Can Property Principles Save International Law?

Joseph Blocher & G. Mitu Gulati, A Market for Sovereign Control, Duke L.J. (forthcoming 2016), available at SSRN.

International law currently finds itself in a bit of a jam.  The time-honored principle of territorial integrity grants nations near-absolute control over their borders. Central governments, for example, routinely reject boundary changes proposed by neighboring states or internal secessionist movements. At the same time, however, the increasingly relevant principle of self-determination demands that all peoples have the opportunity to choose their own national affiliations, govern themselves, and develop free political institutions.

What happens when these two doctrines come into tension?  When does the desire for self-determination and the search for better governance trump the inviolability of international borders? And how should the international community respond when a local region seeks to escape an unjust parent country?

In a new article, Joseph Blocher and Mitu Gulati propose an audacious solution to this defining quandry of modern international relations. Blocher and Gulati attempt to solve the problem of international boundary disputes and increase good governance by introducing property theory into the arena of international law.  The crux of their idea is that a nation’s control over its borders should become subject to a liability rule rather than a property rule if it discriminates against one of its constituent regions.

Under Blocher and Gulati’s proposal, a nation that denies equal treatment to a local area would lose the ability to prevent a secession. However, the authors also insist that the government receive compensation for its lost land—compensation that would be set by a global “market” for sovereign territory.

For example, imagine that the Sami people of northern Finland believe they would be better off living under a different government. Under the current legal regime, the Sami have few options—the national government of Finland can veto any suggested change, no matter how reasonable.

Blocher and Gulati argue that this shouldn’t always be so. They contend that if Finland has denied the Sami meaningful access to the government, then the Sami desire for self-determination should trump the Finns’ absolute control over the region. Under their proposal, the Sami region could exit Finland with the support of the international community, provided that it compensates the government in Helsinki for the loss of territory.

If all this weren’t radical enough, Blocher and Gulati further argue that regions have a quasi-property right in their own sovereignty that can be sold to the highest bidder. Thus, the Sami could purchase their independence directly from the Finns, or they could solicit offers for their sovereignty from other nation states.

The authors envision that neighboring countries like Sweden, Norway, and Russia might all submit bids to bring the Sami lands under their sovereign control. To protect the principle of self-determination in this scheme, Blocher and Gulati suggest that a super-majority of the people in a transacted area approve any final transfer. Thus, the Sami couldn’t end up as part of a Russian oblast without significant support of voters.

This is bold stuff, and it deserves a wide readership. A Market for Sovereign Control is important because it describes a novel approach to scaling good government.  As Blocher and Gulati emphasize, many people around the world would be happier, more productive, and safer if they lived under a different regime. But how do we improve the lives of the unlucky multitudes surrounded by the “wrong” border? Advocating for a dollop of war or colonialism lies beyond the pale.  Immigration, the traditional safety valve for peoples seeking better opportunities, also has many serious drawbacks. It’s inefficient, it helps only a small number of individuals, and tends to weaken communities in the poorest countries.

Blocher and Gulati have demonstrated a new way forward. Rather than wait for individuals from poor countries to scrap their way into nations with good governments, they envision a world where property transactions can bring good government to the masses.

Importantly, this idea could improve the lives of peoples well beyond the transacted regions. Borrowing from the ideas of Charles Tiebout, A Market for Sovereign Control shows that the mere threat of border changes and inter-jurisdiction competition for sovereign land should induce some governments to treat disfavored regions with more respect and regard.

Blocher and Gulati are at their spritely best toward the very end of the paper, when they anticipate some of the potential objections to their ideas. The authors argue, quite vigorously, that their market for sovereignty would not lead to the exploitation of poor nations, or an unhealthy commodification of democratic values, or an uptick in aggressive behavior between nations.

Perhaps the most stinging criticism launched at Blocher and Gulati is that their proposal seems rather unworkable and utopian. A Market for Sovereign Control, one could argue, ignores the facts on the ground; boundary disputes currently belong to the irrational world of nationalism and violence, rather than the tidy world of rule-oriented markets. But that is exactly why this idea is so vital.

Since at least the days of the Oresteia, people have used legal structures—like the one proposed here—to domesticate conflicts that once seemed stuck in spirals of vengeance. Property laws in particular have proven successful at draining some of the bloodlust out of disputes between rivals.

The bold strokes of A Market for Sovereign Control leave intriguing questions for further discussion. What counts as a “region”?  What happens if the parent country refuses all offers of compensation from an area that wants to succeed?  What role, exactly, will international organizations play in the scheme? The article could benefit more discussion of these granular (but important) details, as well as a few more real world examples. Do the authors have any reason to believe their scheme would have better resolved the conflict between Ukraine and Russia over the fate of Crimea? Might it help ease tensions in the South China Sea? These seem like vital questions.

Despite these quibbles, A Market for Sovereign Control remains a real achievement.  In a world of dry and overlong law review articles, this is a Harry-Potter-esque page-turner. The ideas presented are grand in scale and the authors don’t back away from upsetting some of the most settled principles of international law. Most importantly, Blocher and Gulati have used their formidable creativity to find ways to improve the lives of people who often get overlooked.

Cite as: Steve Clowney, Can Property Principles Save International Law?, JOTWELL (April 18, 2016) (reviewing Joseph Blocher & G. Mitu Gulati, A Market for Sovereign Control, Duke L.J. (forthcoming 2016), available at SSRN),