A Bundle of Bundles of Rights - International Treaties Regarding Migration in the Light of the Theory of Property Rights

Author:Stefan Schlegel
Position:Max Planck Institute for the Study of Multireligious and Multiethnic Societies, DE
Stefan Schlegel, ‘A Bundle of Bundles of Rights – International
Treaties Regarding Migration in the Light of the Theory of
Property Rights’ (2018) 34(2) Utrecht Journal of International and
European Law pp. 111–129. DOI: https://doi.org/10.5334/ujiel.448
A Bundle of Bundles of Rights – International
Treaties Regarding Migration in the Light of the
Theory of Property Rights
Stefan Schlegel*
A growing body of literature has recently discussed the access of migrants to property rights
over assets as a requirement for the protection of their human rights and basic interests. Little
attention has been paid, however, to the fact that the right to decide over an individual’s migra-
tion to a given place
is itself a property right
. This paper aims to close this gap by describing
international treaties regarding migration as mechanisms to transfer bundles of such property
rights. This approach embarks to compare the distributional eects of dierent treaties regard-
ing migration. It also aims to demonstrate that such treaties often do not limit themselves to
transactions of property rights among States, but are capable of transferring property rights
from States to individuals. A property rights approach highlights that the exclusion of would-
be immigrants from would-be receiving countries means to impose a (negative) external eect
on them and their country of origin. A review of dierent types of treaties demonstrates the
tendency in all of these treaties to internalise such external eects. The paper thus predicts
that the prevention of migration will get more expensive as the external eects of this activity
will have to be internalised to a growing degree.
Keywords: International Migration Governance; International Treaties; Theory of Property
Rights; Internalisation; Non-standard agreements
I. Introduction
The claim of this paper is that the common characteristic of the growing number1 and the growing variety2
of international treaties on migration is an exchange of prerogatives or entitlements or rights among con-
tracting parties or with third parties. These can be the prerogatives of States, of International Organisations
or the rights of individuals. They are exchanged for other prerogatives, entitlements, rights or money. The
author will summarise these prerogatives, entitlements or rights under the technical term of property rights
and apply the theory of property rights to describe these forms of cooperation.
Because the author intends to restrict the analysis here on the applicability of property rights theory to
international treaties, the discussion will be limited to a very brief definition of the term property rights
and the nature of the property right over migration:3 as such, property rights are defined as the socially
recognised exclusive control over a good. The property right over migration is defined as the socially (here
also: legally) recognised exclusive control over the migration of a given person to a given State (see section
* Max Planck Institute for the Study of Multireligious and Multiethnic Societies, DE. Contact: schlegel@mmg.mpg.de.
1 Particularly regarding readmission agreements, see Jean-Pierre Cassarino, ‘Dealing with Unbalanced Reciprocities: Cooperation on
Readmission and Implications’ (2010) Viewpoints 1–29, 1, 3.
2 See the graph in Jean-Pierre Cassarino, ‘Informalising Readmission Agreements in the EU Neighbourhood’ (2007) 42(2) The Inter-
national Spectator 179–196, 186. See also Luca Lixi, ‘Beyond Transactional Deals: Building Lasting Migration Partnerships in the
Mediterranean’ (2017) 3 .migrationpolicy.org/research/beyond-transactional-deals-building-lasting-migration-part-
nerships-mediterranean> accessed 19 July 2018.
3 For an extended discussion, see Stefan Schlegel, Der Entscheid über Migration als Verfügungsrecht: Eine Anwendung der
Ökonomischen Analyse des Rechts auf das Migrationsrecht am Beispiel der Schweiz (Studien und Beiträge zum Öffentlichen Recht,
Mohr Siebeck 2017); Nutshell version: Stefan Schlegel, ‘Is Control over Migration an Asset? And If It Is, Who Can Make the Most
of It?’ (2017) 17/03/Policy-Brief-nccr-on-the-move-06-Stefan-
Schlegel-EN-Web.pdf> accessed 19 July 2018.
A Bundle of Bundles of Rights – International Treaties Regarding Migration in the
Light of the Theory of Property Rights
2 for a more extensive definition). Analysing treaties regarding migration as a transaction of such property
rights (or some partial bundle of them) will prove helpful – on a conceptual level – to address the following
research questions:
- From which agent to another is value transferred by treaties regarding migration?
- Who is the beneficiary, and to what extent do they benefit through these treaties, and who obtains
the possibility to impose external effects on others?
What, in particular, is the role that individuals play in these treaties as the recipients of assets or
as the agents whose opportunities in life are diminished?
