historical problems of the relationship and offers solutions to them, and that responds

Transcription

1 COMMONWEALTH STATUS AND/OR THE BILATERAL COMPACT OF ASSOCIATION: THE SOLUTION TO A MUTUAL PROBLEM ' Luis Vega Ramos University of Puerto Rico Law School INTRODUCTION On the day of Puerto Rico's quincentenial, Washington,D.C. woke up to a message that demanded the clarification and the approval of the bilateral compact of the sovereign Free Associated State of Puerto Rico as a response to the results of the November 14th status plebiscite! The petition's purpose was to put an end to an almost century-long dilemma for Puerto Rico and the United States. Throughout its history, Puerto Rico has been pulled by two opposing forces: cultural self-affirmation and the preservation of political and economic ties to a stronger power. For the United States, the dilemma has centered on whether it is best to maintain Puerto Rico as a perpetual dependency in order to secure its interests in the island or if the costs of this outweigh its benefits. The commonwealth arrangement of 1952 has outlived its usefulness and no longer functions as a solution to the dilemma. The proposed commonwealth definition, that won the plebiscite, called for a "bilateral compact which can only be amended by mutual consent." 3 We must devise a definitive solution that takes into account the historical problems of the relationship and offers solutions to them, and that responds ' Dedicated to Marco A. Rigau and 2,059 other Puerto Ricans who simply had the courage to stand by the principle and be counted.special thanks to Rail S. Mariani Franco for his invaluable help in preparing this paper. Presented at the Caribbean Studies Association.19th Annual Conference in Yucatan, Mexico, and the Second Annual National Conference on Relations Between the U.S., American Samoa, Guam, Micronesia, Northern Marianas, Puerto Rico and the U.S.V.I., Washington, D.C., May Tne Washington Post, November 19, 1993, page A54. 'For a translation of the status definitions for the plebiscite see 'Hemisphere", Vol. 5, No. 3, Summer/Fall 1993, page 39.

2 to the aspirations expressed by the Puerto Rican people in the status plebiscite of I. The Commonwealth of 1952: compact or "monumental hoax"? On December 10, 1898, with the signing of the Treaty of Paris, the United States acquired Puerto Rico as a Spanish-American War booty. Said treaty granted Congress full power to determine the "civil rights and political status" of the island and its inhabitants. 5 Thus, Puerto Rico became a possession of the United States, subject to the sovereign will of Congress In acqbiring Puerto Rico, the Philippines and Guam, the United States had formally become an imperial power. The awkwardness of this situation prompted an intense debate as to the applicability of the Federal Constitution to these new possessions, the limits of congressional power to legislate over them and their ultimate political destiny. For Puerto Rico, it took 24 years, two organic acts (the Foraker and the Jones Acts) 6, and a series of Supreme Court decisions, known as the Insular Cases', to solve this debate, but in an inconclusive manner!' The solution was concretely stated in Balzac v. Porto Rico 9, where it was concluded that Puerto Rico belonged to, but was not part of, the United States. Judge Taft stated that while U.S. citizenship was collectively granted in 1917, the island was still an "unincorporated territory" of the United States, in which only the most fundamental guarantees of the Federal 4 Phrase used by Circuit Judge Magruder in Figueroa v. The People of Puerto Rico, 232 F. 2d. 615 (1st Circ., 1956). Article IX, Treaty of Pans of 1898; 30 Stat. 1754, Stat. 77 (1900) and 39 Stat. 951 (1917) respectively. 7 De Lima v. Bidwell 182 US 1 (1901); Downes v. Bidwell, 182 US 244 (1901); Dooley v. United States, 183 US 151 (1901); Pepke v. United States 183 US 176 (1901); Hawaii v. Mankichi, 190 US 197 (1903); Dorr v. United States 195 US 138 (1904); Rassmussen v. US, 197 US 516 (1905). 8 See Judge Black's negative critique of the Insular Cases in Reid v. Covert, 354 US 1 (1957) at US 298 (1922).

3 3 Constitution applied. The Supreme Court deemed the right to a trial by jury not to be a fundamental right and, thus, inapplicable to Puerto Rico. The territorial status of Puerto Rico remained unaltered during the next three decades. It was clear that Congress exercised plenary powers over the island in virtue of the Territorial Clause of the Constitution.' In 1950, after passage of an amendment to the Jones Act that permitted the popular election of the insular governor", Congress started a process, with the approval of Public Law 600'2. This process culminated in 1952 with the establishment of the commonwealth of Puerto Rico,which is the current arrangement between the island and the federal government. Public Law 600 stated that it was adopted by Congress "in the nature of a compact, so that the people of Puerto Rico can organize a government pursuant to a constitution of their own adoption." The law went on to describe the process by which the Puerto Rican people would adopt their constitution, which had to be ratified ultimately by the President and the Congress. Finally, the law stated that a series of provisions of the Jones Act would still remain applicable to Puerto Rico, under the name of the Puerto Rican Federal Relations Act of There are at least two of those provisions that seem to seriously weaken the theory of the existence of a compact binding Congress. Section 1 of the Act reads: That the provisions of this Act shall apply to the Island of Puerto Rico and to the adjacent islands belonging to the United States. 15 This section seems to mean that, notwithstanding the so-called compact, 1 Article IV, Section 3, US Constitution. "Elective Governor Act of 1947; 48 U.S.C.A. 737 et seq Stat. 319; 48 U.S.C.A. 731(b) et seq. 13 Id. ' 4 48 U.S.C.A. 745 et seq. /5 48 U.S.C.A. 731.

