context (itself subject to shaping). In certain politically charged
areas, such as the West Bank, the possibility for a meaningful regional
accommodation based on the principle of association seems remote. In
other areas, such as Taiwan or Kosovo, the concept of free association
may yet hold some promise, even if current political tensions preclude
the immediate likelihood of constructive innovation. In a world where
independent states exist within increasingly constraining economic,
legal, and even political frameworks, free association can provide a
basis for a range of constructive state relationships on the spectrum
between full independence and integration. Were the potential for free
association and an appreciation of its international legal legitimacy
made more explicit, might not erstwhile secessionist movements such as
Biafra and the Southern Sudan have been resolved more quickly and
peacefully?
ii. puerto rico: history, socioeconomics, and politics
A. Introduction
Puerto Rico, the easternmost island of the Greater Antilles, lies
75 miles east of the Dominican Republic and just west of the Virgin
Islands. A little over 180 kilometers (100 miles) in length and 65
kilometers (40 miles) in width at. its maximum extensions, its total
area measures 9104 square kilometers (5657 square miles), 145 square
kilometers (90 square miles) of this being water. In July 2006, Puerto
Rico's population stood at about 3,927,188 people, giving it a
population density of more than 1000 people per square mile.\47\
---------------------------------------------------------------------------
\47\ CIA, The World Factbook (2006), Puerto Rico, at <http://
www.cia.gov> (last visited Apr. 10, 2006) [hereafter World Factbook].
---------------------------------------------------------------------------
Since 1952, the people of Puerto Rico have associated themselves
with the United States as an ``estado fibre'' or ``commonwealth.'' This
status has been interpreted in complex and contradictory ways by
different agencies of the U.S. government and Congress. But under
international law, Puerto Ricans enjoy the right to change their status
if and when they so desire.\48\ Three options have been regularly
advanced by advocates in the vigorous political life of the island: (1)
integration into the United States as a state of the federal union; (2)
severance from the United States and emergence as a fully distinct and
independent nation-state; and (3) continuation as a Commonwealth, an
``estado fibre'' in association with the United States.
---------------------------------------------------------------------------
\48\ For a discussion of the international right to self
determination, see Part IV, infra.
---------------------------------------------------------------------------
Puerto Ricans have repeatedly opted to maintain Puerto Rico's
status as an associated state, most recently in 1998--not so much
because a decisive majority favors the continuation of that status but
rather because the Puerto Rican electorate remains divided and unable
to agree upon an alternative, be it statehood, independence, or some
other modification of the status quo. In the 1998 plebiscite, 0.06% of
the electorate voted for `` `Territorial Commonwealth,' '' 0.29% for
``Free Association,'' 46.49% for ``Statehood,'' 2.54% for
``Independence,'' and 50.30% for ``None of the Above.'' \49\
---------------------------------------------------------------------------
\49\ 2005 TASK FORCE REPORT, supra note 3, at 4.
---------------------------------------------------------------------------
Puerto Rico is not a member of the United Nations, but it legally
can and does participate extensively in the international system.\50\
The question for Puerto Ricans, now as much as in the past, is how to
do so in ways that will best contribute to the realization of its
national, cultural, economic, and social goals. Questions also persist
about the appropriate relationship between the United States, and
particularly the U.S. military, and Puerto Rico. The key issue for
Puerto Rico, as for other ``seasoned'' associated states, remains how
to balance the benefits of association with its potential costs and
compromises. It is therefore unsurprising that the question of Puerto
Rico's future status remains central to Puerto Rican consciousness but
has yet to produce a consensus, or even a clear majority, in favor of
any particular arrangement.
---------------------------------------------------------------------------
\50\ See REISMAN, supra note 1, at 51-103.
---------------------------------------------------------------------------
Many small territorial communities throughout the globe straggle
with a similar dilemma: how best to establish and maintain links with
larger social and wealthier economic systems, while retaining and
developing an indigenous culture and preserving substantial autonomy.
Today, in the era of globalization, in which events and developments
throughout the globe inevitably penetrate and shape local community
life, the significance of international participation to the diverse
issues raised by this dilemma has become even more pronounced.
Puerto Ricans occupy a distinct place in the American family. They
comprise a discrete and numerically significant community--nearly four
million people on the island alone. But because Puerto Rico is not a
``territory,'' Puerto Ricans cannot participate in those international
organizations that permit a ``territorial'' exception. Because it is
not a state of the United States, Puerto Ricans lack effective
representation or input in Congress's participation in U.S. foreign
policy. Because Puerto Ricans have not organized themselves or been
conceived of as an interest group, they have not refined the informal
techniques of influence that facilitate the sharing of power in the
U.S. political system. Nor have alternative forms of ``consultation''
between the executive branch and the government of Puerto Rico been
worked out.\51\ Puerto Rico, in short, is as influenced by world
affairs as any other territorial community but has virtually no
influence on most of the international decisions that may shape its
destiny.
---------------------------------------------------------------------------
\51\ On very rare occasions, individual Puerto Ricans have been
appointed to American delegations, but this sporadic practice does not
offer an avenue for the systematic and effective presentation of Puerto
Rico's views to the world.
---------------------------------------------------------------------------
Today, as in the past, Puerto Rican international participation
emerges as an indispensable way of maintaining effective internal
autonomy. The increasing social ambitions of domestic governments
require recruitment of resources from the entire world arena. Inability
to turn to the world inevitably reduces the internal efficacy and
autonomy of a government. It is now routine for states and even some
cities within the United States to send trade delegations abroad.\52\
Equally, Puerto Rico's efficacy and autonomy at home increasingly
depend on its international activity abroad.
---------------------------------------------------------------------------
\52\ See, e.g., Looking to Sell, Buy South of Border, HOUSTON
CHRON., Aug. 24, 2003, at 7; Countdown to Beijing Olympics California
Firm Pitch Services to Bustling Market, CAL. CONSTRUCTION LINK, Mar. 1,
2003, at 27; Tim Sullivan, Utah Trade Delegation Seeks to Develop
Mexican Business Connections on Trip, SALT LAKE TRIB., Feb. 5, 2003;
U.S. Houston Trade Delegation Arrives in Saudi Arabia, SAUDI ARABIAN
NEWS DIG., Oct. 29, 2002, available at 2002 WL 4340289.
---------------------------------------------------------------------------
The following analysis shows that Puerto Rico remains--at least as
a matter of international law--an associated state, an international
entity with independent legal personality rather than an integrated
component of another international entity; that diverse international
institutional arrangements exist for the participation of associated
states in the international system; and that participation by
associated states in a number of international institutional settings
offers policy advantages for both the associate and the principal. It
also shows, however, that Puerto Rico remains entitled, as a matter of
international law, to change the manner in which it exercises its
internationally secured right to self-determination should future
developments lead the electorate to reappraise the costs and benefits
of continued association with the United States.
While U.S. constitutional law will be examined in Part IV, in the
final analysis, constitutional issues need not present a serious
obstacle to Puerto Rico's ability to exercise its right to self-
determination or to participate more robustly in the international
system, provided--a major proviso--that the political consensus and
will for it can be generated within Puerto Rico. The ultimate point of
emphasis here, as in the earlier study, is that the disposition of the
future of Puerto Rico is first and foremost a Puerto Rican prerogative.
In the final section of this report, we consider the fora and processes
that may be available to Puerto Rico as it strives to preserve and
enjoy its right to self-determination well into the twenty-first
century.
B. Culture and Society
1. Descent and Language
Puerto Rico's society is internally homogenous but remarkably
distinct from both its island neighbors and the United States. Most of
its people are of Spanish descent with some African and Indian
strains,\53\ including recent immigrants from neighboring Caribbean
islands, such as Cuba and the Dominican Republic. Although Puerto Rico
is officially bilingual, Spanish is the common and, for most, the
native language, and few Puerto Ricans can read, write, and speak
fluently both English and Spanish. In practice, Spanish is therefore
the language of home, business, and government, and the majority of the
media operates exclusively in Spanish.
---------------------------------------------------------------------------
\53\ U.S.-PUERTO RICO COMM'N ON THE STATUS OF PUERTO RICO, STATUS
OF PUERTO RICO 143 (1966).
---------------------------------------------------------------------------
2. Religion
An estimated 85% of Puerto Ricans observe Roman Catholicism.\54\
One student of Puerto Rico suggests that the church's dogma contributes
to a ``fatalistic'' outlook in Puerto Rican society: projecting an
established social order and a promise of life after death, it places a
high value on stoicism and teaches acceptance of one's lot in life as
God's will.\55\ But another student argues, more plausibly in our view,
that under the press of modernization, attitudes change as do the
institutions responsible for forming them, and ``major social
transformations seem eminently possible without much help or hindrance
from the institutional forms of religious belief and worship.'' \56\
---------------------------------------------------------------------------
\54\ World Factbook, supra note 47.
\55\ KAL WAGENHEIM, PUERTO RICO: A PROFILE 221-22 (2d ed. 1970).
\56\ MELVIN M. TUMIN & ARNOLD S. FELDMAN, SOCIAL CLASS AND SOCIAL
CHANGE IN PUERTO RICO 296 (2d ed. 1971).
---------------------------------------------------------------------------
3. National and Cultural Identity
A great complex of factors indicates the extent and intensity of
Puerto Rico's distinct national identity. Puerto Ricans have their own
flag and national anthem. They celebrate a unique mix of special
holidays and holy days, which reflect meaningful aspects of Puerto
Rican history and culture.\57\ Dias de Fiesta commemorate the abolition
of slavery in 1873, the establishment of the Commonwealth government in
1952, and the Grito de Lares insurrection against the Spanish colonial
authorities in 1868.\58\ Holidays honor such men as Eugenio Maria de
Hostos, writer, abolitionist, and educator; Jose de Diego, the first
president of the Puerto Rican HoUse of Representatives; and Luiz Munoz
Rivera, a liberal journalist, writer, and poet who negotiated the
Charter of Autonomy with Spain and later served as Puerto Rico's
resident commissioner in Washington.
---------------------------------------------------------------------------
\57\ WAGENHEIM, supra note 55, at 230-33.
\58\ In 1868, revolutionaries, inspired by the separatist Dr. Ramon
Emeterio Betances, mounted a brief but unsuccessful uprising known as
the Grito de Lares. Under the motto ``Viva Puerto Rico Libre,'' they
marched on Lares and declared the Republic of Puerto Rico. Although the
Spanish quickly crushed the insurrection, the Grito de Lares remains an
important element of Puerto Rican folklore and national identity.
MANUEL MALDONADO-DENIS, PUERTO RICO: A SOCIO-HISTORIC INTERPRETATION
39-43 (Elena Vialo trans., 1972).
---------------------------------------------------------------------------
Several Puerto Rican writers and historians identify the nineteenth
century as the decisive period in the formation of a Puerto Rican
culture distinct from the Hispanic tradition.\59\ In that period all
forms of cultural expression--literature, music, dance, art--apparently
developed into more than an extension or variant of the Hispanic
tradition.\60\ Political developments during this period were also a
major factor contributing to the awakening of national consciousness.
One of the first Puerto Rican historians, Brother Inago Abbad y
Lasierra, writing in 1796, described the attitude of the Spanish
colonial elite: ``they gave the name of Creole indistinctly to everyone
born on the island, no matter what race or mixture he comes from. The
Europeans are called whites, or to use their own expression, `men of
the other band.' '' \61\ This distinction between the native Puerto
Rican and the ``man of the other band'' was the cornerstone of a regime
of privilege favoring the Spaniard over the Puerto Rican; and this and
other manifestations of despotic Spanish rule gave rise to a hostility
toward Spain and an increasingly widespread demand for a fundamental
change in the colonial condition, either by way of autonomy or
independence.
---------------------------------------------------------------------------
\59\ WAGENHEIM, supra note 55, at 220.
\60\ MALDONADO-DENIS, supra note 58, at 22.
\61\ Id. at 21.
---------------------------------------------------------------------------
Puerto Rico, like other states, has it idealized folk hero: El
Jibaro. In the eighteenth century, the rural people of Puerto Rico were
known as jibaros, and even today the word expresses a nostalgia for,
and idealization of, the old rural ways of life. To the Puerto Rican,
El Jibaro represents ``the honest man, the man with both feet firmly
planted on the soil, the man whose lack of schooling does not deprive
him of a native shrewdness and wisdom that has something to do with the
timelessness of nature.'' \62\
---------------------------------------------------------------------------
\62\ WAGENHEIM, supra note 55, at 228.
---------------------------------------------------------------------------
For many, El Jibaro became, and remains, a symbol of Puerto Rican
culture and an expression of the intensely felt need to preserve the
essence of that culture from the onslaught of Western and American
culture. In 1968, Governor Ferre of the New Progressive Party elected
in November of that year, introduced and popularized the concept of
``jibaro'' statehood: that Puerto Rico could become a state of the
United States without suffering cultural assimilation. Commonwealth
proponents have sought to interpret his defeat in 1972 and the
restoration of the Popular Democrats as a sign of the incompatibility
between El Jibaro and incorporation into the United States as a
component state. National identity, on this view, can best be preserved
and strengthened by the development of autonomous Commonwealth status.
C. Political and Economic History
1. Spanish Jurisdiction (1493-1898)
The Kingdom of Spain asserted title to Puerto Rico in 1493
following Columbus's second voyage to the Americas,\63\ and for more
than four centuries thereafter, it remained under Spanish jurisdiction.
During that time, Puerto Rico advanced from the status of a colony,
subject to the absolute authority of the Spanish Governor General and
his troops, to an autonomous or semi-autonomous overseas province of
Spain.\64\ It achieved its most significant improvements in status in
the nineteenth century. From 1812 to 1836, Puerto Rico ``was granted
equal status with that of Spanish provinces on the Iberian Peninsula.''
\65\ In 1836, however, a new absolutist regime ousted the former
liberal regime and demoted Puerto Rico to its former colonial
status.\66\
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\63\ World Factbook, supra note 47.
\64\ HOUSE COMM. ON INTERIOR AND INSULAR AFFAIRS, 86TH CONG.,
PUERTO RICO: A SURVEY OF HISTORICAL, ECONOMIC, AND POLITICAL AFFAIRS 1
(Comm. Print 1959). Id.
\65\ Id.
\66\ Id.
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In 1868, after a Spanish revolution, Spain again granted Puerto
Rico the right to participate in its national councils, and as a
consequence, Puerto Rican representatives helped draft the 1876 Spanish
Constitution.\67\ Under Article 88 of the 1876 Constitution, overseas
provinces enjoyed voting representation in the Spanish Cortes and were
to be governed by special laws.\68\ During this period, roughly from
1868 to the late 1890s, Puerto Rico became the scene of increased
political activity. In 1870, Puerto Ricans organized the Liberal
Reformist Party, and in 1873, its demands that slavery be abolished
prevailed.\69\ In 1887, the Liberal Reformist Party, which embraced a
platform of autonomy within the Spanish empire rather than
independence, changed its name to the Puerto Rican Autonomist
Party.\70\ Ten years later, its leader, Luis Munoz Rivera, entered into
an agreement of mutual support with Praxedes Sagasta, leader of the
Spanish Liberal Party.\71\
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\67\ Id.
\68\ SPANISH CONST. art. 88 (Sp.), translated in DOCUMENTS OF THE
CONSTITUTIONAL HISTORY OF PUERTO RICO 21 (Office of the Commonwealth of
Puerto Rico in Washington, D.C. ed., 2d ed. 1964) [hereafter
CONSTITUTIONAL HISTORY].
\69\ MALDONADO-DENIS, supra note 58, at 36.
\70\ Id. at 28-29; see also Lidio Cruz Monclova, The Puerto Rican
Political Movement in the 19th Century, in STATUS OF PUERTO RICO:
SELECTED BACKGROUND STUDIES PREPARED FOR THE UNITED STATES-PUERTO RICO
COMMISSION ON THE STATUS OF PUERTO RICO 31-32 (1966).
\71\ MALDONADO-DENIS, supra note 58, at 48.
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Perhaps because of this collaboration, when, in October 1897,
Sagasta became prime minister of the Spanish government, Puerto Rico
received a genuine charter of autonomy within two months.\72\ Article
88 of the 1876 Constitution, combined with Puerto Rico's escalating
demands for self-government, thus culminated in the Royal Decree of
1897 (essentially a counterpart of the 1876 Constitution), which
granted the island a charter of self rule.\73\
---------------------------------------------------------------------------
\72\ Id.
\73\ Constitution Establishing Self Government in the Island of
Puerto Rico by Spain in 1 897, Nov. 25, 1897, reprinted in
CONSTITUTIONAL HISTORY, supra note 68, at 22-46 [hereafter Puerto Rico
Charter]. While the Puerto Rico Charter did not include a Bill of
Rights, the Spanish Constitution did, and under the Charter, the
governor general could invoke its protection. Id. art. 43.
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The Charter gave the insular government power over most matters of
insular concern. The elected lower house of the Puerto Rican
legislature enjoyed the power to initiate tax and credit
legislation,\74\ and municipalities were authorized to govern their own
affairs under legislative guidance.\75\ Acts contrary to the spirit of
the Charter could be judicially challenged by aggrieved persons.\76\
The insular government also enjoyed some control over its external
commercial relations, including the power to enact tariffs and make
commercial treaties under certain circumstances, and it participated as
an equal in the Spanish Customs Union.\77\ Puerto Rico's local
government thus possessed some attributes of a fully sovereign state.
---------------------------------------------------------------------------
\74\ See Puerto Rico Charter art. 11 (representatives to be ``named
by the electoral boards in he manner prescribed by law''); see also id.
art. 21; id. art. 32 (delegating the legislature the authority to
govern purely local matters, including public credit, banks, and
monetary systems), id. art. 35 (mandating that local legislature bear
responsibility for forming a national budget).
\75\ See id. tit. VIII.
\76\ Id. art. 63.
\77\ Id. arts. 37-40.
---------------------------------------------------------------------------
Spain reserved significant royal power, however, through the powers
conferred on the governor general, an appointee of the king on
nomination of the Council of Ministers. He exercised full executive
authority and had the power to appoint members of the judiciary and to
select for life tenure seven of the fifteen members of the Council of
Administration, the upper chamber of the legislature.\78\ But two
provisions of the Charter limited royal control to some extent: Article
21, as noted, provided that only the Chamber of Representatives, the
lower legislative house, could initiate tax and credit legislation;
another provision authorized Charter amendments only ``by virtue of a
law and on the petition of the insular parliament.'' \79\
---------------------------------------------------------------------------
\78\ Id. arts. 5, 41-42.
\79\ Id. Additional Articles, art. 2.
---------------------------------------------------------------------------
In short, despite limitations, the Charter gave Puerto Rico a
degree of self-government that greatly exceeded that afforded to it by
the United States in the early 1900s. With the Autonomist leader Luis
Munoz Rivera as president of the Council of Secretaries (in effect,
prime minister), the colonial Creole elite enjoyed formal power; for
the first time, Puerto Ricans governed Puerto Rico. While this
interlude of self-government did not last long, and the Charter
suffered from several extreme ambiguities, it signaled the beginning of
a tradition favoring autonomy rather than independence or
assimilation--a tradition that has continued to occupy the mainstream
of Puerto Rican political life.
2. Early U.S. Administration (1898-1952)
The Charter government lasted for only five months, brought to an
abrupt end by the U.S. invasion on July 25, 1898 and Spain's defeat in
the Spanish-American War. Under the terms of the Treaty of Paris,\80\
which ended the war, Spain ceded Puerto Rico to the United States.
Article IX provided that ``the civil rights and political status . . .
of the territories hereby ceded to the United States shall be
determined by the Congress.'' \81\ Congress thus assumed ultimate
authority in the determination of Puerto Rico's political status and
operation.
---------------------------------------------------------------------------
\80\ Treaty of Peace, U.S.-Sp., Dec. 10, 1898, 30 Stat. 1754, T.S.
No. 343.
\81\ Id. art. IX.
---------------------------------------------------------------------------
During the eighteen-month interval between the end of the Spanish-
American War and enactment of the Foraker Act in 1900,\82\ U.S.
military authorities ruled Puerto Rico and introduced substantial
changes in its political system. They replaced the parliamentary form
of government with a nominal separation of powers in three branches,
mirroring the American system, but with preponderant power invested in
an executive appointed by the U.S. president. They also reorganized the
judiciary, laid the foundation for the separation of church and state,
and established a public school system modeled on that of the United
States.\83\
---------------------------------------------------------------------------
\82\ Foraker Act, Act of Apr. 12, 1900, ch. 191, 31 Stat. 77.
\83\ INST. FOR THE COMP. STUDY OF POL. SYS., PUERTO RICO ELECTION
FACTBOOK 6 (1968) [hereafter PUERTO RICO ELECTION FACTBOOK].
---------------------------------------------------------------------------
The Foraker Act replaced the military government with a civilian
one, which affirmed and extended the basic changes made by the former.
While the Act vested executive authority in a governor and an eleven-
member executive council, five of whom were to be Puerto Ricans, it
gave the U.S. president powers virtually Caudillan in scope--for he
enjoyed the authority to appoint all twelve of these executive
officials and all of the justices of the Puerto Rican Supreme Court.
Because the executive council constituted the upper house of the Puerto
Rican legislature, the president's power of appointment also
effectively extended to the legislative branch.\84\ Puerto Ricans were
enfranchised to elect the thirty-five members of the lower legislative
house and a resident commissioner authorized to speak for them, but not
to vote, in the U.S. Congress,\85\ which the Act entitled to annul any
law passed by the Puerto Rican legislature.\86\ The Act also declared
that all federal legislation except internal revenue laws and other
measures ``not locally applicable'' would have the same force and
effect in Puerto Rica as in the United States.\87\ Though politically
restrictive, the Foraker Act did confer economic. benefits on Puerto
Rico. It established free trade with the mainland, exempted Puerto
Ricans from federal taxation, and provided that federal excise taxes on
the importation of Puerto Rican rum and tobacco be turned over to the
Puerto Rican treasury.\88\
---------------------------------------------------------------------------
\84\ See Foraker Act 17-18, 33.
\85\ Id. 29.
\86\ Id. 31.
\87\ Id. 14.
\88\ PUERTO RICO ELECTION FACTBOOK, supra note 83, at 6.
---------------------------------------------------------------------------
After the Foraker Act's enactment, political leaders like Munoz
Rivera and de Diego (primarily an independentista) led a struggle for
greater autonomy and self-government, and Congress responded in 1917
with the Jones Act,\89\ a slight liberalization of existing law, The
Jones Act created a bill of rights for Puerto Rico, provided for
election of the upper legislative house, and required that department
heads be appointed by the governor with the advice and consent of the
Puerto Rican Senate. The president, however, retained the power to
appoint the attorney general, the auditor, the Commission on Education,
and all of the justices of the Puerto Rican Supreme Court.
---------------------------------------------------------------------------
\89\ Act of Mar. 2, 1917, Pub. L. No. 368, ch. 145, 39 Stat. 951
(codified at 48 U.S.C. 794 (2000)).
---------------------------------------------------------------------------
Most significantly, the Jones Act granted U.S. citizenship to all
Puerto Ricans. Leaders of the Union of Puerto Rico, the dominant
political party at that time, opposed this change because they believed
that citizenship would jeopardize their ultimate aspiration,
``nationalism with or without an American protectorate.'' \90\ It was
probably difficult for citizens of a powerful ethnocentric state--
enraptured by their own national symbols and pride and in the midst of
an imperial estrus--to entertain the notion that others would not want
the badge of citizenship; and, to be sure, some Puerto Ricans lobbied
in favor of it. The Union Party's opposition in any event failed to
dissuade Congress, and Puerto Ricans became citizens, with some but not
all of the attendant rights and duties of that status: Puerto Ricans,
for example, became subject to the draft,\91\ but they also gained
certain fundamental rights guaranteed by the U.S. Constitution.\92\
---------------------------------------------------------------------------
\90\ MALDONADO-DENIS, supra note 58, at 107.
\91\ See id. at 108 (noting that months after passage of the Jones
Act, President Woodrow Wilson ordered the registration and recruitment
of Puerto Ricans for the U.S. armed forces).
\92\ See Balzac v. People of Porto Rico, 258 U.S. 298, 312-13
(1922). The scope of these rights has been subject to controversy and
adjudication. See Part IV, infra.
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3. Development of the Puerto Rican Political Economy
Until about 1940, agriculture remained the primary, almost
exclusive, economic activity in Puerto Rico, and the associated
political structure could be characterized as virtually feudal.\93\ The
primary crops, in order of importance, were sugar, tobacco, and
coffee.\94\ In the first two decades of the twentieth century, U.S.
citizens and corporations invested substantial capital in Puerto Rico,
particularly in its sugar industry, and most of the profits were
repatriated to the United States. The seasonal nature of the
agricultural economy and low wages created conditions of instability.
---------------------------------------------------------------------------
\93\ RITA M. MALDONADO, THE ROLE OF THE FINANCIAL SECTOR IN THE
ECONOMIC DEVELOPMENT OF PUERTO RICO 18-21 (1970).
\94\ Id. at 23.
---------------------------------------------------------------------------
During the New Deal era, however, Puerto Rico benefited from U.S.
aid. Between 1929 and 1933, the island suffered terrible calamities.
Public funds, first provided by the Puerto Rican Emergency Relief
Administration in 1933 and later by other federal agencies, amounted to
$230 million by 1946.\95\ Federal aid programs included public works
construction, food distribution, agricultural subsidies, and loans to
farmers and businessmen. These programs began to wind down by the end
of the 1930s, but at about that time, Rexford Tugwell, the last
mainland-appointed governor of the island, and Munoz-Mann, who had
become president of the Senate, began a series of new programs aimed at
development.\96\
---------------------------------------------------------------------------
\95\ Id. at 24.
\96\ Id. An initial attempt to enforce a 500 acre law, dormant
since its enactment in 1900, also broke much of the land monopoly,
though it was not carried to completion because, among other reasons,
public attention shifted to industrialization.
---------------------------------------------------------------------------
They created several development agencies, the most important being
the Puerto Rico Industrial Development Company (PRIDCO), which after
1950 was known as the Economic Development Administration (EDA).\97\
Initially, PRIDCO remained wary of encouraging direct U.S. investment,
and its operations involving investment of about $21 million were for
the most part funded by direct grants, tax and revenue remissions, and
returns on profitable investments. In 1947, however, PRIDCO began to
encourage foreign investment, sold its own holdings, and became a
promotional agency. To this end, an industrial incentives act was
passed, which gave long-term tax exemptions to eligible outside
industries.\98\ From 1948 to 1967, 1406 firms were promoted, 67% of
them foreign.\99\ National income increased fourfold (from $407 million
to $2163 million), and employment increased by 28%.\100\ While
corresponding population growth (1,880,000 in 1940 to 2,712,000 in
1970) offset these increases to some extent,\101\ Puerto Rican economic
growth rates. during this period compared quite favorably with those of
other developing states.
---------------------------------------------------------------------------
\97\ Id. at 25.
\98\ Id. at 26.
\99\ MALDONADO, supra note 93, at 27.
\100\ Id. at 28 tbl. 3.3.
\101\ Id. at 27-30; see also U.S. DEP'T OF COMMERCE, STATISTICAL
ABSTRACT OF THE UNITED STATES 792 (1973). On the other hand,
agriculture surrendered a 50% hold of the work force and dropped to
about 13%. Because agriculture in traditional settings is notorious for
``hiding'' unemployment, the increase in real employment may be
somewhat greater than the figures suggest. Personal income increased
from $218 in 1940 to $804 in 1967 per capita per annum. MALDONADO,
supra note 93, at 30-31.
---------------------------------------------------------------------------
Several factors appear to have contributed to this trend: (1) a
duty free customs union with the United States; (2) no federal income
tax; (3) local tax exemptions for eligible direct investments; (4) use
of the U.S. dollar as currency and therefore, during the period, no
repatriation or convertibility problems; (5) political stability
attributable to association with the United States; (6) federal grants,
disbursements, and transfer payments; and (7) cheap recruitment of
funds in U.S. capital markets because Puerto Rican bonds enjoy
exemption from federal income taxation.\102\ Financial and planning
institutions also contributed to Puerto Rico's strong economic growth
during this time.
---------------------------------------------------------------------------
\102\ MALDONADO, supra note 93, at 31-33.
