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San Juan Star, San Juan, Puerto Rico


By: Herbert W. Brown III

(09/11/98, Copyright © 1998 San Juan Star)

Ron Walker asserts that free associated state status is not possible under the U.S. Constitution (STAR, August 16). To the contrary, in U.S. Public Law 99-239 and several subsequent federal statutes, the U.S. Congress has recognized free association as entirely compatible with the U.S. Constitution.

Unlike the present Commonwealth established under the Territorial Clause power of Congress, real free association is a status created through the treaty-making process under the U.S. Constitution. This can include treaties ratified by the Senate under Article II, Section 2, or a treaty of association approved by both Houses of Congress and signed by the President in order to authorize spending for treaty implementation.

The best way to understand free association as recognized by Congress is to study the U.S. statutes approving free association compacts with the Republic of Palau, Republic of the Marshall Islands, and the Federated States of Micronesia (P.L. 99-239 and P.L. 99-658). Strangely, however, Mr. Walker's commentary argues that the Pacific island compacts–the only free association relationships ever approved by Congress–are irrelevant to the discussion of free association as an option for Puerto Rico.

Whatever the purpose of this misleading argument, if the people of Puerto Rico are to make an informed choice to accept or reject free association the following inaccurate statements by Mr. Walker must be corrected:

1. In support of his argument that the Pacific island compacts are irrelevant to Puerto Rico because those territories were under a U.N. trusteeship, Walker writes "...the Trust Territories of the Pacific (and all other trust territories in the world) were automatically set on a path of future political status action by the United Nations... The United States... could do nothing to prevent that political status process... Eventually... islands in the Pacific voted for free association... That status was granted by Washington. It really had no choice in the matter. The U.S. was merely fulfilling its ultimate obligation that was mandated by the United Nations."

Both legally and factually, this is simply incorrect. First, the pacific islands trusteeship is the only trusteeship in the world which was designated as "strategic" under Article 82 of the U.N. Charter. As a result, the Security Council rather than the General Assembly exercised final U.N. responsibility for oversight of U.S. administration of the Trust Territory. Since the U.S. has a veto power in the Security Council, this meant that the U.S. could prevent any U.N. measure inconsistent with U.S. policy regarding the status of the territory.

This extraordinary arrangement driven by strategic interests was implemented in accordance with a U.N. Trusteeship Agreement, under which the U.S. governed the Trust Territory as "Administering Authority." Article 15 of the U.N. Trusteeship Agreement reads as follows: "The terms of the present agreement shall not be altered, amended or terminated without the consent of the administering authority."

This meant that legally the U.S. could administer the islands as a Trust Territory in perpetuity if it chose to do so. Nevertheless, once status agreements acceptable to the U.S. were reached, it was the U.S. that took the initiative in ending the trusteeship. Contrary to Walker's version, it was the U.N. bureaucracy that resisted termination. Ultimately, the U.S. found it necessary to unilaterally declare the trusteeship terminated in order to implement plebiscite results without waiting for U.N. recognition, which came years later.

2. Walker writes: " the case of the Trust Territory of the Pacific, the United States never...acquired those islands, nor did it assume sovereignty over them; in short, it never 'owned' them."

In fact, neither the U.S., the U.N., nor the people of the Trust Territory exercised sovereignty during the trusteeship. Rather, as a technical legal matter sovereignty was held in abeyance until self-determination resulted in full self-government. Politically, however, the U.S. exercised plenary powers under the international trusteeship system which were at least as broad as the powers the U.S. exercises over its own territories.

For example, Article 9 of the Trusteeship Agreement provided that "[t]he administering authority shall be entitled to constitute the trust territory into a customs, fiscal, or administrative union...with other territories under U.S. jurisdiction..."

Even more fundamentally, Article 3 of the U.N. Trusteeship instrument provided that "[t]he administering authority shall have full powers of administration, legislation, and jurisdiction over the territory...and may apply to the trust territory, subject to any modification which the administering authority may consider desirable, such of the laws of the United States as it may deem appropriate..."

Thus, the power of the U.S. under the trusteeship equaled or exceeded the power of Congress under the Territorial Clause, including the ability to unilaterally apply and alter federal law in a manner different than in the United States.

3. Walker writes: "The islanders... became 'U.S. nationals,' not U.S. citizens..."

Wrong again. Article 11 of the U.N. Trusteeship Agreement stated that "[t]he administering authority shall take the necessary steps to provide the status of citizenship of the trust territory for the inhabitants of the trust territory." The inhabitants of the Trust Territory were aliens under U.S. immigration law, and required visas to enter or reside in the United States.

Like persons born in Puerto Rico as a commonwealth, Trust Territory citizens were not U.S. nationals or citizens under the U.S. Constitution. In contrast to Puerto Rico and other U.S. territories, U.S. citizenship was not extended under any statute made applicable to the trusteeship areas.

However, statutory U.S. nationality and citizenship were offered to the Trust Territory communities during their political status negotiations, but only in the event they chose to become U.S. territories under U.S. sovereignty and subject to the Territorial Clause. From the original island groups in the Trust Territory, only the Northern Mariana Islands chose U.S. nationality and citizenship offered as part of an agreement to enter into commonwealth status under the Territorial Clause. Separate sovereignty with a treaty of association was offered and accepted in the case of Micronesia, the Marshall Islands and Palau, but the offer of free association did not include continued "dual" or "shared" U.S.
sovereignty, nationality or citizenship.

It is important to note that free association as practiced by the U.S. under the Pacific islands compacts is also consistent with U.N. General Assembly Resolution 1541(XV), which recognizes free association as legitimate form of decolonization provided it is terminable in favor of independence through the constitutional process of either party to the compact. This unrestricted terminability is the essential and inviolable feature which makes the association "free" and, therefore, non-territorial and non-colonial.

In conclusion, free association is possible as a treaty-based relationship established in accordance with the U.S. Constitution. Whether it is the right status solution for Puerto Rico is a decision only the voters can make once they have accurate and complete information.

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