abstract. The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.
Contemporary
scholars are drawn to the sovereignty framework and the public-law tools that
come along with it: arguments about rights and citizenship geared to show that
the territories should be
recognized as “part of” the United States. But it would be a mistake to
completely reject the language and tools of property and private law, which can
also play a role in dismantling the colonial structure—so long as it is clear
that the relevant entitlements lie with the people of the territories. Doing so can help conceptualize the
harms of colonialism in different ways (not only conquest, but unjust
enrichment), and can facilitate the creation of concrete solutions like
negotiated economic settlements, litigation against colonial powers, and the
possibility of auctions for sovereign control.
authors. Faculty at the law schools of Duke University
and the University of Virginia, respectively. For conversations about this
topic, we thank David Billington, Chris Buccafusco, Guy Charles, Jacqueline
Charles, Justin Desautels-Stein, Gio Fumei, Ira Kurzban, Christina Ponsa-Kraus,
and Mark Weidemaier. The editors of the Yale Law Journal, especially
Ethan Fairbanks, Alexis Kallen, Rekha Kennedy, Danny Li, and Bo Malin-Mayor,
provided excellent suggestions.
Introduction
The U.S. territories and the concepts with which scholars,
judges, and lawyers address them are suspended in a netherworld: the
unincorporated territories “belong[] to” but are not “part of” the United
States, as the Supreme Court held in the Insular
Cases. This legal no man’s land has
continuing consequences for the millions of Americans living in the
territories, and it also presents fundamental challenges for those attempting
to understand, let alone unwind, the United States’s colonial legacy.
What are the territories? The
contemporary debate proceeds in the language of public law, but federal
authority over the territories derives from the Property Clause.
What role might private law play in resolving their status?
In this Article, we show how the present state of affairs is
partially traceable to confusion and manipulation of the concepts of property (“belonging to”) and sovereignty (“part of”), and that
each has a potentially important role to play going forward. The trajectory of
debate about the territories’ status has moved from the former conception to
the latter, and for understandable reasons. Nations historically used property
concepts to justify conquest while avoiding the duties and obligations of
governance, as the case of the U.S. territories painfully illustrates. The contemporary question is
thus seen as one of public law and governance, as are the suggested remedies:
arguments about citizenship, rights, and sovereignty. These arguments are
powerful and essential, but incomplete, because the property framework also
contains tools that can help clarify and resolve the territories’ legal status.
The challenge therefore is not to reject the tools of property—concepts like
ownership, economic incentive, transfer, and payment—but to reforge them for
the tasks at hand: self-determination, economic justice, negotiation, and
reparations.
Sovereignty and property are among the most contested and
ambiguous terms in legal thought, and we do not purport to offer new or certain
definitions of them here. But we do think that they invoke different broad
families of concepts, generally tracking the distinction—again, blurry and
contestable—between public and private law. As Martti Koskenniemi puts it, “Sovereignty
and property form a typical pair of legal opposites that while apparently
mutually exclusive and mutually delimiting, also completely depend on each
other. Their relationship greatly resembles the equally familiar contrast
between the ‘public’ and the ‘private,’ or ‘public law’ and ‘private law.’” The division between private and
public law, in turn, can generally be thought of as “a naturalized law of
things on the one side and a politicized law of power on the other.” Broadly speaking, our
argument is that the law of the territories—not unlike, say, takings law or the debate over
reparations—rewards close consideration of both
public- and private-law concepts. The language of property, for example, can
help recognize and even remedy political and social phenomena that might not immediately
register as private-law issues.
As we see it, the argument that a territory is entitled to statehood resonates
in public law; an argument that damages are owed for
the wrongful taking of a territory, however, might resonate more in private-law
concepts like restitution and unjust enrichment.
To illustrate the significance of the property and
sovereignty frameworks and set the stage for evaluating them, we begin with the
story of a single overseas territory—the oldest of all the U.S. territories, and in that sense the place where the
story of U.S. imperialism began: Navassa, a sunbaked and
uninhabitable rock buried under a million tons of bird droppings, and located
roughly forty miles from Haiti, which also claims the island. Beginning with an unoccupied and
seemingly minor territory helps us isolate and grasp conceptual threads that
run through the treatment of inhabited territories like Puerto Rico. Pulling on
those threads can unravel a lot of colonial fabric.
The United States acquired Navassa in 1857, pursuant to the
Guano Islands Act,
which gave the President power to recognize as appurtenances to the United
States any islands discovered and mined for guano by U.S. citizens. The Act also explicitly provided that
the United States need not retain the islands once mining was
complete. The underlying framework
was in that sense one familiar to property law: the incentive structure was
commercial, the mode of acquisition was Lockean, and nothing in the Act
committed the United States to actually govern the islands. This approach might be contrasted with a
sovereignty-type framework in which new territory becomes part of a
nation-state whose borders are insulated from change. In fact, the United States, like many
imperial powers at the time, often explicitly resisted sovereignty—in part because of the obligations that it
might entail.