---------------------------------------------------------------------------
Nonetheless, several failures of economic development have
afflicted, and continue to. afflict, Puerto Rico's economy. In 2002,
Puerto Rico's unemployment rate stood at 12% out of a labor force of
about 1.3 million people.\103\ From 1940 to 1972, its population
increased from about 1.8 million to 2.8 million; as of July 2006, it
exceeded 3.9 million.\104\ Puerto Rico also suffers from a continuing
dependence on foreign capital, which PRIDCO's shift to promoting
private enterprise in the 1940 made virtually inevitable, and a high
inflation rate, which at times is twice or more that of the general
rate in the United States.\105\ Finally, repatriation of foreign
investment profits (a regular aspect of foreign investment) continues
to deprive Puerto Rico of significant local capital generation.\106\
---------------------------------------------------------------------------
\103\ World Factbook, supra note 47.
\104\ Id.
\105\ In 2003, Puerto Rico's inflation rate was estimated at 6.5%,
see World Factbook, supra note 47, while in 2004, that of the United
States stood at 2.7%. THE ECONOMIST, POCKET WORLD IN FIGURES 234
(2005).
\106\ See MALDONADO, supra note 93, at 36038. PRIDCO is currently
advocating reforms to the U.S. Internal Revue Code to provide
additional incentives for investment in Puerto Rico. Sheryl Fred, Big
Spender: Puerto Rico Outdoes Mainland States in Federal Lobbying
Efforts, P.R. HERALD, Apr. 10, 2003. But these incentives include tax
benefits for reinvesting in the United States as well as in Puerto
Rico.
---------------------------------------------------------------------------
4. Toward a Commonwealth Arrangement (1952-present)
Throughout the first half of the twentieth century, the Unionist
Party and other groups continued to fight for greater autonomy. Not
until 1947, however, did Congress pass the first major amendment to the
Jones Act, Public Law 362, which provided for an elected governor.\107\
Some Puerto Rican groups advocating both autonomy and independence
continued to press Congress for a constitution and government of their
own drafting. In 1950, the resident commissioner for Puerto Rico,
fulfilling a campaign promise, introduced a bill in Congress, H.R.
7674, which provided for the organization of a constitutional
government by the people of Puerto Rico. In 1950, Congress adopted the
bill ``in the nature of a compact'' as Public Law 600,\108\ which
``fully recognized] the principle of government by consent'' and
affirmed that ``the people of Puerto Rico may organize a government
pursuant to a constitution of their own adoption.'' \109\ That
constitution would enter into force upon its approval by a Puerto Rican
referendum.\110\
---------------------------------------------------------------------------
\107\ Act of Aug. 5, 1947, Pub. L. No. 362, ch. 490, 61 Stat. 770.
\108\ Act of July 3, 1950, Pub. L. No. 600, ch. 446, 64 Stat. 319
(codified at 48 U.S.C. 731 (2000)).
\109\ 48 U.S.C. 731b.
\110\ 48 U.S.C. 731c.
---------------------------------------------------------------------------
Public Law 600 did not dictate the content of the constitution
except to require that it provide for a republican form of government
and include a bill of rights. The Act also provided for the automatic
repeal of many provisions of the Jones Act, as amended (the pre-
existing Organic Act), upon the constitution's entry into force.\111\
The repealed sections related primarily to matters of purely local
concern, including the structure of the insular government. The rest of
the provisions remained in force and were renamed the Puerto Rican
Federal Relations Act (PRFRA).\112\ The PRFRA remains a major source of
authority governing U.S.-Puerto Rico relations and will be discussed in
greater detail-below. Though its name conveys the impression of a
logically structured set of considered and coherent norms, the PRFRA
actually consists of a melange of acts that have survived and
accumulated since 1900.
---------------------------------------------------------------------------
\111\ 48 U.S.C. 732.
\112\ 48 U.S.C. 731e. Public Law 600 rescinded most of the
provisions of the Jones Act related to internal governance; but it
maintained the laws governing the economic relations between Puerto
Rico and the United States that had remained unchanged since 1900.
PUERTO RICO ELECTION FACTBOOK, supra note 83, at 8.
---------------------------------------------------------------------------
On June 4, 1951, 65% of qualified voters participated in a
referendum on Public Law 600, and 76.5% of them voted to approve
it.\113\ Delegates were then elected for a constitutional convention.
They drafted a constitution and submitted it to the Puerto Rican people
in a second referendum. Fifty-nine percent of qualified voters
participated, and 81.9% of them voted to adopt the Constitution.\114\
By Public Law 447, the United States also approved it subject to the
condition that three changes be made to its text:
---------------------------------------------------------------------------
\113\ PUERTO RICO ELECTION FACTBOOK, supra note 83, at 8. Puerto
Rico has held all elections and referenda based on universal adult
suffrage without a literacy requirement. Id. at 13.
\114\ Id. at 15.
(1) the following sentence be added to Art. VII: ``Any
amendment or revision of this constitution shall be consistent-
with the resolution enacted by the Congress of the United
States approving this constitution, with the applicable
provisions of the Constitution of the United States, with the
Puerto Rican Federal Relations Act, and with Public Law 600,
Eighty-first Congress, adopted in the nature of a compact'';
(2) that a provision patterned after the Universal
Declaration of Human Rights recognizing the right to work,
obtain an adequate standard of living and social protection in
old age or sickness be deleted; and
(3) that a provision assuring continuance of private
elementary schools be added.\115\
---------------------------------------------------------------------------
\115\ H.J. Res. 430, 82d Cong. 66 Stat. 327 (1952).
All three of these changes were made and approved by the Puerto
Rican Constitutional Convention and later by another referendum.
The allocation of power between the United States and Puerto Rico
embodied in the new Constitution left many questions of international
and U.S. constitutional law unanswered. Beyond doubt, however, it
effected a significant change in the federal-commonwealth relationship,
despite the curious fact that many members of Congress seemed to
believe that their legislative exercise did not alter the basic
relationship.
Under the 1952 Constitution, Puerto Rico elects its own governor
and legislature; appoints all judges, cabinet officials, and other
lesser officials in its executive branch; sets its own educational
policies; determines its own budget; and amends its own civil and
criminal code. All of this is done without participation by,
concurrence of, or even information submitted to, federal officials.
According to the 1966 United States-Puerto Rico Report, ``[n]o one in
the Puerto Rican or Federal Government, either in the legislative or
executive branch, has indicated that these conditions should change and
that what has in fact occurred should not continue to be the
situation.'' \116\
---------------------------------------------------------------------------
\116\ STATUS OF PUERTO RICO: REPORT OF THE UNITED STATES-PUERTO
RICO COMMISSION ON THE STATUS OF PUERTO RICO 37 (Arno Press Inc. 1975).
---------------------------------------------------------------------------
The Constitution's ``political power emanates from the people and
shall be exercised in accordance with their will, within the terms of
the compact agreed upon between the people of Puerto Rico and the
United States of America.'' \117\ The Constitution establishes a
tripartite government, consisting of an executive, a popularly elected
bicameral legislature, and a judiciary. The governor appoints the heads
of all executive departments, with the advice and consent of the Puerto
Rican Senate. Neither the U.S. president nor the U.S. Senate
participates in any way in the appointment of any official of the
Commonwealth.\118\ The Legislative Assembly, ``elected by free,
universal and secret suffrage of the people of Puerto Rico, has full
legislative authority with respect to local matters,'' and the U.S.
president ``may no longer prevent a bill which has been repassed over
the Governor's veto from becoming law by disapproving it.'' \119\
---------------------------------------------------------------------------
\117\ P.R. CONST. art. 1, 1.
\118\ Lidio Cruz Monclova, The Puerto Rican Political Movement in
the 19th Century, in Status of Puerto Rico: Selected Background Studies
Prepared for the United States-Puerto Rico Commission on the Status of
Puerto Rico 37 (1966).
\119\ 1 MARJORIE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 395
(1963).
---------------------------------------------------------------------------
At the same time, the Commonwealth arrangement enforces significant
ties to the United States. All Puerto Rican public officials must take
an oath to support the Constitution of the United States as well as the
Constitution and laws of the Commonwealth.\120\ Amendments to the
Puerto Rican Constitution must be consistent with the resolution (Act
of July 3, 1952) approving the Constitution, the applicable provisions
of the U.S. Constitution, the Puerto Rican Federal Relations Act, and
the Act of the U.S. Congress authorizing the drafting and adoption of
the Puerto Rican Constitution.\121\ Furthermore, under the Puerto Rican
Federal Relations Act, Puerto Rico has free trade with the United
States, only U.S. currency is legal tender in Puerto Rico, and federal
statutes of the United States not locally inapplicable, with some
exceptions, have the same force and effect in Puerto Rico as in the
United States.
---------------------------------------------------------------------------
\120\ P.R. CONST. art. VI, 16.
\121\ Id. art. VII, 3.
---------------------------------------------------------------------------
Judgments of the Supreme Court of Puerto Rico may be appealed to
the Supreme Court of the United States. But the Supreme Court of Puerto
Rico is the final authority on the meaning of Puerto Rican law; ``to
justify reversal in such cases,'' the U.S. Supreme Court has held,
``the error must be clear or manifest; the interpretation must be
inescapably wrong; the decision must be patently erroneous.\122\ Puerto
Rico continues to have a U.S. district court, and while technically a
legislative court (that is, a federal court not established under
Article III of the U.S. Constitution), its jurisdiction does not differ
from that of the federal district courts sitting within the boundaries
of U.S. states.\123\
---------------------------------------------------------------------------
\122\ Bonet v, Tex. Co., 308 U.S. 463, 471 (1940).
\123\ See 28 U.S.C. 119 (2000) (establishing Puerto Rico as a
federal judicial district); Kenneth L. Karst, Legislative Court, in 3
ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1144 (1986) (citing the U.S.
district court for Puerto Rico as an example of a legislative court).
---------------------------------------------------------------------------
The people of Puerto Rico continue to be U.S. as well as Puerto
Rican citizens, and the fundamental provisions of the U.S. Constitution
continue to apply to Puerto Rico. Puerto Rico also continues to be
represented in the House of Representatives by a resident commissioner,
whose functions the establishment of the Commonwealth did not alter,
and the governor of Puerto Rico maintains an office in Washington, D.C.
Matters of foreign relations and defense, though not explicitly
mentioned, continue to be conducted by the United States.
D. The Legal Status of Puerto Rico Under U.S. Law
Four documents the Constitution of the Commonwealth of Puerto Rico,
the Puerto Rican Federal Relations Act, the Constitution of the United
States, and Public Law 600--together define the formal contours of the
domestic (as opposed to the international) legal relationship of Puerto
Rico to the United States.
Before the creation of the Commonwealth, U.S. law characterized
Puerto Rico as a territory subject to the. Constitution's Territorial
Clause, Article IV, Section 3, Clause 2, and the inherent powers of the
federal government to acquire and govern territory.\124\ In 1952, as
noted earlier, Congress approved the draft Puerto Rican Constitution
subject to three conditions, one of which has major and continuing
structural importance:
---------------------------------------------------------------------------
\124\ U.S. CONST. art. IV, 3, cl. 2 (``The Congress shall have
power to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United
States; and nothing in this Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular
state.''); see also Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542
(1828).
Any amendment or revision of this constitution shall be
consistent with the resolution enacted by the Congress of the
United States approving this constitution, with the applicable
provisions of the Constitution of the United States, with the
Puerto Rican Federal Relations Act, and with Public Law 600,
Eighty-first Congress, adopted in the nature of a compact.\125\
---------------------------------------------------------------------------
\125\ H.R.J. Res. 430, 82d Cong. (1952), subsequently adopted in
P.R. CONST. art. VII, 3.
The PRFRA authorizes a wide but ambiguous area in which the federal
government arguably remains authorized to intervene in Puerto Rico's
internal affairs. Section 9 provides ``[t]hat the statutory laws of the
United States not locally inapplicable . . . shall have the same force
and effect in [Puerto] Rico as in the United States, except the
internal-revenue laws . . . .'' \126\ Despite the Puerto Rican
Constitution's grant of power over local affairs to the government of
Puerto Rico, to which Congress acceded by enacting Public Law 447,
Congress thereby appears to have reserved for itself the right to enact
general legislation applicable to Puerto Rico. Furthermore, nothing in
the PRFRA commits Congress to legislate as to matters affecting Puerto
Rico only after consultation with the Puerto Rican people, still less
with their express consent.\127\ From the perspective of effective
Puerto Rican autonomy, the problem is not so much the existence of
Section 9 of the PRFRA as the absence of institutional arrangements for
defining its scope. Arguably, as part of the ``compact,'' the U.S.
authorized and approved a constitution providing for local self
government, and it therefore may not invoke Section 9 to justify
interference with the organization and operation of the local
government without breaching the solemn compact to which it committed
itself.\128\
---------------------------------------------------------------------------
\126\ Act of Mar. 2, 1917, 39 Stat. at 954; see also 48 U.S.C.
734 (2000) (extending some internal revenue laws to Puerto Rico without
repealing Section 9 of the PRFRA); CONSTITUTIONAL HISTORY, supra note
68, at 160 (providing the version of the PRFRA referred to in Section 4
of Public Law 600).
\127\ Some argue that the compact between the United States and
Puerto Rico includes both the Commonwealth Constitution and the PRFRA
and therefore that Congress may not amend the PRFRA unilaterally.
Whatever the legal force of this view, Congress. has, in fact, done so.
The Act of June 2, 1970, Pub. L. No. 91-272, 13, 84 Stat. 294, 298,
unilaterally repealed that section of the PRFRA, formerly 48 U.S.C.
863, under which the federal district court for Puerto Rico exercised
the ``territorial jurisdiction.'' And the Act of Mar. 27, 1968, Pub. L.
No. 90-274, 103(g), 82 Stat. 53, 63, unilaterally repealed the Act of
Mar. 2, 1917, 39 Stat. at 966, setting out qualifications for jurors.
On the other hand, Congress has also conditioned the repeal of another
section of the PRFRA on a Puerto Rican referendum approving the
inclusion of the substance of the section in an amendment to the
Commonwealth Constitution. The Act of Aug. 3, 1961, Pub. L. No. 87-121,
75 Stat. 245, eliminated the limitation on Puerto Rican public
indebtedness, found in the PRFRA, only upon adoption of an amendment to
the Constitution of Puerto Rico providing for a similar limitation.
\128\ Under federal case law, Congress itself has the power to
answer unilaterally whether a particular federal law is ``locally
inapplicable'' under the PRFRA. Challenges may be mounted, however,
based on the Commonwealth Constitution, and if the federal law
conflicts with or attempts to modify that Constitution, the federal law
will be held ``inapplicable.'' See, e.g., Moreno Rios v. United States,
256 F.2d 68 (1st Cir. 1958); Figueroa v. Puerto Rico, 232 F.2d 615 (1st
Cir. 1956). But where the federal law does not clearly conflict with
the Commonwealth Constitution, but rather represents an intervention
into intra-Commonwealth transactions, precedent is less clear as to
whether the law should be held ``inapplicable.'' Some courts have
indicated that that the establishment of the Commonwealth insulates
some intra-Puerto Rican activities from the reach of the federal
government, especially if the activity at issue is not one affecting an
industry engaged in interstate commerce. See Mora v. Tones, 113 F.
Supp. 309 (D.P.R. 1953); see also Arnold H. Leibowitz, The
Applicability of Federal Law to the Commonwealth of Puerto Rico, 56
Geo. L.J. 219, 232 (1967).
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As amended, the PRFRA today contains the following additional
provisions: Provisions relating to Puerto Rican economic interests and
external commercial relations include: (1) elimination of tariffs on
trade between Puerto Rico and the United States;\129\ (2)Provision of
equal tariffs for Puerto Rico and the United States on all items except
for coffee imported from abroad;\130\ (3) exemption from the internal
revenue laws;\131\ (4) exemption from duties levied on exports from
Puerto Rico;\132\ (5) a requirement that funds collected on exports
(excise taxes) transported from Puerto Rico to the United States and
customs duties collected in Puerto Rico on foreign imports be returned
to the Puerto Rico treasury;\133\ and (6) exemption from federal
taxation of bonds issued by the government of Puerto Rico.\134\
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\129\ 48 U.S.C. 738.
\130\ Id. 739; 19 U.S.C. 1319, 1319a. Sections 738-39 of 48
U.S.C., originally enacted by the Foraker Act, 31 Stat. 77, were not
enacted into the PRFRA per se (under 48 U.S.C. 731(e) or the Act of
July 3, 1950, 64 Stat. 319), but remain in the current U.S. Code.
\131\ 48 U.S.C. 734.
\132\ Id. 741.
\133\ Id. 734, 740.
\134\ Id. 745.
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Provisions relating to the federal-insular sharing of power
include: (1) harbors, navigable streams, bodies of water, and submerged
land around Puerto Rico, not used by the United States for public
purposes, fall under the control of Puerto Rico;\135\ (2) citizens of
Puerto Rico are citizens of the United States with unrestricted freedom
to migrate to the United States with full citizenship rights;\136\ (3)
a resident commissioner with no vote sits in the U.S. House of
Representatives;\137\ and (4) Puerto Rico is exempted from the
Interstate Commerce Act, the Safety Act, and the Safety Appliance
Acts.\138\
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\135\ Id. 749.
\136\ Id. 733.
\137\ 48 U.S.C. 891.
\138\ Id. 751.
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The Puerto Rican Constitution also limits the power of the Puerto
Rican people to amend their Constitution insofar as any amendment must
be consistent with the ``applicable provisions of the Constitution of
the United States.'' \139\ Which provisions qualify as ``applicable''
has varied over time with the expansion and contraction of the doctrine
of incorporated versus unincorporated territories. Originally, because
U.S. law deemed Puerto Rico an unincorporated territory, only
``fundamental'' provisions of the Constitution applied to it.\140\ The
Uniformity Clause, the Fifth Amendment requirement of indictment by
grand jury, and the Sixth Amendment requirement of trial by jury were
held not to apply to Puerto Rico.\141\ The only constitutional--
guarantee specifically applied to Puerto Rico before the establishment
of the Commonwealth was due process, but ``whether this is under the
fifth amendment or fourteenth amendment is unclear.'' \142\
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\139\ P.R. CONST. art. VII, 3.
\140\ Leibowitz, supra note 128, at 241.
\141\ Id. at 242. See Downes v. Bidwell, 182 U.S. 244, 287 (1901)
(sustaining the constitutionality of the Foraker Act); Balzac v. Porto
Rico, 258 U.S. 298, 304-05 (1922) (finding the Sixth Amendment right to
jury trial inapplicable to Puerto Rico because of its status as an
unincorporated territory).
\142\ Leibowitz, supra note 128, at 242. For analysis of the legal
relationship of Puerto Rico to the United States under U.S.
constitutional law, see Part IV.B infra.
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E. Foreign Affairs Competence
Puerto Rico's Constitution does not expressly mention the
allocation of foreign affairs power between the United States and
Puerto Rico. It is also difficult to infer any principles in this
regard from statements made in the course of the Commonwealth's
formation because they reflect a-pervasive assumption of a sharp
distinction between internal affairs and international affairs. But
this distinction is only a shadow cast by one's perspective. In an
interdependent, globalized world, the clarification and implementation
of ``internal'' policies regularly involve mobilization of many
components of the world political process. Internal autonomy may become
meaningless without effective access to the resources of the more
inclusive world community. Experience suggests that real autonomy can
be enjoyed only by learning to operate within and derive benefits from
an ineluctably interdependent environment.
Against this backdrop of concerns for viable autonomy within the
world community, discussions at the constitutional phase were plainly
aimed at accommodating a variety of divergent interests. Tensions were
manifest in the well-known ``Resolution 22'' of the Constitutional
Convention in 1952, which considered an appropriate name for the new
political organization of Puerto Rico. Its produced, for example, the
following representative oddity:
Whereas, the word ``commonwealth'' in contemporary English
usage means a politically organized community, that is to say,
a state (using the word in the generic sense) in which
political power resides ultimately in the people, hence a free
state, but one which is at the same time linked to a broader
political system in a federal or other type of association and
therefore does not have independent existence;
Whereas, the single word ``commonwealth'', as currently used,
clearly defines the status of the body politic created under
the terms of the compact existing between the people of Puerto
Rico and the United States . . .
Whereas, there is no single word in the Spanish language
exactly equivalent to the English word ``commonwealth'' . . .
Whereas, in the case of Puerto Rico the most appropriate
translation of ``commonwealth'' into Spanish is the expression
of ``estado libre asociado'', which however should not be
rendered ``associated free state'' in English inasmuch as the
word ``state'' in ordinary speech in the United States means
one of the States of the Union . . .\143\
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\143\ CONSTITUTIONAL HISTORY, supra note 68, at 164. The
Constitutional Convention approved this resolution on February 4, 1992.
Id. But cf. Jose A. Cabranes, The Evolution of the ``American Empire'',
AM. SOC'Y INT'L L. PROC. 1, 2 (1973) (arguing that `` `Free Associated
State' is a preferable term, in both Spanish and English, because it is
less ambiguous that the word `Commonwealth' and properly suggests the
essential attributes of Puerto Rico's current political status''). Note
in this regard that the three-word term ``free associated state'' was
not used in English because of the potential for confusion of ``state''
with a federated state of the United States. There appeared to be no
objection at the time to the words ``free associated.''
This incredible tissue of legalisms, fictions, metaphysical
abstractions and ad hoc definitions offers no real guidance for
determining through time the allocation of the bundle of competences
that we habitually refer to as foreign affairs powers. That, of course,
is the operational problem.
Nor do analogies to states of the United States prove helpful;
Puerto Rico is not a state,\144\ and in any event, the federal-state
allocation. of foreign affairs competence is far more complex that the
text of Article I, Section 10 of the U.S. Constitution would appear to
suggest.\145\ Former U.S. Supreme Court Justice Story distinguished
between treaties of critical national concern and agreements
implicating primarily local interests.\146\ This division may explain
the apparent disparity between constitutional text and subsequent
practice summarized by professor Henkin:
---------------------------------------------------------------------------
\144\ See, e.g., Mora v. Torres, 113 F. Supp. 309 (D.P.R. 1953),
aff'd 206 F.2d 377 (1st Cir, 1953).
\145\ U.S. CONST. art. I, 10, provides:
No state shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make anything but gold and silver coin a tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts, or grant any title of nobility.
No state shall, without the consent of the Congress, lay any
imposts or duties on imports or exports, except what may be absolutely
necessary for executing it's inspection laws: and the net produce of
all duties and imposts, laid by any state on. imports or exports, shall
be for the use of the treasury of the United States; and all such laws
shall be subject to the revision and control of the Congress.
No state shall, without the consent of Congress, lay any duty of
tonnage, keep troops, or ships of war in time of peace, enter into any
agreement or compact with another state, or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger as
will not admit of delay.
In a telephone conversation with U.S. Assistant Legal Advisor
Marjorie M. Whiteman, Resident Commissioner Antonio Fernos-Isern stated
that the foreign relations powers of Puerto Rico ``belong completely to
the Federal Government.'' Memorandum from the Office of Inter-American
Political Affairs (Mar. 12 1962), in 1 WHITEMAN, supra note 119, at
400. If that is correct, then Puerto Rico possesses less foreign
affairs competence than a state of the Union in addition to having no
input through congressional processes. This breathtaking conclusion,
implied by an informal comment does not, however, seem to be a
particularly authoritative statement of either policy or practice.
\146\ JOSEPH STORY, COMMENTARIES 1396-97 (1884).
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Whether by so narrowing the constitutional requirement of
Congressional consent, or because consent was assumed, state and local
authorities have in fact entered into agreements and arrangements with
foreign counterparts without seeking consent of Congress, principally
on matters of common local interest such as the coordination of roads,
police cooperation, and border control. The State and the City of New
York have arrangements with the United Nations about the U.N.
Headquarters and its personnel, and with permanent missions to the U.N.
of various foreign governments. An interstate compact to facilitate the
interpleader of other parties to judicial proceedings, which
contemplates adherence by foreign governments and their component
units, also appears not to have obtained the consent of Congress.\147\
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\147\ LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 155 (1996)
(citations omitted); see also Virginia v. Tennessee, 148 U.S. 503, 518
(1893); Raymond Spencer Rogers, The Capacity of States of the Union to
Conclude International Agreements: The Background and Some Recent
Developments, 61 AM. J. INT'L L. 1021, 1023-28 (1969) (discussing
examples of agreements between states and foreign sovereigns concluded
without congressional consent).
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Even local governments can no longer exist in isolation, for
international concerns attend some of the most mundane local
activities. Where those activities do not significantly affect national
policies, their unsupervised exercise by components of the federal
system is increasingly deemed lawful.
In short, two rough legal categories emerge: first, those involving
matters of exclusive federal competence; and second, those involving
matters, which, though affecting national affairs, do not threaten such
serious consequences for the Union as to demand exclusive federal
competence. The tradition of U.S. decentralization leaves these matters
to state and local governments and, by implication and in practice, to
the government of the Commonwealth. Indeed, Puerto Rico should be
deemed to enjoy--under U.S., as opposed to international law--at least
as much international competence as a state of the Union; in certain
areas, it plainly does or should enjoy more. Because the general
principles, still less the precise contours, of its foreign affairs
competence were not addressed in the establishment of the Commonwealth,
they have been and will continue to be worked out through time by
references to general principles of international law, domestic
policies, and the political needs and priorities of both parties.
F. The Legal Status of Puerto Rico Under International Law
The final declaration of the Constitutional Convention of Puerto
Rico (Resolution 23), approved on February 4, 1952, stated:
When this Constitution takes effect, the people of Puerto
Rico shall thereupon be organized in a commonwealth established
within the terms of the compact entered into by mutual consent,
which is the basis of our union with the United States of
America . . . . Thus we attain the goal of complete self-
government, the last vestiges of colonialism having disappeared
in the principle of Compact, and we enter into an era of new
developments in democratic civilization . . . .\148\
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\148\ CONSTITUTIONAL HISTORY, supra note 68, at 166-67.
Shortly thereafter, in a letter to the U.S. president dated January
17, 1953, Luis Munoz-Marin, the governor of the Commonwealth, expressed
his view that ``[t]he laws enacted by the Government of the
Commonwealth pursuant to the compact cannot be repealed or modified by
external authority . . . . Our status and the terms of our association
with the United States cannot be changed without our full consent.''
\149\
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\149\ Luis Munoz-Marin, The Governor of Puerto Rico to the
President of the United States, DEP'T ST. BULL., Apr. 1953, at 589; 1
WHITEMAN, supra note 119, at 400.
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Later that year, Henry Cabot Lodge, Jr., U.S. A.rnbassador to the
United Nations, conveyed a message to the General Assembly from
President Eisenhower:
I am authorized to say on behalf of the President that, if at
any time the Legislative Assembly of Puerto Rico adopts a
resolution in favor of more complete or even absolute
independence, he will immediately thereafter recommend to
Congress that such independence be granted. The President also
wishes the to say that in this event he would welcome Puerto
Rico's adherence to the Rio Pact and the United Nations
Charter.\150\
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\150\ Henry Cabot Lodge, Jr., U.S. Relationship with Puerto Rico,
Nov. 27, 1953, DEP'T STATE BULL., Dec. 1953, at 841; 1 WHITEMAN, supra
note 119, at 400.
He also advised the United Nations that the United States would no
longer report on Puerto Rico under Article 73(e), for Puerto Rico, in
the view of the United States, now qualified as a fully self-governing
entity. A statement by Congresswoman Frances P. Bolton, U.S.
representative in the Fourth Committee of the General Assembly,
described the new relationship between the United States and Puerto
---------------------------------------------------------------------------
Rico as follows:
The previous status of Puerto Rico was that of a territory
subject to the full authority of the Congress of the United
States in all governmental matters. The previous constitution
of Puerto Rico was in fact a law of the Congress of the United
States, which we called an organic act. Only Congress could
amend the organic act of Puerto Rico. The present status of
Puerto Rico is that of a people with a constitution of their
own adoption, stemming from their own authority which only they
can alter or amend. The relationships previously established
also by a law of the Congress [that is, by the Puerto Rican
Federal Relations Act], which only Congress could amend, have
now become provisions of a compact of a bilateral nature whose
terms may be changed only by common consent.\151\
---------------------------------------------------------------------------
\151\ Frances P. Bolton, Nov. 3 Statement by Mrs. Bolton, DEP'T ST.
BULL., Dec. 1953, at 804; see also 1 WHITEMAN, supra note 119, at 400
(stating that the laws enacted by Puerto Rico, as well as its
association with the United States, cannot be altered without Puerto
Rico's consent).
