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Young Republicans of Puerto Rico Alert the White House
January 12, 2004
Contact Person: Yanira Martinez (787) 934-8719
The Young Republican Federation of Puerto Rico (YRFPR) was informed that President Bush signed the Free Association Treaties with the Marshall Islands and the Federated States of Micronesia on December 12th, 2003. "This is a clear indication that status is a priority issue for the White House," stated Attorney Ricardo Aponte-Parsi, Chairmen of the YRFPR, "our so called Resident Commissioner has not been truthful to the Puerto Rican people when he says that the status issue is dead in Washington. If PR is not a priority its because he hasn't been there to lobby for us, and doesnt want to discuss it," concluded Aponte.
The objective of the YRFPR is to educate and inform the community about the real alternatives that it has to solve the status issue "Getting the Facts Straight on Free Association: US Confirms Free Association Model Based on Separate Nationality and Unilateral Rights of Independence". This is the first report in a series of publications that the organization will be sending to the Director of the Interagency Group in the White House, Ruben Barrales. who is working with this issue.
Attorney Carlos Pérez Acosta, National Committeemen sent a letter recently to Mr. Barrales requesting the participation of the organization in the discussions and analysis that are taking place in the White House about the constitutional, economical and politically viable status alternatives that PR has. "One of the objectives of the YRFPR during this election year is to assure that the Puerto Rican community is informed and educated on the viable status alternatives and the events that are occurring in jurisdictions in similar conditions, that although of historical significance the media does not cover them," stated Pérez Acosta.
The only Constitutional Assembly that has ever been celebrated on the Island had the full approval of Congress in 1950 under Law 600 to create our constitution. It is very ironic that the same group of people, including the leadership of the PDP, want to leave Congress out of the procedure now when even they stated that its unavoidable that Congress interfere in second phase of the process in order for it to be valid.
"Our objection to the Constitutional Assembly is a "NO MORE" for this generation of future and present leaders who truly care about PR and the quality of life of future generations. Today, Roberto Pratts and Anibal Acevedo Vila, those who claim to want a better PR for our children, want to impose in closed dark rooms a solution to our territorial and colonial status that will lead us toward independence. We cannot continue to allow promises to be made to us during election years that do not seriously contemplate the repercussions of their words on our future," concluded Yanira Martínez, National Committeewomen of the organization.
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A REPORT BY THE YOUNG REPUBLICAN FEDERATION OF PUERTO RICO
GETTING THE FACTS STRAIGHT ON FREE ASSOCIATION:
U.S. CONFIRMS FREE ASSOCIATION MODEL BASED ON
SEPARATE NATIONALITY AND UNILATERAL RIGHT OF INDEPENDENCE
NEW COMPACT TERMS APPROVED
While the war or terrorism and Medicare reform got most of the attention in Congress this year, another matter before Congress of some historical significance went largely unnoticed. On November 20, 2003, Congress passed a Joint Resolution approving renewal of the Compact of Free Association for the Republic of the Marshall Islands (RMI) and the Federated States of Micronesia (FSM). On December 12, 2003, President Bush signed the Compact legislation into law.
Without a lot of fanfare, by signing the Compact extension agreements negotiated by his State Department appointees, President Bush delivered on the U.S. commitment to sustain the decolonization process for the RMI and FSM. The new agreement also extends U.S. base rights at Kwajalein Missile Range in the RMI for fifty years, or longer at the option of the U.S. government. So the Compact also advances important U.S. national security interests.
At the same time, the Compact of Free Association will virtually complete the process for separation of the RMI and the FSM from the U.S. political system. This respects and implements, with a certain amount of appropriate "tough love", the decision of the peoples of those two island nations to reject U.S. territorial status in U.N. observed acts of self-determination in 1982. Once the voters in the U.S. administered islands chose free association, the process of separation began, and the terms of the new Compact will bring the separation process to substantial culmination.
The new Compact continues generous U.S. assistance to the islands for another 20 years, as discussed below, but places a cap on federal spending. The revised accord also tightens fiscal control so that the funding will be used to prepare the island for self-sufficiency after U.S. annual grants end. This will require the islanders to learn to live within their own means, and after 20 years they will be eligible for U.S. foreign assistance just like other nations. The close strategic alliance that advances U.S. security will result in additional financial support in the form of military base payments, and given the history of close relations the RMI and FSM may fare much better than many nations in seeking foreign aid from the U.S. as well as other donor nations.
