The Legal Reality of Free Association

Puerto Rico has never chosen independence, but it is a viable option under the U.S. Constitution. If Puerto Rico suddenly decided to become independent, there would be a choice between two forms of independence: independence as a sovereign nation with no special ties to the United States, and independence as a Free Associated State in a negotiated relationship with the United States.

Howard Hills, author of Citizens Without A State, wrote an article called “Free Association for Micronesia and the Marshall Islands: A Transitional Political Status Model” published in the University of Hawai’i Law Review in 2004, which clarifies the Free Association relationship and remains relevant today.

The article’s introduction lays out the reality of the Free Association relationship:

[T]he parties have agreed to gradually reverse and ultimately end certain significant features of political integration between the islands and the United States. Thus, free association serves as a transitional political status that enables a former territory to achieve separate sovereignty, nationality and citizenship on the international plane outside the U.S. constitutional system. Under the free association model, the island governments and people first determine for themselves that they prefer sovereignty rather than integration with the United States. Then, the treaty of association becomes the instrument that terminates policies and programs implemented during the territorial period.

Some proponents of Free Association are claiming that citizens of the Republic of Puerto Rico would be sure to maintain U.S. citizenship and “acquired rights” such as Social Security payments. On the contrary, Hills says, “Under U.S. policy, law, and practice, free association is a transitional status model for a U.S.-administered territory that will not be integrated into the U.S. federal political union.”

Hills goes on to describe the foundation of Free Association relationships, concluding that “free association is separate nationhood and an international association between sovereigns.”

“Consequently,” he continues, “sovereign free association as adopted by the United States and its associated states is not a form of domestic political union under the U.S. Constitution. Rather, it is an international association that is classified as a foreign affairs matter.”

One of the implications of this fact is that financial assistance for FAS (Free Associated States) is voted on and approved — or not approved — by Congress each year. The U.S. is not obligated by the terms of the Compact of Free Association even financially. The freedom of free association means that either side can change its mind at any time.

Indeed, the current agreements between the U.S. and its free associated states call for financial assistance to be phased out completely within the next decade.

Hills reviews the travel and immigration laws applying to the FAS, saying that “Citizens of the associated states are aliens under U.S. immigration and naturalization law, and are to be treated like aliens, except for certain special travel privileges.” These laws are more restricted now than they used to be. Hills points out that this demonstrates once again that “free association is a treaty-based status that is neither constitutionally defined nor permanent.”

“To be non-colonial and non-territorial,” Hills concludes, “free association must preserve each party’s ability to terminate it in favor if independence for both parties at any time.”

Hills was a legal advisor to the U.S. National Security Council, Office for Micronesian Status Negotiations, and the Counsel for Free Associated State Affairs, U.S. Department of State under President Reagan.