In response, the General Assembly adopted Resolution 748 (VIII),
which recognized that ``the people of the Commonwealth of Puerto Rico,
by expressing their will in a free and democratic way, have achieved a
new constitutional status''; that by ``choosing their constitutional
and international status, the people of the Commonwealth of Puerto Rico
have effectively exercised their right to self-determination''; and
that ``in the framework of their Constitution and of the compact agreed
upon with the United States of America, the people of the Commonwealth
of Puerto Rico have been invested with attributes of political
sovereignty which clearly identify the status of self-government
attained by the Puerto Rican people as that of an autonomous political
entity.'' \152\
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\152\ G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25,
U.N. Doc. A/2630 (1953).
---------------------------------------------------------------------------
No historical evidence indicates corruption in the Puerto Rican
vote or otherwise suggests that a majority of the voters in the
referendum did not genuinely express a preference for free association.
Nonetheless, several flaws marred the procedure--although the General
Assembly's approval suggests that they were not deemed material at the
time. These flaws included (1) the absence of U.N. supervision of the
referendum, (2) that acceptance of the Puerto Rican Constitution
required U.S. congressional approval as well as Puerto Rican
acceptance, and (3) that future changes in Puerto Rico's status would
require U.S: assent.
The absence of U.N. supervision would appear to be the only formal
flaw, and the evidence, as noted, does not suggest any serious problems
with the quality of the referendum. The requirement that the United
States accept the Puerto Rican Constitution, which should be viewed as
an aspect of the negotiating process between the two parties (the
putative associate and putative principal), likewise does not seem to
impugn the legitimacy of the process: Both parties to an association
must accept the contemplated relationship, and it does not seem either
unreasonable or coercive for the principal to insist on--and the
associate to accept--certain minima in the organization of the
associate, provided that they do not violate substantive international
law. The principal's conditions for association, in our judgment, would
become unlawful only if (1) they were de facto coercive in that the
putative associate could not refuse association; (2) they deviated
sharply from social and political demands in the associate; or, as
noted, (3) they violated substantive international law. None of these
problematic conditions afflicted the 1952 compact.
The third flaw--that future changes to Puerto Rico's status would'
require the assent of the United States--is arguably more problematic.
Recall that Henry Cabot Lodge, Jr., on behalf of President Eisenhower,
represented to the General Assembly that ``if at any time the
Legislative Assembly of Puerto Rico adopts a resolution in favor of
more complete or even absolute independence, [the president] would]
immediately thereafter recommend to Congress that such independence be
granted.'' \153\ The final paragraph of Resolution 748 (VIII) reflects
the General Assembly's understanding of that commitment.\154\ Under the
precedent established by the PCIJ and the ICJ in, respectively, the
Eastern Greenland and Nuclear Tests cases, this statement may well
constitute a binding obligation under international law, which would
supersede even a constitutionally prescribed procedure.\155\ And in
practice, it is difficult to imagine the United States refusing to
acknowledge and comply with a Puerto Rican majority demand for
independence. Still, even if the flaws in the referendum had been more
material and serious, it is likely that Resolution 748 (VIII) would be
deemed to have cured them. In Northern Cameroon, the ICJ indicated a
very high level of deference to decisions of the General Assembly in
such matters.\156\ On the other hand, under the more stringent
standards established after 1950 and the more dynamic supervision of
the Committee of 24,\157\ some of these flaws might not have been
tolerated. Subsequent referenda in Puerto Rico suggest that the outcome
would have been the same, nonetheless, even had there been more formal
external supervision.
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\153\ See supra note 150.
\154\ See GA. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 26,
U.N. Doc. A/2630 (1953).
\155\ Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253, 267-72 (Dec.
20); Legal Status of Eastern Greenland (Nor. v. Den.), 1933 P.C.I.J.
(ser. A/B) No. 53, at 71 (Apr. 5).
\156\ Northern Cameroons (Cameroon v. U.K.), 1963 I.C.J. 15 (Dec.
2).
\157\ In 1961, the General Assembly, by Resolution 1810 (XVII),
created a Special Committee to make recommendations regarding the
implementation of Resolution 1514 (XV). G.A. Res. 1810, U.N. GAOR, 17th
Sess., Supp. No. 17, at 72, U.N. Doc. A/5217 (1962). This committee,
generally referred to as ``Committee of 24,'' intermittently hears
claims on behalf of independence-minded groups. The Committee's
attention has recently been focused on Puerto Rico as a result of the
dispute over the U.S. military presence on the island of Vieques. On
June 21, 2001, it adopted a resolution ``urging'' the United States to
halt military drills on the island of Vieques. Press Release, Special
Committee on Decolonization Adopts Resolution Urging United States To
Halt Military Drills on Vieques Island, Puerto Rico, U.N. GAOR Special
Comm. on Decolonization, 6th mtg., U.N. Doc. GA/COL/3065 (June 21,
2001).
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The debate over political status did not end with the establishment
of the Commonwealth or the General Assembly's declaration terminating
Puerto Rico's status as a non-self-governing territory.\158\ In fact,
at the time, many Puerto Ricans understood commonwealth status as a
transitional phase or a postponement of a permanent decision on status.
Some of those who favored. commonwealth status felt that Puerto Rico
should develop further economically before finally determining its
political destiny. Many political leaders, however, including Governor
Munoz-Morin, came to see commonwealth or associate status as the best
political as well as economic solution--one capable of evolving to
serve the needs of both parties to the compact. Other political
factions continued to advocate full independence or incorporation into
the United States as a component state.
---------------------------------------------------------------------------
\158\ See generally Jose A. Cabranes, Citizenship and the American
Empire, 127 U. PA. L. REV. 391, 399 n.22 (1978) (noting that ``(t]he
subject of Puerto Rico's status has been before the United Nations
General Assembly, in one form or another, since the organization's
founding,'' as, well as before the House of Representatives and other
domestic fora; collecting authorities).
---------------------------------------------------------------------------
Groups outside Puerto Rico also debated or challenged the status
issue. In 1960, the Soviet and Cuban delegations indicted commonwealth
status as merely a disguised form of colonialism. Governor Munoz
replied in a message to the United Nations that ``Puerto Rico . . . has
freely chosen its present relationship with the United States. The
people of Puerto Rico are a self-governing people freely associated to
the United States of America on the basis of mutual consent and
respect.'' \159\ Munoz also reported that Commonwealth law authorized a
vote on Puerto Rico's status whenever 10% of the voters requested
one.\160\
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\159\ 1 WHITEMAN, supra note 119, at 403.
\160\ Id.
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Continuing preoccupation with Puerto Rico's status eventually led
the U.S. Congress to establish a Status Commission, to be appointed
jointly by the U.S. president and the governor of Puerto Rico. This
led, in turn, to another referendum in Puerto Rico on the island's
future status. Again, a majority voted to continue the free associate
arrangement. In the United Nations, however, Cuba continued to press
for assumption of the issue of Puerto Rico by the Committee of 24.\161\
In 1972, the Committee adopted the following resolution:
---------------------------------------------------------------------------
\161\ See, e.g., Letter dated 9 February 1972 from the Permanent
Representative of Cuba to the United Nations addressed to the Chairman
of the Special Committee, U.N. GAOR Special Comm. on the Situation with
Regard to the Implementation of the Declaration of the Granting of
Independence to Colonial Countries and Peoples, U.N. Doc. A/AC.109/392
(1972).
The Special Committee . . .
Having considered the question of the list of
Terrltones to which the Declaration is applicable,
Recognizing the inalienable right of the people of
Puerto Rico to self-determination and independence in
accordance with General Assembly resolution 1514 (XV)
of 14 December 1960,
Instructs its working Group to submit to it at an
early date in 1973 a report relating specifically to
the procedure to be followed by the Special Committee
for the implementation of General Assembly resolution
1514 (XV) with respect to Puerto Rico.\162\
---------------------------------------------------------------------------
\162\ U.N. GAOR, 27th Sess., Supp. No. 23, at 31, U.N. Doc. A/8723/
Rev. 1 (1972).
The Committee adopted a similar resolution in 1973 and in 1978
criticized the United States for violations of the ``national rights''
of Puerto Ricans.\163\ Yet two further referenda the first held on
November 14, 1 993, the second on December 13, 1998 failed to produce
any consensus favoring a change in the status quo.\164\ The electorate,
as we have emphasized, remains deeply divided on the issue.
---------------------------------------------------------------------------
\163\ Special Committee on the Situation with Regard to the
Implementation of the Declaration on the Granting of independence to
Colonial Peoples and Countries, 33 U.N. GAOR, 1133d mtg., U.N. Doc. A/
AC.109/574 (1978).
\164\ 2005 TASK FORCE REPORT, supra note 3, at 4. In 1993, 48.6% of
the electorate voted to retain commonwealth status, while 46.3% voted
for statehood and 4.4% for full independence. In 1998, the percentage
favoring integration into the United States as a component state of the
Union held relatively constant (46.49%), while a slight majority
(50.30%) declined to specify a preference and only 2.54% voted for
independence. Id.
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At least at present, despite the continuing status debate in
certain fora, most of the world appears to ignore Puerto Rico, to view
its situation as ``acceptable,'' or to view whatever problems may exist
there as essentially benign.\165\ Yet Puerto Rico remains an
international issue in a number of senses, and the record reflects a
certain set of international conceptions that frame the current debate:
---------------------------------------------------------------------------
\165\ But see Rafael Hernandez Colon, Doing Right by Puerto Rico,
77 FOREIGN AFF. 112 (1997). For a more extreme indictment of the
current situation, see, for example, PEDRO A. MALAVET, AMERICA'S
COLONY: THE POLITICAL AND CULTURAL CONFLICT BETWEEN THE UNITED STATES
AND PUERTO RICO (2004) (denouncing, from the standpoint of an
independentista, Puerto Rico's present political circumstances as
essentially colonial and fundamentally unjust).
---------------------------------------------------------------------------
First, under international law, the United Nations views Puerto
Rico as ``distinct The accommodation reached in 1953 stressed Puerto
Rico's existence as an international entity separate and distinct from
the United States. The United Nations deemed Puerto Rico's association
with the United States under the Compact formula an adequate acquittal
of its obligations because Puerto Rico's people freely consented to
that formula. Presumably, this perspective will continue unless. Puerto
Rico becomes a state within the United States or opts for full
independence.
Second, despite the Compact and the degree of integration in
certain economic sectors, the United Nations continues to view Puerto
Rico as a separate national entity. Had the Puerto Rican people voted
in 1953, without coercion, for statehood and integration in the U.S.
federal system, this action would have extinguished Puerto Rico's
international personality and been recognized by the United Nations
under the formula enunciated some years later in Resolution 1541
(XV).\166\ In fact, Puerto Rico did not opt for integration. President
Eisenhower took pains in his communication to the United Nations to
emphasize the continued separate international existence of Puerto Rico
and the U.S. commitment to support any future decision by Puerto Rico
to change the form of its association or even opt for full
independence.
---------------------------------------------------------------------------
\166\ An unfortunate precedent is the General Assembly's
endorsement of the West Irian musjawarah leading to its de jure
incorporation into Indonesia.' Agreement between the Republic of
Indonesia and the Kingdom of the Netherlands concerning West New Guinea
(West Irian), 18 U.N. GAOR Annex 1 (Agenda Item 20), U.N. Doc. Al 5578
(1963). See Chen & Reisman, supra note 20, at 663 & n.244.
---------------------------------------------------------------------------
Third, the general response in the United Nations appears to
indicate that the effective elite and probably a majority of the
membership views the free association or commonwealth arrangement
between the United States and Puerto Rico as adequate under
contemporary international law. Only a small minority appears to view
the relationship as unlawful per se.
Fourth, the status of free association is never final. Because the
content of the association relationship evolves and international
standards change, the question of Puerto Rico's status may be revived
at some later date if conditions or legal standards change such that
the relationship deviates from whatever prove to be contemporary
normative demands. In the meantime, several obvious flaws in the
Commonwealth arrangement remain troubling. In particular, some of the
powers reserved by Congress and the application of Section 9 of the
PRFRA arguably fail to conform to Resolution 1541 (XV) and the relative
absence of Puerto Rico as an actor in international politics is
disquieting. Because of the potential for abuse in the inherently and
de facto unequal relationship of any association, the United Nations
will be likely to subject that relationship to continuing, if sporadic,
scrutiny.
G. Participation in the International Process
Puerto Rico participates in its own capacity in a number of
international organizations. It has observer status in the Caribbean
Community and Common Market (Caricom); associate membership in the
Economic Commission for Latin America and the Caribbean, the Food and
Agriculture Organization, and the World Health Organization; and
membership in the International Federation of Christian Trade Unions,
the International Olympic Committee, the World Confederation of Labor,
and the World Federation of Trade Unions; and it also participates in
the International Criminal Police Organization (Interpol) at the sub-
bureau level.\167\ Puerto Rico has its own Department of State,\168\
and a number of states maintain diplomatic missions in Puerto Rico,
facilitating direct contacts between Puerto Rican and foreign
officials. In this manner, Puerto Rico is able to participate in
international processes and in particular to focus on issues and areas
particularly relevant to its people, regardless of whether these mirror
national priorities of the United States. Although its status in the
international system falls well short of independent statehood, Puerto
Rico enjoys an international personality distinguishable from, if
largely bound up with, that of the United States.\169\
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\167\ WORLD FACTBOOK, supra note 47.
\168\ See Estado Libre Asociado de Puerto Rico, Departamento de
Estado, at <http://www.estado.gobierno.pr/>.
\169\ For a fuller review and analysis, see REISMAN, supra note 1,
at 51-103.
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iii. other states freely associated with the united states
A. The Former Trust Territory of the Pacific Islands
1. Historical Overview
The former Trust Territory of the Pacific Islands (TTPI) consists
of the Caroline Islands, the Marshall Islands, and the Northern Mariana
Islands, which extend east of the Philippines and northeast of
Indonesia in the North Pacific Ocean. The term ``Micronesia'' is used
both to designate the entire region and to refer to the Caroline
Islands in particular; the Federated States of Micronesia comprise the
Caroline Islands with the exception of Palau. Magellan made the first
known Western contact with these islands during his journey around the
world in 1521. But Spain took little immediate interest in governing
the islands, and what interests it did ultimately take were minimal,
limited to ``pacification and Christianization of the indigenes,
maintenance of a way station for Spanish ships, and preservation, at
the lowest possible cost, of orderly government.'' \170\ Germany took
control of the Marshall Islands in 1885 and purchased Spain's remaining
holdings in Micronesia in 1899. The hallmark of German rule was its
insistence on copra production and commerce through the forced planting
of coconut trees.\171\
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\170\ ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE
ANALYSIS OF UNITED STATES TERRITORIAL RELATIONS 485 (1989).
\171\ See id.
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Japanese naval forces occupied the area shortly after the outbreak
of World War I. While Japan believed that the Carolines, the Marianas,
and the Marshall Islands would become part of the Japanese Empire at
the end of the war, in 1920, the League of Nations instead gave it a
Class C mandate to administer the islands.\172\ In the 1930s, Japan
began fortifying many. of the islands in violation of its mandate;
Micronesia apparently-supplied the task force that bombed Pearl
Harbor.\173\ By the end of World War II, U.S. military forces had
occupied most of the islands; U.S. planes based in the Marianas
delivered the bombs dropped on Tokyo in 1944 and the atom bomb used
against Hiroshima.\174\ Although sensitive to evolving international
norms against imperialism, after the War, the United States hesitated
to surrender control of this territory, especially because it feared
that the islands could again be used to launch enemy attacks. In 1947,
the United Nations agreed to designate the area a ``strategic trust
territory'' under the trusteeship of the United States, a unique
arrangement that put the territory under the control of the Security
Council (and hence subject to the veto of any permanent member) but
allowed the trustee to use it for military purposes.\175\
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\172\ Id.; see also STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED
STATES TERRITORIES AND AFFILIATED JURISDICTIONS 39 (1995).
\173\ LAUGHLIN, supra note 172, at 39.
\174\ LEIBOWITZ, supra note 170, at 487.
\175\ See Trusteeship Agreement for the Former Japanese Mandated
Islands, U.N.S.C. Res. 21, April 2, 1947, entered into force July 18,
1947, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 189 [hereafter
TRUSTEESHIP AGREEMENT]; Trusteeship Agreement for the Trust Territory
of the Pacific Islands, U.N. Sales No. 1957.VI.A.1.
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From the perspective of the United States, as Warren R. Austin,
U.S. representative to the Security Council, explained, the islands
``constitute an integrated strategic physical complex vital to the
security of the United States.'' \176\ In fact, then-General Dwight
Eisenhower remarked:
---------------------------------------------------------------------------
\176\ LEIBOWITZ, supra note 170, at 487 (quoting WEBB, MICRONESIA
AND U.S. PACIFIC STRATEGY: A BLUEPRINT FOR THE 1980S 79 (1974)); see
also LAUGHLIN, supra note 172, at 462-63.
[These islands] are of very little economic value. Our sole
interest in them is security . . . . So long as we have them,
[aggressive nations] can't use them, and that means to me, even
in their negative denial to someone else, a tremendous step
forward in the security of this country.\177\
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\177\ Statement of Gen. of the Army, Dwight D. Eisenhower, Chief of
Staff, Hearings on S.J. Res. 143 before the Sen. Comm. on Foreign
Relations, 80th Cong., 1st Sess. (1947), at 18.
This strategic imperative of excluding other, potentially hostile,
powers remains the paramount interest of the United States in the TTPI.
Given the post-War international climate of hostility toward
territorial annexation and the concern that U.S. acquisitions would
fuel Soviet territorial ambitions elsewhere, the United States accepted
a strategic trust that could be altered only with the approval of the
Security Council, where, as noted, the United States could exercise its
veto.\178\ This trusteeship arrangement and the subsequent commonwealth
and free association agreements negotiated with the islands illustrate
the range of options that has been deemed to provide the United States
with the required security guarantees alongside varying degrees of
self-government for the islands' inhabitants.
---------------------------------------------------------------------------
\178\ LEIBOWITZ, supra note 170, at 487-88; U.N. CHARTER art.
83(1).
---------------------------------------------------------------------------
The 1947 Trusteeship Agreement assigned the following duties to the
United States as the administering authority:
(1) to foster the development of political institutions and
local participation in government;
(2) to promote the development of the inhabitants toward
self-government or independence;
(3) to promote the economic self-sufficiency of the TTPI
inhabitants and encourage fishing development, agriculture, and
industry;
(4) to protect the inhabitants against the loss of their
lands;
(5) to promote social advancement, protecting the rights and
fundamental freedoms of all without discrimination; and
(6) to promote educational advancement.\179\
---------------------------------------------------------------------------
\179\ LEIBOWITZ, supra note 170, at 488; TRUSTEESHIP AGREEMENT art.
6.
The Agreement gave the United States, in turn, the following
entitlements, to be exercised for ``the maintenance of international
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peace and security'':
(1) to establish naval, military and air bases and to erect
fortifications in the trust territory;
(2) to station and employ armed forces in the territory; and
(3) to make use of volunteer forces, facilities and
assistance from the trust territory in carrying out the
obligations towards the Security Council undertaken in this
regard by the administering authority, as well as for the local
defense and the maintenance of law and order within the trust
territory.\180\
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\180\ TRUSTEESHIP AGREEMENT art. 5.
At first, President Truman assigned the Navy administrative
responsibility for the islands.\181\ During the 1950s, this
responsibility was transferred back and forth between the Department of
the Interior and the Secretary of the Navy and then ultimately fell to
the president himself.\182\ In 1962, President Kennedy redelegated his
authority for civil administration of the entire Trust Territory to the
Secretary of the Interior\183\ who, in turn, delegated executive
authority to the High Commissioner.\184\ This authority covered the
internal government of the TTPI, expenditure of federal funds in the
TTPI, and responsibility for carrying out the international obligations
of the United States.\185\
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\181\ Exec. Order No. 9875, 12 Fed. Reg. 4837 (1947), 3 C.F.R. 658
(1943-48 Comp.).
\182\ People of Saipan by Guerrero v. U.S. Dep't of Interior, 502
F.2d 90, 98 n.10 (9th Cir. Haw. 1974), citing Exec. Order No. 10265, 16
Fed. Reg. 6419 (1951). 3 C.F.R. 766 (1949-53 Comp.); Exec. Order No.
10408, 17 Fed. Reg. 10277 (1952), 3 C.F.R. 906 (1949-53 Comp.); Exec.
Order No. 10470, 18 Fed. Reg. 4231 (1953), 3 C.F.R. 951 (1949-53
Comp.); Act of June 30, 1954, ch. 423, 1, 68 Stat. 330, as amended,
48 U.S.C. 1681(a).
\183\ Exec. Order No. 11021, 27 Fed. Reg. 4409 (1962), 3 C.F.R.
600 (1959-63 Comp.). The seat of the Trust Territory government was
moved to Saipan, in the Northern Marianas.
\184\ Dept. of Interior Order No. 2918, pt. II, 1, 34 Fed. Reg.
157 (1969). The 1967 Congress provided that this High Commissioner be
appointed by the President and confirmed by the Senate. Act of May 10,
1967, Pub. L. No. 90-16 2, 81 Stat. 15 (codified at 48 U.S.C.
1681a).
\185\ LEIBOWITZ, supra note 170, at 497; 48 U.S.C. 1681, pt. II,
sec. 1.
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The United States divided the TTPI into six districts: Pohnpei
(including Kosrae), Truk, and Yap (which together now form the
Federated States of Micronesia); the Northern Mariana Islands; the
Marshall Islands; and Palau.\186\ Each district had an administrator, a
federal official reporting to the High Commissioner. Political advisory
bodies were established in each district to assist the District
Administrator in governing the area.\187\ As it turned out, these
bodies were instrumental in creating a sense of identity and even
nationalism in each district, but this collective feeling did not et--
rend to the TTPI as a whole.\188\ Over time, the advisory committees
acquired de facto legislative authority in their respective
jurisdictions.\189\
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\186\ LEIBOWITZ, supra note 170, at 499.
\187\ U.S. DEPT. OF STATE, SEVENTH ANNUAL REPORT ON THE TRUST
TERRITORY OF THE PACIFIC ISLANDS 27 (1954).
\188\ See LEIBOWITZ, supra note 170, at 499; Leibowitz notes that
``the Marshallese, in 1953, told the United Nations Visiting Mission
that their culture and their district were unique and they did not want
to lose themselves in an amalgamation with other Micronesians.'' Id.
\189\ Id. at 500.
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During the 1960s, the, Kennedy administration inaugurated a program
of economic and social development in Micronesia and took steps to
streamline the district legislatures.\190\ The president chartered the
Congress of Micronesia in 1965\191\ with a view to the TTPI ultimately
determining its future political status collectively. In 1966, the
Micronesian Congress petitioned President Johnson to establish a joint
status commission to study available political alternatives. Instead,
he asked the U.S. Congress to appoint a presidential commission to
consider the status question; the bill passed the Senate but failed in
the House Interior and Insular Affairs Committee.\192\ The Micronesian
Congress then established its own status commission. In September 1969,
the United States began negotiations with the Micronesian Congress's
Joint Committee on Future Status.\193\
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\190\ LAUGHLIN, supra note 172, at 471.
\191\ Dept. of the Interior Order 2882, 29 F.R. 13613 (Sept. 28,
1964); see generally NORMAN MELLER, THE CONGRESS OF MICRONESIA:
DEVELOPMENT OF THE LEGISLATIVE PROCESS IN THE TRUST TERRITORY OF THE
PACIFIC ISLANDS (1969).
\192\ LEIBOWITZ, supra note 170, at 501.
\193\ Id.
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It quickly became apparent that the people of various districts did
not share uniform political aspirations. In particular, the Marianas
wanted to formalize a closer, more permanent relationship with the
United States. Its representatives ``on numerous occasions expressed
both formally and informally . . . through petitions, resolutions
adopted by the District Legislature and Municipal Councils, and in
referenda, the strong desire that the people of the Northern Mariana
Islands . . . become a part of the United States.'' \194\ On November
9, 1969, the Marianas voted in favor of reintegration with Guam.\195\
But when the United States did not accede to this request, the Mariana
legislature passed a resolution threatening to secede from the
Trusteeship.\196\ In May 1972, it created its own Political Status
Commission, which entered into separate negotiations with the United
States.\197\
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\194\ LAUGHLIN, supra note 172, at 429 (quoting Chairman D.L.G.
Pangelinana, Mariana Status Commission, at the signing of the Northern
Marianas Covenant on Feb. 15, 1975, at 10); see also Howard P. Willens
& Deanne C. Siemer, The Constitution of the Northern Mariana Islands:
Constitutional Principles and Innovation in a Pacific Setting, 65 GEO.
L.J. 1373, 1379 (1977) (By 1972, ``[t]he desire of the Northern
Marianas for a permanent relationship with the United States had been a
matter of public record for more than twenty-five years.'').
\195\ Guam turned down this request in a special plebiscite.
LEIBOWITZ, supra note 170, at 504; see S. Rep. No. 433, 94th Cong., 1st
Sess., at 19 (1975).
\196\ Res. No. 30-1971, Third Marianas District Legislature (1971).
\197\ See LAUGHLIN, supra note 172, at 430. These separate
negotiations were criticized in the U.N. by the Soviet delegation,
which claimed that the United States was following a divide and conquer
policy in Micronesia. Id. at 430 n.36 (citing Statement of the
Permanent Mission of the USSR to the United Nations, U.N. Doc. A/34/
1009, S13147, at 2 (1979)).
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The United Nations strongly favored treating the TTPI as a unitary
entity. Nevertheless, in 1973, a U.N visiting mission to the TTPI
stated that while the United States remained ``oblig[ed] to promote
national [pan-Micronesian] unity in every way possible,'' the peoples
of Micronesia ``must work out for themselves what kind of future links
they wish to have with one another.'' \198\ Despite the Congress of
Micronesia's strong objections to the separate talks,\199\ in 1975, the
United States signed a Covenant establishing the U.S. Commonwealth of
the Northern Mariana Islands.\200\ The inhabitants of the Northern
Mariana Islands approved the Covenant by a 78% vote in favor of
commonwealth status.\201\
---------------------------------------------------------------------------
\198\ LAUGHLIN, supra note 172, at 430 (quoting Report of the U.N.
Visiting Mission to the Trust Territory of the Pacific Islands at 39
(1973)); see also LEIBOWITZ, supra note 170, at 502 (placing greater
emphasis on the U.N.'s condemnation of secession). Article 6 of the
1947 Trusteeship Agreement had given the United States the
responsibility of ``promot[ing] the development of the inhabitants of
the trust territory toward self-government or independence, as may be
appropriate to the particular circumstances of the trust territory and
its peoples and the freely expressed wishes of the peoples concerned.''
TRUSTEESHIP AGREEMENT, Art. 6. It is interesting to note the repeated
use of the plural ``peoples'' in this context, which facilitated the
argument that the ``people'' of the Northern Mariana Islands were
entitled to a self-determination arrangement based on their own
distinct preferences; see Willeps & Siemer, supra note 194, at 1380
n.29.
\199\ See S.J. Res. 38, Trust Territory of the Pacific Islands (5th
Cong. of Micronesia, 1st Sess., 1973); S.J. Res. 131, Trust Territory
of the Pacific Islands (5th Cong. of Micronesia, 1st Spec. Sess.,
1974). The 1974 Resolution began: ``Whereas . . . the United States has
amply demonstrated the contempt in which it holds the recommendations
of the United Nations Trusteeship Council and its 1973 Visiting
Mission; the primacy of its own selfish interests over those of
Micronesia which it has sworn to uphold and protect; and the complete
and utter disregard which it has for the wishes of the people of
Micronesia, as expressed through their lawful representatives in
Congress assembled . . .'' Id.
\200\ Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, signed on
Feb. 15, 1975, at Susupe, Saipan, Northern Mariana Islands.
\201\ LEIBOWITZ, supra note 170, at 505; see S. Rep. No. 433, 94th
Cong., 1st Sess. 413-14 (1975). While a U.N. mission attested to the
``democratic procedure'' of the referendum, Leibowitz takes issue with
the phrasing of the question as requiring an affirmative vote for
Commonwealth status, or a negative vote without clear status
implications. Id.
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In July 1978, a constitution was developed for the rest of
Micronesia and voted on in a referendum. But the Marshall Islands and
Palau rejected it and began their own separate negotiations with the
United States.\202\ Despite the U.N. presumption against fragmentation
of political entities in the context of decolonization, one scholar of
the region has observed that
---------------------------------------------------------------------------
\202\ LEIBOWITZ, supra note 170, at 507.
emphasis on the colonial territorial boundaries can lead to
inequitable results for minority groups, especially when there
is really no ``national or territorial integrity.'' Here is
where the U.N. case [for treating the TTPI as a unitary whole]
broke down. Micronesia is not an integrated whole and it never
was. It is not contiguous; its people are ethnically and
linguistically diverse. Its geographic dispersion was
unprecedented. In such circumstances, national unity is a
consummation devoutly to be wished but hardly likely of
achievement.\203\
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\203\ Id. at 503 (emphasis in original).
