Committee of Correspondence for Puerto Rico Self-Determination

2008 elections and the status debate:   How can sovereignty be realized for Puerto Rico? 

          A new political narrative has begun in Puerto Rico’s political status debate.   Some of those who once aligned themselves in support of greater “autonomy” for Puerto Rico are now calling for “sovereignty” instead, including the embattled Governor of the commonwealth.   While former Governor Rafael Hernandez Colon continues to envision a sphere of “sovereignty” and a “national” identity for Puerto Rico under the umbrella of U.S. sovereignty and citizenship, the current Governor and some of his fellow party leaders seem to be losing patience with federal unwillingness to accommodate the “enhanced commonwealth” doctrine in the autonomist party platform.   

          Some would argue that the new found “sovereign nationalism” of the Governor and his loyalists is an entirely opportunistic diversionary tactic, intended to distract attention from his recent indictment for corruption by federal authorities.   After seeming to have no objections to federal prosecutions of his political opponents in the past, suddenly Governor Acevedo Vila is railing against federal law enforcement in the commonwealth as an intolerable incursion upon the “sovereignty” of the Puerto Rico homeland.

          This new ideological shift is a little awkward for those in his party, like RHC, who have long insisted that fully democratic autonomy for the commonwealth, with U.S. citizenship and political union under the federal constitution, was the “best of both worlds.”   Whether the Governor’s more aggressive status policy is just a political stunt in an election year, due to frustration that Congress will not accept any autonomy model as permanent or fully democratic, or both, the credibility and viability of “enhanced commonwealth” as an alternative to more conventional status options now has become tied to the Governor’s personal and political fortunes.

         In any event, the new narrative in status politics ushering in a new kind of pro-sovereignty partisanship requires a careful examination of exactly what “sovereignty” would mean for Puerto Rico.   Only if the Governor and his party are honest with their followers about what real sovereignty means, unlike the decades of artful ambiguity about what enhanced commonwealth really means, will this latest trial balloon on status be viewed as anything more than a political propaganda gimmick.

How can sovereignty be fully realized for Puerto Rico?

          In the U.S. constitutional system, states of the union are recognized as sovereign, but state sovereignty is subject to the supreme national sovereignty of the federal union.   Since citizens of the states have equal rights and duties of national as well as state citizenship, this federal pact of union is fully democratic.   Statehood is a non-colonial and non-territorial status that fully implements the principle of government by consent of the governed at the national and state level.

           In contrast, political subdivisions in America other than the states, i.e. territories, including the commonwealth of Puerto Rico, are not recognized as having inherent sovereignty.  Rather, the federal constitution vests in the U.S. Congress supreme national sovereign powers over territory under U.S. sovereignty but not in a state of the union, without limiting the discretionary powers of Congress in determining governing  arrangements for such areas.   Thus, even if granted U.S. citizenship the residents of a territory do not have any means to exercise sovereignty in the federal constitutional process.

          While the U.S. has a long history of national policy and territorial practices that have led to a non-territorial and non-colonial status for 33 territories, since 1922 the U.S. Congress has defaulted on decolonization of the five existing territories.   This is because the U.S. Supreme Court, in the case of Balzac v. Puerto Rico, gave Congress the green light in 1922 to govern U.S. citizens in Puerto Rico in the same way it had governed Puerto Ricans before U.S. citizenship was granted. 

          While Congress can exercise U.S. sovereignty by permissively conferring authority on local territorial governments to carry out specified functions of sovereign government at the local level, this discretionary practice is limited to local matters not governed by federal law, which in all matters remains supreme.   As scholarly commentators have noted, even federal authorization for administration of local civil affairs under a locally adopted constitution does not carve out a zone of inherent sovereignty beyond the reach of Congressional territorial power.

          Although states have reserved inherent sovereignty that resides ultimately in the people, even the most autonomous forms of local self-government created under the territorial power of Congress are subject to the supreme national sovereignty of the federal government.   That includes supremacy of federal law that renders null and void any incompatible local law.   

