[Senate Hearing 109-796]
[From the U.S. Government Publishing Office]



                                                        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


                               __________

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho                JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming                DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee           BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska               RON WYDEN, Oregon
RICHARD M. BURR, North Carolina,     TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida                MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri            DIANNE FEINSTEIN, California
CONRAD BURNS, Montana                MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               KEN SALAZAR, Colorado
GORDON SMITH, Oregon                 ROBERT MENENDEZ, New Jersey
JIM BUNNING, Kentucky

                   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























                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Acevedo-Vila, Hon. Anibal, Governor of Puerto Rico...............    24
Berrios Martinez, Ruben, 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
Fortuno, 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























 
                              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, 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 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 Fortuno, 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 representative 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.
    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.

    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 Fortuno 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 Fortuno and Ruben Berrios Martinez.
    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 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 non-territory 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 Anibal 
Acevedo, too; the Resident Commissioner, Congressman Fortuno; 
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 
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, two-step 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 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 2\1/2\ 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 2\1/2\ 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 ``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.
    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 
Congressionally-sponsored 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.
    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 
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.
    [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, Ruben 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.
    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 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, 
Ruben 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 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.
    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----
    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 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 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.
    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.
    Ruben 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 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 
Anibal 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 Fortuno, 
U.S. Congressman, thank you, sir. And the third is the 
Honorable Ruben Berrios Martinez, 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.

            STATEMENT OF HON. ANIBAL 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 Anibal 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 self-determination 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, 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.
    [The prepared statement of Governor Acevedo-Vila follows:]
Prepared Statement of Hon. Anibal Acevedo-Vila, Governor of Puerto Rico
    Mr. Chairman and Members of this Committee:
    My name is Anibal 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.
  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 Op-Ed 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. Pro-statehood 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 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 self-determination, 
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 the two Congressmen and let you testify and then we will 
proceed to--we will move to the Honorable Mr. Berrios.
    Proceed, Congressman.

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

    Commissioner Fortuno. 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 Fortuno. Three point nine million.
    The Chairman. Three?
    Commissioner Fortuno. Point nine million. And there are 
even about 4 million Puerto Rico-Americans on the mainland.
    The Chairman. OK. Thank you.
    Commissioner Fortuno. 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.
    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 self-determination 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, 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 Fortuno follows:]
 Prepared Statement of Hon. Luis G. Fortuno, 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.
    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 self-government 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, 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 Ruben Berrios, if 
you would testify, please.

 STATEMENT OF RUBEN BERRIOS MARTINEZ, PRESIDENT, PUERTO RICAN 
                       INDEPENDENCE PARTY

    Mr. Berrios. 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 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 ever-more 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 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 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 Fortuno. Senator, if I may? For the record?
    Senator Bingaman. Yes, go ahead.
    Commissioner Fortuno. 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.

       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. 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. Berrios an opportunity to 
speak.
    Mr. Berrios. It's from left to right.
    Senator Martinez. Well, I'm sorry. Depending on which way 
you----
    [Laughter.]
    Mr. Berrios. 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. Berrios. Everybody involved in this issue. When it was 
up to----
    Senator Martinez. All right, that's fine.
    [Laughter.]
    Mr. Berrios. 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 Fortuno. 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, 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. Berrios 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----
    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. Berrios. Senator, will you permit me?
    Senator Martinez. Yes, sir. And then I'm coming to you.
    Mr. Berrios. 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 colonial, 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 Fortuno, 
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, 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 Fortuno and Mr. Berrios.
    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 
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 Fortuno.
    Commissioner Fortuno. 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 Fortuno.
    And thank you, as well, Mr. Melendez, for your service to 
our country.
    Mr. Martinez.
    Mr. Berrios. Berrios Martinez. 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. Berrios. It was Luis.
    Senator Salazar. It was Luis? It was Luis who caused that?
    Commissioner Fortuno. I'm sorry.
    Mr. Berrios. Well, I think your question and the points you 
bring up are very important. With them, we go back to basics. 
The 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 pajaros debajo de los arboles. 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 Latin-American 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. Berrios.
    Mr. Berrios [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. Berrios. 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.
    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 Fortuno, 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 Fortuno. 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.
    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 Fortuno. 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 Fortuno. 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 Cristobal Colon, 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. Berrios Martinez.
    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 people 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. Berrios. No, it's very simple.
    [Laughter.]
    Mr. Berrios. 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 Fortuno. 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 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. Berrios. 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.]
                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

        Responses of Governor Anibal 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 providing 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.
    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 non-State 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 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 Anibal 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.''
    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 Anibal 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.
    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 Anibal 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 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 Fortuno 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.
                                 ______
                                 