The various status negotiations eventually culminated in the
establishment of the Commonwealth of the Northern Mariana Islands
(CNMI) and the conclusion of compacts with three states freely
associated with the United States: (1) the Federated States of
Micronesia (Pohnpei, Truk, Yap, and Kosrae), (2) the Republic of the
Marshall Islands; and (3) Repub1ic of Palau. In 1990, the Security
Council proclaimed that the CNMI, the FSM, and the Marshall Islands had
become ``fully self-governing.'' It made the same determination for
Palau in 1994.\204\
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\204\ The Trusteeship Agreement for the CNMI, the Marshall Islands,
and the FSM was terminated by Security Council Resolution 683 of Dec.
22, 1990. The FSM and the Marshall Islands became U.N. members in
Security Council resolutions 703 and 704 (1991), respectively; Palau's
status as a trust territory was terminated by S.C. Res. 956 (1994), and
Palau became a U.N. member under S.C. Res. 963 (1994).
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B. The Commonwealth of the Northern Mariana islands
1. A Social and Economic Survey
The CNMI consists of fourteen islands in the North Pacific Ocean,
about three-quarters of the way from Hawaii to the Philippines.\205\
Its total land area measures 176.5 square miles. The three developed
islands are Saipan (46.5 square miles), Rota (32.8 square miles), and
Tinian (39.2 square miles), all of which lie in the southern part of
the archipelago. The population of the islands is approximately 74,600.
It is composed of indigenous Chamorros, Carolinians, and other
Micronesians, as well as immigrants from other Asian states.\206\ A
1996 census estimate put the resident population of the CNMI at 52,000
people.\207\ Well over 20,000 documented aliens lived in the CNMI in
1990.\208\ A 1997 joint U.S.-CNMI report noted that 90% of the
workforce consisted of alien laborers.\209\
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\205\ The southernmost island in this archipelago is Guam.
\206\ An estimated 86% of the population speak a language other
than English at home.
\207\ U.S. Bureau of the Census, 1996 Statistical Abstract of the
United States, Section 19: Outlying Areas, Table 1309, Estimated
Resident Populations With Projections: 1960 to 2020 (1996), at <http://
www.census.gov/prod/2/gen/96statab/outlying.pdf>.
\208\ Robert S. Florke, Note, Castaways on Gilligan's Island: The
Plight of the Alien Worker In the Northern Mariana Islands, 13 TEMP.
INT'L & COMP. L.J. 381, 386 & n.147 (1999).
\209\ Id. at 396 & n.148.
---------------------------------------------------------------------------
Most CNMI residents practice Roman Catholicism. The predominant
languages are English, Chamorro, and Carolinian, although the Japanese
influence remains evident. The Chamorro language and culture link the
CNMI culturally and historically to Guam.\210\ The Spanish policy of
forced resettlement of the Chamorro people of the Northern Marianas to
Guam meant that waves of immigrants from the Caroline Islands to Saipan
in the nineteenth century formed the dominant community on the island;
only gradually were the Chamorros permitted to return from Guam to the
Northern Marianas.\211\ The provision in the CNMI Constitution for an
Executive Assistant to the Governor for Carolinian affairs responds to
the Carolinian concern that self-government for the Northern Marianas
would bring discrimination at the hands of the existing Chamorro
majority.\212\
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\210\ LEIBOWITZ, supra note 170, at 521.
\211\ Id. at 523.
\212\ Id. at 424-25; see NORTHERN MARIANAS CONST. art. III,
18(a).
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2. Toward a Commonwealth Arrangement
As noted, separate negotiations between the Marianas Political
Status Commission and the United States from 1972 to 1975 culminated in
the conclusion, on February 15, 1975, of the Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union with
the united States; and the inhabitants of the Northern Marianas
approved the Covenant with a 78% affirmative vote on June 17, 1975.
Congress enacted the arrangement into law on March 24, 1976.\213\
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\213\ Act of March 24, 1976, Pub. L. No. 94-241, 90 Stat. 263,
codified at 48 U.S.C. 1801 (formerly 1681). Proclamation No. 5564,
51 Fed. Reg. 40,399 (Nov. 4, 1986), terminated the Trusteeship.
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The Covenant has been characterized as ``the preconstitutional act
by which the people of the Northern Marianas exercised their right of
self-determination and became part of the United States.''\214\ Section
203 specifies the following requirements for the CNMI Constitution:
---------------------------------------------------------------------------
\214\ Willens & Siemer, supra note 194, at 1381.
(a) The Constitution will provide for a republican form of
government with separate executive, legislative and judicial
branches, and will contain a bill of rights.
(b) The executive power of the Northern Mariana Islands will
be vested in a popularly elected Governor and such other
officials as the Constitution or laws of the Northern Mariana
Islands may provide.
(c) The legislative power of the Northern Mariana Islands
will be vested in a popularly elected legislature and will
extend to all rightful subjects of legislation. The
Constitution of the Northern Mariana Islands will provide for
equal representation for each of the chartered municipalities
of the Northern Mariana Islands in one house of a bicameral
legislature, notwithstanding other provisions of this Covenant
or those provisions of the Constitution or laws of the United
States applicable to the Northern Mariana Islands.
(d) The judicial power of the Northern Mariana Islands will
be vested in such courts as the Constitution or laws of the
Northern Mariana Islands may provide. The Constitution or laws
of the Northern Mariana Islands may vest in such courts
jurisdiction over all causes in the Northern Mariana Islands
over which any court established by the Constitution or laws of
the United States does not have exclusive jurisdiction.\215\
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\215\ 48 U.S.C. 1801.
Within these parameters, the people of the CNMI were free to design
their own political institutions. The Northern Marianas legislature
authorized a constitutional convention, which the Resident Commissioner
approved on August 19, 1976.\216\ Less than one year later, on March 6,
1977, the inhabitants of the Northern Marianas adopted the proposed
constitution by a 93% affirmative vote.\217\
---------------------------------------------------------------------------
\216\ Northern Marianas Dist. Law No. 4-205 (1976); see Willens &
Siemer, supra note 194, at 1384.
\217\ Willens & Siemer, supra note 194, at 1373. President Carter
approved the constitution in October 1977, see Proclamation No. 4534,
Fed. Reg. 56,593 (1977), and it entered into force on January 1, 1978.
The people of the CNMI elected their first government under the
constitution on Dec. 12, 1977, and its officials took office on January
9, 1978. LAUGHLIN, supra note 172, at 435.
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The capital of the CNMI is Saipan, the former seat of the U.S.
Trust Territory government. The CNMI has a locally elected governor,
lieutenant governor, and legislature. Its inhabitants have U.S.
citizenship but do not vote in U.S. Presidential elections.\218\ An
elected Resident Representative serves as a non-voting member in the
U.S. Congress.\219\ The Commonwealth has its own trial and appeals
courts,\220\ as well as a U.S. federal district court.\221\ The U.S.
federal courts, and in particular the Ninth Circuit Court of Appeals,
have been called upon on numerous occasions to interpret the
applicability of U.S. laws and constitutional provisions to the
Northern Marianas.
---------------------------------------------------------------------------
\218\ Section 8 of the ``Schedule on Transitional Matters''
attached to the 1976 constitution provided the following ``Interim
Definition of Citizenship'':
For the period from the approval of the Constitution by the people
of the Northern Mariana Islands to the termination of the Trusteeship
Agreement, the term United States citizen or United States national as
used in the Constitution includes those persons who, on the date of the
approval of the Constitution by the people of the Northern Mariana
Islands, do not owe allegiance to any foreign state and who qualify
under one of the following criteria:
a) persons who were born in the Northern Mariana Islands, who. are
citizens of the Trust Territory of the Pacific Islands on the date of
the approval of the Constitution by the people of the Northern Mariana
Islands, and who on that date are domiciled in the Northern Mariana
Islands or in the United States or any territory or possession thereof;
b) persons who are citizens of the Trust Territory of the Pacific
Islands on the date of the approval of the Constitution by the people
of the Northern Mariana Islands, who have been domiciled continuously
in the Northern Mariana Islands for at least five years immediately
prior to that date, and who, unless under age, registered to vote in
elections for the Mariana Islands District Legislature or for any
municipal election in the Northern Mariana Islands prior to January 1,
1975; or
c) persons domiciled in the Northern Mariana Islands on the date of
the approval of the Constitution by the people of the Northern Mariana
Islands who, although not citizens of the Trust Territory of the
Pacific Islands, on that date have been domiciled continuously in the
Northern Mariana Islands beginning prior to January 1, 1974.
NORTHERN MARIANAS CONST. art. III, 18(a).
\219\ Covenant art. IX; see NORTHERN MARIANAS CONST. art. V (as
amended by Const. Amend. 24 of 1985).
\220\ These are the Superior Court and Supreme Court, respectively.
See Commonwealth Judicial Reorganization Act of 1989 3102 (1989).
\221\ Covenant art. IV; see NORTHERN MARIANAS CONST. art. IV (as
revised by House Legislative Initiative 10-3 of 1997). The district
court is not a true Article III court, in part because the U.S.
district court judge for the CNMI is appointed for a term of years
rather than having life tenure, but it has the same jurisdiction as an
Article III court. LAUGHLIN, supra note 172, at 450.
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3. Legal Relationship to the United States under American
Law
The Covenant establishes a federal relationship between the
Northern Marianas and the United States that lies ``somewhere on the
spectrum between that of a state and a territory.'' \222\ It stipulates
that the CNMI will be ``a self-governing commonwealth . . . in
political union with and under the sovereignty of the United States of
America'',\223\ that the Covenant, together with applicable provisions
of the U.S. Constitution and treaties and laws applicable to the CNMI,
will be the supreme law;\224\ that the people of the Northern Marianas
will have the right to local self-government and control over internal
affairs;\225\ that the United States will have complete responsibility
and authority with respect to foreign affairs and defense;\226\ and
that the United States may enact legislation applicable to the CNMI in
accordance with certain guidelines.\227\ This last provision has proved
contentious. Some CNMI residents argue for a narrow reading of the
combined provisions to limit the legislative power of the United States
in the CNMI exclusively to foreign affairs and defense matters.\228\
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\222\ Marybeth Herald, The Northern Mariana Islands; A Change in
Course Under Its Covenant with the United States, 71 OR. L. REV. 127,
135 (1992).
\223\ Covenant 101 (1975).
\224\ Id. 102; the scope of applicable laws is further defined in
art. 5.
\225\ Id. 103.
\226\ Id. 104.
\227\ ``The United States may enact legislation in accordance with
its constitutional processes which will be applicable to the Northern
Mariana Islands, but if such legislation cannot also be made applicable
to the several States the Northern Mariana Islands must be specifically
named therein for it to become effective in the Northern Mariana
Islands. In order to respect the right of self-government guaranteed by
this Covenant the United States agrees to limit the exercise of that
authority so that the fundamental provisions of this Covenant, namely
Articles I, II and III and Sections 501 and 805, may be modified only
with the consent of the Government of the United States and the
Government of the Northern Mariana Islands.'' Id. 105.
\228\ See LAUGHLIN, supra note 172, at 432-33.
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The United States, however, claims plenary power to govern the
Commonwealth under the Territorial Clause of the U.S.
Constitution.\229\ The relevant Senate committee's remarks before
adoption of the Covenant foreshadowed this assertion: ``Although
described as a commonwealth, the relationship is territorial in nature
with full sovereignty vested in the United States, and the plenary
legislative authority vested in the United States Congress.'' \230\
This language is not, however, dispositive. Some argue that the Senate
deliberately inserted ``legislative history protective of its own
authority,'' \231\ and therefore that such statements should be
discounted accordingly. The Marianas Legislature, by contrast, issued a
joint resolution and a major report while the Covenant was before the
United Nations in 1986 entitled Self-Determination Realized, arguing,
contrary to the language of the Covenant, that the Territorial Clause
did not apply at all and that the mutual consent provision applied to
the entire Covenant:\232\ ``Neither Congress nor any other branch or
agency of the United States Government may utilize the Territorial
Clause or any other source of power, for that-matter, to supersede the
sovereign power of the CNMI to control and regulate matters of local
concern.'' \233\
---------------------------------------------------------------------------
\229\ Lizabeth A. McKibben, The Political Relationship Between the
United States and the Pacific Islands Entities: The Path to Self
Government in the Northern Mariana Islands, Palau, and Guam, 31 HARV.
INT'L L.J. 257, 280 (1990); see also Brief of Appellee (United States),
United States ex rel Richards v. Sablan, No. 89-16404 (9th Cir. Mar.
1990); Jon M. Van Dyke, The Evolving Legal Relationship Between the
United States and Its Affiliated U.S.-Flag Island, 14 U. HAW. L. REV.
445, 483-84 (1992).
\230\ Senate Comm. on Interior and Insular Affairs, Section-By-
Section Analysis of the Covenant, S. Rep. No. 94-433, 94th Cong., 1st
Sess., S. Rep. No. 94-433, at 15 (1975).
\231\ LEIBOWITZ, supra note 170, at 543.
\232\ T3Id. at. 544-45; see also Van Dyke, supra note 229, at 482-
83.
\233\ CNMI LEGISLATURE, SELF-DETERMINATION REALIZED 24-25 (1986).
More recently, ``[t]here have been attempts to adopt an analysis of
502 requiring each law to be tested against an additional standard--
whether it is consisted with the United States' guarantee to the
Commonwealth of the right of local self-government. This reflects a
recent political movement in the Commonwealth to assert more NMI
`sovereignty' than is recognized by the United States or reflected in
court opinions interpreting the covenant.'' Herald, supra note 222, at
136 n.49; see also McKibben, supra note 229, at 282-87.
---------------------------------------------------------------------------
A more plausible characterization lies somewhere between these two
views:
As used in connection with insular political communities
affiliated with the United States, the concept of a
``commonwealth'' anticipates a substantial amount of self-
government (over internal matters) and some degree of autonomy
on the part of the entity so designated. The commonwealth
derives its authority not only from the United States Congress,
but also by the consent of the citizens of the entity. The
commonwealth concept is a flexible one designed to allow both
the entity and the United States to adjust the relationship as
appropriate over time.\234\
---------------------------------------------------------------------------
\234\ Van Dyke, supra note 229, at 451.
The unique legal status of the CNMI is reflected in its land
alienation restrictions, which have been upheld as exempt from
challenge under the federal Equal Protection Clause,\235\ as well as in
Commonwealth control over immigration.\236\ Additionally, CNMI courts
rely on Chamorro and Carolinian custom and culture in interpreting
local law,\237\ helping to foster a legal culture distinct from that
found on the mainland United States.\238\
---------------------------------------------------------------------------
\235\ See, e.g., Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. N.
Mariana I. 1992) (land alienation restrictions in Article XII of CNMI
Constitution, implementing 805 of the Covenant, validly exempted from
federal equal protection review under Covenant 501(b) because the
right of equal access to long-term interests in Commonwealth real
estate is not ``fundamental in the international sense'').
\236\ Covenant 503(a) (federal immigration laws presently
inapplicable to the TTPI ``will not apply to the Northern Mariana
Islands except in the manner and to the extent made applicable to them
by the Congress by law after termination of the Trusteeship
Agreement''). Note that this provision has given rise to tension
between the CNMI garment industry and U.S. labor leaders, who object to
the use of the ``made in the U.S.A.'' label on goods produced outside
the constraints of federal minimum wage law and other federal labor
standards. LAUGHLIN, supra note 172, at 434; see also Herald, supra
note 222, at 147-73; Florke, supra note 208.
\237\ LAUGHLIN, supra note 172, at 458-59.
\238\ ``Micronesian customary law de-emphasizes (compared to the
U.S. legal system) notions of individual guilt, and individual rights
and responsibility, and places greater stress on the groups to which
the accused and victims belong: families, clans and community groups.
It emphasizes forgiveness to prevent further violence and conflict, to
soothe wounded feelings, and to ease the intense emotions of those most
directly involved. Customary settlement by social process (apology and
restitution) disposed entirely of the rights and responsibilities of
the disputants.'' LEIBOWITZ, supra note 170, at 498.
---------------------------------------------------------------------------
4. Foreign Affairs
Section 104 of the Covenant provides: ``The United States will have
complete responsibility for and authority with respect to matters
relating to foreign affairs and defense affecting the Northern Mariana
Islands.'' This constitutes one of the principal differences between
the Covenant and the Compacts of Free Association with the other
islands of the former TTPI,\239\ for the latter enjoy authority to
conduct foreign affairs in their own name and right.\240\
---------------------------------------------------------------------------
\239\ McKibben, supra note 229, at 275.
\240\ See Compacts of Free Association: Federated States of
Micronesia and Republic of the Marshall Islands, 48 U.S.C. 1901-121;
Compact of Free Association: The Government of Palau, 48 U.S.C. 1931-
121.
---------------------------------------------------------------------------
5. Legal Status under International Law
In 1987, representatives of the CNMI Task Force on the Termination
of the Trusteeship presented a Commonwealth joint resolution to the
U.N. Trusteeship Council asking that any agreement terminating the
trusteeship include a resolution declaring that the United States has
no authority to govern internal affairs under the Territorial
Clause.\241\ Security Council Resolution 683 of 1990 terminated the
Trusteeship Agreement for the CNMI, the Republic of the Marshall
Islands, and the Federated States of Micronesia, but it declined this
invitation and did not offer details about the parameters of internal
governance for any of the former territories:
---------------------------------------------------------------------------
\241\ 54 U.N. TCOR (1627th mtg.) at 2-42, U.N. Doc. T/PV. 1627,
Annex T/1908/Add. 1 (1987). Lizabeth McKibben notes of this meeting:
``Mr. Pedro Atalig analogized the Northern Marianas' grant of
sovereignty in the areas of military and foreign affairs to the
following language in Challoner v. Day & Zimmerman, Inc., 512 F.2d 77
(5th Cir. 1975): `A nation is understood to cede a portion of [its].
territorial jurisdiction when [it] allows the troops of a foreign
nation to pass through [its] dominions.' Id. at 81 (quoting The
Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 139 (1812)).''
McKibben, supra note 229, at 281 n.129.
Satisfied that the peoples of the Federated States of
Micronesia, the Marshall Islands and the Northern Mariana
Islands have freely exercised their right to self-determination
in approving their respective new status arrangements in
plebiscites observed by visiting missions of the Trusteeship
Council and that, in addition to these plebiscites, the duly
constituted legislatures of these entities have adopted
resolutions approving the respective new status agreements,
thereby freely expressing their wish to terminate the status of
these entities as parts of the Trust Territory . . .\242\
---------------------------------------------------------------------------
\242\ S.C. Res, 683, ITN SCOR, 45th Sess., U.N. Doc. S/RES/683
(1990).
The CNMI is not a fully independent state, but it remains a subject
of international concern because of its former status as a trust
territory. It has been suggested that interpretations of the Covenant
that would subject the CNMI to the Territorial Clause ``would directly
contradict the United Nations's charge to effect self government,
independence, or integration with the administering authority.'' \243\
While the United Nations terminated the trusteeship by Security Council
Resolution 683, the contours of the relationship between the CNMI and
its former administering authority continue to evolve. For now, they
have essentially been left to local and federal courts to work out in
the absence of international scrutiny.
---------------------------------------------------------------------------
\243\ McKibben, supra note 229, at 286-87.
---------------------------------------------------------------------------
6. Participation in the International Process
The CNMI has associate membership in the Economic and Social
Commission for Asia and the Pacific and membership in the South Pacific
Commission, and it is involved with the International Criminal Police
Organization (Interpol) at the sub-bureau level. This formal
involvement in international organizations, though limited, provides
opportunities for useful contacts and relationships with foreign
states, especially in the Pacific region. But unlike Puerto Rico, the
CNMI does not have the equivalent of a state department to manage its
relations with foreign states.
C. The Republic of the Marshall Islands (RMI), the Federated States of
Micronesia (FSM), and the Republic of Palau
1. A Social and Economic Survey of the RMI
The Marshall Islands form the easternmost part of the former TTPI.
The RMI encompasses twenty-nine coral atolls and five small low-lying
islands, with a total land surface area of 181.3 square kilometers. Its
population is approximately 70,800. Residents universally speak
English, the official language, but two major Marshallese dialects from
the Malayo-Polynesian language family remain in use, as does Japanese.
Most RMI residents practice Protestantism.
Traditional society in the RMI is organized around matrilineal kin
groups. Like most of Micronesia, it has historically been stratified,
with land and other communal resources under the control of
chiefs.\244\ The RMI's primary motivation for choosing to be
politically separate from the rest of Micronesia may not, then, have
been cultural but rather economic, namely, reluctance to share revenues
obtained from the United States for the use of Kwajalein Lagoon as a
testing ground for intercontinental ballistic missiles (ICBMs).\245\
The RMI economy relies primarily on U.S. government assistance, which
amounts to about $65 million annually, although it has made efforts to
bolster tourism and other local industries. The currency is the U.S.
dollar. The RMI has no military forces, although it does have a police
force and the option of establishing a coast guard.
---------------------------------------------------------------------------
\244\ LAUGHLIN, supra note 172, at 479.
\245\ Id. at 480; see generally Daniel C. Smith, The Marshall
Islands, Tradition and Dependence, in POLITICS IN MICRONESIA 56 (1983).
---------------------------------------------------------------------------
The RMI acknowledges that it ``faces formidable challenges in the
form of environmental degradation, rapid population growth, accelerated
sea-level rise, and the legacy of nuclear testing, among others.''
\246\ Major ongoing issues in its relationship with the United States
concern U.S. use of Kwajalein Atoll as a missile testing ground and
bitterness about U.S. nuclear testing at Bikini and Enewetak Atolls
from 1946 to 1958, despite the inclusion of reparations provisions in
the Free Association Compact.\247\
---------------------------------------------------------------------------
\246\ RMI Online, at <http://www.rmiembassyus.org/>.
\247\ See LEIBOWITZ, supra note 170, at 601-04. Supplemental
Agreements to the Compact dealt specifically with these issues.
---------------------------------------------------------------------------
2. A Social and Economic Survey of the FSM
The Federated States of Micronesia comprise four major island
groups totaling 607 islands, including Pohnpei (Ponape), the Truk
(Chuuk) Islands, the Yap Islands, and Kosrae. The islands encompass a
total land area of 702 square kilometers, spread over three million
square miles of ocean.\248\ A population of 134,600, comprised of nine
Micronesian and Polynesian ethnic groups, inhabits the islands. About
half of them practice Roman Catholicism, and the other. half practices
Protestantism. English is the official and common language, but
Trukese, Pohnpeian, Yapese, and Kosraean are also spoken in the
respective states.
---------------------------------------------------------------------------
\248\ LEIBOWITZ, supra note 170, at 615.
---------------------------------------------------------------------------
The FSM Constitution incorporates a bill of rights, but it also
recognizes the importance of protecting custom. If a court finds that
challenged national, state, or municipal legislation conflicts with the
declaration of rights, the Constitution specifies that ``protection of
Micronesian tradition shall be considered a compelling social purpose
warranting such governmental action.'' \249\ Among the states, only Yap
has given its traditional chiefs a formal governmental role.\250\
---------------------------------------------------------------------------
\249\ FSM CONST. Art. 5 2; see generally Alan B. Burdick, The
Constitution of the Federated States of Micronesia, 8 U. HAW. L. REV.
451 (1986).
\250\ LEIBOWITZ, supra note 170, at 616.
---------------------------------------------------------------------------
The FSM economy consists primarily of subsistence agriculture and
fishing. Geographic isolation and a poorly developed infrastructure
pose major obstacles to industries such as tourism that could
contribute to long-term growth. The currency is the U.S. dollar. The
1986 Compact of Free Association provided for fifteen years of
financial and technical assistance from the United States. In 1999, the
termination of this assistance caused a severe economic depression, and
the FSM remains economically fragile. To give one example of the lack
of economic diversity and development: two-thirds of the FSM labor
force are government employees.
3. A Social and Economic Survey of Palau
Palau (or ``Belau,'' as it is referred to locally) consists of more
than 200 islands in the Caroline Island chain, only eight of which are
permanently inhabited. It has a total land area of 458 square
kilometers and a population of about 19,000. The inhabitants practice a
variety of forms of Christianity (they include Catholics, Seventh-Day
Adventists, Jehovah's Witnesses, the Assembly of God, the Liebenzell
Mission, and Latter-Day Saints); and one-third of the population
observes the indigenous Ngara Modekngei (United Sect) religion. The
ethnic composition of the islands is also quite diverse: it has been
estimated at 70% Palauan (Micronesian with Malayan and Melanesian
admixtures), 28% Asian (mainly Filipinos, followed by Chinese,
Taiwanese, and Vietnamese), and 2% white. English and Palauan are the
official languages in all states except Sonsoral, Tobi, and Angaur,
where, respectively, Sonsorolese, Tobi, and Angaur and Japanese. are
also official languages.
The economy consists primarily of subsistence agriculture and
fishing, with a growing tourism industry. The government is the major
employer of the work force, and the per capita income in Palau compares
very favorably with that of the Philippines and the other parts of
Micronesia. Because Palau did not ratify its Compact with the United
States until 1994, it continues at present to benefit from a high level
of U.S. aid in return for furnishing military facilities. Like the
other Freely Associated States, Palau uses the U.S. dollar.\251\
---------------------------------------------------------------------------
\251\ Id.
---------------------------------------------------------------------------
In addition to its unique level of practice of indigenous religion,
Palau has consistently maintained an identity and self perception
distinct from that of the rest of Micronesia:
Belauan nationalism has its roots in a strong sense of
cultural identity born of centuries of relative isolation and
self-reliance. Anthropologists believe that Belau, which is
made up mostly of high islands of volcanic origin, was settled
by migrations from the Indonesian-Philippine archipelago. But
Belauan legends view the islands as a universe unto
itself.\252\
---------------------------------------------------------------------------
\252\ Frank Quimby & Gwenda L. Iyechad, Belau, Superport, Fortress
or Identity?, in POLITICS IN MICRONESIA 101, 108 (1983).
---------------------------------------------------------------------------
Salient elements of Palauan culture have been described as follows:
Palau's social organization is highly complex and
competitive. The race for money, prestige and power, the main
thrust of which used to be for political power within a clan or
village, was the focus from which most events occurred, such as
sports competitions and wars.
Palauan villages were, and still are, organized around 10
clans reckoned matrilineally. A council of chiefs from the 10
ranking clans governed the village, and a parallel council of
their female counterparts held a significant advisory role in
the control and division of land and money.
Men and women had strictly defined roles to play in the
continuity of the village. The sea was the domain of men who
braved its fury to harvest the fish necessary to sustain the
village and wage battle. Inter-village wars were common, so men
spent a lot of time in the men's meeting houses mastering
techniques of canoe building and refining their skills with
weapons. Women, on the other hand, held sway in the home. They
cultivated vegetables and harvested shellfish and sea cucumbers
from the shallow reefs . . . .
Even today, despite the influence of generations of
explorers, traders, soldiers and administrators from several
nations, Palauans still maintain the cultural traditions that
make it unique in the Pacific.\253\
---------------------------------------------------------------------------
\253\ Palauan Culture, at <http://www.palaunet.com/html/
culture.html>; see also Quimby & Iyechad, supra note 252.
The reputed ``aggressiveness'' of Palauan society has been
emphasized by commentators.\254\ It has also been observed, however,
that ``[t]oday the strong group relationship which characterized
traditional Palau society has changed considerably, to an individual or
personal, orientation.'' \255\ As in many societies in transition, the
breakdown in traditional sources of social support seems to be
correlated with a rise in societal problems such as crime and alcohol
abuse.\256\
---------------------------------------------------------------------------
\254\ E.g. LEIBOWITZ, supra note 170, at 622, 633.
\255\ Id. at 634.
\256\ See id. at 631.
---------------------------------------------------------------------------
4. Toward Free Association: The RMI and the FSM
The Marshall Islands adopted a Constitution on December 21, 1978,
which became effective on May 1, 1979. The parliamentary system of
government includes a Council of Iroij that may request reconsideration
of any bill affecting customary law or traditional practice.\257\ The
Marshall Islands and the United States signed the Compact of Free
Association on June 25, 1983, and the people of the Marshall Islands
approved the Compact in a U.N.-supervised plebiscite on September 7,
1983. The U.S. Congress subsequently approved the Compact with minor
modifications and enacted it into law on January 14, 1986. Public Law
99-239 entered into force on October 21, 1986. The United Nations
recognized the Republic of the Marshall Islands as ``fully self-
governing in free Association with the United States'' in Security
Council Resolution 683 of December 22, 1990.