4 Li Puerto Rico still remained a possession of the United States. Furthermore, regarding the limits of congressional power over Puerto Rico, Section 9 stated: That the statutory laws of the United States not locally inapplicable except as hereinbef ore or hereinafter otherwise provided, shall have the same force and effect as in the United States, except the internal revenue laws To fully understand the implications of P.L. 600 and its effect on the constitutional status of Puerto Rico, one must go to its legislative record. It is there that the congressional intent and understanding of the proper meaning of the phrase "in the nature of a compact" can be found." During public hearings held by the House Committee on Public Lands' the Governor and the Resident Commissioner of Puerto Rico, the Department of the Interior and the Department of State of the United States all agreed that passage of this legislation was "a development into self-government on the part of a nonincorporated area of the United States, without virtually changing its position relative to the United States." The Senate's committee report summed up this reasoning by stating that: The measure under consideration would not change Puerto Rico's fundamental political, social and economic relation to the United States."' During the congressional debates, it was clear that with varying degrees of authoritarism, the attitude of congresspersons ranged from blatant imperialism to benevolent paternalism. Only Rep. Marcantonio (D-NY) lifted his voice in protest, 16 Id. "7 Helfeld, David M. "Congressional Intent and Attitude Towards Public Law 600 and the Constitution of the Commonwealth of Puerto Rico", 21 Rev. Jur. UPR 255 (1952). 16 Hearings Before the Committee on Public Lands on H.R. 7674, March 14 and 17, Statement given by the Governor of Puerto Rico, Luis Munoz Marin, regarding H.R. 7674, March 14, Report No. 1779, Senate, 81st Congress, 2nd Session.

5 5 calling the measure a "fraud" to the Puerto Rican people. 2' As could be expected, his accusation went unheard by the rest of Congress. With the legislative interpretation properly in place, Congress approved and the President signed P. L.600 into law. For them it seemed clear that the compact entered into did not alter Puerto Rico's status as a territory. The people of Puerto Rico accepted, in a special referendum, the terms offered by Congress and elected a constitutional convention to elaborate the organic document. Besides adopting it, the convention also adopted a series of resolutions. One of them stated that Puerto Rico had attained "the goal of complete self-government", within "the terms of the compact entered into by mutual consent..." 22 Furthermore, this resolution went on to say that "the people of Puerto Rico reserve the right to propose or accept modifications in terms of its relation with the United States..." 23 These statements of the constitutional convention seem to contradict, if understood in their broadest meaning, both Congress' and President Truman's interpretation of P.L.600. While Congress had stated that these actions had not altered the fundamental status of the island, the elected representatives of the people of Puerto Rico claimed that "the last vestiges of colonialism" had "disappeared in the principle of the Compact." Something or someone had to give, as the constitutional convention soon found out. After being popularly ratified by a 4 to 1 margin, Resident Commissioner Ferncis introduced H.R. Conc. Res. 430 by which Congress would ratify the Puerto Rican constitution. In finally approving the constitution, Congress ordered Puerto Rico to 21 To see a summary of Rep. Marcantonio's remarks consult FernOs Isem, El Estado Libre Asociado de Puerto Rico, Antecedentes, Creaci6n y Desarrollo Haste la Epoca Actual 2nda edicion, Editiorial de la U.P.R.,1988, pages Resolution 23 of the Constitutional Convention of Puerto Rico, 1 L.P.R.A. pages Id.

6 accept two amendments in order for the document to take effect.' President Truman signed the resolution with amendments into P.L and the constitutional convention "accepted" the amendments. 23 The commonwealth of Puerto Rico was officially proclaimed on July 25, 1952, coinciding to the day with the 54th anniversary of the U.S. invasion of the island? The following year, the U.N. General Assembly, having received assurances given by the President of the United States committing the U.S to accept any request made by the Puerto Rican legislature in favor of a greater degree of, or even total independence28, approved Resolution 748(VIII), which gave international recognition to the "new constitutional status" of the island' With this resolution the process of creation and legitimization of the commonwealth status was completed. This gave way to an era that started with overcelebrated industrialization and the presentation of Puerto Rico as the model for U.S. relations with underdeveloped countries in the thick of the Cold War, to a period where juridical ambiguity, political powerlessness, economic dependance and "unwise practices" 3' of "hanky panky' 31 have prompted a crisis that demands the urgent revision of the U.S.- Puerto Rico relationship. 2 Congressional amendments to the Puerto Rican Constitution were the elimination of Section 20 of the Bill of Rights (Article II) which was modeled after thehuman rights embodied in the U.N. Charter and contained, for example, the right to work, and an addition to Section 3, Article VII, ordering all future amendments to the constitution to be compatible with the Federal Constitution and the Federal Relations Act of Stat. 327; 48 U.S.C.A. 731(d). 28 Resolution No. 34 of the Constitutional Convention of Puerto Rico; 1 L.P.R.A. pages Proclamation on the Foundation of the Commonwealth of Puerto Rico; 1 L.P.R.A. pages See Arguelles and Gautier Mayoral, Puerto Rico y la O.N.U., Editorial Edil, 1971, pages Id. at page Quote from President George Bush's State of the Union Address, February 7, See Ferndndez, Ronald. The Disenchanted Island, Praeger, 1992, page x..