  Responses of Hon. Luis G. Fortuno 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
   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. Fortuno 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 territory 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 Fortuno-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. Fortuno 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. Fortuno 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 Berrios 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. Berrios proposal?
    Answer.
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.
    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 Berrios' 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 Ruben Berrios Martinez 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 non-territorial 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. 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.*
---------------------------------------------------------------------------
    * 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.)
---------------------------------------------------------------------------
    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 Ruben Berrios Martinez to Question From Senator Martinez
    Question 1. Mr. Berrios, 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 Senator 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
                            proclamation\1\
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    \1\ Unanimously approved by 33 political parties from 22 nations 
attending the Congress.
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    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 
Independence\2\ to coordinate and implement this Congress' resolutions.
---------------------------------------------------------------------------
    \2\ The 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; Ruben 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 Ruben Berrios Martinez 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.
---------------------------------------------------------------------------
    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.
    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.*
---------------------------------------------------------------------------
    * Translated by the Secretariat for North American Relations of the 
Puerto Rican Independence Party.
---------------------------------------------------------------------------
    Original in Spanish follows:
                         proclama de panama\3\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 Rico\4\ para coordinar y hacer valer las determinaciones de este 
Congreso.
---------------------------------------------------------------------------
    \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; Ruben 
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; Ruben 
Berrios Martinez 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.
---------------------------------------------------------------------------
    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 Ruben Berrios Martinez 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 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 espino\1\
---------------------------------------------------------------------------
    \1\ President of the Republic of Panama and Secretary General of 
the Revolutionary Democratic Party (PRD).
---------------------------------------------------------------------------
    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, 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 Ruben Berrios\2\ at the White House, 
President Clinton created a Task Force, subsequently ratified by 
President Bush, on Puerto Rico's Status and its options.
---------------------------------------------------------------------------
    \2\ President 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ Spanish acronym for the Permanent Conference of Political 
Parties of Latin America.
---------------------------------------------------------------------------
    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 anti-imperialist 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--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.*
---------------------------------------------------------------------------
    * Translated by the Secretariat for North American Relations of the 
Puerto Rican Independence Party
---------------------------------------------------------------------------
Original in Spanish follows:
 Congreso Latino-americano Y Cabeo en Solidaridad Por la Independencia 
                             de Puerto Rico
      discurso de apertura del honorable martin torrijos espino\1\
---------------------------------------------------------------------------
    \1\ Presidente de la Republica de Panama y Secretario General del 
Partido Revolucionario Democratico (PRD).
---------------------------------------------------------------------------
    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 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 Ruben Berrios\2\ 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.
---------------------------------------------------------------------------
    \2\ Presidente 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).
---------------------------------------------------------------------------
    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 Ruben Berrios Martinez 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 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:]
                                       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 government 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?
                              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 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 non-territorial 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 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 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 law-making 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 referendum, 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 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, non-
territorial 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 involve 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.]
               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, 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 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 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 non-state 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.
---------------------------------------------------------------------------
    \1\ THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1006 
(1971).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ See 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).
---------------------------------------------------------------------------
    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 
decisions 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 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\
---------------------------------------------------------------------------
    \3\ To 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \7\ Puerto 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).
---------------------------------------------------------------------------
    The Justice Department again took this position on mutual consent 
clauses in a 1994 memorandum addressing the status of Guam\10\ 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 opinion--an 
opinion that traces its origins to Felix Frankfurter and that was 
endorsed by William H. Rehnquist.
---------------------------------------------------------------------------
    \10\ See 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 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, 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 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 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.
---------------------------------------------------------------------------
    \12\ The 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.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \13\ See 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'').
---------------------------------------------------------------------------
    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 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 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 memoranda, 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \16\ The 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \17\ Therefore, 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.
---------------------------------------------------------------------------
    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'':

          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\
---------------------------------------------------------------------------
    \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.
    \19\ See 1994 OLC Memo at 2-4; 2000 OLC Testimony; 2000 Thornburgh 
Testimony.
    \20\ When 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.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \21\ Reprinted in 4 PHILIP KURLAND & RALPH IaERNER, THE FOUNDERS' 
CONSTITUTION 555 (19 87).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \22\ GAO/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).
---------------------------------------------------------------------------
    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.
    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 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\
---------------------------------------------------------------------------
    \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 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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \24\ The 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 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.
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.''