---------------------------------------------------------------------------
\257\ See id. at 613; MARSHALL ISLANDS CONST. art. III, sec. 2(b).
---------------------------------------------------------------------------
The debate over ratification of the Marshall Islands Compact
illustrates the range of political interests and perspectives that can
lead to support for closer political ties to the former trustee:
Opposition to the Compact came from three principal groups:
first, those southern Marshallese atolls committed to
Commonwealth, rather than FAS status and politically opposed to
the current Marshallese leadership; second, those Kwajalein
landowners dissatisfied with the terms in the Compact of the
land use agreement for Kwajalein Missile Range; and third,
those people affected by the U.S. atomic tests who were
dissatisfied with their compensation under the Compact. All of
these groups desired to maintain either strong financial or
political ties with the U.S. government.\258\
---------------------------------------------------------------------------
\258\ LEIBOWITZ, supra note 170, at 611.
A central issue of concern during the negotiations over the Compact
and the subsequent ratification process was the question of
compensation for U.S nuclear testing in the islands. Section 177(a) of
---------------------------------------------------------------------------
the Compact of Free Assocation states:
The Government of the United States accepts the
responsibility for compensation owing to citizens of the
Marshall Islands, or the Federated States of Micronesia (or
Palau) for loss or damage to property and person of the
citizens of the Marshall Islands, or the Federated States of
Micronesia, resulting from the nuclear testing program which
the Government of the United States. conducted in the Northern
Marshall Islands between June 30, 1946, and August 18,
1958.\259\
---------------------------------------------------------------------------
\259\ See Compacts of Free Association: Federated States of
Micronesia and Republic of the Marshall Islands. Act Jan. 14, 1986,
Pub. L. No. 99-239, Title II, 201, 99 Stat. 1800; Oct. 22, 1986, Pub.
L. No. 99-514, 2, 100 Stat. 2095; Act Nov. 14, 1986, Pub. L. No. 99-
658, Title I, 103, 100 Stat. 3675.
A separate agreement provides for the Marshall Islands Government's
espousal of its citizens' claims and removes such claims from the
jurisdiction of U.S. courts.\260\ The Section 177 Agreement created the
Marshall Islands Nuclear Claims Tribunal, established in 1988, with
jurisdiction to ``render final determination upon all claims past,
present and future, of the Government, citizens and nationals of the
Marshall Islands which are based on, arise out of, or are in any way
related to the Nuclear Testing Program.'' \261\ Also, under the
Agreement, the United States agreed to provide a compensation fund of
$150 million for those injured by the nuclear tests, part of which was
earmarked for the Claims Tribunal. Nevertheless, the Tribunal has
reported that ``[w]ith only $45.75 million available for actual payment
of awards made by the Tribunal, it has become clear that the original
terms of the settlement agreement are manifestly inadequate.'' \262\
---------------------------------------------------------------------------
\260\ LEIBOWITZ, supra note 170, at 604 n.28 (citing Agreement for
the Implementation of Section 177 of the Compact of Free Association,
June 25, 1983, United States-Marshall Islands, Arts. X, XII). This
agreement, and the other subsidiary agreements reached between the U.S.
and the RMI, can be found in COMPACTS OF FREE ASSOCIATION: PACIFIC
ISLANDS TREATIES AND AGREEMENTS WITH THE UNITED STATES, VOL. II: THE
REPUBLIC OF THE MARSHALL ISLANDS (Igor I. Kavass ed., 1998).
\261\ Nuclear Claims Tribunal, Republic of the Marshall Islands, at
<http://www.tribunal-mh.org/>.
\262\ Id.
---------------------------------------------------------------------------
Despite the failed attempt to promote political unity throughout
the former TTPI, four states (Chuuk, Pohnpei, Yap, and Kosrae) ratified
the Constitution of the Federated' States of Micronesia in a U.N.-
monitored referendum on July 12, 1978, and it entered into force on May
10, 1979. The FSM negotiated a Compact of Free Association with the
United States substantially similar to that between the United States
and the Marshall Islands, and the FSM signed it on October 1, 1982. On
June 21, 1983, the FSM electorate voted on the Compact. Although it
failed by a vote of 51% on Pohnpei, the rest of the federation approved
it, thereby binding Pohnpei.\263\ The Compact became effective on
November 3, 1986 and, as with the RMI, the United Nations recognized
the FSM as ``fully self-governing in free Association with the United
States'' in Security Council Resolution 683 of December 22, 1990.\264\
---------------------------------------------------------------------------
\263\ See LAUGHLIN, supra note 172, at 521. Leibowitz writes: ``The
centrifugal forces in the FSM may be seen in the differing attitudes
toward the Compact. Pohnpei voted against it, while Yap, Truk and
Kosrae voted in favor. . . . [T]he Pohnpei vote was in large measure a
vote for a separate identity.'' LEIBOWITZ, supra note 170, at 617.
\264\ One unresolved issue is the status of Wake Island or Wake
Atoll, a U.S. territory claimed by the Marshall Islands that also has
its own constitution and aspiration to political independence under the
name ``Eneen-Kio.'' At this juncture, it is unclear when or how this
dispute will be settled.
---------------------------------------------------------------------------
Title 48 U.S.C. 1901-111 affirms the self-governing status of the
RMI and the FSM: ``The peoples of the Marshall Islands and the
Federated States of Micronesia, acting through the Govenmients
established under their respective Constitutions, are self-governing.''
The terms of self-government include certain continuing ties to the
United States, particularly with respect to national defense.
Nevertheless, the electorate clearly perceived the status of free
association as an alternative distinct from--and, for a majority of the
voters in the RMI and the FSM, preferable to--that of a Commonwealth,
under which political and economic ties to the United States would have
been stronger and more durable.
5. Toward Free Association: Palau
Palauans participated in the July 1978 referendum on the
constitution of the Federated States of Micronesia, and they rejected
joining the FSM by a 55% to 45% margin.\265\ Laughlin notes that
``Palauans saw this referendum as essentially a choice between joining
an all-Micronesia legal system or negotiating a separate relationship
with the United States.\266\ Palau adopted its own constitution on July
9, 1979, which entered into force on January 1, 1981
---------------------------------------------------------------------------
\265\ LAUGHLIN, supra note 172, at 506.
\266\ Id. at 505; on Palau's move toward separate negotiations and
its ultimate rejection of the FSM Constitution, see NORMAN MELLER,
CONSTITUTIONALISM IN MICRONESIA 175-91(1985).
---------------------------------------------------------------------------
The Constitution of Palau provides that 75% of registered voters
must approve any bilateral agreement that authorizes the ``use,
testing, storage or disposal of nuclear, toxic chemical, gas, or
biological weapons intended for use in warfare'' within Palau.\267\ In
Gibbons v. Salii, the Supreme Court of Palau stated that the words
``use, test, store or dispose of' in the Constitution's nuclear control
provisions import ``a general prohibition against the introduction of
nuclear substances into Palau. Accordingly, these four verbs prohibit
transit of nuclear powered vessels or vessels equipped with nuclear
material.'' \268\ This interpretation meant, in effect, that the
Compact itself had to be approved by 75% of registered votes, for the
United States insisted on the right of nuclear transit as essential to
its defense obligations.\269\
---------------------------------------------------------------------------
\267\ PALAU CONST. art. II, 3; see McKibben, supra note 229, at
277 n.108.
\268\ Gibbons v. Salii, 1 ROP Intrm. 333 (Palau Sup. Ct. App. Div.
335, 1986); see LEIBOWITZ, supra note 170, at 625-27.
\269\ See McKibben, supra note 229, at 278.
---------------------------------------------------------------------------
The story of the ratification of the Palau Covenant is one of
repeated referenda in which approval fell just short of the required
75%. A constitutional amendment adopted in 1987 provided that only a
simple majority, rather than a 75% majority, would be required to
overrule the anti-nuclear materials provision in the Constitution, but
the Palauan Supreme Court annulled it.\270\ In 1992, a similar
amendment was introduced and adopted, and on November 9, 1993, Palauan
voters approved the Compact by 68% to 32% in the eighth plebiscite on
the issue.\271\
---------------------------------------------------------------------------
\270\ Gibbons v. Salii, No. 8-86, at 2 (Sup. Ct. Palau, App. Div.
Sept. 17, 1986).
\271\ LAUGHLIN, supra note 172, at 507. Laughlin recounts: ``So
familiar to the voters were the issues, that when a member of the Palau
Political Status Education Committee explained to a particular village
for the eighth time in 10 years what the issues would be at the
November 9th vote, and then asked them if they had any questions, one
man answered `Just bring the ballot boxes. We'll do the rest.' '' Id.
---------------------------------------------------------------------------
Several factors contributed to the ultimate approval of the
Compact, including frustration with the deadlock, fear that foreign
investors were avoiding Palau because of the uncertainty of the
islands' future political status, and decreased fear of war with the
removal of the Soviet threat in the area.\272\ The Covenant became
effective on October 1, 1994. Title 48 U.S.C. 1931-111 provides:
``The people of Palau, acting through their duly elected government
established under their constitution, are self-governing.'' Security
Council Resolution 956 of November 10, 1994, affirmed this, and shortly
thereafter, as for the other free associated states, approved its
membership in the United Nations.\273\
---------------------------------------------------------------------------
\272\ Id.
\273\ S.C. Res. 963 of Nov. 29, 1994 (Palau); S.C. Res. 703 of Aug.
9, 1991 (FSM); S.C. Res. 704 of Aug. 9, 1991 (RMI).
---------------------------------------------------------------------------
6. Foreign Affairs
Each FAS has control over its internal affairs and foreign
relations. This arrangement is based on the 1978 Hilo Principles,
developed during the negotiations over free association. These
principles allocate foreign affairs authority to the Micronesian
governments, subject to the over-riding security authority of the
United States (later dubbed the ``defense veto'').\274\
---------------------------------------------------------------------------
\274\ LEIBOWITZ, supra note 170, at 674; see also id. at 648 n.48.
For the ``Hilo Principles,'' see OMSN, Summary Record of the Second
Round of Renewed Political Status Negotiations Between the United
States of America and the Palau Political Status Comm., the Comm. on
Future Political Status and Transition, the Marshall Islands Political
Status Comm., Sept. 23-Oct. 1, 1978, Saipan, No. Mariana Islands, at D-
1-1, D-1-2 (1980).
---------------------------------------------------------------------------
The Compact of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands provides:
(a) The Governments of the Marshall Islands and the Federated
States of Micronesia have the capacity to conduct foreign
affairs and shall do so in their own name and right, except as
otherwise provided in this Compact.
(b) The foreign affairs capacity of the Governments of the
Marshall Islands and the Federated States of Micronesia
includes: (1) the conduct of foreign affairs relating to law of
the sea and marine resources matters, including the harvesting,
conservation, exploration or exploitation of living and non-
living resources from the sea, seabed or subsoil to the full
extent recognized under international law; (2) the conduct of
their commercial, diplomatic, consular, economic, trade,
banking, postal, civil aviation, communications, and cultural
relations, including negotiations for the receipt of
developmental loans and grants and the conclusion of
arrangements with other governments and international and
intergovernmental organizations, including any matters
specially benefiting their individual citizens . . . .
(d) In the conduct of their foreign affairs, the Governments
of the Marshall Islands and the Federated States of Micronesia
confirm that they shall act in accordance with principles of
international law and shall settle their international disputes
by peaceful means.\275\
---------------------------------------------------------------------------
\275\ 48 U.S.C. 1901-121 (FSM and RMI).
Corresponding provisions can be found in the Compact of Free
Association with the Republic of Palau.\276\ Unlike Puerto Rico or the
CNMI, the FAS are responsible for their own foreign affairs, even
though the United States has authority over their security and defense
matters. For this reason, coordination is particularly important when
these spheres of responsibility have the potential to overlap. The
Compacts provide:
---------------------------------------------------------------------------
\276\ 48 U.S.C. 1931-121 & 1931-124(a).
(a) In recognition of the authority and responsibility of the
Government of the United States under Title Three [concerning
security and defense], the Governments of the Marshall Islands
and the Federated States of Micronesia shall consult, in the
conduct of their foreign affairs, with the Government of the
United States.
(b) In recognition of the respective foreign affairs
capacities of the Governments of the Marshall Islands and the
Federated States of Micronesia, the Government of the United
States, in the conduct of its foreign affairs, shall consult
with the Government of the Marshall Islands or the Federated
States of Micronesia on matters which the Government of the
United States regards as relating to or affecting any such
Government.\277\
---------------------------------------------------------------------------
\277\ U.S.C. 1901-123 (RMI and FSM); see also 48 U.S.C. 1931-
123 (Palau).
The Compacts also allow for the possibility of U.S. assistance or
action on behalf of the FAS governments in the area of foreign affairs
``as may be requested and mutually agreed from time to time.'' \278\ In
addition, the United States agrees, at the request of the FAS and
subject to the consent of the receiving state, to extend consular
assistance to citizens of the FAS for travel outside the United States
and the FAS on the same basis as it does to U.S. citizens.\279\
---------------------------------------------------------------------------
\278\ See 48 U.S.C. 1901-124 & 1901-125 (RMI and FSM); 48
U.S.C. 1931-127 & 1931-126 (Palau).
\279\ 48 U.S.C. 1901-126 (RMI and FSM); 48 U.S.C. 1931-128
(Palau).
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7. Status Under International Law and Military Servitudes
Despite the flexible idea of statehood under modern international
law, between the signing of the Compacts of Free Association with the
FAS and the Security Council's termination of their status as Trust
territories, the question arose whether they ``ha[d] sufficient
international personality to be accorded the status of a nation-state
in international law.'' \280\ In fact, they present a hybrid model:
each, for example, issues its own travel documents but employs the U.S.
dollar as its currency. Although the Compacts initially provided
otherwise, the representatives exchanged between the FAS and the United
States enjoy the rank of ambassador.\281\ The principal obstacle to
considering the FAS independent, pace the Security Council's
resolutions, lies in their security and defense arrangements with the
United States, some of which would persist beyond the termination of
the Compacts. The Compacts and their Subsidiary Agreements ``provide
for a U.S. defense umbrella during the life of free association and
indefinite exclusion of third-country military forces even if any FAS
opts for independence.'' \282\
---------------------------------------------------------------------------
\280\ LEIBOWITZ, supra note 170, at 596.
\281\ See id. at 600.
\282\ LEIBOWITZ, supra note 170, at 595-96 (emphasis added); see
also id. at 685. For more on the Subsidiary Agreements, see Arthur John
Armstrong & Howard Loomis Hills, The Negotiation for the Political
Status of Micronesia (1980-1984), 78 AM. J. INT'L L. 484 (1985).
---------------------------------------------------------------------------
The reconciliation of U.S. security needs with the sovereign status
and independence of the FAS is of both theoretical and practical
concern. The United States, today as in the past, attaches substantial
military and strategic importance to these islands, which explains its
continued interest in access to them for military purposes and
insistence on the exclusion of troops or military installations of
other states. These may be referred to, respectively, as the ``use''
and ``denial'' components of U.S. strategic interest in the FAS. The
potential tensions caused by the conflict between this interest and
full political independence have frequently been noted. With respect to
the Marshall Islands negotiations, for example, Laughlin writes:
Part of the concern over the status of free association had
to do with the duties and responsibilities of the United
States. The United States is obligated under the Compact of
Free Association to defend the Marshall Islands as if they were
part of the United States. In return for this commitment, the
United States retains certain military rights in the Marshall
Islands and, even more controversially, maintains a veto over
actions taken by the Marshall Island[s] government which the
United States considers inconsistent with its own obligation to
defend the Marshalls.\283\
---------------------------------------------------------------------------
\283\ LAUGHLIN, supra note 172, at 483.
Aside from the lease of Kwajalein Atoll as a U.S. missile testing
site, the issue of a strong U.S. military presence in the FAS has to
date been largely hypothetical.\284\ But the theoretical issue remains
of international interest. The ``use'' provisions of the Compacts
resemble those contained in other international arrangements for the
use of foreign military installations; and in these circumstances, it
remains a matter of international concern whether the terms of a
treaty, despite exhibiting ``reciprocity in form and law,'' do not
provide ``reciprocity in fact.'' \285\ John Woodliffe notes that ``[a]
typical situation where extra legal influences are much in evidence is
where a newly independent state grants to the former colonial or
administering power, military base rights or similar facilities
pursuant to a treaty concluded contemporaneously with or shortly after
accession to statehood.'' \286\ A review of contemporary state practice
in this area suggests that (1) the existence of such treaties does not
per se undermine the status of former colonies or trust territories as
independent states; and (2) as bong as the newly independent state does
strongly oppose such arrangements, the treaties do not qualify as
``unequal'' in the sense that their validity may be impeached on
ethical, if not strictly legal, grounds.\287\
---------------------------------------------------------------------------
\284\ See, e.g., LEIBOWITZ, supra note 170, at 617 (``The Compact
of Free Association with the FSM is unique in that no active military
role is envisaged anywhere in the FSM. The United States has not
requested any land options in the FSM, nor does the U.S. foresee any
need for military bases or installations on the islands.''); id. at 637
(``How important Palau really is to the United States from a military
point of view is a subject of debate, much of it related to contingency
planning if the United States loses its bases in the Philippines.
Absent that, some regard the nuclear option as extremely unlikely.
Palau's military role more likely hinges in supplying logistical
support services in a conventional Pacific-wide war and the advantage
of its deep-water port.'').
\285\ JOHN WOODLIFFE, THE PEACETIME USE OF FOREIGN MILITARY
INSTALLATIONS UNDER MODERN INTERNATIONAL LAW 67 (1992) (referring in
corresponding footnote to Austro-German Customs Union, 1931 P.C.I.J.
(ser. A/B), No. 41, at 52).
\286\ WOODLIFFE, supra note 285, at 67; see generally id. at 67-77.
\287\ See id. at 70, 77; see also INGRID DETTER DELUPIS,
INTERNATIONAL LAW AND THE INDEPENDENT STATE 195-219 (2d ed. 1987);
KYPROs CHRYSOSTOMIDES, THE REPUBLIC OF CYPRUS: A STUDY IN INTERNATIONAL
LAW 72 (2000).
---------------------------------------------------------------------------
Title Three of each Compact contains the basic security and defense
provisions, which the corresponding Supplemental Agreements
elaborate.\288\ Section 311 of the FSM and RMI Compact provides:
---------------------------------------------------------------------------
\288\ See COMPACTS OF FREE ASSOCIATION: PACIFIC ISLANDS TREATIES
AND AGREEMENTS WITH THE UNITED STATES, VOL. I: THE FEDERATED STATES OF
MICRONESIA AND PALAU (Igor I. Kavass ed., 1998) (security and defense
provisions at FSM 80, 90, 100; Palau 90, 100); COMPACTS OF FREE
ASSOCIATION: PACIFIC ISLANDS TREATIES AND AGREEMENTS WITH THE UNITED
STATES, VOL. II: THE REPUBLIC OF THE MARSHALL ISLANDS (Igor I. Kavass
ed., 1998) (security and defense provisions at 130, 140, 150).
(a) The Government of the United States has full authority
and responsibility for security and defense matters in or
relating to the Marshall Islands and the Federated States of
Micronesia.
(b) This authority and responsibility includes:
(1) the obligation to defend the Marshall Islands and
the Federated States of Micronesia and their peoples
from attack or threats thereof as the United States and
its citizens are defended;
(2) the option to foreclose access to or use of the
Marshall Islands and the Federated States of Micronesia
by military personnel or for the military purposes of
any third country; and
(3) the option to establish and use military areas
and facilities in the Marshall Islands and the
Federated States of Micronesia, subject to the terms of
the [subsidiary agreements].\289\
---------------------------------------------------------------------------
\289\ 48 U.S.C. 1901-311. The parallel provision for Palau is
codified at 48 U.S.C. 1931-312.
Section 316 prohibits the transfer or assignment of this authority
---------------------------------------------------------------------------
and responsibility. Section 331 provides:
Subject to the terms of this Compact and its related
agreements, the Government of the United States, exclusively,
shall assume and enjoy, as to the Marshall Islands and the
Federated States of Micronesia, all obligations,
responsibilities, rights and benefits of:
(a) Any defense treaty or other international
security agreement applied by the Government of the
United States as Administering Authority of the Trust
Territory of the Pacific Islands as of the day
preceding the effective date of this Compact.
(b) Any defense treaty or other international
security agreement to which the Government of the
United States is or may become a party which it
determines to be applicable in the Marshall Islands and
the Federated States of Micronesia.
Such a determination by the Government of the United States
shall be preceded by appropriate consultation with the
Government of the Marshall Islands or the Federated States of
Micronesia.\290\
---------------------------------------------------------------------------
\290\ 48 U.S.C. 1901-331. The parallel provision for Palau is
codified at 48 U.S.C. 1931-331.
Section 341 permits the voluntary service of FAS citizens in the
U.S. armed forces but protects them from involuntary induction.\291\
Section 352, finally, codifies the responsibility of the United States
to exercise its Title Three powers with ``due respect [for] the
authority and responsibility of the Governments of the Marshall Islands
and the Federated States of Micronesia under Titles One, Two and Four
and [for] their responsibility to assure the well-being of their
peoples.''\292\
---------------------------------------------------------------------------
\291\ 48 U.S.C. 1901-341. The parallel provision for Palau is
codified at 48 U.S.C. 1931-341.
\292\ 48 U.S.C. 1901-352. The parallel, but slightly broader,
provision for Palau is codified at 48 U.S.C. 1931-352:
In the exercise of its authority and responsibility under this
Compact, the Government of the United States shall accord due respect
to the authority and responsibility of the Government of Palau under
this Compact and to the responsibility of the Government of Palau to
assure the well-being of Palau and its people. The Government of the
United States and the Government of Palau agree that the authority and
responsibility of the United States set forth in this Title are
exercised for the mutual security and benefit of Palau and the United
States, and that any attack on Palau would constitute a threat to the
peace and security of the entire region and a danger to the United
States. In the event of such an attack, or threat thereof, the
Government of the United States would take action to meet the danger to
the United States and Palau in accordance with its constitutional
processes.
---------------------------------------------------------------------------
Nothing in this arrangement seems per se objectionable: in exchange
for security and protection, the FAS agree to give the United States
strategic discretion and exclusivity with respect to the potential
military activities of third states. That certain provisions of this
arrangement under Article V survive termination of the respective
Compacts seems more problematic.\293\ Section 453(a) of the Palau
Compact states: ``The provisions of Section 311, even if Title Three
should terminate, are binding and shall remain in effect for a period
of 50 years and thereafter until terminated or otherwise amended by
mutual consent.'' Section 311, in turn, specifies: ``The territorial
jurisdiction of the Republic of Palau shall be completely foreclosed to
the military forces and personnel or for the military purposes of any
nation except the United States of America, and as provided for in
Section 312.'' U.S. consent, in other words, would be required to
terminate the exclusivity or ``denial'' provisions even after either
side terminates the Compact.\294\ This does not negate the independent
status of the FAS under international law, but it does mark a key
difference between the FAS and other sovereign states--one that should
not be underestimated in a review of the implications of free
association arrangements.
---------------------------------------------------------------------------
\293\ See 48 U.S.C. 1901-452(a)(3) & 1901-453(a)(2) (RMI and
FSM); 48 U.S.C. 1931-452(b) & 1931-453(a) (Palau).
\294\ The 1946 Constitution of Japan offers an interesting
comparison. It provides:
Aspiring sincerely to an international peace based on justice and
order, the Japanese people forever renounce war as a sovereign right of
the nation and the threat or use of force as means of settling
international disputes. In order to accomplish th[is] aim . . ., land,
sea, and air forces, as well as other war potential, will never be
maintained. The right of belligerency of the state will not be
recognized.
JAPAN CONST. art. 9. Note, however, that while Japan may amend its
Constitution unilaterally, the mechanisms for treaty renunciation
relative to the security and defense provisions of the FAS require
bilateral action and mutual consent.
---------------------------------------------------------------------------
D. Conclusion: Free Association with the United States
Free association, as an international legal concept, subsumes a
range of possible relationships between the associate and the
principal--from the commonwealth arrangements that characterize Puerto
Rico and the CNMI to the explicit compacts of free association
establishing the RMI, the FSM, and Palau (collectively, the FAS). All
of these entities, however, enjoy international legal personality, even
if their relationship to the United States perforce qualifies their
capacity to exercise their sovereignty, especially as to matters of
national defense, in ways that traditionally might have been viewed as
incompatible with the idea of sovereign statehood. Under classical
international law, even protectorates were deemed to retain their
sovereignty despite the allocation of critical sovereign competence to
the protecting power. Given economic, military, and other disparities
in the global arena, moreover, many states that are in no sense
protectorates experience de facto limits on their sovereignty. Genuine
compacts of free association, however, enshrine certain de jure limits
that contemporary international law deems compatible with the right to
self-determination and, indeed, with sovereign statehood. By admitting
the FAS as member states, the Security Council affirmed their
international legal status as states.\295\
---------------------------------------------------------------------------
\295\ As a formal matter, note that the FAS all satisfy the
criteria for statehood set out in the Montevideo Convention. Each has
(a) a permanent population, (b) a defined territory, (c) a government,
and (d) the capacity to enter into relations with the other states.
Convention on the Rights and Duties of States, Dec. 26, 1933, 165
L.N.T.S. 19.
---------------------------------------------------------------------------
Yet, as noted at the outset, the word ``state'' has been and
continues to be used to refer to a range of territorial phenomena, not
all of which satisfy every one of the formal criteria for statehood set
out in the Montevideo Convention. ``State'' does not, that is, denote a
single phenomenon but a range of entities on a spectrum--between the
polar categories of statehood and non-statehood--encompassing a,
variety of territorial and political arrangements. At one end lie those
entities that clearly fulfill the Montevideo criteria and also enjoy
economic, political, and military power sufficient to act (or, more
often, imagine that they act) largely, if seldom entirely,
independently of the will of other individual states or the
international collectivity. In the middle of the spectrum exist
entities that enjoy a high degree of formal independence and control
over their internal, and even foreign, affairs but that nonetheless
remain subordinate to other states with respect to matters
traditionally deemed integral to sovereignty. It is here, though still
on the statehood side of the spectrum, that arrangements enshrined in
the compacts of free association governing the FAS should be located.
Further toward the non-statehood side of the spectrum lie commonwealth
arrangements such as those of the CNMI and Puerto Rico--and even
further in that direction the constituent states of the United
States,\296\ or the components of other federated states.\297\
---------------------------------------------------------------------------
\296\ Reference should also be made in this context to the U.S.
Virgin Islands, Guam, and American Samoa, which remain territories of
the United States.
\297\ Note, however, that both Ukraine and Belarus were charter
members of the United Nations despite their status as units within a
very effective federation.
---------------------------------------------------------------------------
iv. free association and the u.s. constitution
Parts II and III surveyed, respectively, the status of Puerto Rico
and the former TTPI, which now consists of the FAS (the FSM, RMI, and
Palau) and the CNMI. All of these entities, as Part I explained, can be
characterized broadly under contemporary international law as freely
associated states, although the CNMI and Puerto Rico may more precisely
be denominated commonwealths because of the higher degree of their--the
associates--subordination to the relevant principal, here, the United
States of America. But as the FAS (which achieved their current legal
status later in the twentieth century than did Puerto Rico)
demonstrate, the concept of freely associated states in the U.S. law
and practice, like many other inherited concepts in contemporary
international law, has evolved over time to include arrangements that
manifest more of the characteristics and powers of complete sovereign
statehood.
Because it can only respond to actual cases and controversies
brought before it, it is unsurprising that U.S. constitutional law has
not, for the most part, evolved in tandem with international law.
Despite the advent of international human rights law brought about by
the twentieth-century shift in international law's historic fulcrum--
from the rights of sovereigns to the rights of people\298\--and
international law's consequent adoption of a relatively robust and
universalized right of peoples to self determination, the leading U.S.
constitutional cases relevant to certain forms of freely associated
statehood (one way to realize that international right) continue to use
the language, concepts, and milieu of the late nineteenth and early
twentieth centuries. The very longevity of this antiquated case law has
perversely become a reason not to disturb it.\299\ Justice Holmes's
well-known aphorism aptly describes the current state of U.S. law in
this regard: ``It is revolting to have no better reason for a rule of
law than that so it was laid down in the time of Henry IV. It is still
more revolting if the grounds upon which it was laid down have vanished
long since, and the rule simply persists from blind imitation of the
past.'' \300\ We might add that it is still more revolting where the
United States has long espoused entirely different doctrines and
principles at the international level.
