Sovereign Puerto Rico

In a set of previous posts (see here and here), some co-bloggers wrote about Puerto Rico’s political status, as well as about its arguably problematic nature. I would like to continue that discussion (which is obviously of great interest to me), by sharing with you some questions that have been at the center of Puerto Rico’s political debate in the last few weeks. Recently, an influential group inside one of Puerto Rico’s two main political parties has been openly defending the idea of a sovereign Puerto Rico. By “sovereign” they do not mean that Puerto Rico should become an independent country, but that the island should enter into a Treaty of Free Association with the United States (...)

Free association was recognized by the United Nations in Resolution 1541 (XV) (GA) as one of the ways a non-self governing territory can reach “a full measure of self-government” (the other two being independence and annexation to another country). It is not entirely clear what free association means in practice (Resolution 1541 (XV) only establishes a set of general principles that should guide states entering into such a relationship, such as the respect for the culture of the free associated state and that the decision to enter in the relationship is taken through democratic processes). In Puerto Rico, free association is usually defined as a relationship based on the recognition of Puerto Rico’s sovereignty through an International Treaty with the United States, in which the Government of Puerto Rico would delegate certain “competencies” to the U.S. (the U.S. currently has several free association treaties: see the treaties with The Republic of Palau, the Federated States of Micronesia, and Marshall Islands).

At a minimum, the recognition of Puerto Rico’s sovereignty is taken to mean that the island would have the right to enjoy separate representation in international organizations as well as the capacity to make international treaties with other countries. Moreover, as a sovereign country, it would be able to fully govern itself, except with regards to those areas that, in the exercise of its sovereignty, it decides to delegate to the U.S. What is not clear, at least to me, is the question of what does it mean to “delegate certain competencies”, and whether the delegation of competencies can go too far (that is, so far that it negates the very idea of sovereignty). So, for example, consider a treaty that allows the U.S. to continue to extend all federal criminal laws to the island (and any subsequent amendments to those laws), as well as to prosecute all offenders. Would that delegation of competencies be consistent with the idea of sovereignty?

My view, as I have expressed in several short articles (which can mostly be read here) is that sovereignty is inconsistent with the idea of the legislature of one country creating laws for another one (which is precisely why the current relationship between the U.S. and Puerto Rico is problematic at best, colonial at worst). Under this conception of sovereignty, Puerto Rico could delegate certain functions to the U.S. through a treaty of free association (for example, the faculty of representing Puerto Rico in some international organizations until the island is able to do so). However, if that delegation involves giving the U.S. Congress the faculty of unilaterally legislating for Puerto Rico, then sovereignty would be negated in important ways.

Free association proponents however, insist that in the exercise of its sovereignty Puerto Rico can delegate any competencies whatsoever, as long as it retains some (or perhaps, most) competencies to itself (see for example, here). In defense of that view, they constantly refer to the way sovereignty is being reconceived in the 21st Century, to the ways in which states have 'surrendered' aspects of their sovereignty in the European Union, etc. I think, however, that delegating to another country the right to unliterally legislate for one's own is a very difficult idea to defend, even in times when the very idea of sovereignty is being put into question. I wonder what other people, whose work is more related to the concept of sovereignty in international relations than mine, think about this.