7 II. The Problems of Puerto Rico For Puerto Ricans, the problems related with political status seemed to complicate, not to end, with the creation of the commonwealth: Although no one can deny that commonwealth status permitted Puerto Rico to enjoy the benefits of an accelerated economic growth, unrestricted access to the U.S. market and to the mainland, and a certain degree of political stability, it must also be aknowledged that Puerto Ricans have also suffered heavily from its side effects. These have become more evident in recent years, giving some validity to the argument that the price Puerto Rico has paid for commonwealth has been too high. Today, Puerto Rico is a society plagued with a high (and drug related) crime rate, unbridled consumerism, extreme dependance on welfare programs and federal tax breaks, and a constant struggle between its national identity and and the possibility of total assimilation to the United States. It would be unjust to totally lay all the blame for these evils on commonwealth status or even on the United States; we (Puerto Ricans) also share a measure of responsibility for tolerating the deterioration of our society. But we do not need to lay blame. What we need to do is understand the problems of modern day Puerto Rico, so that we can fashion a political and economic relationship that foments solutions to those problems and forecloses the possibility of new ones. The problems of Puerto Rico can be divided into four categories: juridical ambiguity, the issue of national identity, economic dependance and political powerlessness. Although they are extremely interrelated, we will discuss each of them separately. 32 This should not be understood as to mean that there have not been instances of political turmoil during the past forty years, as the attempts to force the Navy and the Marines from Vieques and Culebra, the Cerro Maravilla killings of two independence advocates at the hands of the police in 1978 and the attacks on U.S. military facilities and personnel located in the island in the early eighties, just to name a few, demonstrate. 33 This list does not attempt to include all the problems of the island, only the ones that are directly related with the status question.

8 A) JURIDICAL AMBIGUITY Before the establishment of the commonwealth there was no doubt that Puerto Rico was a territory of the United States. The President, the Congress, the courts and the Puerto Rican people all agreed this was the correct interpretation. After 1952, however, things have not been so clear. Using the faculties recognized by Section 9 of the Federal Relations Act, Congress has exercised consistently its power to legislate over Puerto Rico. Aside from the inapplicability of the internal revenue laws, Congress has legislated over the island in two ways: 1. Treating Puerto Rico in the same manner it would treat the fifty states; or 2. Explicitly treating Puerto Rico in a different manner than the fifty states. This has permitted both deferential and detrimental treatment of the commonwealth in various legislations. The Executive Branch also has mixed feelings on how to treat Puerto Rico and its commonwealth status. The Kennedy Administration in 1961 issued the first Presidential memorandum on Puerto Rico. 34 It recognized the "unique position of the Commonwealth" and that its "structure, and its relationship to the United States which is in the nature of a compact, provides for self-government in respect to internal affairs and administration, subject only to the applicable provisions of the Federal Constitution, the Puerto Rican Federal Relations Act, and the acts of Congress authorizing and approving the constitution." 35 Thirty-one years later, the Bush Administration emitted a new memorandum on 34 Memorandum of July 25th, 1961; 26 Fed. Reg d.

9 c\ Puerto Rico./' Its tone is strikingly different. It starts by announcing that Puerto Rico is "a self-governing territory of the United States." Consequently, the island is subject to federal authority under the Territorial Clause. This memorandum, which specifically revokes the Kennedy memorandum, is still in force today, but under evaluation by the White House of President William Jefferson Clinton. 3' The issue of the juridical ambiguity of the commonwealth has recently reached critical proportions in the federal courts. For decades the First Circuit of Appeals has maintained that the commonwealth status so altered the nature of the U.S.-Puerto Rico relationship, that the latter ceased being a territory of the United States in The Supreme Court has not been clear in its position, thus contributing to the ambiguity. While in Calero Toledo v. Pearson Yacht Leasing Co. 3', it stated that the commonwealth's legislation was to be treated by federal courts as any other state legislation, in Harris v. Rosario it concluded that congressional source of power over Puerto Rico flowed from the Territorial Clause and thus, Congress could discriminate against Puerto Rico so long as there is a rational basis for the discrimination. Then, in 1982, the Court seemed to contradict itself again in Rodriguez v. Popular Democratic Party 4', when it stated that "Puerto Rico...like a state, is an autonomous political entity, 'sovereign over matters not ruled by the Constitution'." 42 These contradictions have been explained by the existence of a double standard regarding the treatment of the commonwealth by the federal 36 Memorandum for the Heads of the Executive Departments and Agencies, November 30, 1992; 57 Fed. Reg " Task Force, The White House, Washington, D.C. Letter to The Hon. Ron de Lugo, Chairman, Subcommittee on Insular Affairs, U.S. House of Representatives from Marcia Hale, Assistant to the President, and Director Intergovermental Affairs, March 9, 1994, 2 pages. 36 See More v. Mellas, 206 F.2d. 377 (1st Circ., 1953); Figueroa v. The People of Puerto Rico, 232 F.2d. 615 (1st Circ.,1956); US v. Lopez Andino, 831 F.2d.1164 (1st Circ., 1987) US 663 (1974) US 651 (1980) US 1 (1982) US at 8.

