This post is a response to Tyler Cowen’s recent post on the topic of charter cities and extraterritoriality, prompted by the recent charter city experiment in Honduras (more background on immigration and charter cities here). Cowen is sympathetic to the idea of charter cities, but he has some concerns. Cowen:
It would be a mistake to equate charter cities with extraterritoriality. For one thing, a charter city has its own laws and governance, possibly enforced by overseas courts, rather than imposing foreign courts upon domestic governance, a’la Shanghai through the early 20th century. Still, the history of extraterritoriality gives us some sense of what it looks like to have foreign courts operating outside their usual domestic environment.
The problem with extraterritoriality, as I read the literature, is not the Chinese courts had a superior system of commercial or criminal law which was tragically pushed out by inferior Western ideas. The problem was that the foreign courts were not supported by comparably strong domestic interest groups and there was a clash between the foreign courts, national symbols, fairness perceptions, domestic rents and the like, all in a manner which led to eventual talk of foreign devils and violent overreaction against the influence of outsiders.
The history of extraterritoriality focuses one’s attention on the question of who has an incentive to support the external system of law, when such a system is transplanted abroad. This question does seem relevant to charter cities and related concepts.
Hong Kong worked because the UK and USA were able to exert enough control at a distance, at least for a long while, and because China was weak.
One vision is that a charter city works because a dominant hegemon — perhaps at a distance — supports the external system of law.
A second vision is that a charter city works because the external system of law serves up some new and especially tasty rents to domestic interest groups. In the meantime, avoid Tongans.
A related question is what it means for the external legal system to be “invited” in, and how much such an invitation constitutes prima facie evidence of real domestic support.
I would like to see these topics receive more discussion.