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33–148 PDF 2007

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 

(II)

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

PETE V. DOMENICI, New Mexico, Chairman 

LARRY E. CRAIG, Idaho 

CRAIG THOMAS, Wyoming 

LAMAR ALEXANDER, Tennessee 

LISA MURKOWSKI, Alaska 

RICHARD M. BURR, North Carolina, 

MEL MARTINEZ, Florida 

JAMES M. TALENT, Missouri 

CONRAD BURNS, Montana 

GEORGE ALLEN, Virginia 

GORDON SMITH, Oregon 

JIM BUNNING, Kentucky 

JEFF BINGAMAN, New Mexico 

DANIEL K. AKAKA, Hawaii 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

DIANNE FEINSTEIN, California 

MARIA CANTWELL, Washington 

KEN SALAZAR, Colorado 

ROBERT MENENDEZ, New Jersey

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 

(III)

C O N T E N T S 

STATEMENTS 

Page

Acevedo-Vila ́, Hon. Anı ́bal, Governor of Puerto Rico ............................................ 24

Berrı ́os Martı ́nez, Rube ́n, 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

Fortun ̃ o, 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

(1)

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, 

2

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 

3

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 Fortun ̃ o, 

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 repVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00007 Fmt 6633 Sfmt 6633 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
4

resentative 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. 

5

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.

6

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 Fortun ̃ o 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 Fortun ̃ o and Rube ́n 

Berrı ́os Martı ́nez. 

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 

7

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 nonterritory 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 Anı ́bal 

Acevedo, too; the Resident Commissioner, Congressman Fortun ̃ o; 

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 

8

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, twostep 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 

9

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 21⁄2

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 21⁄2 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 

10

‘‘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:

• Puerto Rico is not a U.S. territory and therefore is not subject to the power of 

Congress under the territorial clause 

• 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

• 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 

• 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 

• 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 

• The compact is binding on the United States and cannot be altered without 

Puerto Rico’s consent 

• U.S. law applies in Puerto Rico only as provided consistent with the compact 

• New federal laws do not apply unless consented to by Puerto Rico under the 

compact 

• 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. 

11

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 Congressionallysponsored 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. 

12

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 

13

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. 

14

[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, Rube ́n 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. 

15

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 

16

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, Rube ́n 

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 

17

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. 

18

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——

19

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 

20

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 

21

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. 

22

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. 

Rube ́n 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 

23

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 

Anı ́bal 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 Fortun ̃ o, 

U.S. Congressman, thank you, sir. And the third is the Honorable 

Rube ́n Berrı ́os Martı ́nez, 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. 

24

STATEMENT OF HON. ANI ́BAL 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 Anı ́bal 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 selfdetermination 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, 

25

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. 

26

[The prepared statement of Governor Acevedo-Vila ́ follows:]

PREPARED STATEMENT OF HON. ANI ́BAL ACEVEDO-VILA ́, GOVERNOR OF PUERTO RICO

Mr. Chairman and Members of this Committee: 

My name is Anı ́bal 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. 

27

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 OpEd 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. Prostatehood 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 

28

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 selfdetermination, 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 

29

the two Congressmen and let you testify and then we will proceed 

to—we will move to the Honorable Mr. Berrı ́os. 

Proceed, Congressman. 

STATEMENT OF HON. LUIS G. FORTUN ̃ O, RESIDENT COMMISSIONER OF PUERTO RICO, U.S. HOUSE OF REPRESENTATIVES 

Commissioner FORTUN ̃ O. 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 FORTUN ̃ O. Three point nine million. 

The CHAIRMAN. Three? 

Commissioner FORTUN ̃ O. Point nine million. And there are even 

about 4 million Puerto Rico-Americans on the mainland. 

The CHAIRMAN. OK. Thank you. 

Commissioner FORTUN ̃ O. 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. 

30

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 selfdetermination 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, 

31

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 Fortun ̃ o follows:]

PREPARED STATEMENT OF HON. LUIS G. FORTUN ̃ O, 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:

• Withholding U.S. citizenship and adopting a policy of non-incorporation leading 

to independence, as in the case of the Philippines, or 

• 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. 