10 goverment:13 Based on the Rodriguez v. Popular Democratic Party dicta the First Circuit explicitly concluded in U.S. v. Quinones" that: Thus, in 1952, Puerto Rico ceased being a territory of the United States subject to the plenary powers of Congress as provided by the Federal Constitution. 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 Rican Constitution unilaterally, and the government of Puerto Rico is no longer a federal government agency exercising delegated power. (cites omittedr Just recently, the Eleventh Circuit in U.S. v. Sanchez' gave an opinion that openly contradicts the position of the First Circuit with regards to the constitutional status of the commonwealth. Quoting directly from Judge Torruella's concurrence in Lopez Andine, the decision stated that: With each new organic act, first the Foraker Act in 1900, then the Jones Act in 1917, and then the Federal Relations Act in 1950 and latter amendments, Congress has simply delegated more authority to Puerto Rico over local matters. But this has not changed in any way Puerto Rico's constitutional status as a territory, or the source of power over Puerto Rico. Congress continues to be the ultimate source of power pursuant to the Territory Clause of the Constitution. It goes on to say that: Congress may unilaterally repeal the Puerto Rican Constitution or the Federal Relations Act and replace them with any rules or regulation of its choice. Despite passage of the Federal Relations Act and the Puerto Rican Constitution, Puerto Rican courts continue to derive their authority to punish from the United States Congress and prosecutions in Puerto Rican courts do not fall within the dual sovereignty exception to the Double Jeopardy Clause. 43 Helfeld, David M. "How much of the Constitution and Statutes are applicable to the Commonwealth of Puerto Rico", 110 F.R.D. 452 (1974). "758 F.2d. 40 (1st Circ., 1985) F.2d. at F.2d (11th Circ.,1993) F.2d. at " 992 F.2d. at F.2d. at

11 The Supreme Court refused to grant a writ of certiorari to the defendants, once again demostrating its reluctance to face the issue with total clarity. Sooner or later it will have to solve the conflicts between circuits and decide once and for all the constitutional status of the commonwealth. Until then, the juridical ambiguity of the status quo affords the people of Puerto Rico a constant uncertainty as to what they are entitled to and as to the limits of congressional power over us. B) THE ISSUE OF NATIONAL IDENTITY Juridical ambiguity brings about one important side effect: the issue of collective identity5) As a result of our "unique" position with regards to the United States, islanders have had -throughout this century- a hard time figuring out what it means to be Puerto Rican in the eyes of the metropolitan power. Events that have produced this crisis have been taking place since the moment the U.S. troops entered the island in The failure of the U.S. to recognize -for the better part of this century- that in dealing with Puerto Rico, it has been dealing with a distinct and unique nationality has been the driving force in this folly. Let's sum up events. Early in our territorial subordination, the Supreme Court stated that Puerto Rico belonged to, but was not part of, the United States. 51 Congress understood Puerto Rico to be "foreign" to the United States and even created, in 1900, a Puerto Rican citizenship, which had no juridical significance.'2 Then, in 1917 we were "welcomed" into the American family with the congressional grant of U.S. citizenship. s3 But that citizenship did not make us 100% Americans: only the most 5 It is important to stress that the issue of national identity will not be totally solved by a juridical scheme; this would only be the begining of a process that cannot limit itself to the legal aspects of the relationship. " The Insular Cases, note 7, supra. 52 This was part of the Foraker Act of 1900, note 6, supra. 53 This was part of the Jones Act of 1917, note 6, supra.

12 fundamental guarantees of the Federal Constitution applied to Puerto Ricans. 5' Contemporaneously, there was a policy of the United States Government to assimilate Puerto Ricans to the American Way of Life. This policy, which lasted for three decades, forced English and the pledge of allegiance to the U.S. flag, while authorities declared the use of the Puerto Rican flag an unlawful action. 5s This policy turned out to be a total failure, but it has left grave scars on the Puerto Rican collective psyche. We had not become more American; we had only become more afraid of being Puerto Rican. Commonwealth status has not solved the dilemma in a definitive way. Although in the past forty-two years there have been various official affirmations of our distinct national identity --like the establishment of the Institute of Puerto Rican Culture in 1956 and the 1991 law (now repealed) that declared Spanish as the only official language of the island-- and numerous popular ones,the fundamental question remains unanswered: what does it truly mean to be Puerto Rican? This has been complicated in the last decades by the continuous migration of Puerto Ricans to the U.S. mainland and by the return wave that continues to grow every year. Puerto Ricans in the U.S. are rejected as not being American and when they return to the island they are met by with lack of understanding by islanders. It is fundamental that in developing a definitive solution to the mutual problem of the U.S.- Puerto Rico relations, they be taken into account. They too need a "patria". In terms of the situation of our youth, two scholars have stated: For today's Puerto Rican youth it is particularly difficult to develop a strong and congruent sense of identity. Our society has suffered great and fast economic and social transformations without the opportunity to decide what should be accepted or rejected (e)verything was 54 Baizac, note 9, supra In discussing the citizenship question, it should be taken into account that the concepts of citizenship and nationality are not synonyms; while the first one is a juridical concept, the second one is a sociological one, which denotes a stable human community, with its own history, language, culture and territory. This is clearly the case with Puerto Rico. 55 For a complete chronicle of the Americanization period see NegrOn de Montilla, Americanization in Puerto Rico and the Public School System, , Editorial Edil, 1970.

