A Primer on Free Association

For decades the United States Congress abdicated its duty to manage resolution of the political status of Puerto Rico based on the U.S. national interest and fully informed democratic self-determination. This has denied freedom and equality to millions of U.S. citizen residents living in the territory since it has been within the national borders of the United States.

During this period of Congressional abdication, ambiguity about the legal status of the territory was encouraged, promoted and exploited by the anti-statehood faction in Puerto Rico. The anti-statehood “commonwealth” party was bankrolled by corporations profiting from federal tax shelters, protected by allies in the Washington world of pay to play anti-statehood Congressional lobbyists.

This anti-statehood collusion prevented Puerto Rico from being integrated into the social, political and economic life of the nation.   Falsely referring to the territorial commonwealth as a “country,” promoters of the anti-statehood “commonwealth” scam ensured Puerto Rico was denied sustainable economic diversification and instead become hooked and addicted to federal subsidization of the local commonwealth regime.

This lack of market driven sustainable economic diversification is what led to Puerto Rico’s debt crisis, not the end of the federal corporate welfare tax scams and federal subsidization.

It is in that context that the U.S. citizens of Puerto Rico voted for statehood in 2012, 2017, and 2020. Each time, it was a vote for full and equal integration into the social, political and economic life of the United States. Still, those in Puerto Rico who remain fixated on anti-statehood ideology are once again touting the “free associated state” status option.

What is free association?

Free association is an association because it is not a union. It is free because either party can end it at will.   If it is to appear on any future ballot, it needs to be defined as a form of independence with a treaty of alliance between two sovereign nations that is terminable in favor of independence without alliance or association.

Here, then, is a primer on what free association will mean if it is on the ballot in a future status referendum:

• Free association is an international political status. It does not exist under domestic U.S. law but rather as provided by a treaty of association. It is a political status recognized under international law, including United Nations General Assembly resolutions. As such it is a sovereign, democratic, self-governing and decolonizing status.

• Free association is implemented under U.S. law by a treaty or international agreement approved by both governments in accordance with their respective constitutional process for ratifying international instruments.

• Free association is not a permanent, constitutionally defined status. It is a statutorily approved status that continues only as long as the agreement creating the association remains in effect. It is a sovereign right of either party to terminate the agreement.  The relationships of free association that the U.S. has at present have to be renegotiated every 5 years.

• Free association with the U.S. is different than with any other nation, because the U.S. Constitution defines a unique form of federalism in which federal and state government powers are limited.   Statehood, territorial status and the federal district which is the seat of our national governments are the only domestic forms of political status that are constitutionally defined for a territory and people under U.S. national sovereignty.

• Free association is a status that is international and not domestic, defined by an agreement approved by federal law but not the federal constitution itself. The features of free association must conform to a bilateral government-to-government foreign relations model.

• Because free association is a sovereign-to-sovereign alliance, the Constitution of the U.S. is not the supreme law of the land in the free associated state (FAS).   Rather, the FAS is sovereign and its own constitution is the supreme law of the land.

• The Constitution of the U.S. and federal law do not apply directly by their own force in a free associated state, and any U.S. activities in the FAS are governed by the association agreement and international diplomatic conventions.

• Each party must be sovereign under its respective constitution so that it can function as a fully independent nation if free association is terminated by either party acting unilaterally.

• While provisions can be made for an orderly transition, the end result of termination is independence.   If termination required mutual consent, that would mean each party would have a veto power over the sovereign independence of the other party.   That would mean the association is not free.

• Free association is defined as separate sovereignty, nationality and citizenship. U.S. nationality and citizenship currently conferred by federal statute would be ended under free association. Currently, U.S. nationality and citizenship is conferred in the territory by federal statute. It will end when separate sovereignty begins for the FAS.

• The U.S. tolerates dual nationality, but does not create or institutionalize it. So dual nationality will not be a feature of an agreement defining FAS status.

• Naturalization under federal statutes will end under free association, and relation to a person with U.S. nationality or citizenship during the territorial period will not provide a basis for naturalization under free association.

• If free association is carried out, the Commonwealth of Puerto Rico will cease to exist under U.S. law and instead the former territory will become the Republic of Puerto Rico. It will not be within the sovereign realm of the United States and will exist outside the national borders of the USA.

• The allegiance of the people will be to Puerto Rico, not the United States of America. The ROPR will have its own national sovereignty and citizenship, and national citizens will be aliens under U.S. immigration law.

• Even if granted a temporary visa waiver program, FAS citizens will be subject to deportation as are any other aliens.

An honest definition

We are used to thinking of Puerto Rico as Estado Libre Asociado de Puerto Rico, literally translated as ”Free Associated State of Puerto Rico.” The idea of being a free associated state sounds familiar and comfortable.

But that’s not what it means. Puerto Rico is an unincorporated territory of the United States, which is completely different. Becoming a free associated state will not mean continuing as we are right now, or staying the same but negotiating a better deal. It will mean becoming an independent nation and negotiating a treaty with the United States.