32

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 selfgovernment 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——

• Puerto Rico is not a U.S. territory, but a sovereign nation • Federal laws, including federal wiretap and death penalty statutes, can apply 

in Puerto Rico only upon consent of the local government • Federal law is no longer supreme, but co-equal to Puerto Rican law • 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 • U.S. citizenship and political union is guaranteed forever, as in the case of a 

state of the union • Federal services, programs and benefits will increase and be guaranteed, but 

Puerto Ricans will always be exempt from federal income tax • Puerto Rico will remain within the customs territory of the U.S., but enter into 

its own trade agreements with other nations • Puerto Rico will have the power to limit the jurisdiction and operation of the 

federal court. • 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. • Under the innocuous label ‘‘Development of Commonwealth’’; this virtual confederacy is unalterable by Congress in perpetuity without local consent • 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, 

33

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 Rube ́n Berrı ́os, if you 

would testify, please. 

STATEMENT OF RUBE ́ N BERRI ́OS MARTI ́NEZ, PRESIDENT, 

PUERTO RICAN INDEPENDENCE PARTY 

Mr. BERRI ́OS. 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 

34

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 evermore 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 

35

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 

36

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 FORTUN ̃ O. Senator, if I may? For the record? 

Senator BINGAMAN. Yes, go ahead. 

Commissioner FORTUN ̃ O. 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. 

37

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. 

38

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. Berrı ́os an opportunity to speak. 

Mr. BERRI ́OS. It’s from left to right. 

Senator MARTINEZ. Well, I’m sorry. Depending on which way 

you——

[Laughter.] 

Mr. BERRI ́OS. 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. BERRI ́OS. Everybody involved in this issue. When it was up 

to——

Senator MARTINEZ. All right, that’s fine. 

[Laughter.] 

Mr. BERRI ́OS. 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 FORTUN ̃ O. 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, 

39

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. 

Berrı ́os 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——

40

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. BERRI ́OS. Senator, will you permit me? 

Senator MARTINEZ. Yes, sir. And then I’m coming to you. 

Mr. BERRI ́OS. 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 coVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00044 Fmt 6633 Sfmt 6602 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
41

lonial, 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 Fortun ̃ o, 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, 

42

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 Fortun ̃ o and Mr. 

Berrı ́os. 

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 

43

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 Fortun ̃ o. 

Commissioner FORTUN ̃ O. 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 Fortun ̃ o. 

And thank you, as well, Mr. Melendez, for your service to our 

country. 

Mr. Martı ́nez. 

Mr. BERRI ́OS. Berrı ́os Martı ́nez. 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. BERRI ́OS. It was Luis. 

Senator SALAZAR. It was Luis? It was Luis who caused that? 

Commissioner FORTUN ̃ O. I’m sorry. 

Mr. BERRI ́OS. Well, I think your question and the points you 

bring up are very important. With them, we go back to basics. The 

44

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 pa ́jaros debajo de los a ́ rboles. 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 LatinAmerican 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. Berrı ́os. 

Mr. BERRI ́OS [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. BERRI ́OS. 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. 

45

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 Fortun ̃ o, 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 FORTUN ̃ O. 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. 

46

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 FORTUN ̃ O. 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 FORTUN ̃ O. 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 Cristo ́bal Colo ́n, 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. Berrı ́os Martı ́nez. 

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 peoVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00050 Fmt 6633 Sfmt 6602 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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ple 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. BERRI ́OS. No, it’s very simple. 

[Laughter.] 

Mr. BERRI ́OS. 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 FORTUN ̃ O. 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 

48

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. BERRI ́OS. 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.] 

(49)

APPENDIXES 

APPENDIX I 

Responses to Additional Questions 

RESPONSES OF GOVERNOR ANI ́BAL 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 proVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00053 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
50

viding 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. 

51

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 nonState 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 

52

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 ANI ́BAL 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.’’

53

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 ANI ́BAL 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. 

54

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 ANI ́BAL 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 

55

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 

Fortun ̃ o 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. 

56

RESPONSES OF HON. LUIS G. FORTUN ̃ O 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:

• 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; 

• A valid option by President Clinton and the House and 15 senators in 1998; and 

57

• 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:

• 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; • Gov. Acevedo claims that Puerto Rico is already in free association with the 

United States, as he told you; and • 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. FORTUN ̃ O 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 terriVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00061 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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tory 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 Fortun ̃ o-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. FORTUN ̃ O 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. FORTUN ̃ O 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 Berrı ́os 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. 