That normalization, being achieved through free association as a transitional status for island territories once administered as totally dependent areas, will also help the U.S. to live within its means by ending an open ended drain on the U.S Treasury. This is both a responsible and prudent way to realize the promise of free association as an intermediate status for a territory that freely and knowingly chose separate nationhood instead of incorporation into the union.
The U.S. law approving the Compact is Public Law 108-188, which Congress named the "Compact of Free Association Amendments Act of 2003". Like the original Compact approved by Congress in U.S. Public Law 99-239 back in 1985, the renewed Compact for the RMI and FSM is an international agreement. Its renewal as amended does not take effect by its own force or by operation of U.S. law. Rather, it takes effect for the RMI and FSM when each of those governments has completed its constitutional process for ratifying the Compact.
The legal meaning of this ratification procedure is that the association is not a constitutionally defined status, and it is not a form of constitutional political union at all. Instead, it is a terminable association under agreements approved by statutory treaty law, rather than becoming a constitutionally permanent union. Since statehood is the only form of constitutionally permanent union under the U.S. federal system, making the association terminable is how the Compact was made compatible with the U.S. Constitution
In fact, the new Compact law actually creates two separate bilateral Compacts under which the USA, the RMI and the FSM each retains its sovereign right of independence. Each government can unilaterally end the bilateral relationship and be independent at any time. By preserving the right of the USA, the RMI and FSM to become independent and end the association, without requiring the consent of the other party, the Compact establishes a relationship that is not territorial and not colonial.
That is why Section 441 in the both the RMI and FSM agreements allows for termination by "mutual consent, but Section 442 also goes on to state that " this Compact may be terminated by the Government of the United States effective on the date specific in the notice of termination by the Government of the United States but not earlier than six months following delivery of such notice." Similarly, Section 443 states that the Compact "shall be terminated" by the RMI or FSM " pursuant to its constitutional process", including an internal plebiscite on termination under local law.
Congressional approval of the Compact renewal act before adjournment was urged by the White House because the financial support grants and U.S. military defense provisions of the first 15 year Compact with the RMI and FSM had expired on October 1, 2003. A shutdown of the RMI and FSM governments had been avoided only by a temporary stop-gap spending bill until the new Compacts passed and took effect.
ECONOMIC AND DEFENSE TERMS EXTENDED FOR FINAL 20 YEARS
The Compact was not approved by the Senate as a conventional treaty, because the U.S. law approving it also had to include the funding and implementing provisions to govern the association. That includes a final 20 years of grant funding and federal programs that will end in 2023 and not be renewed after that. To be specific, the official U.S. State Department announcement on November 20, 2003, states that some Compact grant funds will be diverted into separate RMI and FSM trust funds in order to " ensure ongoing sources of revenue when direct U.S. grant assistance for these two nations ends in FY 2023, thus permitting an end to direct U.S. economic assistance."
This arrangement is embodied in Section 215 of the Compact, which states that, "The United States shall contribute annually for twenty years into a Trust Fund Upon termination of the annual financial assistance the proceeds of the fund shall thereafter be used for the purposes described in Section 211 of this Compact." Section 211 limits the use of U.S. financial grants to specified sectors such as education, health care and infrastructure, and states that "For each year such sector grant assistance is made available, the proposed division shall be subject to the concurrence of the United States "
These provisions, which allow even less fiscal autonomy than the first 15 year Compact, reflect that under the U.S. system of federalism an associated state may well have more autonomy than a territory in some areas, and less autonomy in other matters. Those who want Puerto Rico to achieve a non-territorial status, but without making a choice between the normative options of statehood or independence, argue that real free association is a third path. They want a non-colonial status, but seek somehow to continue the benefits of the territorial period such as U.S. citizenship and federal subsidies.