---------------------------------------------------------------------------
\298\ W. Michael Reisman, Sovereignty and Human Rights in
Contemporary International Law, in DEMOCRATIC GOVERNANCE AND
INTERNATIONAL LAW 239, 250 (Gregory H. Fox & Brad R. Roth eds., 2000).
\299\ T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE
CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP 5 (2002) (noting that
the ``cases remain largely untouched,'' and ``their longevity is now
cited against assertions that they ought to be reconsidered'').
\300\ Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L.
REV. 457, 469 (1897).
---------------------------------------------------------------------------
Longstanding U.S. constitutional doctrines relevant to freely
associated states--in particular, a crude dichotomy that recognizes and
accommodates only states and territories (but nothing, in between) and
the doctrine of Congress's plenary power over the latter--reflect
nineteenth- and early twentieth-century ideas about sovereignty that
international law has long since abandoned and an anachronistic vision
of the United States as a beneficent imperial power bringing
civilization to unenlightened peoples.\301\ The failure of U.S.
constitutional law in this area to evolve to meet the normative demands
of modern international law is ironic, for it originated, as a number
of scholars have demonstrated, in appeals to the international law
prevailing in the late nineteen and early twentieth centuries.\302\
---------------------------------------------------------------------------
\301\ See generally ALEINIKOFF, supra note 299, at 11-38.
\302\ See id. at 14 (noting that Justice ``Field's conception of
the state [in Chae Chan Ping v. United States, 130 U.S. 581 (1889)] as
a sovereign exercising jurisdiction over territory'' originated in ``an
international law paradigm that had dominated American jurisprudence at
least from the time of John Marshall''); Sarah Cleveland, Powers
Inherent in Sovereignty: Indians, Aliens, Territories, and the
Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81
TEX. L. REV. 1, (2002); Sarah Cleveland, The Plenary Power Background
of Curtiss-Wright, 70 U. COLO. L. REV. 1127, 1154 (1999) (concluding
that ``the late nineteenth century saw the doctrine of congressional
authority over territories evolve from a concept rooted in the
Territory and Treaty Clauses of the Constitution, and limited by the
Constitution's terms, to a power derived from international law
concepts of discovery and sovereignty, which were relatively unhinged
from judicial or constitutional constraint'').
---------------------------------------------------------------------------
Yet in the late twentieth and early twenty-first century, all three
branches of the U.S. federal government maintain legal positions on
Puerto Rico rooted firmly in a nineteenth-century paradigm of
international law, particularly its rules of territorial acquisition
and governance. The understanding of the Constitution that still
prevails in the twenty-first century,\303\ expressed by Attorney
General Richard Thornburgh in testimony before the Senate in 1991,
essentially distills the idea, as Aleinikoff succinctly puts it, that
``the United States Constitution knows only the mutually exclusive
categories of `State' and `Territory.' '' \304\ States must be treated
in accordance with the relevant provisions of the Constitution and the
complex jurisprudence of federalism developed by the courts;
territories, by sharp contrast, remain subject to the plenary power of
Congress first articulated in the Chinese Exclusion Case.\305\ This
binary division, which some regard as regrettable but nonetheless
constitutionally correct,\306\ is, in fact, anachronistic: It neither
accurately reflects nor properly accommodates the diverse political
arrangements embodied in the freely associated states of Puerto Rico,
the CMNI, and the FAS. Legally created at a later date, those
arrangements better represent current law. Analysis of the progressive
recognition and treatment of various forms of freely associated
statehood in U.S. constitutional practice thus discloses potential
options for Puerto Rico in the modem era.
---------------------------------------------------------------------------
\303\ See 2005 TASK FORCE REPORT, supra note 3.
\304\ ALEINIKOFF, supra note 299, at 90; see also id. at 240
(citing Hearings on S. 244 before the Senate Comm. on Energy and
Natural Resources, 102d Cong., 1st Sess., 193-94 (1991) (statement of
Hon. Richard Thornburgh, Attorney General).
\305\ See id. at 90; Chae Chan Ping v. United States, 130 U.S. 581
(1889).
\306\ See, e.g., Juan R. Torruella, One Hundred Years of Solitude:
Puerto Rico's American Century, in FOREIGN IN A DOMESTIC SENSE: PUERTO
RICO, AMERICAN EXPANSION, AND THE CONSTITUTION 241 (Christina Duffy
Burnett & Burke Marshall eds. 2001) (arguing that the Constitution does
not recognize commonwealth status or permit one Congress to bind a
future Congress to respect that status); Gerald L. Neuman,
Constitutionalism and Individual Rights, in FOREIGN IN A DOMESTIC
SENSE, supra, at 182, 196 (describing the problem as a ``fundamental
republican defect'' in the Constitution).
---------------------------------------------------------------------------
A. Introduction: The Insular Cases: States and Territories
Any analysis of free association and the U.S. Constitution must
begin, as it did historically, with the Territorial Clause, which
provides: ``The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims of the
United States, or of any particular state.'' \307\ In the early
twentieth century, in a well-known series of decisions designated the
Insular Cases,\308\ the Supreme Court established the Territorial
Clause as ``the source of congressional power over U.S. possessions
acquired by purchase, conquest, treaty, or war.'' \309\ (It is no
coincidence that all of the states freely associated with the United
States--the FAS, Puerto Rico, and the CNMI--originated in ``conquest,
treaty, or war,'' most significantly, the Spanish-American War of 1898
and World War IL) In Downes v. Bidwell,\310\ one of the most
significant of the Insular Cases, the Court concluded that Puerto Rico
should be deemed ``a territory appurtenant and belonging to the United
States, but not a part of the United States,'' for ``the power to
acquire territory by treaty implies, not only the power to govern such
territory, but to prescribe upon what terms the United States shall
receive its inhabitants, and what their status shall be.'' \311\
---------------------------------------------------------------------------
\307\ U.S. CONST. art. IV, 3, cl.2.
\308\ Downes v. Bidwell, 182 U.S. 244 (1901); Armstrong v. United
States, 182 U.S. 243 (1901), Dooley v. United States, 182 U.S. 222
(1901); De Lima v. Bidwell, 182 U.S. 1 (1901).
\309\ ALEINIKOFF, supra note 299, at 76.
\310\ 182 U.S. 244 (1901).
\311\ Id. at 287.
---------------------------------------------------------------------------
International law on territorial discovery, acquisition, and
governance therefore drove the logic of the Insular Cases, which
fashioned a novel distinction between ``incorporated'' and
``unincorporated'' territories and held that the Constitution as a
whole applied only to the former:
To Justice White [concurring in Downes v. Bidwell, 182 U.S.
244, 287-344] it was clear that the power of a government to
acquire territories by discovery, treaty, or conquest must also
bring with it the power to determine the status of the acquired
territory. Automatic incorporation and extension of the
Constitution would mean that this power did not exist nor would
the acquiring power have the right to dispose of a territory
with conditions. . . . To incorporated territories the
Constitution applies fully; to an unincorporated territory,
only the fundamental provisions of the Constitution applied,
``the general prohibitions . . . in favor of the liberty and
property of the citizen . . . which are an absolute denial of
authority . . . to do particular acts.'' \312\
---------------------------------------------------------------------------
\312\ Leibowitz, supra note 128, at 241-42 (quoting Downes v.
Bidwell, 182 U.S. 244, 294 (1901) (White, J., concurring)).
In short, the Insular Cases ratified a state of affairs in which
the residents of unincorporated territories, such as Puerto Rico, could
be denied the full panoply of rights, privileges, and immunities
enjoyed by U.S. citizens despite their nominal citizenship; hence the
oddity, which persists to this day, that resident aliens physically
located within a state of the United States may enjoy greater benefits
and rights under federal law than Puerto Rican citizens of the United
States.\313\ Yet those same citizens, simply by exercising their right
to relocate to a state of the United States, can thereby acquire
``every right of any other citizen of the United States, civil, social,
and political.'' \314\
---------------------------------------------------------------------------
\313\ See, e.g., Harris v. Rosario, 446 U.S. 651 (1980) (Congress
may provide lesser benefits to Puerto Ricans under the federal Aid to
Families with Dependent Children program and, in general, treat Puerto
Rico differently from the states if it has a ``rational basis'' for
doing so); Califano v. Torres, 435 U.S. 1 (1978) (Congress may offer
lower Social Security benefits to the elderly in Puerto Rico).
\314\ Balzac v. Puerto Rico, 258 U.S. 298, 308 (1922); see also
Leibowitz, supra note 128, at 244-45.
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B. Puerto Rico: Constitutional Rights and political Authority
In 1952, as noted, the United Nations removed Puerto Rico from its
list of non-self-governing territories based on representations from
both the United States and Puerto Rico. General Assembly Resolution 748
(VIII), recognized that ``the people of the Commonwealth of Puerto
Rico, by expressing their will in a free and democratic way, have
achieved a new constitutional status'' and that ``in the framework of
their Constitution and of the compact agreed upon with the United
States of America, the people of the Commonwealth of Puerto Rico have
been invested with attributes of political sovereignty which clearly
identify the status of self government attained by the Puerto Rican
people as that, of an autonomous political entity.'' \315\
---------------------------------------------------------------------------
\315\ G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25,
U.N. Doc. Al2630 (1953).
---------------------------------------------------------------------------
In theory, Puerto Rico thereafter attained a new status not only
under international law, but also under U.S. constitutional law. No
longer could it be treated as an unincorporated territory subject to
the plenary power of Congress (limited only by the poorly defined
doctrine of ``fundamental'' rights) under the Territorial Clause.
Congresswoman Frances P. Bolton, it will be recalled, represented to
the General Assembly that, henceforth, ``[t]he relationships previously
established also by a law of the Congress, which only Congress could
amend, have now become provisions of a compact of a bilateral nature
whose terms may be changed only by common consent.'' \316\
---------------------------------------------------------------------------
\316\ Frances P. Bolton, Nov. 3 Statement by Mrs. Bolton, DEP'T ST.
BULL., Dec. 1953, at 804; see also 1 WHITEMAN, supra note 119, at 400
(stating that the laws enacted by Puerto Rico, as well as its
association with the United States, cannot be altered without Puerto
Rico's consent).
---------------------------------------------------------------------------
In fact, some actors in and officials of the political branches of
the U.S. federal government continue to maintain that Puerto Rico
remains subject to the plenary authority of the federal government
under the Territorial Clause.\317\ On this view, the United States,
notwithstanding the adoption of Public Law 600 ``in the nature of a
compact,'' still enjoys ``the absolute and undisputed power of
governing and legislating for [Puerto Rico].'' \318\ The inherent
tension between the Compact and the continuing vitality of case law
that treats Puerto Rico as an unincorporated territory within the
meaning of the Insular Cases manifests itself in a sui generis, and at
times incoherent, constitutional jurisprudence. This jurisprudence, in
our view, is certainly in conflict with contemporary international law.
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\317\ In 1998, the House of Representatives found, in a bill that
died in the Senate, that ``[t]he Commonwealth [of Puerto Rico] remains
an unincorporated territory and does not have the status of `free
association' with the United States as that status is defined under
United States law or international practice.'' United States-Puerto
Rico Political Status Act, H.R. 856, 105th Cong. 2(4) (1998). The
December 2005 Report of the President's Task Force takes the same
position, see, e.g., 2005 TASK FORCE REPORT, supra note 3, at 5
(referring to Puerto Rico as a territory subject to the Constitution's
Territory Clause and Congress's virtually plenary authority), as do,
with some exceptions, the courts, see, e.g., Igartua de la Rosa v.
United States, 229 F.3d 80, 88 (Torruella, J., concurring) (noting that
the Supreme Court has supported Congress's assertion of plenary power).
See also Jose Trias Monge, Injustice According to Law, in FOREIGN IN A
DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION, AND THE CONSTITUTION
226, 233 (Christina Duffy Burnett & Burke Marshall eds. 2001).
\318\ Sere and Laralde v. Pilot, 10 U.S. (6 Cranch) 332, 337
(1810).
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1. Political Autonomy
After Congress's enactment of Public Law 600, as noted, Puerto Rico
should be deemed to have at least as much autonomy and authority, both
internally and with respect to foreign affairs, as a component state of
the Union. Yet the Supreme Court continues to apply to Puerto Rico a
doctrine analogous to that articulated in Cincinnati Soap Co. v. United
States,\319\ where, despite the enactment of the Philippine
Independence Act creating the Commonwealth of the Philippine
Islands,\320\ it held that relative to the Commonwealth, Congress ``is
not subject to the same restrictions which are imposed in respect of
laws for the United States considered as a political body of states in
union.'' \321\
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\319\ 301 U.S. 308 (1937).
\320\ Act of March 24, 1934, c. 84, 48 Stat. 456.
\321\ Cincinatti Soap, 301 U.S. at 323.
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The Supreme Court has avoided explicit comment on whether Puerto
Rico remains an unincorporated territory notwithstanding the Compact.
In 1955, in Granville-Smith v. Granville-Smith,\322\ a divorce action
challenging a local statute of the U.S. Virgin Islands, the Supreme
Court characterized only ``pre-Commonwealth Puerto Rico'' as an
unincorporated territory, arguably implying that its status changed
after Public Law 600.\323\ And in Katzenbach v. Morgan,\324\ the Court
applied Section Five of the Fourteenth Amendment to sustain the Voting
Rights Act of 1965 against a challenge that would have denied the vote
to Puerto Ricans who had moved to New York State, thereby rendering it
unnecessary to decide whether the Act could be sustained in the
alternative under the Territorial Clause.\325\
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\322\ 349 U.S. 1 (1955).
\323\ See id. at 6.
\324\ 384 U.S. 641 (1966).
\325\ Id. at 646 n.5.
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Several lower-court cases have suggested that the Compact did
affect Congress's formerly plenary power over Puerto Rico.\326\ In
United States v. Quinones, for example, the United States Court of
Appeals for the First Circuit said explicitly that ``[u]nder the
compact between the people of Puerto Rico and the United States,
Congress cannot amend the Puerto Rico Constitution unilaterally, and
the government of Puerto Rico is no longer a federal government agency
exercising delegated power.'' \327\ But in United States v. Lopez
Andino, Judge Torruella, the author of a well-regarded book on the
subject,\328\ concluded that, at least as a matter of constitutional
law, Puerto Rico remains a territory subject to Congress's plenary
power.\329\ The Eleventh Circuit agreed and put the matter quite
bluntly: ``Congress may unilaterally repeal the Puerto Rican
Constitution or the Puerto Rican Federal Relations Act and replace them
with any rules or regulations of its choice.'' \330\
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\326\ ALEINIKOFF, supra note 299, at 77 & 240 n.17 (collecting
cases).
\327\ 758 F.2d 40, 42 (1st Cir. 1985) (citing Mora v. Mejias, 206
F.2d 377, 386-88 (1st Cir. 1953)); see also United States v. Vega
Figueroa, 984 F. Supp. 71, 78 (D.P.R. 1997) (emphasizing that through
the Compact ``Congress expressly . . . relinquished its plenary powers
over areas of local sovereignty'').
\328\ See JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO RICO: THE
DOCTRINE OF SEPARATE AND UNEQUAL (1985).
\329\ 831 F.2d 1164,1173-76 (1st Cir. 1987) (Torruella, J.,
concurring).
\330\ United States v. Sanchez, 992 F.2d 1143, 1152-53 (11th Cir.
1993).
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Though controversial, the weight of authority, however ill-
considered, supports this view, at least insofar as the United States
government itself understands its relationship to Puerto Rico.\331\ In
Harris v. Rosario, the Supreme Court held that Congress may
discriminate against Puerto Ricans in the administration of the federal
Aid to Families with Dependent Children program, and in so holding,
cited the Territorial Clause for the broad proposition that Congress
``may treat Puerto Rico differently from States so long as there is a
rational basis for its actions.'' \332\ Two years earlier, in Califano
v. Torres, it had reached a similar conclusion with respect to social
security benefits.\333\ In both Harris and Califano, the Court cited
the same three reasons in support of its conclusion that Congress's
decision to discriminate against Puerto Rican residents passed the
rational-basis test: (1) ``the unique tax status of Puerto Rico,''
i.e., ``its residents do not contribute to the public treasury''; (2)
the high cost of including Puerto Rico in the federal program at issue;
and (3) the potential disruption to the Puerto Rico's economy.\334\
Helfeld argues persuasively that
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\331\ See ALEINIKOFF, supra note 299, at 77 & 240 n.18 (collecting
authorities).
\332\ 446 U.S. 651, 652 (1980) (per curiam).
\333\ 435 U.S. 1 (1978) (per curiam).
\334\ Califano, 435 U.S. at 5 n.7; compare Harris, 446 U.S. at 651-
52 (same).
If the three reasons accepted in Califano and Harris are
rational, it is difficult to imagine any law assigning federal
funds discriminatorily against Puerto Rico which would not be
considered rational. The `rational basis' test is the
equivalent of a blank check because in practice any reason will
satisfy the Court. After Harris Congress is on notice that
under the territorial clause it has discretion to exclude
totally, or to apply partially to Puerto Rico any program based
on federal funds, without violating the principle of the equal
protection of the laws. In constitutional terms Harris
eliminated equal protection as a limit on the power of Congress
to distribute federal funds to Puerto Rico. Henceforth there
are no limits, only the discretionary authority of the Congress
under the territorial clause.\335\
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\335\ David M. Helfeld, Applicability of the United States
Constitution and Federal Laws to the Commonwealth of Puerto Rico, 110
F.R.D. 449, 462 (1985); cf. ALEINIKOFF, supra note 299, at 79 (``Even
assuming that the justifications provided by Congress [in Harris] are
`rational' (as we understand that term in constitutional analysis),
what is not explained is why they are permissible. The distinction
drawn by Congress is one based simply on residence in a territory; it
is grounded, when all is said and done, not on different facts, but on
status of place.'').
The Supreme Court's 1979 opinion in Torres v. Puerto Rico likewise
affirmed the continuing vitality of the Insular Cases and Balzac v.
Puerto Rico,\336\ although Justice Brennan's concurrence implied that
those cases might profitably be reconsidered at this stage in
history.\337\
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\336\ Torres v. Puerto Rico, 442 U.S. 467, 468-69 (1979); see also
United States v. Lopez Andino, 831 F.2d 1164, 1175 (1st Cir. 1987)
(Torruella, J., concurring); Rayphand v. Sablan, 95 F. Supp. 2d 1133,
1139 n.14 (D. N. Mar. I. 1999) (citing United States v. Verdugo-
Urquidez, 494 U.S. 259, 268 (1990)).
\337\ Torres, 442 U.S. at 475 (Brennan, J., concurring); see also
Harris v. Rosario, 446 U.S. 651, 652-56 (1980) (Marshall, J.,
dissenting) (noting that the ``present validity'' of the Insular Cases
and Balzac v. Porto Rico, 258 U.S. 298 (1922), ``is questionable'').
---------------------------------------------------------------------------
Moreover, both Congress and the Executive branch have asserted in
no uncertain terms that Congress continues to exercise plenary
authority over Puerto Rico under the Territorial Clause. In 1998, the
House of Representatives found, in a bill that died in the Senate, that
``[t]he Commonwealth [of Puerto Rico] remains an unincorporated
territory and does not have the status of `free association' with the
United States as that status is defined under United States law or
international practice.'' \338\ The 2005 Presidential Task Force Report
goes further. Not only does it affirm the continuing status of Puerto
Rico as an ``unincorporated'' territory within the Insular Cases
doctrine;\339\ it argues that free association would be
unconstitutional: ``The Federal Government may relinquish United States
sovereignty by granting independence or ceding the territory to another
nation; or it may, as the Constitution provides, admit the territory as
a State, thus making the Territorial Clause inapplicable. But the U.S.
Constitution does not allow other options.'' \340\
---------------------------------------------------------------------------
\338\ United States-Puerto Rico Political Status Act, H.R. 856,
105th Cong. 2(4) (1998).
\339\ 2005 POLITICAL TASK FORCE REPORT, supra note 3, at 7.
\340\ Id. at 6. The only authority cited for this view is the 1879
decision of the Supreme Court in First National Bank v. Yankton County,
101 U.S. 129, 133 (1879), where the Court stated that ``[41 territory
within the jurisdiction of the United States not included in any State
must necessarily be governed by or under the authority of Congress.''
See also ALEINIKOFF, supra note 299, at 89-90 (quoting Hearings on S.
244 before the Senate Comm. on Energy and Natural Resources, 102d
Cong., 1st Sess., 193-94 (1991) (statement of Hon. Richard Thornburgh,
Attorney General)); Torruella, supra note 306, at 241 (arguing that the
Constitution does not recognize commonwealth status or permit one
Congress to bind a future Congress to respect that status).
---------------------------------------------------------------------------
This position, while controversial as a matter of constitutional
law,\341\ is important to appreciate from a political standpoint, for
under this view, the illusion that Puerto Rico enjoys greater autonomy
than it does is made possible only by Congress's decision, thus far,
not to exercise the plenary power that it (believes it) retains. This,
in turn, contributes to maintenance of the status quo rather than to an
ultimate resolution of Puerto Rico's political status in accordance
with freely expressed wishes of its people. That uncertainty may be
preferred by certain groups on the island and the mainland.
---------------------------------------------------------------------------
\341\ Compare, e.g., ALEINIKOFF, supra note 299, at 90-93, with
Torruella, supra note 306, at 245-46, and Neuman, supra note 306, at
195-97.
---------------------------------------------------------------------------
2. Fundamental Rights
While the Insular Cases have been limited in dicta,\342\ they
remain, so far as the Supreme Court has indicated, good law.\343\
Balzac v. Porto Rico,\344\ which held the Sixth Amendment right to
trial by jury inapplicable to Puerto Rico, reaffirmed that only an
undefined subset of constitutional rights deemed ``fundamental'' apply
to such unincorporated territories,\345\ and that decision, too, so far
as the Supreme Court has indicated, remains good law.\346\ In
retrospect, it is remarkable that the right to a jury trial would not
be deemed ``fundamental.'' Even more remarkable is the Court's
conclusion that Congress's express conferral of U.S. citizenship on
Puerto Ricans did not alter the Insular Cases doctrine whereby a
person's rights depend, not on citizenship, but on the status of the
territory in which he or she lives.\347\
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\342\ Reid v. Covert, 354 U.S. 1, 14 (1957) (holding that the Sixth
Amendment right to trial by jury protects the wife of an American
service member serving abroad and stating that ``neither the [Insular
Cases] nor their reasoning should be given any further expansion'');
see also Torres v. Puerto Rico, 442 U.S. 465, 476 (1979) (Brennan, J.,
concurring). As Gerald R. Neuman notes: ``Juxtaposing Reid v. Covert
with the Insular Cases produces bizarre results. For example, a U.S.
citizen prosecuted by the federal government has a constitutional right
to jury trial in Japan, but not in Puerto Rico.'' Neuman, supra note
306, at 191.
\343\ See United States v. Verdugo-Urquidez, 494 U.S. 259, 268-69
(1990) (treating the Insular Cases as binding precedent).
\344\ 258 U.S. 298 (1922).
\345\ Id. at 304-06, 312-13; see also Don v. United States, 195
U.S. 138, 149 (1904) (concluding with respect to the Philippines ``that
the power to govern territory, implied in the right to acquire it, and
given to Congress in the Constitution in article 4, 3, to whatever
other limitations it may be subject, the extent of which must be
decided as questions arise, does not require that body to enact for
ceded territory not made a part of the United States by Congressional
action, a system of laws which shall include the right of trial by
jury, and that the Constitution does not, without legislation, and of
its own force, carry such right to territory so situated'').
\346\ See Fournier v. Gonzalez, 269 F.2d 26, 28-29 (1st Cir. 1959)
(``So far as concerns the guaranty of Art. III, 2, and that of the
Sixth Amendment of the Federal Constitution, it is clear that we could
not hold that they are applicable to the present situation without a
determination that Balzac v. People of Porto Rico, 1922, 258 U.S. 298
(1922), is no longer law; and certainly Reid v. Covert, 1957, 354 U.S.
1, did not overrule Balzac v. People of Porto Rico.'').
\347\ Balzac, 258 U.S. at 309 (``It is the locality that is
determinative of the application of the Constitution in such matters as
judicial procedure, and not the status of the people who live in
it.'').
---------------------------------------------------------------------------
Despite the formal state of the law, however, the continuing
vitality of Balzac is, as several Supreme Court justices have
suggested, suspect. The Supreme Court has since held that the right to
a jury trial in criminal cases qualifies as ``fundamental,'' albeit in
a distinct context.\348\ Balzac, several scholars speculate, would
likely be overruled but for the fact that Puerto Rican legislation
guarantees the right to a jury trial in any event, obviating the
potential for a challenge.\349\ Indeed, the trend since 1952 has been
to expand the category of rights applicable to Puerto Rico. In Calero-
Toledo v. Pearson Yacht Leasing Co., the Court held that the
requirements of due process apply to Puerto Rico, though it declined to
specify whether. due process applies by virtue of the Fifth or the
Fourteenth Arnendment.\350\ In Examining Board of Engineers, Architects
and Surveyors v. Flores de Otero, the Court struck down, as a violation
of equal protection, alienage restrictions on civil engineers residing
in Puerto Rico, again declining to say ``whether it is the Fifth
Amendment or the Fourteenth which provides the protection.'' \351\ In
Califano v. Torres, while affirming that Congress may discriminate
against Puerto Rico provided the discrimination has a rational basis,
the Supreme Court ``assumed without deciding that the constitutional
right to travel extends to the Commonwealth.'' \352\ And in Torres v.
Puerto Rico, the Court held that the Fourth Amendment applied to Puerto
Rico, preempting local Puerto Rican legislation that would have
permitted the challenged search;\353\ once again, the Court chose to
elide the question ``whether the Fourth Amendment applies to Puerto
Rico directly or by operation of the Fourteenth Amendment.'' \354\
Puerto Ricans also can and do regularly bring actions under 42 U.S.C.
1983 for violations of, inter alia, political discrimination and the
rights of prisoners and the mentally ill.\355\ At the Proceedings of
the First Circuit Judicial Conference in 1985, David M. Helfeld thus
suggested the following general rule: ``if a state can do it
constitutionally, Puerto Rico can do it, and vice versa.'' \356\ In
fact, ``the only `fundamental' right which remains in doubt is trial by
jury in criminal cases.\357\
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\348\ Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Whether a
right is ``fundamental'' such that it must be applied to the states
through the Fourteenth Amendment incorporation doctrine is a distinct
question from whether it is ``fundamental'' within the meaning of the
Insular Cases. See Commonwealth of the Northern Mariana Islands v.
Atalig, 723 F.2d 682, 689 (9th Cir. 1984) (``To focus on the label
`fundamental rights,' overlooks the fact that the doctrine of
incorporation for purposes of applying the Bill of Rights to the states
serves one end while the doctrine of territorial incorporation serves a
related but distinctly different one. The former serves to fix our
basic federal structure; the latter is designed to limit the power of
Congress to administer territories under Article IV of the
Constitution.''); see also id. at 690 (``In identifying `fundamental
rights' for purposes of territorial incorporation, the Court considered
whether the asserted right was one of `those fundamental limitations in
favor of personal rights' which are `the basis of all free government.'
'') (quoting Dorr v. United States, 195 U.S. 138, 146, 47 (1904)).
\349\ Helfeld, supra note 335, at 458 & n.25; see also ALEINIKOFF,
supra note 299, at 83.
\350\ Calero-Toldeo v. Pearson Yacht Leasing Co., 416 U.S. 663,
668-69 n.5 (1974). Helfeld speculates, quite plausibly, ``that the
Court wished to avoid the implications of grounding its decision on
either the Fifth or Fourteenth Amendments'' because ``[i]f it had
relied on the former, it might have given the impression that Puerto
Rico continues to be a territory,'' whereas, had it relied on the
Fourteenth Amendment, ``that could have been interpreted as the
equivalent of defining Puerto Rico as a state of the union.'' Helfeld,
supra note 335, at 456.
\351\ 426 U.S. 572, 601 (1976).
\352\ Torres v. Puerto Rico, 442 U.S. 465, 470 (1979) (citing
Califano v. Tones, 435 U.S. 1, 4 n.6 (1978) (per curiam)).
\353\ 442 U.S. 465 (1979).
\354\ Id. at 471.
\355\ See Helfeld, supra note 335, at 471 & nn.82-87.