          Again, numerous scholarly authorities have recognized that the Congress can not by mere statute cede its territorial power to a non-state territory under U.S. sovereignty, and bind itself to a delegation of national sovereignty to a territorial government.   For that would encumber and essentially nullify a power created by the federal constitution, and in effect amend the provisions of the U.S. Constitution conferring power over territories on Congress.

           Obviously, changing the U.S. Constitution requires a formal amendment, and a statute or statutory agreement purporting permanently to vest sovereignty in a non-state territory is not legally sufficient to alter the scope of the territorial clause.   Yet, there is no other provision of the U.S. Constitution conferring power on the federal government to govern territory under U.S. sovereignty but not in a state.   Since the federal government is one of limited powers, and the regulation or disposition of territory not in a state is assigned to Congress under the territorial clause, that responsibility can not be reassigned by statute.

          Thus, Puerto Rico can be a separate sovereign nation and conduct relations with U.S. under arrangements regulated through the treaty-making and foreign policy powers of the President, subject to Congressional ratification.  Or, the commonwealth can become a sovereign state of the union with equal rights and duties of full national citizenship.   Otherwise, Puerto Rico will remain under U.S. sovereignty and subject to the territorial clause power of Congress.  

          Thus, vesting “sovereignty” in the local commonwealth government while Puerto Rico remains a non-state under U.S. sovereignty is incompatible with the federal constitution.   Congress can grant any measure of autonomy it chooses, but it can not make any such statutory policy permanent, and it can not make an irrevocable grant of local “sovereignty.”

          In a recent op-ed for Caribbean Business magazine, former Governor Rafael Hernandez Colon incorrectly asserts that, “The Constitution of the Commonwealth proclaims the sovereignty of the people of Puerto Rico…within the U.S. Constitutional system…”, and that this creates “…a sphere of government that Congress can not encroach upon.”             

          To the contrary, recognition of the sovereignty of the people of Puerto Rico in Article I, Section 2, of the local constitution conditions only the exercise of powers by the local government.  The same is true of recognition of the people as the source of local government powers under Article I, Section 1.   However, these provisions do not restrain federal powers in the commonwealth, which remain plenary and supreme notwithstanding the advent of a locally adopted constitution.   The records of the Puerto Rico constitutional convention confirm this legal conclusion, and accordingly the federal courts have recognized local autonomy only as to local matters not otherwise governed by federal law.          

          RHC is free to argue the “compact” to establish a local constitution somehow created a zone of local sovereignty beyond the reach of Congress, but it is not true.   The objective legal and political reality is that Puerto Rico has democratic self-government under the local constitution only with respect to administration of the internal civil affairs of the territory, and only as to purely local matters.     The commonwealth is a creation of federal statutory law, and even federal court cases applying provisions of the U.S. Constitution to the commonwealth are based on statutory law, rather than by force of the federal constitution itself.  If Congress changes the statutory policy defining the commonwealth, those federal court decisions can and will change accordingly.            

          Thus, RHC needs to make the same honest distinction between his partisan ideology and legal principles, when he addresses the meaning of commonwealth, that he displays in his analysis of PDP party politics. 

  “Sovereignty” realized for Puerto Rico

          When “sovereignty” is used to refer to anything other than statehood, particularly in the context of federal and local self-determination to define Puerto Rico’s future political status, its meaning is clear.   Under both U.S. and international law, if “sovereignty” does not mean integration with the U.S. leading to statehood it means only one thing, separate sovereign nationhood.

          Sovereign nationhood comes in two forms recognized by the United Nations and the United States, full and absolute independence or sovereign nationhood with a special “free association” relationship.  

          The issues arising from a shift from autonomy to sovereignty for the commonwealth include the logical consequences of ending U.S. constitutional sovereignty in Puerto Rico.   The international and bilateral ground rules for full and absolute independence are well defined and understood, especially in light of the experience of numerous African and other peoples decolonized under U.N. auspices since World War II.

          A transition to sovereignty through free association is more complicated, because the status of free association as recognized under applicable resolutions of the United Nations General Assembly must be terminable at will by either party in favor of independence.   In other words, the U.N. does not accept as truly decolonized a territory that does not retain its right to end a free association relationship based on each sovereign nation’s right to independence.

