Volume 04 Issue 07-2024
24
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
07
P
AGES
:
24-29
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article examines the legal issues surrounding the protection of property rights as a fundamental human right
under international public law. It traces the historical development of property rights, analyzes key international legal
instruments and court cases that have defined and interpreted this right, and explores challenges in balancing private
property rights with public interests and state sovereignty. The article concludes that while property rights are well-
established as a human right, their scope and implementation continue to evolve through international legal
mechanisms.
KEYWORDS
Development of property rights, public interests and state sovereignty, scope and implementation.
INTRODUCTION
The right to property is one of the oldest recognized
human rights, with roots tracing back to early legal and
political philosophy. John Locke, in his Second Treatise
of Government (1689), asserted that the protection of
property is the chief purpose for which individuals
enter into society.[1] This notion heavily influenced the
development of domestic legal systems and became
enshrined in foundational documents like the United
States Declaration of Independence and Bill of
Rights.[2]
However, the status of property rights under
international law has been more nebulous. The
devastating impact of World Wars I and II, the rise of
Research Article
LEGAL ISSUES OF PROTECTION OF PROPERTY LAW AS A HUMAN RIGHT
IN INTERNATIONAL PUBLIC LAW
Submission Date:
July 08, 2024,
Accepted Date:
July 13, 2024,
Published Date:
July 18, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue07-05
Akmalkhonov Bosithon Azizkhon ugli
Chief specialist, Department of Quality Control of Education in Tashkent State Law University, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 07-2024
25
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
07
P
AGES
:
24-29
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
communism, and post-colonial struggles led to major
debates over the nature of property and whether its
protection constituted an inviolable human right or
was subject to state discretion.[3] The 1948 Universal
Declaration of Human Rights ultimately included
property rights, but international legal instruments and
state practice since then have demonstrated ongoing
tensions.[4]
This article examines the legal issues of protecting
property as a human right under contemporary
international public law. Part 2 traces the historical and
philosophical foundations of property rights and their
early development in international law. Part 3 analyzes
the key international legal instruments and
declarations that define the scope of property rights.
Part 4 explores how international judicial bodies have
interpreted and applied property rights in significant
cases. Finally, Part 5 discusses the challenges of
balancing property rights with competing public
interests and state sovereignty in an increasingly
globalized world.
The Historical and Philosophical Foundations of
Property Rights
The notion of property rights - that individuals have a
natural entitlement to the fruits of their labor which
society is obligated to protect - is deeply rooted in
Western legal and political thought. British
philosophers like Thomas Hobbes, John Locke, and
William Blackstone argued that private property is a
natural, pre-political right that forms the basis of the
social contract between citizens and the state.[5] The
state's central purpose, in their view, is to safeguard
individual
property
from
both
private
and
governmental interference.
These ideas profoundly influenced the political leaders
of the American Revolution and are echoed in the
Declaration of Independence's references to "life,
liberty and the pursuit of happiness"[6] and the Fifth
Amendment's prohibitions on uncompensated takings
of private property.[7] Early international law
publicists like Emmerich de Vattel also viewed property
rights as a key component of the law of nations. Vattel
argued that "the peaceful possession of property
should be protected by all nations" and that states
have a duty to refrain from appropriating foreign
property.[8]
However, the rise of Marxism and experiences of the
World Wars complicated international views on
property rights. Socialist states and post-colonial
nations questioned the inviolability of private property
and contended that its protection inappropriately
shielded the wealthy and privileged.[9] The atrocities
committed by the Nazi regime, often through "legal"
property seizures, highlighted how a state could wield
property rights as a tool of oppression.[10]
A 1962 UN resolution, titled Permanent Sovereignty
over Natural Resources, asserted the right of nations
to expropriate foreign-owned property in service of
self-determination.[11] This signaled an emerging
divergence between Western capital-exporting states,
which emphasized strong international protections of
property rights as a precondition for global
investment, and developing states, which sought to
preserve governmental discretion over property and
natural resources.[12]
International Legal Instruments on Property Rights
Foundational international human rights instruments
reflect these tensions over the status and scope of
property rights. The 1948 Universal Declaration of
Human Rights states in Article 17 that "Everyone has
the right to own property alone as well as in
association with others" and that "No one shall be
Volume 04 Issue 07-2024
26
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
07
P
AGES
:
24-29
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
arbitrarily deprived of his property."[13] This marked
the first time an international text recognized property
as a universal human right.