    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 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\
---------------------------------------------------------------------------
    \26\ The 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 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.'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
                                 ______
                                 
      Study of W. Michael Reisman, Myers S. McDougal Professor of 
  International 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.
---------------------------------------------------------------------------
    \1\ W. 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).
    \4\ S. 2304, 109th Cong., 2d Sess. (2006).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ Parts 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).
---------------------------------------------------------------------------
               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 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.
---------------------------------------------------------------------------
    \6\ U.N. CHARTER art. 1, para. 2; see also U.N. CHARTER art. 55.
    \7\ See 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 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).
    \8\ The 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.
    \9\ G.A. Res. 1541, supra note 7, at 29.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
    \12\ See, e.g., U.N. CHARTER art. 18, para. 1 (giving each member 
of the General Assembly one vote).
    \13\ See 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ See Margaret Broderick, Associated Statehood--A New Form of 
Decolonisation, 17 INT'L & COMP. L.Q. 368 (1968).
    \15\ See, 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).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \16\ G.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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \17\ G.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).
    \18\ G.A. Res. 1514, supra note 7, at 66.

    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\
---------------------------------------------------------------------------
    \19\ G.A. Res. 1541, supra note 7, at 29-30.

    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\
---------------------------------------------------------------------------
    \20\ See 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).
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \21\ U.N. CHARTER art. 73.

    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\
---------------------------------------------------------------------------
    \22\ G.A. Res. 1541, supra note 7, at 29.
---------------------------------------------------------------------------
    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 relationship, rendering it unlawful as such or subject to 
intense and continuing international scrutiny.
---------------------------------------------------------------------------
    \23\ Id.
    \24\ See 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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \26\ De 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.

    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\
---------------------------------------------------------------------------
    \27\ British Nationality Act, 1948,11 & 12 Geo. 6, c. 56,  1 
(Eng.).

    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\
---------------------------------------------------------------------------
    \28\ 28 CONST. art. 77 (Fr.).
    \29\ While 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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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).

          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\
---------------------------------------------------------------------------
    \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.

    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 Europe.'' \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\
---------------------------------------------------------------------------
    \32\ See 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).
    \33\ Treaty 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
    \36\ See, 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).
    \38\ See, 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.
    \39\ For 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \40\ See, 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).
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \41\ On 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).
    \43\ G.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'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \44\ Advisory Opinion No. 4, Reparations for Injuries Suffered in 
the Service of the United Nations, 1949 I.C.J. 174, 178 (Apr. 11).
    \45\ See 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \46\ Phantom War in the Desert, ECONOMIST, May 21, 1966, at 802, 
803.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \47\ CIA, The World Factbook (2006), Puerto Rico, at  (last visited Apr. 10, 2006) [hereafter World Factbook].
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \48\ For a discussion of the international right to self 
determination, see Part IV, infra.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \49\ 2005 TASK FORCE REPORT, supra note 3, at 4.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \50\ See REISMAN, supra note 1, at 51-103.
---------------------------------------------------------------------------
    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, 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.
---------------------------------------------------------------------------
    \51\ On 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \52\ See, 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \53\ U.S.-PUERTO RICO COMM'N ON THE STATUS OF PUERTO RICO, STATUS 
OF PUERTO RICO 143 (1966).
---------------------------------------------------------------------------
            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 without much help or hindrance 
from the institutional forms of religious belief and worship.'' \56\
---------------------------------------------------------------------------
    \54\ World Factbook, supra note 47.
    \55\ KAL WAGENHEIM, PUERTO RICO: A PROFILE 221-22 (2d ed. 1970).
    \56\ MELVIN M. TUMIN & ARNOLD S. FELDMAN, SOCIAL CLASS AND SOCIAL 
CHANGE IN PUERTO RICO 296 (2d ed. 1971).
---------------------------------------------------------------------------
            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 Munoz 
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.
---------------------------------------------------------------------------
    \57\ WAGENHEIM, 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \59\ WAGENHEIM, supra note 55, at 220.
    \60\ MALDONADO-DENIS, supra note 58, at 22.
    \61\ Id. at 21.
---------------------------------------------------------------------------
    Puerto Rico, like other states, has it idealized folk hero: El 
Jibaro. In the eighteenth century, the rural people of Puerto Rico were 
known as jibaros, and even today the word expresses a nostalgia for, 
and idealization of, the old rural ways of life. To the Puerto Rican, 
El Jibaro 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\
---------------------------------------------------------------------------
    \62\ WAGENHEIM, supra note 55, at 228.
---------------------------------------------------------------------------
    For many, El Jibaro 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 Jibaro 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 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\
---------------------------------------------------------------------------
    \63\ World Factbook, supra note 47.
    \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.
---------------------------------------------------------------------------
    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 Munoz Rivera, entered into 
an agreement of mutual support with Praxedes Sagasta, leader of the 
Spanish Liberal Party.\71\
---------------------------------------------------------------------------
    \67\ Id.
    \68\ SPANISH 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].
    \69\ MALDONADO-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).
    \71\ MALDONADO-DENIS, supra note 58, at 48.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \74\ See 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).
    \75\ See id. tit. VIII.
    \76\ Id. art. 63.
    \77\ Id. arts. 37-40.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \78\ Id. arts. 5, 41-42.
    \79\ Id. Additional Articles, art. 2.
---------------------------------------------------------------------------
    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 
Munoz 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.
---------------------------------------------------------------------------
    \80\ Treaty of Peace, U.S.-Sp., Dec. 10, 1898, 30 Stat. 1754, T.S. 
No. 343.
    \81\ Id. art. IX.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \82\ Foraker 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].
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \84\ See Foraker Act  17-18, 33.
    \85\ Id.  29.
    \86\ Id.  31.
    \87\ Id.  14.
    \88\ PUERTO RICO ELECTION FACTBOOK, supra note 83, at 6.
---------------------------------------------------------------------------
    After the Foraker Act's enactment, political leaders like Munoz 
Rivera and de Diego (primarily an independentista) led a struggle for 
greater autonomy and self-government, 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, the auditor, the Commission on Education, 
and all of the justices of the Puerto Rican Supreme Court.
---------------------------------------------------------------------------
    \89\ Act of Mar. 2, 1917, Pub. L. No. 368, ch. 145, 39 Stat. 951 
(codified at 48 U.S.C.  794 (2000)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \90\ MALDONADO-DENIS, supra note 58, at 107.
    \91\ See 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).
    \92\ See 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.
---------------------------------------------------------------------------
            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.
---------------------------------------------------------------------------
    \93\ RITA M. MALDONADO, THE ROLE OF THE FINANCIAL SECTOR IN THE 
ECONOMIC DEVELOPMENT OF PUERTO RICO 18-21 (1970).
    \94\ Id. at 23.
---------------------------------------------------------------------------
    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 Munoz-Mann, who had 
become president of the Senate, began a series of new programs aimed at 
development.\96\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \97\ Id. at 25.
    \98\ Id. at 26.
    \99\ MALDONADO, 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 figures suggest. Personal income increased 
from $218 in 1940 to $804 in 1967 per capita per annum. MALDONADO, 
supra note 93, at 30-31.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \102\ MALDONADO, supra note 93, at 31-33.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \103\ World 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).
    \106\ See 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.
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \113\ PUERTO 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.