\356\ Id. at 457.
\357\ Id. at 457-58.
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It should be noted, however, that so long as the Insular Cases
remain good law, the ``citizenship'' enjoyed by Puerto Ricans is
something of a misnomer. Puerto Ricans clearly do not enjoy the full
panoply of rights and privileges associated with U.S. citizenship. Most
significantly, so long as they reside in Puerto Rico,\358\ they lack
the democratic representation in the federal government that state
citizens enjoy and that is fundamental to the protection of their
rights and interests. They may not vote in federal presidential
elections;\359\ and except for the resident commissioner, who enjoys
only an advisory role (not a vote), they lack representation in the
Congress. Judge Torruella, concurring in Igartua de la Rosa v. United
States, observed:
---------------------------------------------------------------------------
\358\ See Balzac v. Porto Rico, 258 U.S. 298, 308 (1922) (affirming
that Puerto Ricans, though enjoying only ``fundamental'' rights while
resident in Puerto Rico, may ``move into the continental United States
and . . . there . . . enjoy every right of any other citizen of the
United States, civil, social and political''); see also Romeu v. Cohen,
265 F.3d 118 (2d Cir. 2001) (dismissing challenge to the
constitutionality of the Uniformed and Overseas Citizens Absentee
Voting Act as applied to a Puerto Rican formerly domiciled in New York
State who sought an overseas ballot to vote in the 2000 presidential
election).
\359\ Igartua de la Rosa v. United States, 229 F.3d 80 (1st Cir.
2000). The First Circuit recently reheard this case for the fourth
time, en banc, and concluded that neither the U.S. Constitution nor
U.S. treaty obligations require that U.S. citizens resident in Puerto
Rico be given the constitutional right to vote in presidential
elections. Igartua de la Rosa v. United States, 417 F.3d 145, 146-47
(1st Cir. 2005) (en banc).
Although persons born in Puerto Rico are citizens of the
United States at birth, and thereby owe allegiance to the
United States, . . . while residing in Puerto Rico they enjoy
fewer rights than citizens of the United States that reside in
the fifty States, . . . or even in foreign countries . . . .
Undoubtedly the most glaring evidence of this egregious
disparity is the fact that they do not elect a single voting
representative to a federal government that exercises almost
absolute power over them.\360\
---------------------------------------------------------------------------
\360\ Igartua de la Rosa v. United States, 229 F.3d 80, 85-86 (1st
Cir. 2000) (Torruella, J. concurring) (footnotes, alterations, and
internal citations omitted); see also Jose A. Cabranes, Puerto Rico and
the Constitution, 110 F.R.D. 475, 480 (1985) (``[N]o word other than
`colonialism' adequately describes the relationship between a powerful
metropolitan state and an impoverished'' overseas dependency
disenfranchised from the formal lawmaking processes that shape its
people's daily lives.'').
Puerto Ricans, then, as Judge Jose A. Cabranes has suggested, might
more accurately be denominated ``nationals'' of the United States,
where ``national'' means ``a person who, though not a citizen, owes
permanent allegiance to the state and is entitled to its protection.''
\361\
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\361\ G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 1 (1942); see Jose
A. Cabranes, Citizenship and the American Empire, 127 U. PA. L. REV.
391, 396 n.12 (1978); see also T. Alexander Aleinikoff, Citizenship
Talk: A Revisionist Narrative, 69 FORDHAM L. REV. 1689, 1692 (2001).
Note that residents of American Samoa, which remains a territory, are
explicitly nationals rather than citizens.
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3. Federalism
Puerto Rico, though not a state,\362\ is treated like one for most
purposes of U.S. federalism. Calero-Toledo v. Pearson Yacht Leasing Co.
treated Puerto Rico as a state for purposes of the Three-Judge Court
Act.\363\ In Examining Board of Engineers, Architects and Surveyors v.
Flores de Otero, the Supreme Court held that Puerto Rico should be
treated as a state for purposes of 28 U.S.C. 1343(3), which vests the
federal district courts with jurisdiction over civil actions alleging
the deprivation of rights ``under color of any State law,'' and the
corresponding right of action supplied by 42 U.S.C. 1983.\364\ The
First Circuit has also held that Puerto Rico should be deemed a state
for purposes of the Full Faith and Credit Clause and its statutory
analogue, 28 U.S.C. 1738.\365\
---------------------------------------------------------------------------
\362\ See, e.g., Mora v. Torres, 113 F. Supp. 309 (D.P.R. 1953),
aff'd 206 F.2d 377 (1st Cir. 1953).
\363\ 416 U.S. 671, 675 (1974).
\364\ 426 U.S. 573 (1976); but see Fornaris v. Ridge Tool Co., 400
U.S. 41, 42 n.1 (1970) (construing the word ``state'' in 28 U.S.C.
1254(2), another jurisdictional statute, to exclude Puerto Rico).
\365\ Cruz v. Melecio, 204 F.3 d 14, 18 (1st Cir. 2000); Medina v.
Chase Manhattan Bank, 737 F.2d 140, 142 (1st Cir. 1984).
---------------------------------------------------------------------------
A circuit split exists, however, on the question whether Puerto
Rico and the United States are ``dual sovereigns'' for purposes of the
Double Jeopardy Clause. The First Circuit concluded in the affirmative
in United States v. Lopez Andino, emphasizing that Puerto Rico, like
the several states of the Union, enacts its own criminal laws, which
``emanate from a different source than the federal laws.'' \366\ The
Eleventh Circuit, following the reasoning of Judge Torruella's
concurrence in Lopez Andino, held that Puerto Rico is not a state for
purposes of the prohibition on double jeopardy in criminal cases
because, unlike component states of the Union or even the Indian
tribes, its prosecutorial authority derives from the same sovereign
source as that of the United states.\367\ As Judge Torruella wrote in
Lopez Andino,
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\366\ United States v. Lopez Andino, 831 F.2d 1164, 11.68 (1st Cir.
1987).
\367\ United States v. Sanchez, 992 F.2d 1143, 1149-53 (11th Cir.
1993); compare Lopez Andino, 831 F.3d at 1172-77 (Torruella, J.,
concurring). Judge Torruella argued that the majority need not have
reached the question of Puerto Rico's status for purposes of the
double-jeopardy bar to successive prosecutions for the same offense,
for the case involved distinct Puerto Rican and federal offenses in any
event. See id. at 1172.
[because Puerto Rico, notwithstanding P.L. 600, is still
constitutionally a territory, Puerto Rico v. Shell Co. [302
U.S. 258 (1937)] prevents the application of the ``dual
sovereignty'' doctrine. That principle is only applicable where
separate political entities which derive their power from
different sources are involved. . . . In Shell Co., the Court
held that territory derived its authority from Congress and
therefore was not a sovereign for double jeopardy
purposes.\368\
---------------------------------------------------------------------------
\368\ Lopez Andino, 831 F.3d at 1175 (citations omitted; emphasis
in original).
Resolution of this circuit split would thus require the Supreme
Court to decide squarely the question it has carefully avoided to date:
whether, at least as a matter of U.S. law, the Compact altered Puerto
Rico's former status as an unincorporated territory under the Insular
Cases doctrine. Other than double jeopardy, the most significant
exception to Puerto Rico's constitutional treatment as a state for
federalism purposes is, again, its utter disenfranchisement from
national politics.\369\
---------------------------------------------------------------------------
\369\ Helfeld, supra note 335, at 468.
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C. The CNMI: Constitutional Rights and Political Authority
Thanks in part to the unsatisfactory character of the arrangement
with Puerto Rico, the constitutional status of the CNMI and the rights
of its people were clarified in more explicit terms during the
negotiation process with the United States. The Territorial Clause, for
example, clearly applies to the CNMI--but subject to critical
limitations.\370\ In particular,
---------------------------------------------------------------------------
\370\ See LEIBOWITZ, supra note 170, at 539-40.
The Covenant contains two limitations on Federal legislative
authority: a procedural requisite that Federal legislation
specifically mention the Northern Marianas if it is to be
applicable to the commonwealth and the substantive requisite
that the prior consent of the commonwealth be acquired before
the implementation of Federal law with respect to some critical
areas.\371\
---------------------------------------------------------------------------
\371\ Id. at 542.
The Covenant explicitly sets out which constitutional provisions
shall apply to it,\372\ obviating in many instances the question
whether a right is ``fundamental'' under the Insular Cases framework.
Many of these cases have thus been readily resolved by the CNMI's
Supreme, Court.\373\
---------------------------------------------------------------------------
\372\ Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, Pub. L.
No. 94-241, 90 Stat. 263 (codified at 48 U.S.C. 1801 note). 501
[hereafter CNMI Covenant]. Similarly, the Covenant contains
presumptions about which federal laws shall apply to it. LEIBOWITZ,
supra note 170, at 553.
\373\ E.g., Santos v. Nansay Micronesia, Inc., 4 N.M.I. 155 (1994),
appeal dismissed, 76 F.3d 299 (9th Cir. 1996). (jury trial);
Commonwealth v. Oden, 3 N.M.I. 186 (1992), aff'd mem., 19 F.3d 26 (9th
Cir. 1994) (double jeopardy); Commonwealth v. Hanada, 2 N.M.I. 343
(1991) (Sixth Amendment); In re ``C.T.M.,'' 1 N.M.I. 171 (1990)
(Fourteenth Amendment).
---------------------------------------------------------------------------
In Northern Mariana Islands v. Atalig, however, the Ninth Circuit
nevertheless applied the Insular Cases doctrine to sustain, as
consistent with the Sixth Amendment, a statute of the CNMI limiting the
right to trial by jury to criminal cases punishable by more than five
years' imprisonment.\374\ Despite the unfortunate application of the
Insular Cases doctrine in the context of the CNMI, the court also
remarked:
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\374\ 723 F.2d 682 (9th Cir. N. Mariana I. 1984); see also Wabol v.
Villacrusis, 958 F.2d 1450 (9th Cir. N. Mariana I. 1992) (land
alienation restrictions in Article XII of NMI Constitution,
implementing 805 of the Covenant, validly exempted from federal equal
protection review under Covenant 501(b) because the right of equal
access to long-term interests in Commonwealth real estate is not
``fundamental in the international sense'').
The NMI argues that its political status is distinct from
that of unincorporated territories such as Puerto Rico. This
argument is credible. Under the trusteeship agreement, the
United States does not possess sovereignty over the NMI. As a
commonwealth, the NMI will enjoy a right to self-government
guaranteed by the mutual consent provisions of the Covenant . .
. . No similar guarantees have been made to Puerto Rico or any
other territory.
Thus, there is merit to the argument that the NMI is
different from areas previously treated as unincorporated
territories. We need not decide this issue because the
independent force of the Constitution is certainly no greater
in the NMI than in an unincorporated territory.\375\
---------------------------------------------------------------------------
\375\ Id. at 691 n.28.
This statement, while dicta, implies, contrary to the views of the
U.S. political branches and some commentary, that the Constitution can
accommodate political arrangements that lie on the spectrum between
``state'' and ``territory.''
Indeed, in subsequent cases, the Ninth Circuit has resisted relying
on the Territorial Clause as a basis for examining the scope of U.S.
federal power in the CNMI, affirming repeatedly that `` `the authority
of the United States towards the CNMI arises solely under the
Covenant.' '' \376\ In United States ex rel Richards v. Guerrero, the
Ninth Circuit held that self-government under the Covenant does not
preclude federal legislation that affects the internal affairs of the
CNMI, but it does require weighing the federal interest served by the
legislation at issue against its degree of intrusion into those
internal affairs.\377\ Furthermore, the Court found ``unpersuasive the
Inspector General's reliance on the Territorial Clause,'' because
``[e]ven if the Territorial Clause provides the constitutional basis
for Congress' legislative authority in the Commonwealth, it is solely
by the Covenant that we measure the limits of Congress's legislative
power.'' \378\
---------------------------------------------------------------------------
\376\ Commonwealth of the Northern Mariana Islands v. United
States, 399 F.3d 1057, 1062 (9th Cir. 2005) (citations and internal
quotation marks omitted); United States ex rel Richards v. Guerrero, 4
F.3d 749, 754-55 (9th Cir. 1993) (quoting Hillblom v. United States,
896 F.2d 426, 429 (9th Cir. 1990)).
\377\ Guerrero, 4 F.3d at 755; see also Decision: Self-Government
of Former U.N. Trust Territory, 88 AM. J. INT'L L. 337 (1994).
\378\ Guerrero, 4 F.3d at 754 (emphasis added). Note, however, that
in a relatively recent decision of the District Court for the Northern
Mariana Islands, which the U.S. Supreme Court summarily affirmed, the
district court again applied the Insular Cases doctrine of fundamental
rights to decide ``that Congress' endorsement of the NMI negotiators'
request that the voters of Saipan be denied the fundamental United
States constitutional guarantee of `one person-one vote' in regards to
the composition of the CNMI Senate does not offend the United States
Constitution.'' Rayphand v. Sablan, 95 F. Supp. 2d 1133, 1139 (D. N.
Mar. I. 1999), aff'd sub nom., Torres v. Sablan, 528 U.S. 1110 (2000).
The Court reasoned that ``one person-one vote'' could not be deemed ``a
right that is the `basis of all free government' '' and therefore that
``it need not be applied in and to an unincorporated territory such as
the Commonwealth.'' Rayphand, 95 F. Supp. 2d at 1140 (quoting Wabol v.
Villacrusis, 958 F.2d 1450, 1460 (9th Cir. 1990)).
---------------------------------------------------------------------------
Relative to the CNMI, the Ninth Circuit has therefore drawn an
important distinction between, on the one hand, the basis for
Congress's authority, and on the other, its limits; the Territorial
Clause can, the Ninth Circuit seems to suggest, supply the former
without eviscerating the latter. In this regard the CNMI both evinces a
development in the constitutional law governing freely associated
states and, again, casts doubt on the view that the Constitution
recognizes only the mutually exclusive categories of state and
territory.
D. The FAS: Constitutional Rights and Political Authority
In constitutional terms the FAS--the RMI, the FSM, and Palau--have
a status quite distinct from that of the CNMI and Puerto Rico; they
``are in essence independent nations and recognized as such by the
international community.'' \379\ Without question,. the Territorial
Clause therefore has no application to them. Indeed, outside of the
provisions in the Compacts and the subsidiary agreements, the United
States renounced ``all obligations, responsibilities, rights and
benefits of the Government of the United States as Administering
Authority which have resulted from the application pursuant to the
Trusteeship Agreement of any treaty or other international agreement to
the Trust Territory of the Pacific Islands.'' \380\ The FAS cannot
juridically be characterized as part of the United States, and the
Constitutions of each FAS enjoy supremacy within their respective
territories.\381\ Consequently, the parameters of the relationship
between the United States and the FAS, unlike those of Puerto Rico and
the CNMI, generally will be defined through negotiation and other
diplomatic channels rather than in response to privately initiated
litigation. Nevertheless, from time to time cases implicating the
constitutional status of the FAS reach the federal appellate courts.
---------------------------------------------------------------------------
\379\ LAUGHLIN, supra note 172, at 509.
\380\ 48 U.S.C. 1901-127 (RMI and FSM); 48 U.S.C. 1931-125
(Palau). ``It has been suggested that there is a slight theoretical
possibility that a U.S. court might find the federal Constitution
applicable to a free association state because of the intimate
relationship that the free association states have with the United
States, and because of the control that the United States has over some
of the sovereign aspects of the free association states. However, the
exertion of that kind of jurisdiction seems unlikely.'' LAUGHLIN, supra
note 172, at 509-10.
\381\ See, e.g., LAUGHLIN, supra note 172, Oct. 1997 Cumulative
Supp., at 77 (``In the Republic of the Marshall Islands, the Marshall
Islands Constitution is the supreme law of the land. Hence, the
Marshall Islands government and its officials cannot act contrary to it
in exercising or discharging rights or obligations under the
Compact.'').
---------------------------------------------------------------------------
The constitutional status of the islands was a subject of debate
during and immediately following the ratification of the Compacts
because it was unclear whether Security Council action was required to
terminate the trusteeship or whether unilateral action by the United
States sufficed.\382\ In Juda v. United States, the Claims Court held
that ``[t]he President's signature completes enactment of the Compact
Act [for the RMI] as a Congressional-Executive Agreement, a matter of
domestic law,'' even if its international legal effect with respect to
the Trusteeship Agreement between the United States and the U.N.
Security Council remained undetermined.\383\ This issue became
irrelevant following the adoption of resolutions by the Security
Council formally terminating the Trusteeship.
---------------------------------------------------------------------------
\382\ See generally LEIBOWITZ, supra note 170, at 596-98.
\383\ Juda v. U.S., 13 Cl. Ct. 667, 682 (1987). The court
continued: ``[T]he Trusteeship Agreement and the Compact are two
separate documents that involve different parties and raise differing
legal issues. The Trusteeship Agreement is between the United States
and the UNSC; the Compact is between the United States and the RMI.
Trusteeship termination and Compact implementation are two separate
issues.'' Id. at 678.
---------------------------------------------------------------------------
Before the Compact by which Palau became a freely associated state,
that is, while it remained a Trust Territory, the U.S. Court of Appeals
for the Second Circuit held that Palau did not qualify as a ``foreign
state'' within the meaning of the Foreign Sovereign Immunities
Act.\384\ Similarly, the Ninth Circuit held that its courts, at that
time, were not foreign.\385\ In Bank of Hawaii v. Balos, however, the
district court found that after the United States concluded the RMI
Compact as a matter of domestic law, ``notwithstanding that the RMI
technically retains membership in the TTPI, it has de facto become a
foreign state'' for purposes of diversity jurisdiction under 28 U.S.C.
1332.\386\ That conclusion clearly applies to each of the FAS today,
for the Trusteeship has been terminated formally and the FAS recognized
as foreign states.\387\
---------------------------------------------------------------------------
\384\ Morgan Guaranty Trust Co. v. Republic of Palau, 924 F.2d 1237
(2d Cir. 1991).
\385\ In re Complaint of Bowoon Sangsa Co., 720 F.2d 595, 601 (9th
Cir. 1983).
\386\ 701 F. Supp. 744, 745 (D. Haw. 1988).
\387\ Cf. Theo H. Davies & Co. v. Republic of the Marshall Islands,
174 F.3d 969, 971-72 (9th Cir. 1999) (RMI as a ``sovereign nation'').
---------------------------------------------------------------------------
E. Toward an Enhanced Commonwealth Status for Puerto Rico?
The experience of the CNMI and the FAS show that the idea of a
freely associated state is not static in U.S. constitutional law. The
official views of the Executive and the Congress quoted earlier--to the
effect that the Constitution knows only the mutually exclusive
categories of territory and state--may not be reconcilable with the
free association relationships into which the United States has in fact
entered. FAS status might be undesirable for Puerto Rico in view of its
strong social, legal, economic, and political ties to and reliance upon
the United States. But a genuine compact of free association not unlike
that of the CNMI offers one viable option for enhanced commonwealth
status should the people of Puerto Rico collectively determine that to
be in their long-term political interest.
The most recent plebiscite held in Puerto Rico, in which a bare
majority of the voters chose ``none of the above'' \388\ may indicate,
as Aleinikoff argues, not ``political nihilism,'' but a sense that
``the options crafted by the ruling pro-statehood party did not
adequately reflect their preferences. . . . Rather, they seek an
`enhanced' commonwealth status that would increase Puerto Rican
autonomy vis-a-vis the federal government.'' \389\ Contrary to the
federal government's suggestion, the Constitution need not be read to
forbid such an arrangement,\390\ though it admittedly constrains the
potential forms that enhanced commonwealth status may take. For
example, despite the manifest injustice inherent in a national
government exercising allegedly plenary power over a people who lack
any representation in or a right to vote for that government, Article
II of the Constitution specifies that the president shall be elected by
state electors, which would, at least at first blush,\391\ operate to
preclude enfranchising residents of the CNMI or Puerto Rico in this
regard absent a constitutional amendment;\392\ the First Circuit
recently issued a strongly worded en banc opinion to this effect.\393\
Equally, ``it would be hard to make a persuasive argument that Congress
could give territories representation in the Senate.'' \394\
---------------------------------------------------------------------------
\388\ 2005 TASK FORCE REPORT, supra note 3, at 4.
\389\ ALEINIKOFF, supra note 299, at 87 (footnote omitted).
\390\ See id. at 87-94; JOSE TRIAS MONGE, PUERTO RICO: THE TRIALS
OF THE OLDEST COLONY IN THE WORLD 125-35, 189-91 (1997); Van Dyke,
supra note 229, at 499-502.
\391\ But see Romeu v. Cohen, 265 F.3d 118, 127-31 (2d Cir. 2001)
(Leval, J.) (arguing that ``if Congress is within its powers in
requiring a State to accept the votes of nonresidents in order to cure
the problems of disqualifying former residents of a State who move
outside the United States or who move their residence to another State
without time to qualify to vote in that State's election, I can see no
reason why Congress would exceed its powers in requiring States to
accept a proportionate share of the presidential votes of citizens of
the territories to cure the presidential disenfranchisement of a
substantial segment of the citizenry of the United States'').
\392\ Cf. U.S. CONST. amend. XXIII (giving residents of the
District of Columbia the right to vote in presidential elections).
\393\ Igartua de la Rosa v. United States, 417 F.3d 145, 147-48
(1st Cir. 2005) (en banc); see also Romeu, 265 F.3d at 122-24; Attorney
General of the Territory of Guam v. United States, 738 F.2d 1017 (9th
Cir. 1984); but cf. Igartua de la Rosa, supra, at 158-84 (Torruella,
J., dissenting) (arguing that the court should issue a declaratory
judgment to the effect that the United States ``has taken no steps to
meet its obligations under the ICCPR and customary international law to
grant equal voting rights to all citizens in the election of the
President and Vice President of the United States'').
\394\ ALEINIKOFF, supra note 299, at 90.
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But enhanced commonwealth status need not, as the CNMI precedent
shows, violate the Constitution. Rather, it could, as proposed
legislation in the early 1990s did, effectively ``make Puerto Rican
home rule similar to that of states of the Union (including a
guarantee--currently applicable to the states--that that status could
not change without consent of the people of Puerto Rico).'' \395\
Neuman and others argue that ``the pursuit of enhanced commonwealth
meets obstacles both in the federal government's unwillingness to make
such commitments and in the uncertainty over whether the federal
government has the power to do so,'' for the Constitution contains a
``fundamental republican defect, that [it] restricts national
representation to the states while giving the national organs governing
power over the territories.'' \396\
---------------------------------------------------------------------------
\395\ Id. at 88-89; but see Neuman, supra note 306, at 195-97
(arguing that ``the pursuit of enhanced commonwealth meets obstacles
both in the federal government's unwillingness to make such commitments
and in the uncertainty over whether the federal government has the
power to do so,'' for the Constitution contains a ``fundamental
republican defect, that [it] restricts national representation to the
states while giving the national organs governing power over the
territories'').
\396\ Neuman, supra note 306, at 195-97.
---------------------------------------------------------------------------
If that is correct, and enfranchisement could be accomplished only
by constitutional amendment,\397\ then enhanced commonwealth status
requires in the alternative that those national organs bind themselves
not to do what they would otherwise be constitutionally empowered to
do. The CNMI offers a blueprint for how this might be done, although
the legality of Congress's effort to constrain its own future power has
not been challenged, and hence its constitutionality remains uncertain.
That said, it has received at least limited judicial validation from
the Ninth Circuit, which, as noted, held that ``[e]ven if the
Territorial Clause provides the constitutional basis for Congress'
legislative authority in the Commonwealth, it is solely by the Covenant
that we measure the limits of Congress' legislative power.'' \398\ The
notion that ``a sitting Congress may not bind a future Congress'' is
not ``an absolute rule,'' and some precedents for such an arrangement
exist in the law governing federal Indian tribes.\399\
---------------------------------------------------------------------------
\397\ But see Romeu v. Cohen, 265 F.3d 118,127-31 (2d Cir. 2001)
(Leval, J.).
\398\ United States ex rel Richards v. Guerrero, 4 F.3d 749, 754
(9th Cir. 1993) (emphasis supplied).
\399\ ALEINIKOFF, supra note 299, at 90.
---------------------------------------------------------------------------
Jose Trias Monge quotes Justice Frankfurter, then a clerk in the
Bureau of Insular Affairs of the War Department, for the vital, if
controversial, proposition that ``[t]he form of the relationship
between the United States and unincorporated territory is solely a
problem of statesmanship;'' and that ``[o]ne of the great demands upon
inventive statesmanship is to help evolve new kinds of relationship so
as to combine the advantages of local self-government with those of a
confederated union. Luckily, our Constitution has left this field of
invention open.'' \400\ In the final analysis, the obstacles to an
enhanced commonwealth status for Puerto Rico remain more political than
legal. To date, the Supreme Court has cautiously avoided a definitive
statement on Puerto Rico's post-1952 status. It seems likely that,
whatever constitutional barriers may arguably exist, as a practical
matter, the Court would not interfere with an arrangement ratified by
the political branches and the people of Puerto Rico. Innovative
solutions to (real or perceived) constitutional barriers, such as that
proposed by Judge Leval,\401\ can be developed; the real issues are of
statesmanship and political will.
---------------------------------------------------------------------------
\400\ Trias Monge, supra note 317, at 235.
\401\ Romeu v. Cohen, 265 F.3d 118,127-31 (2d Cir. 2001) (Leval,
J.).
---------------------------------------------------------------------------
v. the right to self-determination under contemporary international law
The right to self-determination--the right of all ``peoples''
freely to ``determine their political status and freely pursue their
economic, social and cultural development'' \402\--remains, in the
twenty-first century, a bedrock principle of contemporary international
law. But it has evolved significantly in the past century. Initially
associated with Wilsonian idealism and the Treaty of Versailles peace
process that redrew the map of Europe in the wake of the First World
War, self-determination in the interwar period emerged not as a
positive ``right'' but as a political principle: ``that the new borders
of Europe would, to the extent possible, be drawn along national
lines.'' \403\ Before the U.N. Charter regime and the advent of
international human rights law, it emphatically did not mean that the
imperial powers of Europe would permit the peoples of colonized
territories to determine their political destinies.\404\
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\402\ International Covenant on Civil and Political Rights, art. 1,
Dec. 16, 1966, 999 U.N.T.S. 171; International Covenant on Economic,
Social and Cultural Rights, art. 1, Dec. 16, 1966, 9993 U.N.T.S. 3.
\403\ Diane F. Orentlicher, Separation Anxiety: International
Responses to Ethno-Separatist Claims, 23 YALE J. INT'L L. 1, 33 (1998).
The Aaland Islands affair is frequently cited as evidence that positive
international law did not at that time recognize self-determination as
a right, particularly in the form of secessionist claims. See Report of
the International Committee of Jurists Entrusted by the Council of the
League of Nations with the Task of Giving an Advisory Opinion upon the
Legal Aspects of the Aaland Islands Question, LEAGUE OF NATIONS O.J.
Spec. Supp. 3, at 5 (1920); The Aaland Islands Question: Report
Submitted to the Council of the League of Nations by the Commission of
Rapporteurs, League of Nations Doc. B7.21/68/106, at 27-28 (1921).
Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the
United Nations Era, 88 AM. J. INT'L L. 304, 304 (1994); Thomas M.
Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L.
46, 54 (1992).
\404\ Orentlicher, supra note 403, at 39.
---------------------------------------------------------------------------
Following World War II, however, in part because Germany and others
abused the idea of self-determination and related minority-rights
regimes as a pretext for aggression, international law fundamentally
reconceptualized self-determination such that it came to embody an
unequivocal international right to be free from colonial
domination.\405\ The U.N. Charter, as noted in Part I, cites as one of
its four principal purposes to ``[t]o develop friendly relations among
nations based on respect for the principle of equal rights and self-
determination of peoples,'' and Article 77 sets out the obligation of
metropolitan, imperial states progressively to promote self-government
and political independence among formerly subjugated peoples and
colonies.\406\ A series of General Assembly resolutions followed,
establishing the general framework for the process of
decolonization.\407\
---------------------------------------------------------------------------
\405\ Kirgis, supra note 403., at 305, 307-308; see also
Orentlicher, supra note 403, at 40-41 (``The `principle of self-
determination of peoples' was a natural banner for the decolonization
movement that swept the globe in the early decades of the United
Nations's life, and it took little time for this principle, previously
associated with the right of subject nationalities to form their own
state, to metamorphose into a right of colonial territories to break
free of the metropolitan state.'').
\406\ U.N. CHARTER arts. 1, 77.
