Democratic states differ from each other in how they organize their administration and implement principles of representation and separation of powers. Almost all of them, in addition to having a centralized government (a central administration for the entire territory), are divided into units designated as districts, provinces, states, departments or counties and these, in turn, are divided into cities or municipalities. (For example, the divisions are called states in the United States and Mexico, counties in Great Britain, departments in France, provinces in Canada and autonomous communities in Spain.) Puerto Rico, by comparison, has no administrative units between the central government and the municipalities. The island is divided into eight districts that serve only as electoral units for the purposes of legislative representation, but they are not administrative units.
The kind of relationship and the level of power that a central government has in relation to local governments (provinces and municipalities) has historically been a polemical issue. There are countries that grant little autonomy to their provinces, limiting them to administration of certain public services and local issues. These are called unitary or centralized states. When there is the opposite tendency and the territorial units retain important administrative responsibilities, they are called decentralized states. The decentralization of governmental functions through concessions to autonomous territories does not, however, constitute a transfer of sovereignty.
In some states the authority of the central government and the provinces is structured as a federation. Under the federalist system of shared sovereignty, the central or federal government legislates on certain aspects of public life while the provinces (which in the United States union are called states) retain powers over all issues that are not specifically delegated to the federal (central) government. For example, the federal government is the only one that can establish and regulate currency and maintain an army, while laws about marriage and divorce, among others, are up to the state. Jurisdictional disputes that arise from this division of power are resolved by the federal Supreme Court.
A federation or union of states occurs when two or more sovereigns agree to cede part of their sovereignty to a new entity in which they will participate. Historical examples of federated states are numerous and include a wide variety of agreements. The United States, for example, was founded by 13 former British colonies that gained independence from the British monarchy and took control of their sovereign paths, deciding to form a union (federation) with a central government to which certain sovereign powers would be delegated.
In some federation agreements, broad powers are ceded, while in others it is more limited, but all usually describe in detail which powers are granted to the federal state (the central government) and which the individual territories will retain. The United States and Mexico are examples of federations in which the central (federal) government has broad powers. In practice, only the fossilized remains of sovereignty stayed with the states when they decided to join the federation.
But there are also cases of countries in which the provinces retain broad territorial powers and the central government serves merely as a coordinating entity and legislates only on issues that involve two or more members of the federation. In these cases, which are usually multicultural states (in which different cultures coexist) the provinces retain most of the sovereignty. An example of this is Switzerland, which is organized as an association of free, and therefore autonomous, communities that represent four linguistic groups. In general, confederations consist of sovereign communities that decide to unite due to mutual interests.
When the 13 British colonies of North America obtained their independence, they united first under a confederation. The official document that was created was the Articles of Confederation, which recognized the 13 confederated states (former British colonies) as having the sovereign power to maintain an army and coin their own money. Not much later, the federal constitution was adopted that continues to rule today, assigning broad powers to the central government after a long and tortuous debate. In 1860, when some of the federated states, reclaiming their natural and original sovereignty, decided to leave the union and create a new federation, the central government refused to recognize their right to leave, arguing that the cession of sovereignty was irreversible. The result of this political conflict was a bloody civil war that would forever put an end to the idea of secession.
But the most recent historical example of a dramatic and successful case in which powerful nation states agreed to limit their individual sovereignty in exchange for a new union is the European Union. It began as an economic agreement between Germany, France, Belgium, Luxembourg and the Netherlands at the end of World War II, but today it incorporates 27 countries with a single citizenship (European), free rights of transit, a common currency (the Euro), a capital (Brussels) and its own institutions, including a European parliament and a political integration project.
From a theoretical point of view, in every confederation or union each unit retains its essential sovereignty, although it has ceded part of its sovereign powers to the central government. In other words, the decision to become part of a federation such as the European Union is, in itself an act of sovereignty. Therefore each sovereign state continues to exist, although it has handed over some of its natural powers to the central unit. This contrasts with the agreements of the federations in the United States and Mexico, in which sovereignty itself is ceded permanently to the federal nation state.
The relevance of federalism for Puerto Rico is that the hegemonic relationship with the United States, because it is formally a federal state, creates a certain ambiguity about the federal government’s powers toward the territory of Puerto Rico. As a territory, Puerto Rico does not have the constitutional (sovereign) power of the member states of the federation, but in 1952 the U.S. central government authorized the organization of a local government for Puerto Rico with the same powers and prerogatives as those of the states, but without making it a part of the federation. Was granting Puerto Rico its own government a recognition of the natural sovereignty of the Puerto Rican state, based on a particular agreement with the federation, or was it merely a temporary political concession to a territory under the control of U.S. hegemony? If the possibility of structuring a change in the legal relationship between Puerto Rico and the United States requires the exercise of free determination by the people of Puerto Rico and the United States sees this procedure as a political right, is this not in itself a recognition of national sovereignty? If Puerto Rico requests inclusion as a state of the union (supported by a popular referendum in an exercise of free determination), would that request not constitute a sovereign act, as was the case with the 13 colonies that formed the original U.S. federation?
These questions make it clear that the federalist structure itself establishes possibilities for implementing its own legal and political forms, which broadens the framework of formal alternatives for the future policies of both countries.
Author: Roberto Gándara Sánchez
Published: September 11, 2014.
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