The working hypothesis of this ideology is that the current territorial status referred to in Spanish as "free association" can be converted into real sovereign free association, by simplistically applying in the case of Puerto Rico the general principles of free association as enunciated in United Nations proceedings. To the contrary, those general political principles for free associated status in U.N. documents and pronouncements must be understood in the context of historical and legal relations between the nation-state and the territorial possession that would become the associated state.
If the nation-state is the USA, then the territory has to look at the RMI and FSM association under the Compact as the structure that exists for free association under the U.S. Constitution. That is the only structure of free association the U.S. Congress has ever approved, and it is not just a random structure, it is a structure that is compatible with the U.S. Constitution because it preserves the unilateral right of independence. That is also a U.N. principle, but it is more importantly the structure Congress has determined to be constitutional in the U.S. system of government.
Maybe Puerto Rico or Guam or some other domestic territory could negotiate different "bells and whistles" for a post-territorial compact, or reach a little deeper into the pockets of the American taxpayers for some period of years, but in the end free association is all about separate nationhood. It is all about transition from domestic administration to a foreign relations framework. Free association is truly bilateral because it is based on separate nationality and gradual separation that ends all the vestigial aspects of the former domestic territorial status over time.
DETAILS ABOUT FREE ASSOCIATION REVEALED
What we see from the RMI and FSM compacts is that many of the features of true free association are not the result of negotiations, but are required to be compatible to the U.S. Constitution. Free association also must be structured to be subject to the U.S. federal system of annual appropriations, as well as the legal fact-of-life that one Congress cannot bind a future Congress on certain political questions, including whether or not to continue free association.
So there are some of the same constitutional and legal problems faced by U.S. territories, except that free association is even less permanent or predictable than territorial status. This is because the association treaties can be terminated any time the Congress does not get its way, or decides the association is no longer in the U.S. national interest.
Again, Puerto Rico may or may not be able to get a better deal, but if Congress thinks about free association the first thing it will do is think about the Compact for the RMI and FSM. Here is what free association means as already approved by Congress in the RMI and FSM examples.
First, United States economic assistance is provided only for a limited period of years, and must be renewed or extended by agreement, unless terminated early by the U.S. at any time. In RMI and FSM cases the first Compact was for 15 years of economic assistance. If Congress had declined to renew the Compact, it would just be a legal skeleton with juridical existence but no flesh or blood to sustain it as a living association.
Under the new and final 20 year Compact economic grant package, the FSM will get $2.3 billion spread out over that two-decade period. The RMI will get $1.2 billion. The U.S. contributions to the Trust Funds for the RMI and FSM will come out of these amounts, skimmed off the top of each years grant in escalating amounts until all that is left is the corpus of the Trust Funds. These overall amounts for 20 years are about half of what the Compact provided over the first 15 years. Per capita this is a gradually descending scale that will go from a high of $1,600. per person 15 years ago to $330.00 per person by 2023.
All domestic federal programs and services under the Compact are subject to the discretion of Congress and appropriation on an annual basis, including even the U.S. Postal Service and U.S. Weather Service. Under the new Compact, FEMA disaster assistance will end after 5 more years, and if there is agreement it will be replaced by some new program based on the U.S. foreign disaster relief mechanism for other countries outside the U.S. and its possessions.
Pell grant program and Special Education programs under the Individual Disability Education Act will end in 2023. Other federal education programs end in 2004 and are replaced with annual cash grants for 20 years, and are zeroed out after that.
IMMIGRATION RIGHTS RESTRICTED
Because free association is based on separate nationality, and legally that includes all forms of national citizenship, associated state citizens are aliens for purposes of U.S. immigration law. Under Section 141 of the Compact their status is same as all other aliens, except for special limited travel, residence and employment privileges, based on a visa waiver for eligible individuals.
So under Section 141 citizens of associated state must have unexpired passports issued by their associated state government to enter the United States. The U.S. will deny entry if the U.S. determines passport was issued improperly or fraudulently. Naturalized associated state citizens not born there cannot enter the U.S. unless "actual resident" of the associated state for five years before the Compact entered force. Eligibility to enter is a matter of U.S. discretion, and physical presence in the associated state for no less than 85% of the five-year period is required.