13 accepted without measuring its consequences. 93 But despite these difficulties, Puerto Rican youth still strives for the preservation of our identity, as its strong adherence to our language, our music and our cultural and sport ambassadors suggest. Since it is clear that there is both a resistance of the American society to assimilate or incorporate the Puerto Rican nationality and a resistance of Puerto Ricans to dissolve themselves in the "American Melting Pot" 93, we must fashion a political solution that rests on the affirmation of the Puerto Rican nationality as its foundation. C) ECONOMIC DEPENDANCE Luis Nieves FaIcOn, a leading Puerto Rican scholar, has referred to our society as one afflicted with "a pathology of dependance" on federal funds. 59 We have to agree. Once again, we will let the facts speak for themselves. A 1990 General Accounting Office briefing described the situation as follows: Total federal spending, at $6.2 billion in 1988, comprises about 34 percent of Puerto Rico's $18 billion gross product. In the 50 states, the average is about 18 percent. About 38 percent of the federal spending - about $2.4 billions- was in grants to the commonwealth or its local governments. This includes welfare assistance, education, highway aid, and customs duties shared with the island. Another 47 percent was for direct payments to individuals, including those for retirement, disability, and veteran's benefits. Most of the remaining 15 percent was for the wages of federal employees on the island, such as postal workers, and 5 See Quiles and Saltalamacchia, "Informe de Puerto Rico", SituaciOn de la Juventud en America Central, Wilco, Cuba y Puerto Rico, CEDAUCLACSO, 1990, page 229. " See Moynihan, Daniel P., Pandemonium: Ethnicity in International Politics, Oxford University Press, 1993, pages 73-77, 150. For a general discussion of the issue of nationalities and the United States, see Schlesinger,Jr., The Disuniting of America, Norton, "See Flores, Divided Borders: Essays on the Puerto Rican Identity, Arte POblico Press, University of Houston, Texas, " Nieves FalcOn in Puerto Rico: The Search For A National Policy (Richard J. Bloomfield, editor), Westview Press, 1985, pages United States General Accounting Office, Puerto Rico: Information for Status Deliberations, Briefing Report to the Chairman, Subcommittee on Insular Affairs, March 1990.

14 ty for procurement, such as military purchases. Additionally, the federal government provided $703 million to Puerto Rico in direct loans, loan guarantees, and insurance in fiscal year For example, the federal government guaranteed $50 million in student loans, $454 million in mortgage insurance, and $9 million in the Department of Veterans Affairs home loans.' Compounding the issue, a 1991 CRS document & stated that while in the fifty states and the District of Columbia the percentage of persons under the poverty line is 12.4%, in Puerto Rico the number is 64.4%. That means that almost two-thirds of our population is under the U.S. poverty line and, thus, eligible for federal assistance. According to a professor of Political Science at the University of Puerto Rico: The transfer of federal funds to Puerto Rico is another example of the sometimes ad hoc character and lack of clear goals by U.S. policymakers towards Puerto Rico. No one in Washington foresaw, for example, that the food stamp program in Puerto Rico would soon comprise one-fifth of the federal program, or that, when Congress later cut the program drastically, it would have dire economic consequences on the island. The rising numbers of economically marginal and poor individuals created by Puerto Rico's economic crisis during the last two decades have come to depend on federal programs for the economic survival. The Puerto Rican poor support statehood, not because of an ideological or cultural bond to the United States, but because statehood will guarantee their economic security 83 Beside its effect on enlarging the support for statehood in the island, others argue that "federal funds, especially food stamps, have contributed to create a form of 'family ideology of waiting', in which the tendency to wait for someone else to do things for us is unavoidable; thus thwarting any effort that implies the attainment of the desired goals."' Economic dependance on federal funds is the gravest social ailment of the Puerto Rican people. It makes us give away our sense of belief in our collective 6' Id. at page Merck, Carolyn J. Welfare and Taxes under Alternative Status Options for Puerto Rico, Congressional Research Service, Jan 15, Melendez, Edgardo. "Colonialism, Citizenship and Contemporary Statehood", Colonial Dilemma: Critical Perspectives on Contemporary Puerto Rico, South End, 1993, page Quiles and Saltalamacchia, supra, note 56, page 214.

15 capabilities. If we add those who are directly dependent on federal funds, and those who are dependent on congressional will to keep Section 936 alive in order to preserve their jobs, we will find that almost the totality of our people is economically dependent, one way or the other, on the United States. Not only is this politically unwise; it is also morally reprehensible. We must move soon to end this dependancy or the consequences will be disastrous both to Puerto Rico and the U.S. 65 D) POLITICAL POWERLESSNESS The powerlessness of the commonwealth derives from the aforementioned Section 9 of the Federal Relations Act of ' This section gives Congress the power to legislate over Puerto Rico in all matters not locally inapplicable, a determination ultimately made by Congress. In exercise of that power, the Supreme Court has said that Congress may discriminate against Puerto Rico in the application of federal legislation, so long as there is a rational basis for such discrimination' The Court has also recognized that Congress' power to discriminate over Puerto Rico derives from the Territorial Clause of the Federal Constitution!' What this means is that Puerto Rico is at the mercy of legislation enacted by a Congress in which it has no voting representation, signed by a President for whom nobody in Puerto Rico votes, and judicially reviewed by a system of courts in which Puerto Rico possesses no formal power in appointing. In spite of that, some have dared argue that the Federal Relations Act, of which Section 9 is part, is the compact 65 1n analyzing Puerto Rico's economy, one should not equate dependancy with lack of productivity, since our labor force is considered one of the most productive in the world.the problem, according to a scholar, is that Puerto Rico has had economic growth without economic development; see Dietz, James L. Economic History of Puerto Rico: Institutional Change and Capitalist Development, Princeton University Press, New Jersey, "Supra, note 16. 6? See Harris v. Rosario supra, note d. at