          (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\
---------------------------------------------------------------------------
    \115\ H.J. Res. 430, 82d Cong. 66 Stat. 327 (1952).

    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\
---------------------------------------------------------------------------
    \116\ STATUS OF PUERTO RICO: REPORT OF THE UNITED STATES-PUERTO 
RICO COMMISSION ON THE STATUS OF PUERTO RICO 37 (Arno Press Inc. 1975).
---------------------------------------------------------------------------
    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\
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    \117\ P.R. CONST. art. 1,  1.
    \118\ 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 37 (1966).
    \119\ 1 MARJORIE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 395 
(1963).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \120\ P.R. CONST. art. VI,  16.
    \121\ Id. art. VII,  3.
---------------------------------------------------------------------------
    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\
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    \122\ Bonet v, Tex. Co., 308 U.S. 463, 471 (1940).
    \123\ See 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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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).

          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\
---------------------------------------------------------------------------
    \125\ H.R.J. Res. 430, 82d Cong. (1952), subsequently adopted in 
P.R. CONST. art. VII,  3.

    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 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\
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    \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).
    \127\ Some 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 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
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    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\
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    \135\ Id.  749.
    \136\ Id.  733.
    \137\ 48 U.S.C.  891.
    \138\ Id.  751.
---------------------------------------------------------------------------
    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 requirement 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\
---------------------------------------------------------------------------
    \139\ P.R. CONST. art. VII,  3.
    \140\ Leibowitz, supra note 128, at 241.
    \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).
    \142\ Leibowitz, 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.
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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\
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    \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.''

    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 distinguished 
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:
---------------------------------------------------------------------------
    \144\ See, 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.
    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 Fernos-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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \147\ LOUIS 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \148\ CONSTITUTIONAL HISTORY, supra note 68, at 166-67.

    Shortly thereafter, in a letter to the U.S. president dated January 
17, 1953, Luis Munoz-Marin, the governor of the Commonwealth, expressed 
his view that ``[t]he laws enacted by the Government of the 
Commonwealth pursuant to the compact 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\
---------------------------------------------------------------------------
    \149\ Luis Munoz-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.
---------------------------------------------------------------------------
    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\
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    \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.

    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\
---------------------------------------------------------------------------
    \151\ Frances 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).

