Sovereignty and the Politics of Property

GlobalTrust Working Paper 10/2015

21 Pages Posted: 21 Sep 2015 Last revised: 13 Apr 2016

See all articles by Eyal Benvenisti

Eyal Benvenisti

University of Cambridge - Lauterpacht Centre for International Law

Date Written: October 1, 2015

Abstract

The debate over whether property is a limit on or the product of sovereignty envisages a tension between “the individual owner” and “the state.” But “the state” is not more than the aggregate of individuals who define theirs and others’ property rights through the political process. The underlying tension between property and sovereignty is thus the tension between the economic market and the political market. Property is defined simultaneously in both markets. Owners compete at both levels to define, protect or improve the value of their property. There are two ways for owners to compete in the political marketplace: they can engage in either “high visibility politics” or “low visibility politics.” Diffuse owners rely on agents such as political parties or trade unions and on elections, referenda and the like. Smaller groups of owners prefer the “low politics” of capturing lawmakers and state executives.

When economic markets became global at the end of the Cold War, so did the political markets: property rights increasingly became defined by international agreements, by decisions of international organizations, and by the exercise of “low politics” in foreign, weaker states. The global political markets were dominated by the executive branches of a handful of relatively strong states that, in turn, were responsive to the “low politics” of special interests. The high transaction costs of cooperation among diffuse owners inhibited the parallel rise of “high politics” at the global level. The skewed global political market for property continues to favor special interests, but there are budding attempts to reclaim the space for “high politics” by national regulators and courts. Current negotiations over the so-called “Mega Regional” agreements between the U.S. and its trading partners will, if successful, nip these buds as they render certain property rights almost immune to the subsequent challenges of high politics.

Suggested Citation

Benvenisti, Eyal, Sovereignty and the Politics of Property (October 1, 2015). GlobalTrust Working Paper 10/2015. Available at SSRN: https://ssrn.com/abstract=2663102

Eyal Benvenisti (Contact Author)

University of Cambridge - Lauterpacht Centre for International Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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