By Ambassador Fred M. Zeder II

Consistent with relevant resolutions of the U.N. General Assembly, Puerto Rico's options for full self-government are: Independence (Example: Philippines); Free Association (Example: Republic of the Marshall Islands); Integration (Example: Hawaii). See, G.A. Resolution 1514 (1960); G.A. Resolution 1541 (1960); G.A. Resolution 2625 (1970).

For purposes of international law including the relevant U.N. resolutions international conventions to which the U.S. is a party, the current status of Puerto Rico is best described as substantial but incomplete integration. This means that the decolonization process that commenced in 1952 has not been fulfilled.

As a matter of U.S. domestic constitutional law, a territory within U.S. sovereignty which has internal constitutional self-government but is not fully integrated into the national system of political union on the basis of equality remains an unincorporated territory, and can be referred to as a "commonwealth." (Example: Puerto Rico and the Northern Mariana Islands).

For purposes of U.S. constitutional law, independence and free association are status options which are created and exist on the international plane. Thus, instead of the sovereign primacy of Congress under the territorial clause, the sources of constitutional authority with respect to nations with separate sovereignty include the article II, section 2 treaty-making power and the applicable article I, section 8 powers of Congress such as that relating to nationality and immigration law.

Relations between the U.S. and a nation which is independent or in free association are conducted on the basis of international law. Thus, independence and free association are status options which would remove Puerto Rico from its present existence within the sphere of sovereignty of the United States and establish a separate Puerto Rican sovereignty outside the political union and federal constitutional system of the United States.

Instead of completing the integration process through full incorporation and statehood, either independence or free association would "dis-integrate" Puerto Rico from the United States. This would terminate U.S. sovereignty, nationality and citizenship and end application of the U.S. Constitution in Puerto Rico. In other words, the process of gradual integration which began in 1898, and which was advanced by statutory U.S. citizenship in 1917 and establishment of constitutional arrangements approved by the people in 1952, would be terminated in favor of either independence or free association.

Under either independence or free association the U.S. and Puerto Rico could enter into treaties to define relations on a sovereign-to-sovereign basis. Free association as practiced by the U.S. is simply a form of independence in which two sovereign nations agree to a special close relationship that involves delegations of the sovereign powers of the associated to the United States in such areas as defense and other governmental functions to the extent both parties to the treaty-based relationship agree to continue such arrangements.

The specific features of free association and balance between autonomy and interdependence can vary within well-defined limits based on negotiated terms to which both parties to the arrangement have agreed, but all such features must be consistent with the structure of the agreement as a treaty-based sovereign-to-sovereign relationship. In U.S. experience and practice, even where free association has many features of a dependent territorial status the sources and allocation of constitutional authority triggered by the underlying separation of sovereignty, nationality and citizenship causes the relationship to evolve in the direction of full independence rather than functional re-integration.

Free association is essentially a transitional status for peoples who do not seek full integration, but rather seek to maintain close political, economic and security relations with another nation during the period after separate sovereignty is achieved. Again, this could be accomplished by treaty between independent nations as well. Thus, free association is a form of separate sovereignty that usually arises from the relationship between a colonial power and a people formerly in a colonial status who at least temporarily want close ties with the former colonial power for so long as both parties agree to the arrangements.

Free association is recognized as a distinct form of separate sovereignty, even though legally it also is consistent with independence. Specifically, free association is consistent with independence because, as explained below, the special and close bilateral relationship created by a free association treaty or pact can be terminated in favor of conventional independence at any time by either party.

In addition, the U.S. and the international community have recognized that a separate nation can be a party to a bilateral pact of free association and be an independent nation in the conventional sense at the same time. For example, the Republic of the Marshall Islands is party to the Compact of Free Association with the United States, but has been admitted to the United Nations as an independent nation.

Thus, the international practice regarding free association actually is best understood as a method of facilitating the decolonization process leading to simple and absolute independence. Essentially, it allows new nations not prepared economically, socially or strategically for emergence into conventional independence to achieve separate nationhood in cooperation with a former colonial power or another existing nation.

Under international law and practice including the relevant U.N. resolutions and existing free association precedents, free association must be terminable at will by either party in order to establish that the relationship is consistent with separate sovereignty and the right of self-determination is preserved. This international standard, also recognized by the U.S., is based on the requirement that free association not be allowed to become merely a new form of internationally accepted colonialism.

Specifically, free association is not intended to create a new form of territorial status or quasi-sovereignty. It is not a "nation-within-a-nation" relationship or a form of irrevocable permanent union, but is, again, a sovereign-to-sovereign treaty-based relationship which is either of limited duration or terminable at will by either party acting unilaterally.

In other words, both parties have a sovereign right to terminate the relationship at any time. The free association treaty may provide for the terms and measures which will apply in the event of unilateral termination, but the ability of either party to do so can not be conditioned or encumbered in such a manner that the exercise of the right to terminate the relationship effectively is impaired or precluded.

For that reason, the territory and population of each nation involved must be within the sovereignty, nationality and citizenship of that nation, and the elements and mechanisms of the free association relationship must be defined consistent with that requirement. Separate and distinct sovereignty and nationality must be established at the time of decolonization and preserved under the relationship or the ability of either party to terminate will be impaired.

Thus, the major power may grant to people of the free associated nation special rights normally associated with the major power's own citizenship classifications, such as open immigration and residence rights.

However, these arrangements are subject to the same terminality as the overall relationship, and thus may be either for a limited duration or subject to unilateral termination by either party at any time.

Consequently, there can be no permanent mass dual nationality because this would be inconsistent with the preservation of the underlying separate sovereignty. Any special rights or classifications of the major power extended to the people of a free associated nation are more in the nature of residency rights and do not prevent either nation from exercising separate sovereignty with respect to the nationality its own population.

Upon termination of the free association relationship by either party, any such classifications or special residency rights will be subject to unilateral termination as well. Both during and after any period of free association, the people of each of the two nations will owe their allegiance to and have the separate nationality of their own country. Any attempt to deviate from these norms of international law and practice would undermine the sovereignty of both nations, as would impair the right of self-determination which must be preserved to ensure the relationship is based on consent rather than coercion.

In summary, the United States recognizes each of the three U.N. accepted status options for Puerto Rico to achieve full self-government. One of those options, integration, is within U.S. sovereignty and the federal political union, the other two, independence and free association, exist without U.S. sovereignty, nationality and citizenship.

Obviously, Puerto Rico can not act unilaterally to establish a new status. This is so not only because of U.S. sovereignty and the authority of Congress under the territorial clause, but also because Puerto Rico seeks the agreement of the U.S. to the terms under which any of these options would be implemented. This means Congress must agree to the terms under which a new status is defined and implemented.

There is no right on the part of Puerto Rico unilaterally to define its relationship with the United States.

Nor would it be consistent with U.S. commitments to respect the right of self-determination for non-self-governing people under U.S. administration to dispose of the territory of Puerto Rico in a manner which does not take into account the freely expressed wishes of the residents.

Thus, as the two parties which must define and carry out a future relationship based on consent and the right of self-determination which each must exercise, Congress, on behalf of the United States, and the people of Puerto Rico, acting through their constitutional process, must decide whether decolonization will be completed through completion of the process for integration into union or separation and nationhood apart from the U.S. for Puerto Rico.

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