    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\
---------------------------------------------------------------------------
    \152\ G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25, 
U.N. Doc. A/2630 (1953).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \153\ See supra note 150.
    \154\ See 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).
---------------------------------------------------------------------------
    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 
Munoz-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.
---------------------------------------------------------------------------
    \158\ See 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).
---------------------------------------------------------------------------
    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 Munoz 
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\ Munoz also reported that Commonwealth law authorized a 
vote on Puerto Rico's status whenever 10% of the voters requested 
one.\160\
---------------------------------------------------------------------------
    \159\ 1 WHITEMAN, supra note 119, at 403.
    \160\ Id.
---------------------------------------------------------------------------
    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 assumption of the issue of Puerto Rico by the Committee of 24.\161\ 
In 1972, the Committee adopted the following resolution:
---------------------------------------------------------------------------
    \161\ See, 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).

          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\
---------------------------------------------------------------------------
    \162\ U.N. GAOR, 27th Sess., Supp. No. 23, at 31, U.N. Doc. A/8723/
Rev. 1 (1972).

    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.
---------------------------------------------------------------------------
    \163\ Special 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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \167\ WORLD FACTBOOK, supra note 47.
    \168\ See Estado Libre Asociado de Puerto Rico, Departamento de 
Estado, at .
    \169\ For a fuller review and analysis, see REISMAN, supra note 1, 
at 51-103.
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       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\
---------------------------------------------------------------------------
    \170\ ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE 
ANALYSIS OF UNITED STATES TERRITORIAL RELATIONS 485 (1989).
    \171\ See id.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \172\ Id.; see also STANLEY K. LAUGHLIN, JR., THE LAW OF UNITED 
STATES TERRITORIES AND AFFILIATED JURISDICTIONS 39 (1995).
    \173\ LAUGHLIN, supra note 172, at 39.
    \174\ LEIBOWITZ, supra note 170, at 487.
    \175\ See 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.
---------------------------------------------------------------------------
    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, then-General Dwight 
Eisenhower remarked:
---------------------------------------------------------------------------
    \176\ LEIBOWITZ, 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.

          [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\
---------------------------------------------------------------------------
    \177\ Statement 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.

    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.
---------------------------------------------------------------------------
    \178\ LEIBOWITZ, supra note 170, at 487-88; U.N. CHARTER art. 
83(1).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \179\ LEIBOWITZ, supra note 170, at 488; TRUSTEESHIP AGREEMENT art. 
6.

    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\
---------------------------------------------------------------------------
    \180\ TRUSTEESHIP AGREEMENT art. 5.

    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 ultimately 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 Interior\183\ 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\
---------------------------------------------------------------------------
    \181\ Exec. Order No. 9875, 12 Fed. Reg. 4837 (1947), 3 C.F.R. 658 
(1943-48 Comp.).
    \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.
    \184\ Dept. 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).
    \185\ LEIBOWITZ, supra note 170, at 497; 48 U.S.C.  1681, pt. II, 
sec. 1.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \186\ LEIBOWITZ, supra note 170, at 499.
    \187\ U.S. DEPT. OF STATE, SEVENTH ANNUAL REPORT ON THE TRUST 
TERRITORY OF THE PACIFIC ISLANDS 27 (1954).
    \188\ See 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.
---------------------------------------------------------------------------
    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 1965\191\ 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\
---------------------------------------------------------------------------
    \190\ LAUGHLIN, supra note 172, at 471.
    \191\ Dept. 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).
    \192\ LEIBOWITZ, supra note 170, at 501.
    \193\ Id.
---------------------------------------------------------------------------
    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 Status 
Commission, which entered into separate negotiations with the United 
States.\197\
---------------------------------------------------------------------------
    \194\ LAUGHLIN, 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.'').
    \195\ Guam 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).
    \197\ See 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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \198\ LAUGHLIN, 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.
    \199\ See 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.
    \201\ LEIBOWITZ, 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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \202\ LEIBOWITZ, supra note 170, at 507.

          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\
---------------------------------------------------------------------------
    \203\ Id. at 503 (emphasis in original).

    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\
---------------------------------------------------------------------------
    \204\ The 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).
---------------------------------------------------------------------------
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 three-quarters 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\
---------------------------------------------------------------------------
    \205\ The 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 .
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \210\ LEIBOWITZ, supra note 170, at 521.
    \211\ Id. at 523.
    \212\ Id. at 424-25; see NORTHERN MARIANAS CONST. art. III,  
18(a).
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \214\ Willens & Siemer, supra note 194, at 1381.

          (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 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\
---------------------------------------------------------------------------
    \215\ 48 U.S.C.  1801.

