Dorian A. Shaw


This Note argues that the establishment of the Commonwealth government fails to fulfill the requirements of a free associated territory as detailed in United Nations General Assembly Resolutions 742 (“Resolution 742”) and 1541 (“Resolution 1541”) because the Puerto Rico Constitution remains subject to the Territorial Clause of the U.S. Constitution. The Territorial Clause gives the U.S. Congress plenary authority to govern territories of the United States. Part I of this Note introduces the factual and legal background of Puerto Rico's hybrid legal status. Part II describes the different interpretations regarding the validity of Puerto Rico's status in international law. Part III argues that the present status of Puerto Rico requires that the U.S. Congress enact legislation that allows a binding plebiscite to define the status of Puerto Rico in a manner consistent with U.N. General Assembly Resolutions 742 and 1541. Finally, this Note concludes that the U.S. Congress should act to prevent the continuation of a system of government where unequal treatment of U.S. citizens in Puerto Rico is allowed under the U.S. Congress' plenary power to administer territories.