Children cannot be brought for adoption without a visa, employment is authorized, but passport issued by associated state government is required to establish "identity and employment authorization" under U.S. immigration and alien labor laws. The grounds for exclusion and deportation of aliens apply to free associated state citizens, so they can be deported for conviction of serious crimes, threat to public health, or failure " to show sufficient means of support in the United States."
Travel to U.S. under Compact may be restricted regulations issued by the Attorney General of the United States, with 90 days notice to Congress. U.S. residence under Compact does not count as residence tie for naturalization as a U.S. citizens. Associated state citizens residing in U.S. under the Compact for one year are subject to the military draft.
POLITICAL REALISM ABOUT LEVERAGE FOR ASSOCIATED STATE
Those who think negotiating free association for Puerto Rico is a grand romantic quest may well be fooling themselves. We should not let them fool us as well.
The U.S. is not going to coddle us if we choose separate nationhood. A close political relationship based on separate nationhood can be friendly, but that does not mean the U.S. is going to allow itself to be colonized by Puerto Rico. U.S. citizenship will end for those born in Puerto Rico once it is a separate nation, with or without a free association treaty.
The U.S. will be generous, but not stupid. Puerto Rico needs the U.S. a lot more than the U.S. needs Puerto Rico. You dont need to have military bases galore to be a state, especially when the federal government is trying to save money and close bases, and the states are resisting closures. What you need to become a state is U.S. citizenship and the political will to petition Congress for admission until Congress cannot say no.
But you probably do need as many military bases as you can get to be a free associated state seeking a lot of benefits and advantages in its relations with Washington. Indeed, you need bases if you are a territory and want to improve your "deal" with the federal government.
So now that Puerto Rico is in a period of demilitarization, we need to be realistic about how much leverage we would have to negotiate a compact with the United States. If we are to have informed self-determination to resolve the status of Puerto Rico we need to consider free association, so lets do just that.
The specific features of the Compact for RMI and FSM reveal one fundamental reality. It is that even with military bases the U.S. considers vital the associated republics were not in a strong negotiating position. In fact, in the recent compact negotiations for the RMI and FSM, when it served U.S. interests to negotiate on the plane of mutuality, that was the approach taken. However, in almost every case where the associated states attempted to bargain based on principles of reciprocity and comity, the U.S. displayed an unwillingness to negotiate at all, in any true sense of the word.
This does not suggest the U.S. acted in bad faith. It simply reflects the realities of the historical relations between these small island areas and the worlds greatest superpower. In one sense, it can be argued that for island territories without the capacity to defend themselves in the troubled waters of the last century or develop as nations, being U.S. administered territories was the best thing that could have happened. Though that naturally meant casting their lot with the U.S. in wars and recessions, it was a lot better than the alternatives.
For those of us in Puerto Rico who believe in the U.S. and whose patriotism compels us to support full equal rights and duties of citizenship under statehood, it would seem odd to argue that the U.S. should to pander to small anti- American elements by offering to treat Puerto Rico as if it were doing the rest of the nation a favor by separating, and expecting a $20 billion annual subsidy to continue. If we want separation we better expect some realism from the U.S. and some sacrifice from Puerto Rico. We can kiss goodbye multi-billion dollar annual subsidies in perpetuity. We can also say adios to U.S. citizenship and sympathy for ethnocentric theories or our political relations with Washington.
We should expect free association to be largely a "take-it-or-leave-it" offer. That is what we should expect when we ask to separate from the greatest nation in history, even if it is a friendly separation. Even if the U.S. is happy about the separation, we should expect the U.S. to act in its own self-interest, so we should not seek separation unless we think separation on terms acceptable to the U.S. is on our self-interest. That means we place our tribal ethnocentric identity above our U.S. citizenship, instead of seeking to affirm our ethnic identity in the context of equal rights and duties of citizenship.
Just ask the Philippines, or ask the RMI and FSM. Sure, the U.S. "negotiated" the details of the terms under which the renewal package it offered would be implemented, but the associated states were never in a position to put a bottom line on the table regarding any issue whatsoever.
The U.S. position on any and all issues was literally an offer that could not be refused, because the associated states were simply not in a position to do anything other than get an agreement to extend the expiring economic provisions of the Compact. Failure to do so would have meant that as much as 50% to 80% of the per capita gross national product in the islands would have evaporated on October 1, 2003.