    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\
---------------------------------------------------------------------------
    \216\ Northern Marianas Dist. Law No. 4-205 (1976); see Willens & 
Siemer, supra note 194, at 1384.
    \217\ Willens & 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \218\ Section 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).
    \220\ These 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.
---------------------------------------------------------------------------
            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 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\
---------------------------------------------------------------------------
    \222\ Marybeth 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.
    \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.
    \228\ See LAUGHLIN, supra note 172, at 432-33.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \229\ Lizabeth 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).
    \230\ Senate 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).
    \231\ LEIBOWITZ, supra note 170, at 543.
    \232\ T3Id. 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \234\ Van Dyke, supra note 229, at 451.

    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\ Additionally, 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\
---------------------------------------------------------------------------
    \235\ See, 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 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.
    \237\ LAUGHLIN, 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.
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \239\ McKibben, supra note 229, at 275.
    \240\ See 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.
---------------------------------------------------------------------------
            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:
---------------------------------------------------------------------------
    \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.

          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\
---------------------------------------------------------------------------
    \242\ S.C. Res, 683, ITN SCOR, 45th Sess., U.N. Doc. S/RES/683 
(1990).

    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.
---------------------------------------------------------------------------
    \243\ McKibben, supra note 229, at 286-87.
---------------------------------------------------------------------------
            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, 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.
---------------------------------------------------------------------------
    \244\ LAUGHLIN, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \246\ RMI Online, at .
    \247\ See LEIBOWITZ, supra note 170, at 601-04. Supplemental 
Agreements to the Compact dealt specifically with these issues.
---------------------------------------------------------------------------
            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.
---------------------------------------------------------------------------
    \248\ LEIBOWITZ, supra note 170, at 615.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \249\ FSM CONST. Art. 5  2; see generally Alan B. Burdick, The 
Constitution of the Federated States of Micronesia, 8 U. HAW. L. REV. 
451 (1986).
    \250\ LEIBOWITZ, supra note 170, at 616.
---------------------------------------------------------------------------
    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.
            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\
---------------------------------------------------------------------------
    \251\ Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \252\ Frank Quimby & Gwenda L. Iyechad, Belau, Superport, Fortress 
or Identity?, in POLITICS IN MICRONESIA 101, 108 (1983).

---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \253\ Palauan Culture, at ; see also Quimby & Iyechad, supra note 252.

    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\
---------------------------------------------------------------------------
    \254\ E.g. LEIBOWITZ, supra note 170, at 622, 633.
    \255\ Id. at 634.
    \256\ See id. at 631.
---------------------------------------------------------------------------
            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 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.
---------------------------------------------------------------------------
    \257\ See id. at 613; MARSHALL ISLANDS CONST. art. III, sec. 2(b).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \258\ LEIBOWITZ, supra note 170, at 611.

    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\
---------------------------------------------------------------------------
    \259\ See 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.

    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\
---------------------------------------------------------------------------
    \260\ LEIBOWITZ, 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 
.
    \262\ Id.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \263\ See 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.
    \264\ One 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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \265\ LAUGHLIN, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \267\ PALAU CONST. art. II,  3; see McKibben, supra note 229, at 
277 n.108.
    \268\ Gibbons v. Salii, 1 ROP Intrm. 333 (Palau Sup. Ct. App. Div. 
335, 1986); see LEIBOWITZ, supra note 170, at 625-27.
    \269\ See McKibben, supra note 229, at 278.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \270\ Gibbons v. Salii, No. 8-86, at 2 (Sup. Ct. Palau, App. Div. 
Sept. 17, 1986).
    \271\ LAUGHLIN, 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.
---------------------------------------------------------------------------
    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, affirmed this, and shortly 
thereafter, as for the other free associated states, approved its 
membership in the United Nations.\273\
---------------------------------------------------------------------------
    \272\ Id.
    \273\ S.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).
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \274\ LEIBOWITZ, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \275\ 48 U.S.C.  1901-121 (FSM and RMI).

    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:
---------------------------------------------------------------------------
    \276\ 48 U.S.C.  1931-121 &  1931-124(a).

          (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\
---------------------------------------------------------------------------
    \277\ U.S.C.  1901-123 (RMI and FSM); see also 48 U.S.C.  1931-
123 (Palau).

    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\
---------------------------------------------------------------------------
    \278\ See 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).
---------------------------------------------------------------------------
            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 nation-state 
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\
---------------------------------------------------------------------------
    \280\ LEIBOWITZ, supra note 170, at 596.
    \281\ See id. at 600.
    \282\ LEIBOWITZ, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \283\ LAUGHLIN, supra note 172, at 483.

    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 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\
---------------------------------------------------------------------------
    \284\ See, 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).
    \286\ WOODLIFFE, supra note 285, at 67; see generally id. at 67-77.
    \287\ See 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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \288\ See 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).