16 between Puerto Rico and the United States. But how can you argue that a law that enables Congress to unilaterally legislate over the island and its people constitutes a solemn compact between two parties? In recent years there have been two actions taken by Congress that have debilitated both the compact theory and the economic panorama of the island, which are good examples of what has been explained above. First, the "Economic Act of 1984") amended Section 7652 of the Internal Revenue Code to fix limits to the quantity of money to be returned to the government of Puerto Rico (and the U.S.V.I.) resulting from the excise tax imposed on distilled spirits. The report referred to both as being "possessions" of the United States.' Although this provision had been construed by many as a fundamental part of the compact, to this day no Puerto Rican government has challenged the validity of this act in the federal courts. Secondly, just last year, Congress amended Section 936 of the Internal Revenue Code!' This section guaranteed federal tax exemption to U.S. companies established on U.S. territories or possessions. This section, along with its earlier incarnations, had been the backbone of the Puerto Rican economy, allegedly bringing to the island many companies and creating thousands of jobs. Now the hour-glass has begun to run out on the Puerto Rican economy and we are almost totally helpless to do anything about it. This reality only becomes worse by the fact that Puerto Rico lacks not only the political power to preserve its actual economic model, but it also lacks the power to create a new one. In this new world order of economic interdependence, exemplified by the European Community and NAFTA, Puerto Rico lacks the political power to enter into international agreements that can help reconstitute the Puerto Rican economy. If Puerto Rico is to enter the twenty-first century with a self-sufficient economy and not 69 P.L ; 28 U.S.C.A H. Conf. Rep. No. 432, 98th Congress, 2nd Sess., pages 133 et seq. " P.L

17 with a dependent one, we need the international personality that comes with political power. It is in our mutual interest that Puerto Rico becomes a player in the international economic game, instead of continuing as a U.S. appendix. These are the problems of Puerto Rico that.directly result from the status dilemma. As an indispensable stepping stone in solving them, Puerto Rico needs the "power to make all the needful rules and regulations" that will determine our future. With power comes responsibility. Once the United States recognizes Puerto Rico that power, we will assume the responsibility for our own future, and devise ways to make it the best possible one for ourselves and for future generations. III. The Problems of the United States We have just analyzed the fundamental problems Puerto Rico faces as a result of its status impasse. But the United States has also paid a price for this situation, and, if something is not done soon, the price will continue to rise. The problems of the United States regarding Puerto Rico's political status can be put into three categories: international pressure, economic costs of the status quo for the federal goverment and the possibility of a petition for statehood in the not so distant future. A) INTERNATIONAL PRESSURE Ever since the establishment of the commonwealth, the United States has had to defend itself against international charges of colonialism. With the decolonization revolution of the 1960's, U.S. diplomats have had to deal more and more with these accusations. These led, in the 1970's, to a reopening of the debate on Puerto Rico's status by the Decolonization Committee of the United Nations. With the end of the Cold War in the late eighties, self-determination of peoples and the eradication of all colonial regimes have resurfaced in the international agenda

18 with great strength. The affirmation of long suppressed nationalities is the driving force behind that movement. The United States must take the lead in striking a relationship with Puerto Rico that does away with all colonial vestiges, elicits international approval and complies with the contemporary demands of international law for selfdetermination and political association. B) ECONOMIC COSTS OF THE STATUS QUO We have already stated the extent of Puerto Rico's economic dependance on the United States. This not only brings dreadful consequences for the island, but puts the federal goverment in the position of having to pay the bill. A vicious cycle of increasing dependance has been established: the more the federal government gives, the more Puerto Rico thinks it needs. The question is: how long is the U.S. willing to throw money into the black hole of Puerto Rican dependance? One thing is sure, under the status quo there is no end in sight. If the United States starts to limit its federal funding of the island without truly empowering it to become a self-sufficient society, Puerto Rico will undoubtedly go down the road of social and economic chaos. Is the federal government willing to condemn 3.5 million U.S. citizens to that fate? On the other hand, to commit the federal government to a perpetual maintenance of Puerto Rico is not a realistic alternative. 73 It goes against everything the federal government is trying to do. How can you justify a welfare state in Puerto Rico, while all efforts in the United States are directed to cut spending and limit the deficit? Is Congress and the Administration willing to sell a deal to the American 72 See the upcoming article by Ortiz Guzman, Angel, "La Cuarta Altemativa: AsociaciOn y Derecho Internacional en el Futuro Politico de Puerto Rico", to be published in 28 Rev. Jur. U.I.P.R.; for an overview of the general issues regarding this process see"rethinkimg Nationalism and Sovereignty", Journal of International Affairs, Vol. 45, No. 2, Winter "See Jasinowski, Jery J. (ed.), Economic Study of Puerto Rico: Report to the President Prepared by the Interagency Task Force Coordinated by the U.S. Department of Commerce, U.S. Goverment Printing Office, Washington, D.C., 1979, 2 vol.

