If voters choose independence/free association over statehood in the June 11 plebiscite, another vote will be held on October 8 between free association and full independence without free association. If free association wins the October 8, vote the local government will appoint a Transition Commission to consult with the federal government on implementation of the plebiscite results.
Based on certification and transmission of the plebiscite results, the Transition Commission would seek timely consultation with officials of the Executive Branch of the federal government and Congress designated to manage Puerto Rico political status matters. For the Transition Commission, the purpose of this consultation would be to reach agreement on general terms and a framework for negotiations on transition to separate sovereign nationhood with a compact treaty of free association.
In that context, the U.S. approach will take into account and will be substantially based on precedents of law and policy established by free association treaties approved by Congress for other former U.S. governed territories by 1986. Also relevant will be the record of past Congressional oversight and deliberations on free association as a status option for Puerto Rico.
Could Puerto Ricans in a Free Associated State keep their U.S. citizenship?
Based on those precedents and the record in Congress, the structure and nature of a free association government-to-government relationship with separate sovereignty is well established under U.S. law and international law recognized by the U.S. federal government. However, on the central and crucial matter of transition from American national citizenship to Puerto Rico national citizenship there is no precedent for free association with continued U.S. citizenship, and there are legal as well as policy reasons why the U.S. will be limited to negotiation of terms to end U.S. citizenship in Puerto Rico, not continue it.
Thus, it can be anticipated that instead of free association with U.S. citizenship it is more likely that the U.S. would propose to begin the phase-out of U.S. citizenship in anticipation of independence with or without agreement on free association. Congressional leaders in the past have proposed that conferral of new U.S. citizenship could end even before territorial status is terminated and free association begins. In other words, babies born in Puerto Rico after a vote for Free Association would not be U.S. citizens.
While negotiations on terms of free association could begin during the territorial period, the international agreement on free association would not enter into force until Puerto Rico ceases to be a territory and has a new status based on its right to independence. Unlike the free association compacts previously adopted, in the case of Puerto Rico there is no known reason at this time the federal government would to require free association to begin immediately upon termination of territorial status in favor of independence, but Puerto Rico might want free association status to commence with at most a “scintilla moment” of independence in order to ensure the U.S. immediately would assume its obligations under the treaty.
Comparing the domestic and international contexts, if Puerto Rico were to “hold out” for a “better deal” than the small free associated micro-nations in the Pacific, it is probable that the U.S. will be less able to accommodate unprecedented features for affiliation under free association status than it was in 1986. The small size and unique history of U.S. relations with those micro-nations gave the U.S. a relatively greater range of choices in constitutional, legal and policy arrangements that could not be duplicated in dealing with the large population and history of Puerto Rico as a U.S. territory.
What if Puerto Rico and the U.S. can’t agree on a Compact of Free Association?
It is possible that agreement could not the reached on terms for moving forward with implementation of independence with a treaty of free association, based on the democratic act of self-determination approving independence/free association. In that case, Puerto Rico or the U.S. could propose terms for independence, and Puerto Rico or the U.S. even could unilaterally declare Puerto Rico independent, and continue negotiations on future relations, in this case including free association. That is what other administering powers have done in the past when territorial governments did not agree to terms for transition based on the right of both governments to independence.
The Puerto Rico Transition Commission is also authorized to take whatever “political and legal” actions it determines necessary to implement the self-determination of the voters in the plebiscite, and could seek federal court relief or propose that the territorial government institute other measures to end the current status and seek separate sovereign nationhood.
If free association is achieved, whether it lasts decades or is terminated sooner by agreement or unilateral action, the parties can agree to fulfill some or all obligations under the treaty during the transition to independence for both nations. However, the territory has no claim or right to return to any status under U.S. sovereignty or to recover U.S. citizenship once terminated. Puerto Rico could not become either a state or a territory — the only constitutional relationships between the U.S. and a possession — after declaring independence.