Transferable Sovereignty

58 Pages Posted: 8 Jan 2019

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

G. Mitu Gulati

Duke University School of Law

Date Written: December 23, 2018

Abstract

In November, 1908, the international community tried to buy its way out of the century’s first recognized humanitarian crisis: one in which millions of Congolese lost their lives to King Leopold II’s pursuit of wealth. International outrage at Leopold’s cruelty and indifference to the people of the Congo Free State resulted in a remarkable transfer of sovereign control. For the first and possibly only time in history, a sovereign was paid (by Belgium, of which he was king) to relinquish control of an oppressed region. Existing accounts have explored Leopold’s exploitative acquisition and ownership of the Congo, and their implications for international law and practice. But it was also an economic transaction that brought the abuse to an end.

The forced sale of the Congo Free State is our starting point for asking whether there is, or should be, an exception to the absolutist conception of territorial integrity that dominates traditional international law. Some argue that there already exists a narrow exception to the absolutist conception where peoples who are being subject to genocide or its equivalent have the right to secede. We ask whether that right should exist – albeit perhaps at a price – before the relationship between the sovereign and the region deteriorates to the level of genocide.

That inquiry, in turn, raises hard, interesting, and important questions about sovereignty, governance, competition, and markets. Who gets to claim sovereignty? Under what conditions can it be transferred? Who must consent to those transfers, and how? And can such transfers be used to address contemporary challenges like the refugee crisis and the legacies of colonialism?

Keywords: sovereignty, property, colonialism, independence, human rights, self determination, markets, law and economics, refugees, immigration

Suggested Citation

Blocher, Joseph and Gulati, Gaurang Mitu, Transferable Sovereignty (December 23, 2018). Duke Law School Public Law & Legal Theory Series No. 2019-4. Available at SSRN: https://ssrn.com/abstract=3305851 or http://dx.doi.org/10.2139/ssrn.3305851

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Gaurang Mitu Gulati

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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