          (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\
---------------------------------------------------------------------------
    \289\ 48 U.S.C.  1901-311. The parallel provision for Palau is 
codified at 48 U.S.C.  1931-312.

    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\
---------------------------------------------------------------------------
    \290\ 48 U.S.C.  1901-331. The parallel provision for Palau is 
codified at 48 U.S.C.  1931-331.

    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\
---------------------------------------------------------------------------
    \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 
Government of the United States would take action to meet the danger to 
the United States and Palau in accordance with its constitutional 
processes.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \293\ See 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).
    \294\ The 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 Rico--and even 
further in that direction the constituent states of the United 
States,\296\ or the components of other federated states.\297\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
             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 people\298\--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.
---------------------------------------------------------------------------
    \298\ W. 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).
    \299\ T. 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'').
    \300\ Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. 
REV. 457, 469 (1897).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \301\ See generally ALEINIKOFF, supra note 299, at 11-38.
    \302\ See 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'').
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \303\ See 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).
    \305\ See id. at 90; Chae Chan Ping v. United States, 130 U.S. 581 
(1889).
    \306\ See, 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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \307\ U.S. CONST. art. IV,  3, cl.2.
    \308\ Downes 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.
---------------------------------------------------------------------------
    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 
        property of the citizen . . . which are an absolute denial of 
        authority . . . to do particular acts.'' \312\
---------------------------------------------------------------------------
    \312\ Leibowitz, supra note 128, at 241-42 (quoting Downes v. 
Bidwell, 182 U.S. 244, 294 (1901) (White, J., concurring)).

    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\
---------------------------------------------------------------------------
    \313\ See, 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.
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B. Puerto Rico: Constitutional Rights and political Authority
    In 1952, as noted, the United Nations removed Puerto Rico 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.'' \315\
---------------------------------------------------------------------------
    \315\ G.A. Res. 748, U.N. GAOR, 8th Sess., Supp. No. 17, at 25, 
U.N. Doc. Al2630 (1953).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \316\ Frances 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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., Igartua 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 Trias 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).
    \318\ Sere and Laralde v. Pilot, 10 U.S. (6 Cranch) 332, 337 
(1810).
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \322\ 349 U.S. 1 (1955).
    \323\ See id. at 6.
    \324\ 384 U.S. 641 (1966).
    \325\ Id. at 646 n.5.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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'').
    \328\ See 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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \331\ See 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).

          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\
---------------------------------------------------------------------------
    \335\ David 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.'').

    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\
---------------------------------------------------------------------------
    \336\ Torres 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)).
    \337\ Torres, 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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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.
    \343\ See 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'').
    \346\ See 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.'').
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \348\ Duncan 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).
    \352\ Torres 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.
    \355\ See Helfeld, supra note 335, at 471 & nn.82-87.
    \356\ Id. at 457.
    \357\ Id. at 457-58.
---------------------------------------------------------------------------
    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 Igartua de la Rosa v. United 
States, observed:
---------------------------------------------------------------------------
    \358\ See 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\ Igartua 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. Igartua de la Rosa v. United States, 417 F.3d 145, 146-47 
(1st Cir. 2005) (en banc).

          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\
---------------------------------------------------------------------------
    \360\ Igartua 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.'').

    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\
---------------------------------------------------------------------------
    \361\ G. 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.
---------------------------------------------------------------------------
            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 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\
---------------------------------------------------------------------------
    \362\ See, e.g., Mora v. Torres, 113 F. Supp. 309 (D.P.R. 1953), 
aff'd 206 F.2d 377 (1st Cir. 1953).
    \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).
---------------------------------------------------------------------------
    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,
---------------------------------------------------------------------------
    \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.

          [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\
---------------------------------------------------------------------------
    \368\ Lopez Andino, 831 F.3d at 1175 (citations omitted; emphasis 
in original).

    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\
---------------------------------------------------------------------------
    \369\ Helfeld, supra note 335, at 468.
---------------------------------------------------------------------------
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,
---------------------------------------------------------------------------
    \370\ See LEIBOWITZ, supra note 170, at 539-40.

          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\
---------------------------------------------------------------------------
    \371\ Id. at 542.

    The Covenant explicitly sets out which constitutional provisions 
shall apply to it,\372\ obviating in many instances the question 
whether a right is ``fundamental'' under the Insular Cases framework. 
Many of these cases have thus been readily resolved by the CNMI's 
Supreme, Court.\373\
---------------------------------------------------------------------------
    \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.
    \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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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'').

          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\
---------------------------------------------------------------------------
    \375\ Id. at 691 n.28.