\407\ G.A. Res. 421, U.N. GAOR, 5th Sess., Supp. No. 20, at 42,
U.N. Doc. A/1775 (1950); G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp.
No. 16, at 66, U.N. Doc. A/4684 (1960); G.A. Res. 2621, U.N. GAOR, 25th
Sess., Supp. No. 28, at 2, U.N. Doc. A/8028 (1970); G.A. Res. 2878,
U.N. GAOR, 26th Sess., Supp. No. 29, at 16, U.N. Doc. A/8429 (1971).
---------------------------------------------------------------------------
In 1975, in response to General Assembly Resolution 3292
(XXIX),\408\ the ICJ issued its advisory opinion in Western Sahara,
which, inter alia, affirmed the right of self-determination in the
context of decolonization.\409\ The General Assembly asked the Court to
decide whether the Western Sahara, at the time of its colonization by
Spain, was terra nullius, and if not, what legal ties existed ``between
this territory and the Kingdom of Morocco and the Maritanian entity.''
\410\ As a preliminary inquiry, the Court appraised the basic policies
governing decolonization that animated and provided the ``context'' for
Resolution 3292.\411\ It recalled its prior pronouncement in its
advisory opinion in the Namibia case: that `` `the subsequent
development of international law in regard to non-self-governing
territories, as enshrined in the Charter of the United Nations, made
the principle of self-determination applicable to all of them,' ''
\412\ and reviewed General Assembly Resolutions 1514 and 2625.
---------------------------------------------------------------------------
\408\ G.A. Res. 3292, U.N. GAOR, 29th Sess., Supp. No. 31, at 103-
04, U.N. Doc. A/9631 (1974).
\409\ 1975 I.C.J. 12 (Oct. 16).
\410\ Id. at 14.
\411\ Id. at 31.
\412\ Id. at 31 (quoting Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16,
31 (June 21)).
---------------------------------------------------------------------------
``The validity of the principle of self determination,'' the ICJ
concluded, ``defined as the need to pay regard to the freely expressed
will of peoples,'' \413\ required that it resolve the questions posed
by the General Assembly on the assumption that the people of Western
Sahara enjoy a right ``to determine their future political status by
their own freely expressed will.'' \414\ At the same time, the Court
reaffirmed that the realization of this right can take diverse forms;
international law ``leaves the General Assembly with a measure of
discretion with respect to the forms and procedures by which that right
is to be realized.'' \415\ Those forms include, as the General Assembly
stated in Resolution 1514, full sovereign statehood, free association,
and integration.\416\ Two decades later, in the East Timor case, the
Court characterized the right to self-determination, as expounded in
Western Sahara and Namibia, as erga omnes.\417\
---------------------------------------------------------------------------
\413\ Id. at 33.
\414\ Id. at 36; see also Reference re Secession of Quebec, [1998]
S.C.R. 217, 37 I.L.M. 1340 (1998), para. 114 (``The existence of the
right of a people to self-determination is now so widely recognized in
international conventions that the principle has acquired a status
beyond `convention' and is considered a general principle of
international law.''); Martti Koskenniemi, National Self Determination
Today: Problems of Legal Theory and Practice, 43 INT'L & COMP. L.Q.
241, 242 (1994) (noting that ``by the end of the 1970s most textbooks
addressed self-determination in terms of a legal principle or a right
of positive international law'').
\415\ Western Sahara, 1975 I.C.J. 12, 36 (Oct. 16).
\416\ Id. at 32 (quoting G.A. Res. 1514 (XV) (1960)).
\417\ East Timor (Port. v. Austl.), 1995 I.C.J. 90, 102 (June 30).
---------------------------------------------------------------------------
The process of decolonization peaked during the 1960s and 1970s and
wound down in the 1980s, after Palau's establishment as a freely
associated state in 1994, the Trusteeship Council of the United Nations
suspended its operations: But the contours of the right to self-
determination re-emerged as a major issue in the post-Cold War era
because of the dissolution of old states (e.g., the former Yugoslavia,
Czechoslovakia, and the Soviet Union), the emergence of new ones (e.g.,
Croatia, Slovenia, Bosnia-Herzegovina, the Czech Republic, the Slovak
Republic, Georgia, Eritrea, and so forth), and the (regrettably often
related) brutal ethnic conflicts within nation-states that had been
held together in the past by iron-fisted rule or Cold War geopolitical
forces. The question therefore arose--or, more accurately, re-emerged
from its dormancy since the interwar period--whether and, if so, under
what conditions, the right to self-determination obtains in the context
of state succession and dissolution, or of disaffection by national or
ethnic minorities.\418\
---------------------------------------------------------------------------
\418\ Koskenniemi, supra note 414, at 243; see, e.g., Opinions on
Questions Arising From the Dissolution of Yugoslavia, 31 I.L.M. 1488
(1992).
---------------------------------------------------------------------------
One of the most recent and extensive analyses of the right to self-
determination in contemporary international law appears in a decision
of the Supreme Court of Canada, Reference re Secession of Quebec.\419\
There, the Court considered the following question:
---------------------------------------------------------------------------
\419\ [1998] S.C.R. 217, 37 I.L.M. 1340 (1998).
Does international law give the National Assembly,
legislature or government of Quebec the right to effect the
secession of Quebec from Canada unilaterally? In this regard,
is there a right to self-determination under international law
that would give the National Assembly, legislature or
government of Quebec the right to effect the secession of
Quebec unilaterally?\420\
---------------------------------------------------------------------------
\420\ Id., para. 2.
The Court emphasized at the outset that notwithstanding the right
to self-determination recognized by contemporary international
law,\421\ that law contains a strong presumption against unilateral
secession.\422\ In general, in the modem era, the right to self-
determination must be exercised within a framework that respects the
territorial integrity of sovereign states.\423\ The Court, following
terminology introduced by a number of commentators, referred to this as
``internal self-determination--a people's pursuit of its political,
economic, social and cultural development within the framework of an
existing state.'' \424\
---------------------------------------------------------------------------
\421\ Id., paras. 114-21 (canvassing relevant provisions of the
U.N. Charter, General Assembly resolutions, and other documents
affirming the right to self-determination).
\422\ Id., paras. 111-12; see also id. at para. 131 (``[T]he
general state of international law with respect to the right to self-
determination is that the right operates within the overriding
protection granted to the territorial integrity of `parent' states.'').
\423\ Id. paras. 122, 131.
\424\ Id., para. 126 (emphasis supplied).
---------------------------------------------------------------------------
By contrast, an external right to self-determination--that is to
say, the right of a people to choose independence, free association or
integration in accordance with Principle VI of the Annex to General
Assembly Resolution 1541 (XV)--arises ``only in the most extreme cases
and, even then, under carefully defined circumstances.'' \425\ The
Court specified three contexts in which international law recognizes
(or may recognize) an external right to self-determination: first, in
the context of decolonization, a right the Court described as ``now
undisputed''; second, ``where a people is subject to alien subjugation,
domination or exploitation outside the colonial context''; and third,
``as a last resort,'' where ``a people is blocked from the meaningful
exercise of its right to self-determination internally,'' or put
differently, ``where a definable group is denied meaningful access to
government to pursue their political, economic, social and cultural
development.'' \426\ Quebec, the Court concluded, clearly did not fall
within either of the first two categories. Nor could it be contended
that Quebec fell into the third category, for the people of Quebec
could not
---------------------------------------------------------------------------
\425\ Id.
\426\ Id., paras. 132-34, 138 (emphasis supplied).
plausibly be said to be denied access to government.
Quebecers occupy prominent positions within the government of
Canada. Residents of the province freely make political choices
and pursue economic, social and cultural development within
Quebec, across Canada, and throughout the world. The population
of Quebec is equitably represented in legislative, executive
and judicial institutions.\427\
---------------------------------------------------------------------------
\427\ Id., para. 136.
In short, contemporary international law continues to embrace a
robust right to self-determination in the context of decolonization.
That right has been characterized as a general principle of
international law, ``undisputed,'' ``erga omnes,'' and even, at times,
as ``jus cogens.'' Outside of the context of decolonization, however,
international law presumes that self-determination will be fulfilled
internally, through the political channels available in states; and, if
necessary, by affording special protections to national
minorities.\428\
---------------------------------------------------------------------------
\428\ International Covenant on Civil and Political Rights, art.
27, Dec. 16, 1966, 999 U.N.T.S. 171; see Franck, supra note 403, at 58
(observing that the Covenant ``makes an important distinction between
[the] right of each nation's collective polis [`to determine their
collective political status through democratic means'] and the rights
of minorities within each state,'' which enjoy a more limited ``
`right, in community with the other members of their group, to enjoy
their own culture, to profess and practice their own religion, or to
use their own language' '').
---------------------------------------------------------------------------
In the Quebec decision, the Supreme Court of Canada confronted (and
predicated its decision on) Quebec's status as an integrated province
within a federation. Hence, strict application of the Quebec precedent
to the circumstances of Puerto Rico--an external, unintegrated island,
acquired by conquest--is doubtful. But for Puerto Rico, two important
conclusions. emerge from this general review of the conditions for
self-determination: First, because the right to self-determination is
at its strongest in the context of decolonization, Puerto Rico's
colonial origins validate its continuing right to external self-
determination. The right to self-determination for a colonized people
is a continuing one; it does not terminate with the first act of
collective political expression. Hence, for example, Eritrea, which
originated as an Italian colony in the late nineteenth century, became,
in 1950, an autonomous unit federated with Ethiopia pursuant to General
Assembly Resolution 390A (V); in 1962, reunified with Ethiopia; and in
1993, declared its independence and seceded to form an independent
state.\429\ The clear lesson is that if the arrangement initially
adopted by a former colony proves unsatisfactory, its people enjoy the
right to opt for a new status--be it independence, free association or
integration into an existing state.\430\
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\429\ For an overview, see generally Minasse Haile, Legality of
Secessions: The Case of Eritrea, 8 EMORY INT'L L. REV. 479 (1994).
\430\ Hence, for example, the FAS may terminate their compacts with
the United States with six months' notice, provided they follow
specified procedures, although certain elements of the compacts persist
beyond termination (notably the security and defense arrangements).
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Second, the Canadian Supreme Court correctly observed that the
status of the third ``extreme circumstance'' potentially justifying
external self determination--where a people lacks meaningful access to
government, an indispensable political tool for realizing self-
determination internally--remains unresolved under international law.
But insofar as meaningful access to the national government constitutes
an essential feature of genuine self-determination by either free
association or integration, it is intolerable that Puerto Rico
continues to lack representation in the federal government of the
United States, even though the political branches of that government,
as explained in Part IV, legally recognize no limits on their asserted
plenary power over Puerto Rico.
These two circumstances--Puerto Rico's colonial origins and its
lack of legal access to a national government that exercises total
authority over it--establish an extremely strong case in favor of
Puerto Rico's continuing right to external self-determination under
contemporary international law.
vi. the right to self-determination under u.s. law
The right to self-determination, as understood in international
law, is not part of U.S. constitutional jurisprudence. The term appears
in federal Indian law.\431\ But the federal Indian tribes enjoy a sui
generis status based on the Constitution's text and a long
constitutional tradition that singles them out for special treatment as
``wards'' of the federal government.\432\ The extension of analogous
principles to Puerto Rico would be unlikely.\433\ And while the United
States has ratified the International Covenant on Civil and Political
Rights, Article 1 of which guarantees the right to self determination,
it did so subject to a declaration that the treaty is non-self-
executing.\434\
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\431\ See, e.g., Morton v. Mancari, 417 U.S. 535, 551-55 (1974)
(sustaining employment preference for Indians against an equal
protection challenge because it furthers the rational goal of promoting
Indian self-governance); see id. at 544 n.15 (referring to Congress's
desire ``to promote economic and political self-determination for the
Indian'') (internal quotation marks and citation omitted).
\432\ U.S. CONST. art. I, 8, cl. 3; see Morton, 417 U.S. at 551-
52 (``The plenary power of Congress to deal with the special problems
of Indians is drawn both explicitly and implicitly from the
Constitution itself.'').
\433\ Cf. Rice v. Cayetano, 528 U.S. 495, 519-20 (2000) (rejecting
the analogy between Native Hawaiians and the federal Indian tribes in
the equal protection context).
\434\ 138 Cong. Rec. S4781, 24784 (Apr. 2, 1992); see Sosa v.
Alvarez-Machain, 542 U.S. 692, 728 (2004). But see U.N. Human Rights
Committee, General Comment No. 24: On Issues Relating to Reservations
Made Upon Ratification or Accession to the Covenant or the Optional
Protocols Thereto, or in Relation to Declarations under Article 41 of
the Covenant, para. 21, CCPR/C/21/Rev.1/Add.6 (1994), 34 I.L.M. 839
(1995) (taking the position that general reservations of this sort,
would be incompatible with the object and purpose of the ICCPR and
therefore impermissible as a matter of international law, and hence
``reservations should not systematically reduce the obligations
undertaken [by a state party] only to the present existing and less
demanding standards of domestic law'').
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Nevertheless, politically, historically, and culturally, self-
determination lies at the foundation of the United States government.
The Declaration of Independence, after all, reflects one of the
earliest assertions or antecedents of this right.\435\ Of course, the
United States has not always been true to these founding principles; it
engaged in imperial adventures and colonialism in the nineteenth and
early twentieth centuries, in one of which it acquired Puerto Rico. But
in the modem era, the United States recognizes the right of self
government as axiomatic. It is virtually unimaginable that were the
people of Puerto Rico to express a clear desire for independence and
full sovereign statehood, the United States would stand in the way.
Indeed, as Senate Bill 2304 of 2006, the ``Puerto Rico Self
Determination Act of 2006,'' suggests, the United States, by all
indications, appears ready actively to support ultimate resolution of
Puerto Rico's status,\436\ though it will not, it seems, take the
initiative in the absence of a clear popular mandate from the Puerto
Rican people.
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\435\ ALFRED COBBAN, THE NATION STATE AND NATIONAL SELF-
DETERMINATION 114 (1969).
\436\ S. 2304, 109th Cong., 2d Sess. (2006).
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vii. potential fora for vindicating the right to self-determination
Assuming clear popular support for self-determination and a refusal
by the United States to accommodate Puerto Rico's wishes, what options
would be available to Puerto Rico should it wish to pursue its right to
self-determination through international processes?\437\
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\437\ We assume that claims to self-determination by individuals,
while a majority of the population manifestly and freely prefers the
status quo, would not have traction in international processes.,
Individuals would, however, have standing if they could demonstrate the
denial of individual human rights, such as the franchise.
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A. Organization of American States: The Inter-American Commission on
Human Rights
The United States is a party to the 1948 Charter of the
Organization of American States (OAS),\438\ which, simultaneous with
its establishment, adopted the American Declaration of the Rights and
Duties of Man, which may be taken as an authoritative explication of
the human rights provisions of the OAS Charter.\439\ As relevant here,
Article II guarantees to all persons equality before the law ``without
distinction as to race, sex, language, creed or any other factor,'' and
Article XX of the American Declaration affirms that ``[e]very person
having legal capacity is entitled to participate in the government of
his country, directly or through his representatives, and to take part
in popular elections, which shall be by secret ballot, and shall be
honest, periodic and free.'' \440\ The United States has also signed,
but not ratified, the American Convention on Human Rights, which
likewise guarantees the rights to equal protection and meaningful
participation in government, including the right to vote.\441\
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\438\ Charter of the Organization of American States, Apr. 30,
1948, 2 U.S.T. 2394, 119 U.N.T.S. 3.
\439\ American Declaration of the Rights and Duties of Man, O.A.S.
Res. XXX, Ninth Int'l Conf. of Am. States, OEA/Ser. L./V/I.4, rev.
(1965) (adopted Mar. 30-May 2, 1948).
\440\ Id., arts. II, XX.
\441\ American Convention on-Human Rights (Pact of San Jose), Nov.
22, 1969, arts. 23-24, 1144 U.N.T.S. 123, O.A.S. T.S. No. 36.
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Relative to OAS member states not party to the American Convention,
the Statute of the Inter-American Commission on Human Rights vests it
with jurisdiction
to examine communications submitted to it and any other
available information, to address the government of any member
state not a Party to the Convention for information deemed
pertinent by this. Commission, and to make recommendations to
it, when-it finds this appropriate, in order to bring about
more effective observance of fundamental human rights . .
.\442\
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\442\ Statute of the Inter-American Commission on Human Rights,
art. 20(b), O.A.S. Res. 447, 9th Sess., 0AS/Ser.L/VII.4, rev. 8 (1979);
see also id., art. 18 (setting forth the powers of the Commission
relative to member states of the OAS, including the power to make
inquiries to governments, prepare recommendations, and undertake
studies on human rights); id., art. 1 (instructing the Commission to
understand ``human rights'' in relation to states not party to the
American Convention as those ``rights set forth in the American
Declaration'').
Because jurisdiction under Article 18 of the Statute does not
require that the communication be from another state party to the OAS
Charter, Puerto Rico, as a collective entity, or individual Puerto
Ricans would be able to submit a petition alleging violation of the
rights set forth in the American Declaration based on either or both
its disenfranchisement from national politics in the United States and
the asserted power to treat Puerto Ricans differently under the
Constitution based on their residence.\443\ While the American
Declaration does not contain explicit reference to the right to self
determination, it may plausibly be argued that the customary nature of
this right in the decolonization context renders it within the
Commission's mandate to examine insofar as it addresses violations of
Article XX on the right to participate meaningfully in government.
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\443\ See ALEINIKOFF, supra note 229, at 79 (noting that the
distinction drawn by Congress in Harris v. Rosario, 446 U.S. 651
(1980), which sustained the disparate treatment of Puerto Ricans under
the federal Aid to Families with Dependent Children program, ``is one
based simply on residence in a territory; it is grounded, when all is
said and done, not on different facts but on status of place'').
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B. The International Court of Justice
The International Court of Justice (ICJ) has contentious
jurisdiction. only over states parties to the statute,\444\ except in
the unlikely event of a Security Council referral.\445\ Even then, only
states may be parties to cases.\446\ Even assuming these hurdles could
be overcome, however, the Court would likely lack jurisdiction, for the
ICJ can only adjudicate contentious cases based on state consent,
either by special agreement or through a prior declaration in a treaty
referring disputes to the Court. In short, Puerto Rico would lack
standing to pursue its right to self-determination through the ICJ, and
the Court would in any event lack jurisdiction over the United States
in the absence of its consent. No treaty to which the United States is
party would furnish grounds for jurisdiction.
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\444\ Statute of the International Court of Justice, June 26, 1945,
arts. 35(1) [hereafter ICJ Statute].
\445\ Id., art. 35(2).
\446\ Id., art. 34(1). Puerto Rico may seek to become a party to
the Statute in the future, although the success of its application
remains uncertain, see REISMAN, supra note 1, at 68-79, and in any
event, ``[u]nder international precedents, a Puerto Rican (who is
perforce a citizen of both Puerto Rico and the U.S.) could not sue the
United States in the I.C.J. through the mediation of Puerto Rico.'' Id.
at 79. The United States would also be certain to oppose Puerto Rico's
membership application were that application for the express purpose of
bringing suit against it in the ICJ.
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The Statute also vests the ICJ with jurisdiction to ``give an
advisory opinion on any legal question at the request of whatever body
may be authorized by or in accordance with the Charter of the United
Nations to make such a request.'' \447\ The U.N. Charter, in turn,
expressly gives the General Assembly and the Security Council the right
to request advisory opinions from the Court, and ``[i]t is . . . a
precondition of the Court's competence that the advisory opinion be
requested by an organ duly authorized to seek it under the Charter,
that it be requested on a legal question, and that, except in the case
of the General Assembly or the Security Council, that question should
be one arising within the scope of the activities of the requesting
organ.'' \448\ While possible, as a practical matter, Puerto Rico would
likely find it difficult to mobilize the political support required for
the General Assembly to request an advisory opinion.
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\447\ ICJ Statute, art. 65(1).
\448\ U.N. CHART. art. 96(1); see, e.g., Application for Review of
Judgment No. 273 of the United Nations Administrative Tribunal, 1982
I.C.J. 325, 333-34 (July 20) (``It is . . . a precondition of the
Court's competence that the advisory opinion be requested by an organ
duly authorized to seek it under the Charter, that it be requested on a
legal question, and that, except in the case of the General Assembly or
the Security Council, that question should be one arising within the
scope of the activities of the requesting organ.'').
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C. U.N. General Assembly: Espousal by Another State
Puerto Rico may, however, be able to raise its grievances in the
General Assembly if it can convince a member state to espouse its
cause. This has, as noted above, happened in the past even without
Puerto Rico's initiative, partially because of Soviet and Cuban
agitation during the Cold War era. The Committee of 24 adopted
resolutions critical of U.S. treatment of Puerto Rico in 1972, 1973,
and 1978.\449\ Because the United Nations views Puerto Rico as a
distinct entity and, as a former trust territory, a subject of ongoing
and legitimate international concern, the General Assembly may well be
receptive to allegations that the Compact, notwithstanding previous
representations of the United States, has failed in practice to provide
the Puerto Rican people with genuine self-determination.
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\449\ See, e.g., Letter dated 9 February 1972 from the Permanent
Representative of Cuba to the United Nations addressed to the Chairman
of the Special Committee, U.N. GAOR Special Comm. on the Situation with
Regard to the Implementation of the Declaration of the Granting of
Independence to Colonial Countries and Peoples, U.N. Doc. AIAC.109/392
(1972); U.N. GAOR, 27th Sess., Supp. No. 23, at 31, U.N. Doc. AI8723/
Rev. 1.(1972), see also Jose A. Cabranes, Citizenship and the American
Empire, 127 U. PA. L. REV. 391, 399 n.22 (1978) (noting that ``[t]he
subject of Puerto Rico's status has been before the United Nations
General Assembly, in one form or another, since the organization's
founding,'' as well as before the House of Representatives and other
domestic fora; collecting authorities).
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D. The Human Rights Committee and the ICCPR
A final option would be for Puerto Ricans to seek to intervene
before the Human Rights Committee, the human rights treaty-body
established by the ICCPR.\450\ The ICCPR contains several provisions
relevant to Puerto Rico's circumstances, foremost among them, (1) the
right to self determination;\451\ (2) the right to participate
meaningfully ``in the conduct of public affairs, directly or through
freely chosen representatives,'' which includes the right to vote;\452\
and (3) the right to equal protection before the law without
discrimination.\453\
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\450\ See ICCPR, Pt. IV.
\451\ Id., art. 1.
\452\ Id., art. 25.
\453\ Id., art. 26.
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Because the United States has not made a declaration under Article
41 recognizing the Committee's competence to receive communications
from another state or ratified the First Optional Protocol to the
ICCPR, which permits individuals to bring complaints,\454\ Puerto
Rico's sole option would be to submit an intervention or ``shadow
report'' to the Human Rights Committee when it next considers the
United States's periodic report on compliance and implementation. All
parties to the ICCPR, including the United States, must submit periodic
reports ``on the measures they have adopted which give effect to the
rights recognized [in the Covenant] and on the progress made in the
enjoyment of those rights,'' as well as ``the factors and difficulties,
if any, affecting the implementation of the . . . Covenant.'' \455\ The
Committee studies these reports, hears from and questions
representatives of the states parties, as well as non-governmental
organizations and other accredited persons or entities,\456\ and
subsequently issues reports and recommendations. While the Committee
cannot issue binding ``judgments'' that would require the United States
to take certain actions, its ``general comments'' and ``concluding
observations'' can be an effective means to mobilize political
constituencies or draw attention to neglected human rights issues.
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\454\ See id., art. 41; Optional Protocol to the International
Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N.
GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302.
\455\ Id., art. 40.
\456\ For information on the logistics of intervention before the
Human Rights Committee, see Office of the United Nations High
Commissioner for Human Rights, Human Rights Committee, at <http://
www.ohchr.org/english/bodies/hrc/>.
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While the United States ratified the ICCPR subject to a declaration
purporting to render the substantive provisions of the ICCPR non-self-
executing i.e., without force or effect as a matter of domestic law
unless and until Congress implements the Covenant obligations by
statute--the Human Rights Committee has suggested that such a
declaration cannot be permitted, for it contravenes the object and
purpose of the Convention.\457\ Note also that in Igartua de la Rosa v.
United States, two respected judges of the First Circuit agreed that
the Senate's non-self-executing declaration should not bind the courts,
which must make an independent judgment on the issue.\458\ And as Judge
Torruella emphasized, even were the non-self-executing declaration
deemed lawful,
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\457\ U.N. Human Rights Committee, General Comment No. 24: On
Issues Relating to Reservations Made Upon Ratification or Accession to
the Covenant or the Optional Protocols Thereto, or in Relation to
Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6
(1994), 34 I.L.M. 839 (1995).
\458\ Igartua de la Rosa v. United States, 417 F.3d 145, 173-74
(1st Cir. 2005) (Torruella, J., dissenting); id. at 184 (Howard, J.,
dissenting).
it is an undisputed fact that, contrary to the requirements
of Article 2, Paragraph 2 of the ICCPR, the United States has
taken no steps, to date, to implement the obligations
undertaken therein. More directly on point, the United States
has not enacted any legislation, passed any constitutional
provision, or even put in motion any process directed at
nationally enfranchising the nearly four million United States
citizens residing in Puerto Rico, notwithstanding its
ratification of the ICCPR and the Senate's acknowledgment
``[t]hat the United States understands that this Covenant shall
be implemented by the Federal Government.'' 138 Cong. Rec.
S4781, S4784 (emphasis added). Accordingly, the United States
is not in cots Dliance with the binding obligations it
undertook by signing and ratifying the ICCPR.\459\
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\459\ Id. at 175 (Torruella, J., dissenting).
Whatever the ultimate conclusion of the federal courts on this
issue,\460\ the Human Rights Committee would surely be receptive to
such an argument.
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\460\ As noted above, Judge Torruella, but not the majority, would
have reversed the district court's decision and remanded the case ``for
the entry of a declaratory judgment to the effect that the United
States has taken no steps to meet its obligations under the ICCPR and
customary international law to grant equal voting rights to all
citizens in the election of the President and Vice President of the
United States.'' Id. at 184.
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conclusion
As a matter of international law, since 1952, Puerto Rico has
ostensibly existed as a state freely associated with the United States
of America. Yet the government of the United States, particularly the
political branches but also the judiciary, continues to treat the
Compact as legally non-binding and to assert that Congress retains
plenary power to govern Puerto Rico, subject only to a nebulous
constraint of ``fundamental'' rights, as an ``unincorporated
territory'' under the doctrine of the Insular Cases. Because Congress
has, for the most part, not interfered overly in the local governance
of Puerto Rico, the status quo strikes many as acceptable.
But Puerto Ricans did not opt to remain a colony of the United
States; they elected free association as defined by Public Law 600
``adopted in the nature of a compact.'' Because the Puerto Rican
people's right to self-determination originated in the context of
decolonization (rather than succession, dissolution or the asserted
right of an ethnic or national minority to secede), it remains a robust
and undisputed right under international law.
Moreover, as a continuing right, it did not terminate simply by
virtue of the Compact, particularly insofar as the United States can be
said to have failed to implement its obligations under that Compact and
pursuant to unilateral declarations made on behalf of President
Eisenhower at the time the United Nations removed Puerto Rico from its
list of non-self-governing territories.
International law continues to protect the Puerto Rican people's
right to self determination, and international processes, while
limited, may aid in restoring the question of Puerto Rico's ultimate
status to the global or U.S. agenda. That said, the ultimate resolution
of Puerto Rico's future status, especially in view of the United
States's apparent willingness to accede to whatever political
arrangement the Puerto Rican people adopt in a free and fair electoral
process, will be achieved through negotiations between Puerto Rico and
the United States based on a formal or de facto plebiscite.\461\
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\461\ S. 2304 3, 109th Cong., 2d Sess. (2006) (authorizing a
constitutional convention for the purpose of proposing to Congress (1)
``a new or amended compact of association''; (2) ``the admission of the
Commonwealth as a State in the United States''; or (3) ``the
declaration of the Commonwealth as an independent country'').
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Should Puerto Rico decide that an ``enhanced'' commonwealth status
best serves its long-term interests, U.S. constitutional law, in our
view, would likely be able to accommodate that arrangement--whether by
a more detailed and explicit compact modeled on that of the CNMI or by
legislative action or constitutional amendment to enfranchise the
Puerto Rican people vis-a-vis the national government; the barriers to
enhanced commonwealth status are more political than legal. Mobilizing
a clear majority in Puerto Rico in favor of another self-determination
option therefore remains a likely prerequisite to any modification of
the status quo.