Berrı ́os proposal? 

Answer. 

59

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. 

60

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 Berrı ́os’ 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 RUBE ́ N BERRI ́OS MARTI ́NEZ 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 nonterritorial 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. 

61

* 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.) 

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.* 

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 RUBE ́ N BERRI ́OS MARTI ́NEZ TO QUESTION FROM SENATOR MARTINEZ

Question 1. Mr. Berrı ́os, 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 SenVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00065 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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1 Unanimously approved by 33 political parties from 22 nations attending the Congress. 

2The 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; Rube ́n 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 

Rube ́n Berrı ́os Martı ́nez 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. 

ator 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

PROCLAMATION1

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 Independence2 to coordinate and implement this Congress’ resolutions. 

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. 

63

* Translated by the Secretariat for North American Relations of the Puerto Rican Independence Party. 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. 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; 

Rube ́n 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; Rube ́n Berrı ́os Martı ́nez 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. 

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.* 

Original in Spanish follows: 

PROCLAMA DE PANAMA3

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 Rico4

para coordinar y hacer valer las determinaciones de este Congreso. 

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 RUBE ́ N BERRI ́OS MARTI ́NEZ 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 

64

1President of the Republic of Panama and Secretary General of the Revolutionary Democratic 

Party (PRD). 

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 ESPINO1

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, 

65

2President 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). 3Spanish acronym for the Permanent Conference of Political Parties of Latin America. 

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 Rube ́n Berrı ́os2 at the White House, President Clinton created a Task 

Force, subsequently ratified by President Bush, on Puerto Rico’s Status and its options. 

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. 

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 antiimperialist 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—

66

* Translated by the Secretariat for North American Relations of the Puerto Rican Independence Party 1Presidente de la Republica de Panama y Secretario General del Partido Revolucionario 

Democratico (PRD). 

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.* 

Original in Spanish follows: 

CONGRESO LATINO-AMERICANO Y CABEO EN SOLIDARIDAD POR LA INDEPENDENCIA DE

PUERTO RICO

DISCURSO DE APERTURA DEL HONORABLE MARTIN TORRIJOS ESPINO1

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 

67

2Presidente 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). 

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 Rube ́n Berrı ́os2 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. 

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 RUBE ́ N BERRI ́OS MARTI ́NEZ 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 

68

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:]

69

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 governVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00073 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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ment 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? 

(71)

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 

72

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 nonterritorial 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 

73

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 

74

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:

• ‘‘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.’’

• ‘‘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.’’

• ‘‘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 lawmaking 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:

• ‘‘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.’’

• ‘‘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 refVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00078 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
75

erendum, 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:

• 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. • 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. 

• 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. 

• 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 

• 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. 

• 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 

76

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, nonterritorial 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 inVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00080 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
77

volve 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.] 

78

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, 

79

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 

80

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 

81

1THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1006 (1971). 

2See 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). 

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 nonstate 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. 

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

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 deciVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00085 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
82

sions 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 

83

3To 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). 7Puerto 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). 10See 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 RicoUnited 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 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

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

The Justice Department again took this position on mutual consent clauses in a 

1994 memorandum addressing the status of Guam10 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 

84

opinion—an opinion that traces its origins to Felix Frankfurter and that was endorsed by William H. Rehnquist. 

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 

85

12The 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. 

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. 

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 

86

13See 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’’). 

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

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 

87

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 

88

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 memoVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00092 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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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. 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. 16The 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). 

randa, 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. 

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

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

90

17Therefore, 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. 

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

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’’:

91

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. 19See 1994 OLC Memo at 2-4; 2000 OLC Testimony; 2000 Thornburgh Testimony. 20When 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. 

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

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 

92

21 Reprinted in 4 PHILIP KURLAND & RALPH IaERNER, THE FOUNDERS’ CONSTITUTION 555 (19 87). 22GAO/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). 

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. 

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

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. 

93

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 

94

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 

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

95

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.’’). 24The 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 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

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. 

96

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. 

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.

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.’’

97

26The 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 

Continued

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 

98

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.’’). 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. 

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

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. 

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. 

99

1W. 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). 4S. 2304, 109th Cong., 2d Sess. (2006). 

5Parts 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). 6 U.N. CHARTER art. 1, para. 2; see also U.N. CHARTER art. 55. 7See 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 

Continued

STUDY OF W. MICHAEL REISMAN, MYERS S. MCDOUGAL PROFESSOR OF INTER- NATIONAL 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. 