- The emphasis on the observation that these treaties transfer property rights will draw attention to
the question of the costs and the rules of such transactions.
- The observation that property rights over migration are bundles of rights, will highlight the possibil-
ity to restructure the bundles of rights of each involved party. This entails the question of how those
bundles might be restructured to the potential benefit of all the parties involved.
The paper draws almost exclusively on examples of international treaties that bind either countries in
Europe amongst each other or a European country to a third country or the European Union (hereinafter
referred to as “EU”) to a third country. The author will, however, limit the scope of the question to the agree-
ments within the EU. The EU is considered only in cases in which it is the party to international treaties with
third countries. Such treaties are governed by international law rather than EU law.
The economic methodology that shapes the reasoning of what follows is often associated with a function-
alist and reductionist understanding, which is geared to obtain efficiency. It is not, however, incompatible
with a pluralistic approach. This is so because the methodology does not entail a presupposition of the
preferences of the involved agents. These might be disordered or even contradictory and the maximisa-
tion of these preferences can be considered very different from what colloquially is under the concept of
efficiency.4 If inserted into a political process, these conflicting preferences might, therefore, very well end
result up in complex, multi-layered and conflicting objectives as they are reflected in migration law and in
treaties regarding migration.5 It is then with respect to these objectives that the effects of migration govern-
ance are perceived as negative or positive external effects and with respect to these objectives that States are
expected to enter into treaties in order to internalise these effects.
The paper is organised into four sections. The first sets out the property rights approach to immigration
law. It gives a short overview of the use of the concept of property rights in the migration literature and
specifies in what respect the approach that will be taken in this article differs. The second section embeds
the approach in the literature on property rights theory in international law and applies it to treaties
regarding the governance of migration. The third section exemplifies what bundles of property rights
are transferred in the most important types of treaties regarding migration. The final section lays out the
benefits of a property rights approach for the analysis of international treaties on migration. It highlights
the ability of this approach to map the internalisation of externalities that is obtained by the transaction
of property rights.
II. The Theory of Property Rights
The term property right is defined as the socially recognised exclusive control over a good.6 The notion
of “good” is broad. Whatever is valued by agents for its utility, is a good within the meaning of this
4 This broader concept of rationality that does not presuppose certain specific preferences is sometimes called ‘thin rationality’:
Tomer Broude, ‘Behavioral International Law’ (2015) 163 University of Pennsylvania Law Review 1099–1157, 1108. However, this
concept of rationality calls into question, what should be maximised, not the rationality of the decision making as such. It, how-
ever, still leaves open the possibility that States show patterns of irrational behaviour under specific circumstances.
5 There is limited but expanding literature on behavioural international law that seeks to improve the understanding of States (and
other international actors) before the background of empirical knowledge about “bounded rationality” and biases in decision mak-
ing: ibid. 1118. Anne van Aaken and Tomer Broude, ‘Behavioral Economic Analysis of International Law’ in Eugene Kontorovich
and Francesco Parisi (eds), Economic Analysis of International Law (Edward Elgar Publishing 2016); Anne van Aaken, ‘Behavioral
Economic Analysis of International Law’ (2014) 55(2) Harvard International Law Journal 421–481. Tomer Broude thinks that States
might well be less rational than individuals because their decisions are made both by agents and collectives: Broude (n 4) 1122.
6 Rupert Windisch and Peter Burgold, ‘Verfügungsrechte’ in Riccardo Mosena and Eggert Winter (eds), Gabler Wirtschaftslexikon;
Robert Cooter and Thomas Ulen, Law & Economics (The Addison-Wesley series in economics, Pearson/Addison Wesley 2014)
77; Hans-Bernd Schäfer and Claus Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts (Springer Berlin Heidelberg; Imprint:
Springer 2012) 69; Richard A Posner, Economic Analysis of Law (Aspen Publishers 2011) 39; Rudolf Richter and Eirik G Furubotn,
Neue Institutionenökonomik: Eine Einführung und kritische Würdigung (Mohr Siebeck 2010) 90–91; Michael B Mascia and C. A Claus,
‘A Property Rights Approach to Understanding Human Displacement from Protected Areas: the Case of Marine Protected Areas’

To continue reading

Request your trial