Did Puerto Rico Ever Have a Compact of Free Association?

As supporters of a Puerto Rico “commonwealth” status pivot to support a yet-to-be defined Free Association alternative, confusion about the meaning of “commonwealth” and of free association continues to show up.

The confusion is understandable: The 1952 Puerto Rican Constitution, which established the current governing structure of Puerto Rico, named the new insular government the “Estado Libre Asociado de Puerto Rico.” This official Spanish name  for Puerto Rico is translated literally to mean “Free Associated State of Puerto Rico,”  but the term is frequently translated into English as simply “Commonwealth of Puerto Rico.”

What Did Puerto Ricans Really Get with “The Commonwealth” (“ELA”) in 1952?

It is now clear that whether Puerto Rico’s official title is “Commonwealth,” “Estado Libre Asociado de Puerto Rico” or simply a Freely Associated State (FAS), none of these titles altered Puerto Rico’s status as a U.S. territory in 1952.

There are clear statements from all three branches of the federal government saying that Puerto Rico is a territory. These statements were not made off the cuff.  Rather, they reflect decades of study, analysis, intense debate, and moments of understandable confusion stemming at least in part from a tricky translation of Puerto Rico’s official title.

A 1997 Congressional hearing provides one example of this learning process:

Puerto Rican Governor Pedro Rossello said, in his expert testimony at that hearing, “[T]he United Nations is very clear as to what options can be offered territorial jurisdictions. One is integration, full integration, which is statehood. The other is full independence. And the third is a form of free association, which has to be, again, under two separate sovereignties that reach an agreement. So again, I go back to my initial position that the basic question we have to answer is whether we want to be within U.S. sovereignty with U.S. citizenship or without U.S. sovereignty and U.S. citizenship. Very simple. And that is totally consistent with what the international community accepts today as ending colonialism.”

At this point, Rep. Nydia Velazquez (D-NY) stepped in to add that “there was a bilateral compact that was agreed upon by the people of Puerto Rico and this government.”

“If you are asking me, I am still looking for that bilateral compact. I haven’t found it anyplace,” Governor Rossello responded. “All I found is a statute by the U.S. Congress allowing Puerto Rico to establish a constitution for internal affairs. Nowhere—you are here in Congress. You can look at the records. Nowhere in Congressional Records—and this is where the decision was taken. It was not taken at the United Nations. It was taken here. And in this body nowhere does it say that Congress abdicates or renounces its Constitutional prerogatives over any of the territories, including Puerto Rico. So if that wasn’t changed, then the relationship between Puerto Rico and the United States was not changed. Now, I cannot answer for what other people, including the government of Puerto Rico at that time, represented to the people of Puerto Rico. I think that was a misrepresentation, yes.”

An Ongoing Misrepresentation?

Mr. Carlos Romero-Barcelo, Puerto Rico’s Resident Commissioner at the time, said candidly that the government of Puerto Rico had misrepresented the situation to the people of the Island. “If we spend so much time arguing about what somebody said in the United Nations, I gather we will reach conflicting opinions,” he added, “because in the United Nations everybody said whatever they wanted.”

Rep. Velazquez said, “[I]t is important that we offer and we provide to the people of Puerto Rico every information and the facts about each formula that will be presented to the people of Puerto Rico, because then maybe two years later or four years later we are going to come back and say well, I wasn’t part of that.”

Velazquez more recently presented to Congress legislation premised on presenting a wide range of yet-to-be-defined options to voters in Puerto Rico.   The measure would create a “status convention” made up of delegates separate and apart from the democratically elected members of the Puerto Rican legislature.  These new delegates would be responsible for coming up with long-term solutions for the island’s territorial status — which have been described in reports as including statehood, independence,  free association and other options beyond its current territorial arrangement.  The bill also allows Puerto Ricans who do not reside on the island, but in the United States, to participate in this process.

The new Velazquez bill does not recognize and take advantage of the decades of debate and analysis that have transpired in Congress, the transcripts of which can continue to provide clarity to the people of Puerto Rico.  The bill does not recognize the established fact that there are only two non-territorial options — statehood and independence.  If this clarity is not provided, Congress is poised to repeat the misrepresentations that took place in the 20th century about alleged compacts that never existed.

Mr. Berrios-Martinez, leader of the Independence Party, also spoke about the misrepresentation during the 1997 hearing. “They have been telling the Puerto Rican people that we have a compact here. If we had a compact, what are we doing here? What is the part of the compact that you people are supposed to keep? You know, if this is a compact, it is the worst compact I ever saw.”

The Elusive Compact of Free Association (COFA)

The speakers at the 1997 hearing made the point several times that there was no value in blaming anyone for the false narrative presented in the 1950s. Several of them said it was important to move forward rather than looking back. But it is clear that the adoption of the Constitution of Puerto Rico in 1952 — with the permission of Congress — did not change the relationship between the United States and Puerto Rico.

The Compacts of Free Association between the United States and nations like Palau are readily available online now. In the 20th century, it was possible to refer to “a compact” as though it were an actual document without producing it, but in the 21st century this can’t happen.

As the late Constitutional expert Walter Dellinger pointed out, “For many decades, advocates of ‘commonwealth’ status argued that it was non-territorial. They argued that when Puerto Rico made the transition to commonwealth status in 1952, it ceased to be a U.S. territory, became a separate sovereign, and entered into a mutually binding compact with the United States. But they were wrong. Quite simply, Congress does not have the power to create a permanent union between Puerto Rico and the United States except by admitting Puerto Rico into statehood.”

The U.S. Constitution has not changed since 1997. A territory continues to be under the Territorial Clause, and a COFA continues to be a treaty between two sovereign nations. Puerto Rico does not have, and never has had, a Compact of Free Association with the United States.

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