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. 

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 

100

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). 8The 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. 9G.A. Res. 1541, supra note 7, at 29. 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. 12See, e.g., U.N. CHARTER art. 18, para. 1 (giving each member of the General Assembly 

one vote). 13See 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). 14See Margaret Broderick, Associated Statehood—A New Form of Decolonisation, 17 INT’L & 

COMP. L.Q. 368 (1968). 15See, 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). 16G.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). 

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. 

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. 

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. 

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 

101

17G.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). 18G.A. Res. 1514, supra note 7, at 66. 19G.A. Res. 1541, supra note 7, at 29-30. 20See 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). 

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. 

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: 

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

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

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 

102

21 U.N. CHARTER art. 73. 22G.A. Res. 1541, supra note 7, at 29. 23 Id. 24See 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.

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

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

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 relationVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00106 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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26De 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. 27 British Nationality Act, 1948,11 & 12 Geo. 6, c. 56, § 1 (Eng.). 28 28 CONST. art. 77 (Fr.). 29While 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. 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). 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.

ship, rendering it unlawful as such or subject to intense and continuing international scrutiny. 

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: 

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

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

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 

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

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 EuVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00107 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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32See 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). 33Treaty 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. 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. 36See, 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). 38See, 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. 39For 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. 40See, 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). 

rope.’’ 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

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. 

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

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 

105

41On 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). 43G.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’’). 44 Advisory Opinion No. 4, Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 178 (Apr. 11). 45See 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). 46Phantom War in the Desert, ECONOMIST, May 21, 1966, at 802, 803. 

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

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. 

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. 

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 

106

47 CIA, The World Factbook (2006), Puerto Rico, at <http://www.cia.gov> (last visited Apr. 10, 

2006) [hereafter World Factbook]. 48For a discussion of the international right to self determination, see Part IV, infra. 49 2005 TASK FORCE REPORT, supra note 3, at 4. 50See REISMAN, supra note 1, at 51-103. 

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

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. 

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

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. 

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, 

107

51On 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. 52See, 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. 53 U.S.-PUERTO RICO COMM’N ON THE STATUS OF PUERTO RICO, STATUS OF PUERTO RICO 143 (1966). 54World Factbook, supra note 47. 55KAL WAGENHEIM, PUERTO RICO: A PROFILE 221-22 (2d ed. 1970). 

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. 

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. 

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. 

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 withVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00111 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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56MELVIN M. TUMIN & ARNOLD S. FELDMAN, SOCIAL CLASS AND SOCIAL CHANGE 

IN PUERTO RICO 296 (2d ed. 1971). 57WAGENHEIM, 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). 59WAGENHEIM, supra note 55, at 220. 60MALDONADO-DENIS, supra note 58, at 22. 61 Id. at 21. 62WAGENHEIM, supra note 55, at 228. 63World Factbook, supra note 47. 

out much help or hindrance from the institutional forms of religious belief and worship.’’ 56

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 Mun ̃ oz 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. 

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. 

Puerto Rico, like other states, has it idealized folk hero: El Jı ́baro. In the eighteenth century, the rural people of Puerto Rico were known as jı ́baros, and even 

today the word expresses a nostalgia for, and idealization of, the old rural ways of 

life. To the Puerto Rican, El Jı ́baro 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

For many, El Jı ́baro 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 Jı ́baro 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 

109

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. 67 Id. 68SPANISH 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]. 69MALDONADO-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). 71MALDONADO-DENIS, supra note 58, at 48. 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. 

74See 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). 

75See id. tit. VIII. 76 Id. art. 63. 77 Id. arts. 37-40. 78 Id. arts. 5, 41-42. 

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

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 Mun ̃ oz Rivera, entered into an agreement of mutual support 

with Praxedes Sagasta, leader of the Spanish Liberal Party.71

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

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. 

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 

110

79 Id. Additional Articles, art. 2. 80Treaty of Peace, U.S.-Sp., Dec. 10, 1898, 30 Stat. 1754, T.S. No. 343. 81 Id. art. IX. 82Foraker 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]. 84See Foraker Act §§ 17-18, 33. 85 Id. § 29. 86 Id. § 31. 87 Id. § 14. 88PUERTO RICO ELECTION FACTBOOK, supra note 83, at 6. 89 Act of Mar. 2, 1917, Pub. L. No. 368, ch. 145, 39 Stat. 951 (codified at 48 U.S.C. § 794 

(2000)). 