    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\
---------------------------------------------------------------------------
    \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)).
    \377\ Guerrero, 4 F.3d at 755; see also Decision: Self-Government 
of Former U.N. Trust Territory, 88 AM. J. INT'L L. 337 (1994).
    \378\ Guerrero, 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)).
---------------------------------------------------------------------------
    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.
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.
---------------------------------------------------------------------------
    \379\ LAUGHLIN, 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.
    \381\ See, 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.'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \382\ See 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \384\ Morgan 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'').
---------------------------------------------------------------------------
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 compact 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\
---------------------------------------------------------------------------
    \388\ 2005 TASK FORCE REPORT, supra note 3, at 4.
    \389\ ALEINIKOFF, supra note 299, at 87 (footnote omitted).
    \390\ See id. at 87-94; JOSE TRIAS 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\ Igartua 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. Igartua 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \397\ But see Romeu v. Cohen, 265 F.3d 118,127-31 (2d Cir. 2001) 
(Leval, J.).
    \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.
---------------------------------------------------------------------------
    Jose Trias 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.
---------------------------------------------------------------------------
    \400\ Trias Monge, supra note 317, at 235.
    \401\ Romeu v. Cohen, 265 F.3d 118,127-31 (2d Cir. 2001) (Leval, 
J.).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
    \403\ Diane 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).
    \404\ Orentlicher, supra note 403, at 39.
---------------------------------------------------------------------------
    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 self-government 
and political independence among formerly subjugated peoples and 
colonies.\406\ A series of General Assembly resolutions followed, 
establishing the general framework for the process of 
decolonization.\407\
---------------------------------------------------------------------------
    \405\ Kirgis, 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.'').
    \406\ U.N. CHARTER arts. 1, 77.
    \407\ G.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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \408\ G.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)).
---------------------------------------------------------------------------
    ``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\
---------------------------------------------------------------------------
    \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'').
    \415\ Western 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).
---------------------------------------------------------------------------
    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 post-Cold 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, re-emerged 
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\
---------------------------------------------------------------------------
    \418\ Koskenniemi, supra note 414, at 243; see, e.g., Opinions on 
Questions Arising From the Dissolution of Yugoslavia, 31 I.L.M. 1488 
(1992).
---------------------------------------------------------------------------
    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 Canada, Reference re Secession of Quebec.\419\ 
There, the Court considered the following question:
---------------------------------------------------------------------------
    \419\ [1998] S.C.R. 217, 37 I.L.M. 1340 (1998).

          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\
---------------------------------------------------------------------------
    \420\ Id., para. 2.

    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \425\ Id.
    \426\ Id., paras. 132-34, 138 (emphasis supplied).

          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\
---------------------------------------------------------------------------
    \427\ Id., para. 136.

    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\
---------------------------------------------------------------------------
    \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' '').
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \429\ For 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).
---------------------------------------------------------------------------
    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 non-self-
executing.\434\
---------------------------------------------------------------------------
    \431\ See, 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'').
---------------------------------------------------------------------------
    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 States recognizes the right of self 
government as axiomatic. It is virtually unimaginable 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.
---------------------------------------------------------------------------
    \435\ ALFRED COBBAN, THE NATION STATE AND NATIONAL SELF-
DETERMINATION 114 (1969).
    \436\ S. 2304, 109th Cong., 2d Sess. (2006).
---------------------------------------------------------------------------
  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\
---------------------------------------------------------------------------
    \437\ We 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \442\ Statute 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'').

    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 of 
this right in the decolonization context renders it within the 
Commission's mandate to examine insofar as it addresses violations of 
Article XX on the right to participate meaningfully in government.
---------------------------------------------------------------------------
    \443\ See 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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \444\ Statute 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \449\ See, 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).
---------------------------------------------------------------------------
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 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\
---------------------------------------------------------------------------
    \450\ See ICCPR, Pt. IV.
    \451\ Id., art. 1.
    \452\ Id., art. 25.
    \453\ Id., art. 26.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \454\ See 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.
    \456\ For 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 .
---------------------------------------------------------------------------
    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 Igartua 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,
---------------------------------------------------------------------------
    \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\ Igartua de la Rosa v. United States, 417 F.3d 145, 173-74 
(1st Cir. 2005) (Torruella, J., dissenting); id. at 184 (Howard, J., 
dissenting).

          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\
---------------------------------------------------------------------------
    \459\ Id. at 175 (Torruella, J., dissenting).

    Whatever the ultimate conclusion of the federal courts on this 
issue,\460\ the Human Rights Committee would surely be receptive to 
such an argument.
---------------------------------------------------------------------------
    \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.
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                               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\
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    \461\ S. 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'').
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    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.

                                    

      
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