          If either party can withhold consent and effectively veto independence, then it remains a colonial and territorial relationship.   A bilateral pact of autonomy that does not respect the right of each party to full independence without association is neither a sovereign-to-sovereign association, nor is it free.

What is national sovereignty with real free association?

          In addition to international standards requiring that free association respect the right of independence, domestic U.S. constitutional standards and principles require free association to be based on separate sovereignty, nationality and citizenship in order to be non-territorial and non-colonial.   A free association relationship with the U.S. would require an end of any statutory form political union that existed under U.S. territorial law, and Puerto Rico would have to undergo succession to sovereign nationhood.

          Thus, in order to make the transition to free association with U.S. the commonwealth of Puerto Rico would need to re-constitute itself as a sovereign republic in which the constitution of the Puerto Rico would be the supreme national law, and the U.S. Constitution would no longer be supreme.   This is required to ensure that the principles and practices that define constitutional federalism in the U.S. do not encumber the free association relationship from being truly sovereign-to-sovereign.

           There are only five free association models recognized by the United Nations and the United States.   The Cook Islands and Niue are free associated states under agreements with New Zealand.   That model of free association involves very small and dependent areas with populations that can be absorbed by the metropolitan state without disruption.   New Zealand has no written constitution in the nature of the U.S. federal charter, and there are no constitutional limits on commingling of sovereignty, nationality and citizenship as discretionary measures under New Zealand law.

          In contrast, the compacts of free association between the U.S. and the Republic of Palau, Republic of the Marshall Islands and Federated States of Micronesia reflect the requirements of free association in the context of American federalism.   This includes separate sovereignty, nationality and citizenship, and the exercise of international powers by the U.S. that are in some cases comparable to both the plenary and discretionary powers of Congress over territories, even though those powers are exercised pursuant to the treaty-making power rather than the territorial power.

          Because the populations of the associated republics in free association with the U.S. are small, visa free travel and residence in the U.S. is currently allowed, but time spent in the U.S. under the compact visa waiver does not count toward naturalization.   It is logical to assume that transition to free association between Puerto Rico and the U.S. would involve phasing out the current statutory U.S. citizenship based on birth in a U.S. territory, and so visa free travel would be allowed only with the same restriction disqualifying residence in the mainland for purposes of naturalization.

          Similarly, citizens of the associated republics can be deported for crimes, threat to public health, lack of a means of support or other circumstance making the person an undesirable alien.   Federal programs and services are provided at levels determined by Congress annually.        

          A free association compact with Puerto Rico would be on an order entirely apart in many respects from the Pacific islands republics, but the same fundamental principles would apply.   For example, it is unrealistic to believe that the U.S. Congress for the first time in history would by operation of U.S. law confer U.S. citizenship on the national body politic and citizenry of another sovereign nation.     

          A formalized “dual citizenship” arrangement under federal law would create serious constitutional and public policy questions so complex that continued territorial status, statehood or full and absolute independence would probably be preferable to Congress, and would be a more likely outcome.

          If getting indicted has caused the current Governor to realize these facts of life, and embrace the ideology of those in his party who support real sovereignty and national citizenship under a free association with the USA, that might be a step in the right direction.   For it would end five decades of futility in the pursuit of unorthodox models of separate sovereignty and nationality under the umbrella of U.S. sovereignty and citizenship, which will never happen.

          Thus, in conclusion, real sovereignty is possible for Puerto Rico through statehood or nationhood, including full independence or free association.   Sovereignty is not possible for Puerto Rico as long as U.S. sovereignty and citizenship continue, except through statehood.   Under U.S. sovereignty, only statehood or territorial status are available to Puerto Rico, and all forms of autonomy or local self-government in a territory must be instituted under either the unincorporated or incorporated territory models.

         The sooner the status debate becomes focused on these realities, the sooner informed democratic self-determination will be possible.  

Dr. William Cleary is a former assistant attorney general for the Government of Guam, former Legislative Counsel to the Kosrae State Legislature, Federated States of Micronesia, and currently is a professor of comparative law as Hiroshima Shudo University. He has a Ph.D. and an LL.M from Hokkaido University, and is admitted to practice law in California, New York, Federated States of Micronesia and Guam .