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

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 Mun ̃ oz 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. 

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

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

After the Foraker Act’s enactment, political leaders like Mun ̃ oz Rivera and de 

Diego (primarily an independentista) led a struggle for greater autonomy and selfgovernment, 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, 

111

90MALDONADO-DENIS, supra note 58, at 107. 91See 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). 92See 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. 93 RITA M. MALDONADO, THE ROLE OF THE FINANCIAL SECTOR IN THE ECONOMIC 

DEVELOPMENT OF PUERTO RICO 18-21 (1970). 94 Id. at 23. 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. 97 Id. at 25. 98 Id. at 26. 99MALDONADO, 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 

Continued

the auditor, the Commission on Education, and all of the justices of the Puerto 

Rican Supreme Court. 

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

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. 

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 Mun ̃ oz-Mann, who had become president of the Senate, 

began a series of new programs aimed at development.96

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. 

112

figures suggest. Personal income increased from $218 in 1940 to $804 in 1967 per capita per 

annum. MALDONADO, supra note 93, at 30-31. 102MALDONADO, supra note 93, at 31-33. 103World 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). 106See 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. 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. 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. 

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. 

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

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

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. 

113

113PUERTO 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. 115 H.J. Res. 430, 82d Cong. 66 Stat. 327 (1952). 116STATUS OF PUERTO RICO: REPORT OF THE UNITED STATES-PUERTO RICO COMMISSION ON THE STATUS OF PUERTO RICO 37 (Arno Press Inc. 1975). 117P.R. CONST. art. 1, § 1. 118Lidio 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). 120P.R. CONST. art. VI, § 16. 

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: 

(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

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

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

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 

114

121 Id. art. VII, § 3. 122 Bonet v, Tex. Co., 308 U.S. 463, 471 (1940). 123See 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). 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). 125 H.R.J. Res. 430, 82d Cong. (1952), subsequently adopted in P.R. CONST. art. VII, § 3. 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). 127Some 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 

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. 

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

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: 

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

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 

115

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). 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. 135 Id. § 749. 136 Id. § 733. 137 48 U.S.C. § 891. 138 Id. § 751. 139P.R. CONST. art. VII, § 3. 140Leibowitz, supra note 128, at 241. 

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

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

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

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 requireVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00119 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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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). 142Leibowitz, 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. 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.’’ 144See, 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. 

ment 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

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

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 disVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00120 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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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 Ferno ́s-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). 147LOUIS 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). 148 CONSTITUTIONAL HISTORY, supra note 68, at 166-67.

tinguished 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: 

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

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

Shortly thereafter, in a letter to the U.S. president dated January 17, 1953, Luis 

Mun ̃ oz-Marin, the governor of the Commonwealth, expressed his view that ‘‘[t]he 

laws enacted by the Government of the Commonwealth pursuant to the compact 

118

149Luis Mun ̃ oz-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. 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. 151Frances 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). 152G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25, U.N. Doc. A/2630 (1953). 

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

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

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

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

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 

119

153See supra note 150. 154See 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). 158See 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). 159 1 WHITEMAN, supra note 119, at 403. 160 Id.

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. 

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 Mun ̃ oz-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. 

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 Mun ̃ oz 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

Mun ̃ oz also reported that Commonwealth law authorized a vote on Puerto Rico’s 

status whenever 10% of the voters requested one.160

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 asVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00123 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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161See, 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). 162 U.N. GAOR, 27th Sess., Supp. No. 23, at 31, U.N. Doc. A/8723/Rev. 1 (1972). 163Special 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. 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). 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. 

sumption of the issue of Puerto Rico by the Committee of 24.161 In 1972, the Committee adopted the following resolution: 

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

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. 

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: 

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. 

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. 

121

167WORLD FACTBOOK, supra note 47. 168See Estado Libre Asociado de Puerto Rico, Departamento de Estado, at <http://

www.estado.gobierno.pr/>. 169For a fuller review and analysis, see REISMAN, supra note 1, at 51-103. 170 ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE ANALYSIS OF 

UNITED STATES TERRITORIAL RELATIONS 485 (1989). 171See id. 172 Id.; see also STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED STATES TERRITORIES AND AFFILIATED JURISDICTIONS 39 (1995). 173LAUGHLIN, supra note 172, at 39. 