19 people in which everybody but Puerto Rico has to contribute to reduce the deficit? I think not. The status quo is not an alternative for the United States. It condemns them to artificially sustaining the Puerto Rican society, while they try to reverse that trend on the mainland. Aspirations of parity to states in federal funding are pie in the sky. The only way out of the black hole is to empower Puerto Rico with the political, economic and social tools it needs to build a self-sustaining and prosperous future. C) THE POSSIBILITY OF A PETITION FOR STATEHOOD What should be the logical conclusion of a century-long process of juridical ambiguity, crisis of national identity, economic dependance, and political powerlessness?74 The answer should be obvious. If nothing is done to reverse the current trend, the United States will face a statehood petition from the majority of the Puerto Rican people sometime in the very near future, maybe as soon as During the years of Americanization, support for statehood was not widespread. But with the coming of federal funding and juridical ambiguity, the statehood tide has been rising steadily since One scholar concludes: "The Puerto Rican poor support statehood not because of an ideological or cultural bond to the United States, but because they believe statehood will guarantee their economic security:us What will be the problems facing the U.S. when it gets that statehood petition? Besides the same perpetual dependance that comes with the status quo, the U.S. will have to decide if it is willing to absorb a distinct nationality as a state of the Union. In other words, is the U.S. ready to incorporate its own Quebec, Basque Country, Catalonia or Northern Ireland into the Federal Union? There is nothing to gain from "The effect of decades of instilling fear of independence and even of a greater degree of selfgoverment on the collective psyche of the Puerto Rican people should not be underestimated as an important factor in this process. 7 Melendez, supra, note 63.

20 that but perpetual dependance and political turmoil.there is not a single reason to believe Congress would want that. These are the problems facing the United States as they evaluate the results of the 1993 plebiscite. Neither statehood nor status quo present themselves as solutions. 76 As stated in the begining of this paper, the people of Puerto Rico have taken the lead in, for the time being, rejecting statehood and favoring the empowering of the current relationship through a bilateral compact. Since time is of the essence, the United States must quickly respond to the expression of the Puerto Rican people and resolve our mutual dilemma. IV. The Bilateral Compact of the Free Associated State of Puerto Rico: the Solution to a Mutual Dilemma The commonwealth of Puerto Rico has been an ambiguous denomination for an even more ambiguous relationship. Throughout its existence it has been afforded various treatments by the federal government, ranging from "unique"n, to a condition "like a state"?', to being, once again, "an unincorporated territory"'. This, as we have discussed, has permitted many problems for Puerto Rico and the United States. It time to take the bull by the horns. Ambiguity must give way to certainty so that a mutually beneficial relationship may develop. Now is the time to act. What follows is a proposal of what that relationship should be. 76 Refer to the articles regarding Puerto Rico's political status published in Hemisphere, Vol. 5, No.3, Summer/Fall 1993; Current History, Vol.93, No. 581, March 1994; The Annals of the American Academy, May "The Kennedy Memorandum of 1961, supra, note 34. 'Rodriguez v. Popular Democratic Party, supra, note The Bush Memorandum of 1992, supra, note 36.

21 A) THE PEOPLE'S MANDATE FOR A BILATERAL COMPACT On November 14th, 1993, Puerto Ricans, in exercise of their constitutional right to petition the government for the redress of grievances, and of their right to selfdetermination, voted on the future status of the island. These were the results: Commonwealth 823, % Statehood 785, % Independence 75, % 81 The triumphant commonwealth definition stated that the relationship between Puerto Rico and the United States was to be developed within a "bilateral compact which can only be altered by mutual consent."2 Now, in order to implement that mandate, we must ascertain the proper meaning of this phrase. The main question this concept came to answer was the issue of the applicability of the Territorial Clause to the commonwealth. During the failed process of negotiations for a congressionally sponsored plebiscite (between 1989 and 1991), the Popular Democratic Party faced the issue with a resolution that stated that all status options (including commonwealth) had to be understood as being outside the Territorial Clause powers. This resolution, which has not been repealed to this day, was one of the bases of the plebiscite definition of commonwealth.e4 A bilateral compact is a contract between parties with equal juridical capacity to enter into it. According to international law, this means that the parties have to be sovereign political entities; according to U.S. Constitutional Law, it means that neither 8 Amendment I, US Constitution. 8' Garcia Passalacqua, "The 1993 Plebiscite in Puerto Rico", Institute for Puerto Rican Policy, 1993, page Commonwealth definition, supra, note Popular Democratic Party, Resolution of the General Council, November 17, Medina, Jorge L. "PPD drafts new definition of commonwealth for the ballot", The San Juan Star, Tuesday, July 6, 1993; Martinez, Andrea," 'Sencilla y ganadora' la definicion del ELA", El Nuevo Dia, Tuesday, March 6, 1993, page 20.

