For decades the United States Congress abdicated its duty to manage resolution of the political status of Puerto Rico based on the U.S. national interest and fully informed democratic self-determination. This has denied the choice of freedom and equality to millions of U.S. citizen residents living in the territory since it has been within the national borders of the United States.
During this period of Congressional abdication ambiguity about the legal status of the territory was encouraged, promoted and exploited by the anti-statehood faction in Puerto Rico. The anti-statehood “commonwealth” party was bankrolled by corporations profiting from federal tax shelters, protected by allies in the Washington world of pay to play anti-statehood Congressional lobbyists.
This anti-statehood collusion prevented Puerto Rico from being integrated into the social, political and economic life of the nation. Falsely referring to the territorial commonwealth as a “country,” promoters of the anti-statehood “commonwealth” scam ensured Puerto Rico was denied sustainable economic diversification and instead become hooked and addicted to federal subsidization of the local commonwealth regime.
This lack of market driven sustainable economic diversification is what led to Puerto Rico’s debt crisis, not the end of the federal corporate welfare tax scams and federal subsidization that made the debt crisis inevitable. It was the “commonwealth” regime and the local “commonwealth” political party that acted as a colonialist junta and delivered Puerto Rico to failed client state status, not the PROMESA control board that also will fail if it does not restore diversified market driven economic vitality and democratic self-determination.
It is in that context that the U.S. citizens of Puerto Rico voted for statehood in 2012. Now as we prepare for a 2017 vote to confirm the 2012 vote for full and equal integration into the social, political and economic life of the United States, those in Puerto Rico who remain fixated on anti-statehood ideology are once again touting the “free associated state” status option.
The U.S. Congress has been derelict in governing the territory of Puerto Rico, but it is not dishonest or stupid enough to continue the current relationship between Puerto Rico and re-name it “free association.” Free association is not another name for perpetual bailout or dependence, and it is not a viable last resort to forestall statehood.
Free association is an association because it is not union and it is free because either party can end it at will. If it is to appear on the 2017 ballot, it needs to be defined as a form of independence with a treaty of alliance between two sovereign nations that is terminable in favor of independence without alliance or association.
Here, then, is a primer on what free association will mean if it is on the ballot in a 2017 status referendum:
- Free association is an international political status, it does not exist under domestic U.S. law but rather as provided by a treaty of association. It is a political status recognized under international law, including United Nations General Assembly resolutions. As such it is a sovereign, democratic, self-governing and decolonizing status.
- Free association is implemented under U.S. law by a treaty or international agreement approved by both governments in accordance with their respective constitutional process for ratifying international instruments.
- Free association is not a permanent constitutionally defined status, it is a statutorily approved status that continues only as long as the agreement creating the association remains in effect. It is a sovereign right of either party to terminate the agreement. The relationships of free association that the U.S. has at present have to be renegotiated every 5 years.
- Free association with the U.S. is different than with any other nation, because the U.S. Constitution defines a unique form of federalism in which federal and state government powers are limited. Statehood, territorial status and the federal district which is the seat of our national governments are the only domestic forms of political status that are constitutionally defined for a territory and people under U.S. national sovereignty.
- Free association is a status that is international and not domestic, defined by an agreement approved by federal law but not the federal constitution itself. The features of free association must conform to a bilateral government-to-government foreign relations model.
- Because free association is a sovereign-to-sovereign alliance recognized as a non-colonial status, the Constitution of the U.S. is not the supreme law of the land in the free associated state (FAS). Rather, the FAS is sovereign and its constitution is the supreme law of the land.
- The Constitution of the U.S. and federal law do not apply directly by their own force in a free associated state, and any U.S. activities in the FAS are governed by the association agreement and international diplomatic conventions.
- Each party must be sovereign under its respective constitution so that it can function as a fully independent nation if free association is terminated by either party acting unilaterally.
- Free association is not independence, but it must be consistent with the right of each party to independence. That means each party retains the sovereign right to end the association and be independent of the other party without association.
- While provisions can be made for an orderly transition, the end result of termination is independence. If termination required mutual consent, that would mean each party would have a veto power over the sovereign independence of the other party. That would mean the association is not free, and would remain colonial because the metropolitan power would have the ability to deny independence to the FAS.
- Free association is defined as separate sovereignty, nationality and citizenship. U.S. nationality and citizenship currently conferred by federal statute would be ended under free association. Currently, U.S. nationality and citizenship is conferred in the territory by federal statute, not by operation or direct application of the 14th Amendment, so its conferral is a domestic law policy that will end when separate sovereignty begins for the FAS.
- The U.S. tolerates dual nationality, but does not create or institutionalize it. So dual nationality will not be a feature of an agreement defining FAS status.
- Naturalization under federal statutes will end under free association, and relation to a person with U.S. nationality or citizenship during the territorial period will not provide a basis for naturalization under free association.
- If free association is carried out, the Commonwealth of Puerto Rico will cease to exist under U.S. law and instead the former territory will become the Republic of Puerto Rico. It will not be within the sovereign realm of the United States and will exist outside the national borders of the USA.
- The allegiance of the people will be to Puerto Rico, not the United States of America. The ROPR will have its own national sovereignty and citizenship, and national citizens will be aliens under U.S. immigration law.
- Even if granted a temporary visa waiver program (unlikely in the age of terrorism), FAS citizens will be subject to deportation as undesirable aliens for public health protection if they carry infectious disease, crimes, public welfare dependency, or lack visible means of support.