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

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

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 

122

174LEIBOWITZ, supra note 170, at 487. 175See 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. 176LEIBOWITZ, 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. 177Statement 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. 178LEIBOWITZ, supra note 170, at 487-88; U.N. CHARTER art. 83(1). 179LEIBOWITZ, supra note 170, at 488; TRUSTEESHIP AGREEMENT art. 6. 180TRUSTEESHIP AGREEMENT art. 5. 181 Exec. Order No. 9875, 12 Fed. Reg. 4837 (1947), 3 C.F.R. 658 (1943-48 Comp.). 

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

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, thenGeneral Dwight Eisenhower remarked: 

[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

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. 

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

The Agreement gave the United States, in turn, the following entitlements, to be 

exercised for ‘‘the maintenance of international 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

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 ulVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00126 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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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. 184Dept. 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). 185LEIBOWITZ, supra note 170, at 497; 48 U.S.C. § 1681, pt. II, sec. 1. 186LEIBOWITZ, supra note 170, at 499. 187 U.S. DEPT. OF STATE, SEVENTH ANNUAL REPORT ON THE TRUST TERRITORY OF 

THE PACIFIC ISLANDS 27 (1954). 188See 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. 190LAUGHLIN, supra note 172, at 471. 191Dept. 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). 192LEIBOWITZ, supra note 170, at 501. 193 Id. 194LAUGHLIN, 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.’’). 195Guam 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). 

timately 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 Interior183 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

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

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 1965191

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

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 

124

197See 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)). 198LAUGHLIN, 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. 199See 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. 201LEIBOWITZ, 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. 202LEIBOWITZ, supra note 170, at 507. 203 Id. at 503 (emphasis in original). 204The 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). 

Status Commission, which entered into separate negotiations with the United 

States.197

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

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 

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

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

125

205The 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. 210LEIBOWITZ, supra note 170, at 521. 211 Id. at 523. 212 Id. at 424-25; see NORTHERN MARIANAS CONST. art. III, § 18(a). 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. 214Willens & Siemer, supra note 194, at 1381.

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 threequarters 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

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

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

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: 

(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 

126

215 48 U.S.C. § 1801. 216 Northern Marianas Dist. Law No. 4-205 (1976); see Willens & Siemer, supra note 194, at 

1384. 217Willens & 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. 218Section 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). 220These 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. 222Marybeth 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. 

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

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

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. 

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 

127

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. 228See LAUGHLIN, supra note 172, at 432-33. 229Lizabeth 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). 230Senate 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). 231LEIBOWITZ, supra note 170, at 543. 232T3Id. 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. 234 Van Dyke, supra note 229, at 451. 235See, 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 

Continued

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

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

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

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 AdditionVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00131 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
128

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. 237LAUGHLIN, 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. 239McKibben, supra note 229, at 275. 240See 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. 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. 242S.C. Res, 683, ITN SCOR, 45th Sess., U.N. Doc. S/RES/683 (1990). 243McKibben, supra note 229, at 286-87. 

ally, 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

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

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: 

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

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. 

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, 

129

244LAUGHLIN, 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). 246 RMI Online, at <http://www.rmiembassyus.org/>. 247See LEIBOWITZ, supra note 170, at 601-04. Supplemental Agreements to the Compact 

dealt specifically with these issues. 248LEIBOWITZ, supra note 170, at 615. 249FSM CONST. Art. 5 § 2; see generally Alan B. Burdick, The Constitution of the Federated 

States of Micronesia, 8 U. HAW. L. REV. 451 (1986). 250LEIBOWITZ, supra note 170, at 616. 

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. 

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

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. 

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

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. 

130

251 Id. 252Frank Quimby & Gwenda L. Iyechad, Belau, Superport, Fortress or Identity?, in POLITICS 

IN MICRONESIA 101, 108 (1983). 253Palauan Culture, at <http://www.palaunet.com/html/culture.html>; see also Quimby & 

Iyechad, supra note 252. 254 E.g. LEIBOWITZ, supra note 170, at 622, 633. 255 Id. at 634. 256See id. at 631. 

