Navassa: Property, Sovereignty, and the Law of the Territories

55 Pages Posted: 7 Sep 2021 Last revised: 14 Dec 2021

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

Mitu Gulati

University of Virginia School of Law

Date Written: December 13, 2021

Abstract

The United States acquired its first overseas territory—the island of Navassa, 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.

Keywords: Navassa, Haiti, Insular Cases, Property, Sovereignty, Reparations

JEL Classification: K11, K12, K33

Suggested Citation

Blocher, Joseph and Gulati, Mitu, Navassa: Property, Sovereignty, and the Law of the Territories (December 13, 2021). Yale Law Journal, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2021-43, Virginia Law and Economics Research Paper No. 2021-20, Duke Law School Public Law & Legal Theory Series No. 2021-39, Available at SSRN: https://ssrn.com/abstract=3917674 or http://dx.doi.org/10.2139/ssrn.3917674

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Mitu Gulati

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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