Again, that doesnt mean the U.S. was unfair or not generous. To the contrary, it demonstrates how fortunate the islands are that the U.S. has an interest as well as the resources to sustain the association on favorable terms. A good offer from a friendly power that you are not in a position to refuse is a lot better than a less attractive offer from friendly but less committed powers that you can perhaps refuse, but not necessarily count on either.
If that were not true, the associated states would not have stayed at the negotiating table. Indeed, during the negotiations on Compact, there were those in the RMI who argued that the U.S. interest in the Kwajalein Missile Range was so great that the RMI should refuse to agree to a renewal package unless the U.S. agreed to pay more in the future for base rights. Interestingly, the RMI held national elections just days before Compact was approved by Congress, and the governing party that negotiated the renewal package increased its majority in the national parliament and retained the presidency. The voters seemed to have a lot of common sense about the need for the RMI not to overplay its hand, even though Kwajalein was an ace.
So free association does not need to be perfect to enjoy the democratic support of the people concerned. However, in the case of a U.S. territory that chooses free association, it is important to be realistic about what the sovereign associated republic status model really means. The scenario played out in the Compact negotiations on travel and migration privileges for associated state citizens in the U.S. illustrate the point that free association technically ends territorial status, but ultimately free association will always arrest and then eventually reverses the process of integration that was taking lace during the territorial period.
IMMIGRATION NEGOTIATIONS TELL THE TRUE STORY OF FREE ASSOCIATION
The immigration provisions in the Compact of Free Association tell the true story of free association in U.S. legal practice. Under the former U.N. trusteeship, people born in the islands had citizenship of the territory. They were aliens under U.S. law, and had no special rights of naturalization or immigration. However, the INS and federal authorities were very relaxed about allowing the small numbers of people from the islands who came to the U.S. and its territories to remain in the U.S. for education or employment. Violations of visitor visas by trust territory citizens were treated as more of a technicality than a violation, and in most cases were corrected without difficulty.
When it came time to end territorial administration under the U.N trusteeship, the de facto open travel policy that had been in place was formalized under the immigration provisions of Section 141 of the original Compact. Citizens of the associated states remained aliens with no naturalization rights other than those afforded aliens from all other nations, and were not eligible for social welfare benefits for which U.S. citizenship was required. However, FSM and RMI citizens were allowed to enter and reside in the U.S. without a visa, and to accept employment without a green card.
This led to increased migration and the development of a "remittance economy" phenomenon in which islanders earning wages in the U.S. territories or mainland send cash back home in sufficient amounts to become important in-put to the local island economies. At the same time, in the states and territories impacted by this migration a complicated social process began.
At first, Compact migrants were welcomed due to their common background with Americans as citizens of a U.S. administered trust territory. They also were eager for entry level jobs at low wages. Local governments, businesses and health care providers tended to treat them like green card holders, and extend many social programs and benefits to them without focusing on the legal issue of eligibility.
Then two things happened. First, the numbers increased and the costs to local governments for services to the Compact migrants increased. Second, at the federal and local levels government lawyers figured out that the Compact did not make these aliens eligible for federal programs and services in the U.S. that require U.S. citizenship or even green card status. If Puerto Rico seeks free association it would be dangerous to assume that Congress will extend eligibility for federal social programs to non-U.S. citizens born after separate nationhood is instituted, much less that states will do so.
Suddenly, Hawaii, Guam and other U.S. jurisdictions were demanding federal impact assistance. Unanticipated problems under the open travel policy included some fairly notorious cases of state and federal welfare fraud, transmission of highly infectious communicable disease, exploitation of migrant workers by unscrupulous stateside labor recruiters, and the undocumented entry to the U.S. of infants from the islands for unregulated adoptions. The INS and other federal authorities were not entirely certain how to take the same enforcement actions they would in the cases of all other aliens from other nations, given the special privileges granted by the Compact.