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

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

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

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

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 

131

257See id. at 613; MARSHALL ISLANDS CONST. art. III, sec. 2(b). 258LEIBOWITZ, supra note 170, at 611. 259See 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. 260LEIBOWITZ, 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.tribunalmh.org/>. 262 Id.

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. 

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

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

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

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 

132

263See 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. 264One 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. 265LAUGHLIN, 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). 267PALAU CONST. art. II, § 3; see McKibben, supra note 229, at 277 n.108. 268Gibbons v. Salii, 1 ROP Intrm. 333 (Palau Sup. Ct. App. Div. 335, 1986); see LEIBOWITZ, 

supra note 170, at 625-27. 269See McKibben, supra note 229, at 278. 270Gibbons v. Salii, No. 8-86, at 2 (Sup. Ct. Palau, App. Div. Sept. 17, 1986). 271LAUGHLIN, 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. 272 Id.

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

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

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

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

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, 

133

273S.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). 274LEIBOWITZ, 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). 275 48 U.S.C. § 1901-121 (FSM and RMI). 276 48 U.S.C. § 1931-121 & § 1931-124(a). 277 U.S.C. § 1901-123 (RMI and FSM); see also 48 U.S.C. § 1931-123 (Palau). 278See 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). 

affirmed this, and shortly thereafter, as for the other free associated states, approved its membership in the United Nations.273

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

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

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: 

(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

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

134

280LEIBOWITZ, supra note 170, at 596. 281See id. at 600. 282LEIBOWITZ, 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). 283LAUGHLIN, supra note 172, at 483. 284See, 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). 286WOODLIFFE, supra note 285, at 67; see generally id. at 67-77. 

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 nationstate 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

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

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 

135

287See 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). 288See 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). 289 48 U.S.C. § 1901-311. The parallel provision for Palau is codified at 48 U.S.C. § 1931-312. 290 48 U.S.C. § 1901-331. The parallel provision for Palau is codified at 48 U.S.C. § 1931-331. 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 GovernContinued

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

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: 

(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

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

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

136

ment of the United States would take action to meet the danger to the United States and Palau 

in accordance with its constitutional processes. 293See 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). 294The 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. 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. 

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. 

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

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 

137

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. 298W. 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). 299T. 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’’). 300Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 469 (1897). 301See generally ALEINIKOFF, supra note 299, at 11-38. 302See 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’’). 

Rico—and even further in that direction the constituent states of the United 

States,296 or the components of other federated states.297

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 people298—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. 

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

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 

138

303See 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). 305See id. at 90; Chae Chan Ping v. United States, 130 U.S. 581 (1889). 306See, 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). 307 U.S. CONST. art. IV, § 3, cl.2. 308Downes 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. 

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. 

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

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 

139

312Leibowitz, supra note 128, at 241-42 (quoting Downes v. Bidwell, 182 U.S. 244, 294 (1901) 

(White, J., concurring)). 313See, 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. 315G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25, U.N. Doc. Al2630 (1953). 316Frances 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). 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., Igartu ́ a 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 ́ Trı ́as 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). 318Sere and Laralde v. Pilot, 10 U.S. (6 Cranch) 332, 337 (1810). 

property of the citizen... which are an absolute denial of 

authority . . . to do particular acts.’’ 312

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

B. Puerto Rico: Constitutional Rights and political Authority 

In 1952, as noted, the United Nations removed Puerto Rico from its list of nonself-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

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

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. 

140

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. 322 349 U.S. 1 (1955). 323See id. at 6. 324 384 U.S. 641 (1966). 325 Id. at 646 n.5. 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’’). 328See 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). 331See 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).

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

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

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

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 

141

335David 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.’’). 336Torres 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)). 337Torres, 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’’). 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). 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. 

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

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

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

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. 

142

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. 343See 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’’). 346See 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.’’). 348Duncan 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). 

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

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 

143

352Torres 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. 355See Helfeld, supra note 335, at 471 & nn.82-87. 356 Id. at 457. 357 Id. at 457-58. 358See 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 Igartu ́ a 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. Igartu ́ a de la Rosa v. United States, 417 F.3d 

145, 146-47 (1st Cir. 2005) (en banc). 360 Igartu ́ a 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.’’). 361G. 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. 362See, e.g., Mora v. Torres, 113 F. Supp. 309 (D.P.R. 1953), aff’d 206 F.2d 377 (1st Cir. 1953). 