The story of Navassa is thus in part a story of a colonial
power using the concepts of property and sovereignty to its advantage, and
thereby relegating the island—like Puerto Rico and the other unincorporated
territories—to the status of a “disembodied shade.” But even as the dust was
settling on the Insular Cases and the
United States was fighting a war over the status of its largest territory (the
Philippines), U.S. legal scholars were exploring—and complicating—the
conceptual relationship between property and sovereignty. That ongoing exploration and the law
of the territories have much to learn from each other.
Contemporaneously, international law was moving away from the
property framework, making it incumbent upon colonial powers to treat their
territories as something other than possessions to be conquered, exploited, or
bartered for economic gain.
By the middle of the nineteenth century, this development, combined with the
rise of the principle of self-determination, helped precipitate a wave of
decolonization worldwide.
But shifting to a public-law frame that treats sovereignty as
both an obligation and a given obscures other possible solutions. Governance
arrangements became more a product of status than of contract. This reification of
sovereign territory is an implication of territorial sovereignty, and—with
limited and contestable exceptions for self-determination or humanitarian intervention—it obscures the degree to which
borders and sovereign territory are man-made contingencies that can and
sometimes should be voluntarily changed. Part of our goal here is to
unsettle those assumptions and to suggest how private-law concepts like
entitlement and transfer might be adapted to unwind the colonial structures
they were once used to build. For generations, Western powers used private-law
tools to exploit and profit from their colonies. Surely it requires some
justification now to tell those colonies that the same tools are unavailable to
them—that they, having enriched the metropoles, cannot pursue arguments of
unjust enrichment; or that they, having been treated like property, cannot now
choose to transfer or sell their territory. The conceptual and practical
obstacles are considerable, and we address some of them below, but that is not reason
enough to reject the effort, especially considering that the tools of public
law have significant complications of their own.
In fact, powerful and wealthy nations continue to use
private-law tools to wring benefits from sovereign territories, for example by
entering into long-term leases for military bases, or through large-scale
industrial and public-works projects that have the effect of projecting
sovereign authority abroad.
This private-law toolkit—including concepts like contract (only possible once
one has established entitlements) and damages—can be used to help the
territories as well. This would not mean treating territories as “belonging to”
the United States, subject to barter or trade as Congress sees fit. That notion should be
rejected not because it
involves property, but because it gives the entitlement to the wrong party—to
the United States, rather than to the people of the territories. If colonial powers could, and in some
ways still do, use sovereignty as a valuable asset, why can’t colonized people
do the same now that the asset is theirs?
Getting clear about this entitlement helps illuminate the
possibilities for what we have elsewhere described as a “market for sovereign
control.” Sovereign control has been
ceded, traded, gifted, leased, and otherwise transferred between nations for
centuries. Sometimes those transfers have been coercive or exploitative; other
times they have been voluntary and welfare-enhancing. What is generally
missing, however, is a good legal mechanism for transfers of sovereignty beyond
the context of former colonies becoming independent (which, it should be noted,
many do not want).
Sir Hersch Lauterpacht noted that “[t]he part of international law upon which
private law has engrafted itself most deeply is that relating to acquisition of
sovereignty over land, sea, and territorial waters.” But less attention has been
paid to the use of private law in divesting
territory.
One way to conceptualize the issue is as a question of
allocating a valued resource—sovereign control over physical territory. In
other contexts, the law assigns clear property rights, protects them, and lets
parties bargain their way to mutual advantage, with appropriate constraints. Creating a market for
sovereign control, then, would mean assigning property rights in sovereign
control and permitting them to be traded. It would mean moving borders to fit
people, rather than people to fit borders, subject to various
limitations. But none of that is
possible without clarity regarding the underlying entitlements. That is the
focus of this Article.
Part I tells the story of Navassa, and how “the droppings of
birds played an important role in the history of U.S. imperialism.” This historical account
serves not only to give Navassa the attention it deserves in the law of the
territories, but also to show how it—like the other unincorporated
territories—ended up being treated as both property and sovereign territory,
albeit without the benefits of either categorization.
Part II embeds this story in broader developments in legal
thought and international law, beginning with Morris Cohen’s observation that
seemingly obvious differences between property and sovereignty tend to blur the
more deeply one thinks about them. In the case of the
territories, that ambiguity was central both to the Insular Cases and to the interpretations of State Department
lawyers. And yet, however blurry, the line remains significant, as
contemporaneous developments in international law demonstrate. In particular,
the move away from property-law
concepts—long a staple of international law, especially with regard to the
acquisition of territory—and
toward an emphasis on sovereignty has tended to cement the status quo,
including existing colonial structures.
In Part III, using Navassa as an illustration, we argue that
some aspects of the property paradigm should be recovered, and that they stand
to help the U.S. territories and other colonial possessions. We explore three
specific implications: negotiated economic settlements, litigation against
colonial powers, and the possibility of auctions for sovereign control. The
last of these, in particular, means adapting the property framework from
uninhabited territories like Navassa to inhabited territories like Puerto Rico.
By focusing on a small, uninhabited, and seemingly minor island, rather than
mounting another attack on the Insular
Cases, our goal is not to avoid the broader questions of democracy and the
law of the territories, but to isolate and develop one particular theme: the
use and potential promise of private-law concepts like property.
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