By the time the U.S. was ready to sit down with the FSM and RMI to for Compact renewal negotiations, immigration was one of the hottest issues on the agenda. That was significant because technically immigration was not even on the agenda. Rather, the immigration provisions in Section 141 were not even expiring, and continued in effect as part of the legal framework of free association under the original Compact. Legally, the FSM and RMI could simply decline the U.S. request to revisit those provisions, and theoretically the U.S. could not unilaterally alter those travel privileges without mutual agreement.
It is worth noting that the RMI also wanted to open some issues that were not expiring. Specifically, the Compact provisions settling the RMI claims arising from the U.S. nuclear testing program in the RMI were not up for renewal or extension. The RMI requested that the U.S. agree to include nuclear test claims on the agenda, and the U.S. rejected that request on the basis that those provisions were not up for renewal because they were not expiring.
When the U.S. then insisted that the RMI negotiate amendments to the non-expiring immigration provisions, the RMI rejected the U.S. position on the same basis that the U.S. had rejected the RMI request to add the non-expiring nuclear claims provisions. The FSM also rejected the initial U.S. request to reopen immigration issues. The U.S. response tells the whole story of the negotiations.
First, without observing the political correctness of prior consultation the U.S. Department of Justice issued proposed INS regulations that would have unilaterally amended the immigration provisions of the Compact, by giving the U.S. Attorney General the power to restrict travel privileges expressly granted under Compact Section 141. The FSM and RMI appealed to Congress, but in the post-9/11 atmosphere there was no interest in challenging the U.S. Justice Department in defense of the open and admittedly quite liberal travel policy for aliens coming in through the associated states under the Compact.
The RMI then made submissions in cases before the U.S. Immigration Court in Honolulu to contest the legality of the federal action. The judge in those cases ruled in favor of the RMI, but the INS continued to enforce the new regulations pending an INS appeal of that ruling.
Second, the U.S. formally notified the FSM and RMI that, in effect, it would not submit the agreements being worked out on extension of the expiring economic assistance provisions of the Compact to Congress for ratification, unless the RMI and FSM also accepted amendments to the non-expiring immigration provisions acceptable to the U.S. State Department and INS. The effect of that would mean that all economic assistance, as well as all U.S. defense rights and responsibilities in the FSM and the RMI, would end on October 1, 2003.
In essence, the U.S. position reflected genuine and not unfounded concern that the liberal open travel scheme in place under the Compact could result in entry to the U.S. of persons with terrorism on their minds and in their hearts. The danger that enemies of the U.S. could exploit the lack of controls in the Compact travel and immigration system was real and not an over reaction.
So the U.S. demand for amendments even though the travel provisions were not up for renewal was based on a unusually clear U.S. determination that it was prepared to end close economic and military defense relations under free association with the RMI and FSM if it did not get the immigration provisions it wanted. It was unspoken but clearly understood that this would lead eventually to formal termination of the Compact, since it would be a hollow shell at that point.
Of course, the highly valued and strategically critical U.S. Army missile testing range at Kwajalein Atoll in the RMI was secure until 2016 under base rights agreements that would survive termination of the Compact. So even if the association ended the U.S. base privileges would continue for more than 12 years, and the RMI would be in an even weaker position in base agreement extension negotiations if the association had been terminated or was withering on the vine, so to speak.
At that point, the U.S. would no longer be obligated to defend the FSM or RMI, or provide them any economic assistance beyond payments to landowners at U.S. military base sites. In diplomatic parlance, for the RMI and FSM this was playing hardball with hand grenades...with the safety pins removed.
In addition to everything else this situation illustrated about free association, perhaps the most profound lesson was that Congress tends to defer to the President and the State Department once a territory adopts the free association model. Once the relationship with the U.S. is transformed from a domestic to an international matter, the codependence of the territorial model is replaced. Even if the transition period includes some vestiges of the domestic programs in territorial past, the reality is that Congress will want the President to propose the terms for free association to continue, and will let the association lapse if the President does not.
Indeed, there is little doubt that if the State Department had not negotiated a renewal and extension package for the Compact, Congress would have allowed the Compact to expire. It took Executive Branch leadership and initiative to get Compact extension on the Congressional agenda in 2003. While Congress jealously guards its power over territories, free association is a matter that is orphaned without Executive Branch commitment and confirmation that it warrants Congressional action to sustain the association as a matter of foreign policy interest.