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

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 Igartu ́a de la Rosa v. United States,

observed: 

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

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

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 

144

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). 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. 368Lopez Andino, 831 F.3d at 1175 (citations omitted; emphasis in original). 369 Helfeld, supra note 335, at 468. 370See LEIBOWITZ, supra note 170, at 539-40. 371 Id. at 542. 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. 

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

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,

[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

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

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, 

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

The Covenant explicitly sets out which constitutional provisions shall apply to 

it,372 obviating in many instances the question whether a right is ‘‘fundamental’’ 

145

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). 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’’). 375 Id. at 691 n.28. 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)). 377Guerrero, 4 F.3d at 755; see also Decision: Self-Government of Former U.N. Trust Territory,

88 AM. J. INT’L L. 337 (1994). 378Guerrero, 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)). 

under the Insular Cases framework. Many of these cases have thus been readily resolved by the CNMI’s Supreme, Court.373

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: 

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

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

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. 

146

379LAUGHLIN, 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. 381See, 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.’’). 382See 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. 384Morgan 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’’). 

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. 

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. 

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

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 comVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00150 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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388 2005 TASK FORCE REPORT, supra note 3, at 4. 389 ALEINIKOFF, supra note 299, at 87 (footnote omitted). 390See id. at 87-94; JOSE ́ TRI ́AS 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 Igartu ́ a 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. Igartu ́a 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. 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. 397 But see Romeu v. Cohen, 265 F.3d 118,127-31 (2d Cir. 2001) (Leval, J.). 

pact 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

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

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 

148

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. 400Trias Monge, supra note 317, at 235. 401 Romeu v. Cohen, 265 F.3d 118,127-31 (2d Cir. 2001) (Leval, J.). 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. 403Diane 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). 404Orentlicher, supra note 403, at 39. 405Kirgis, 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.’’). 

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

Jose ́ Trı ́as 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. 

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

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 selfgovernment and political independence among formerly subjugated peoples and coloVerDate 0ct 09 2002 07:56 Mar 02, 2007 Jkt 109796 PO 33148 Frm 00152 Fmt 6601 Sfmt 6621 P:\DOCS\33148.TXT SENERGY2 PsN: PAULM
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406 U.N. CHARTER arts. 1, 77. 407G.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). 408G.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)). 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’’). 415Western 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). 418Koskenniemi, supra note 414, at 243; see, e.g., Opinions on Questions Arising From the 

Dissolution of Yugoslavia, 31 I.L.M. 1488 (1992). 

nies.406 A series of General Assembly resolutions followed, establishing the general 

framework for the process of decolonization.407

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. 

‘‘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

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 postCold 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, reemerged 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

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 

150

419 [1998] S.C.R. 217, 37 I.L.M. 1340 (1998). 420 Id., para. 2. 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). 425 Id. 426 Id., paras. 132-34, 138 (emphasis supplied). 427 Id., para. 136. 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’ ’’). 

Canada, Reference re Secession of Quebec.419 There, the Court considered the following question: 

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

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

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 

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

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

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 

151

429For 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). 431See, 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’’). 435 ALFRED COBBAN, THE NATION STATE AND NATIONAL SELF-DETERMINATION 

114 (1969). 

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

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 nonself-executing.434

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 

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436S. 2304, 109th Cong., 2d Sess. (2006). 437We 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. 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. 442Statute 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’’). 443See 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’’). 

nable 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. 

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

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

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

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 

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444Statute 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. 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.’’). 449See, 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). 450See ICCPR, Pt. IV. 

date to examine insofar as it addresses violations of Article XX on the right to participate meaningfully in government. 

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. 

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. 

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. 

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 

154

451 Id., art. 1. 452 Id., art. 25. 453 Id., art. 26. 454See 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. 456For 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/>. 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 Igartu ́ a de la Rosa v. United States, 417 F.3d 145, 173-74 (1st Cir. 2005) (Torruella, J., 

dissenting); id. at 184 (Howard, J., dissenting). 459 Id. at 175 (Torruella, J., dissenting). 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. 

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

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. 

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 Igartu ́a 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, 

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

Whatever the ultimate conclusion of the federal courts on this issue,460 the 

Human Rights Committee would surely be receptive to such an argument. 

155

461S. 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’’). 

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

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.

Æ