22 .4- AL of the parties can be a territory, not under a trusteeship agreement or under the Territorial Clause. A political entity subordinated to the plenary powers of Congress cannot enter into a bilateral compact with its superior. The only way to enter into a compact with the federal government is to be sovereign and outside the Territorial Clause. B) THE COMPACT OF ASOCIATION BETWEEN THE UNITED STATES, THE MARSHALL ISLANDS AND THE FREE ASSOCIATED STATE OF MICRONESIA It has been argued that under the U.S. Constitutional system, it is impossible to enter into bilateral compacts. Yet as of this day, there are two examples that contradict this argument. Let us take a brief look at them. In 1986, Congress, through P.L w, entered into a "Compact of Free Association" with the Marshall Islands and the Federated States of Micronesia. This compact was the result of a process of mutual determination, in which the people voted to end their condition as trust territories and. "to enter into relationships of free association which provide a full measure of self-government for the peoples of the Marshall Islands and the Federated States of Micronesia."' The compact is a comprehensive document that regulates all areas of the relations of the federal goverment and the associated states. Contrary to the commonwealth arrangement, it operates by specific delegations of concrete powers to the U.S. It clearly recognizes the sovereignty of the associated states over all matters 85 In Matter of Bowoon Sangsa Co.,LTD 720 F.2d. 595 (1983), the 9th Circuit recognized the applicability of United Nations' Resolutions 1514(XV) and 1541(XV) to the associated states, forcing the United States to comply with these resolutions. 88 See "Inventive Statemanship vs. The Territorial Clause: The Constitutionality of Agreements Limiting Territorial Powers", 60 Virginia Law Rev 1041, at 1041: "The absolute terms of the territorial clause seem to imply that Congress is restricted in its choice of relations with such areas to the frequently unsatisfactory extremes of annexation or complete independence. Thus, the clause appears to be the major legal obstacle to some form of 'free association' as an in-between alternative." 8' 99 Stat Id. at 1801.

23 23 not specifically delegated, and limits the sphere of action of the federal goverment to those included in the document. The compact is divided into four titles: Governmental Relations, Economic Relations, Security and Defense Relations, and General Provisions. They deal with everything from foreign affairs, environmental protection and grant assistance, to the mantainance of Section 936 benefits and defense and security provisions. A special mechanism of conference and dispute resolution is also included, consisting of an arbitration board composed by representatives of both parties. Finally, Section 441 states that this compact may be terminated as to any of its parts by "mutual agreement" and subject to the formalities contemplated in the corn pact. 89 The federal courts have made two important clarifications concerning the nature of the compact. First, it has established that the options of free association and commonwealth are different and distinguishable. Under the first, the associate state is self-governing, the sovereignty of the U.S. does not apply and federal laws can only apply by mutual consent. Commonwealth, on the other hand, is defined as a status similar to Guam's (which is an unincorporated territory of the United States). 9' Secondly, the compact specifically removed the associated states from the jurisdiction of the United States. Accordingly, to try to challenge federal elements that have been expressly taken out of the compact would raise a non judicially reviewable political question. 9' One final note, the Compact of Free Association has been given international recognition by the United Nations, which has accepted both associated states (with the strong sponsorship of the United States) as members of this organization.g2 66 1d. at "Matter of Bowoon Sangsa Co. LTD, 720 F.2d. 595 (9th Circ., 1983); US v. Covington, 783 F. 2d (9th Circ., 1985). 61 Antolok v. US 13 CI.Ct. 667 (1987). 92 S/ Res/ 704 (1991); Security Council Resolution No. 704, August 9, 1991.

24 C) A BILATERAL COMPACT FOR PUERTO RICO Having examined the problems of the present relationship between Puerto Rico and the United States, the expressed aspiration of the Puerto Rican people for a bilateral compact that can only be amended by mutual consent and the general structure of the Compact of Free Association in force today, we suggest the adoption of a similar compact between Puerto Rico and the United States as the juridical means to bring about the solution to our mutual dilemma. 93 This BILATERAL COMPACT OF ASSOCIATION would tackle and solve all the aforementioned problems facing both countries. For Puerto Rico, it will solve the problem of juridical ambiguity by clearly stating the non-territorial nature of the relationship. As it enters into the compact, the Congress would simultaneously dispose of its plenary power over Puerto Rico under the Territorial Clause. The political powerlessness problem will also be solved by this act, in the sense that, once Puerto Rico is outside the Territorial Clause, it will have all the powers and attributes of a sovereign entity, only delegating those contained in the compact. This recognition of self-goverment should not limit itself to internal affairs, rather it must include the power to conduct foreign affairs. That way, Puerto Rico will enter the twenty-first century as a player in the international game and not as an appendix of the United States. Recognizing Puerto Rico the authority to have foreign relations in its own name, will make possible numerous economic opportunities for the island. This, plus the guarantee in the compact of the present level of federal funding for a reasonable amount of years will promote, if utilized correctly, the Puerto Rican economy. The compact should include a provision in the sense that the funds not part of any entitlement programs shall be given to the Government of Puerto Rico in a block grant, with the assurance of the insular goverment that it will be used to develop 93 As an example, see Senator Marco A. Rigau's proposal to the Interagency Task Force, enclosed in a lettter of March 17, 1994 to Task Force heads,jeffrey Farrow and Marcia Hale. El Nuevo Dia, 19 de marzo de 1994, pagel6.