However, the two subsequent binding international
covenants
divided
between
civil/political
and
socioeconomic rights intentionally omitted property
protections. Some states believed these were
adequately covered under the UDHR, while others
wanted to provide greater leeway for states to control
property in service of national development.[14] The
European Convention on Human Rights, in contrast,
contains an explicit right to property subject to certain
public interest exceptions.[15]
Subsequent international declarations have reaffirmed
property rights but often balanced them against other
societal considerations. The 1993 Vienna Declaration
emphasizes that "While development facilitates the
enjoyment of all human rights, the lack of development
may not be invoked to justify the abridgement of
internationally recognized human rights," including
property rights.[16] The 2007 UN Declaration on the
Rights of Indigenous Peoples asserts that indigenous
groups have the right to maintain and strengthen their
distinct relationship with their traditionally owned
lands and resources.[17]
In parallel to human rights law, international
investment agreements have become key vehicles for
protecting the property rights of foreign investors.
Over 3,000 bilateral investment treaties (BITs) and
numerous multilateral agreements contain strong
guarantees against uncompensated expropriation and
require "fair and equitable treatment" of foreign-
owned property.[18] While focused on investor-state
relations rather than human rights per se, these
instruments have significant implications for how
property is regulated globally.
International Judicial Interpretations of Property
Rights
International courts and tribunals have further defined
the scope of property rights through their judgments
and opinions. The European Court of Human Rights has
the most extensive jurisprudence, interpreting Article 1
of Protocol 1 to the European Convention. In Sporrong
and Lonnroth v. Sweden, the Court found that de facto
interference with property rights, even without formal
expropriation, could violate the Convention if it strikes
an unfair balance between private and public
interests.[19]
Subsequent ECHR cases have established that states
enjoy a "wide margin of appreciation" in regulating
property but that they must provide a reasonable
opportunity for property owners to challenge
government control measures.[20] The Court has also
recognized that intellectual property, contractual
rights, and company shares can count as "possessions"
subject to protection.[21] At the same time, it has
upheld restrictions on property use to further
environmental conservation,[22] urban planning,[23]
and housing access.[24]
The Inter-American Court of Human Rights has also
recognized property as a fundamental right.[25] In
Sawhoyamaxa Indigenous Community v. Paraguay, the
Court found that the government had violated the
community's property rights by failing to resolve their
land claim in a reasonable period.[26] It ordered
restitution of the group's ancestral lands and
compensation for the harms suffered.
Investor-state
arbitral
tribunals
have
further
contributed to international property jurisprudence. In
Metalclad v. Mexico, a tribunal found that government
measures
rendering
property
investments
unprofitable
could
constitute
illegal
indirect
Volume 04 Issue 07-2024
27
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
07
P
AGES
:
24-29
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
expropriation.[27] The Tecmed v. Mexico decision
similarly held that expropriatory state action includes
not just outright seizure but also measures that
radically deprive an investor of the economic benefits
of property ownership.[28]
Balancing Property Rights with Public Interests and
State Sovereignty
The international legal instruments and jurisprudence
discussed above demonstrate the firm establishment
of property rights as a matter of human rights law. At
the same time, they point to ongoing challenges in
balancing these rights against governmental authority
to regulate property in service of legitimate public
welfare objectives.
One key issue is defining the scope of protected
property interests. The concept of "possessions"
under the European Convention has expanded
through case law to cover a range of intangible and
derivative assets. Investor-state tribunals have also
tended to interpret property rights broadly. This has
led to concerns about "regulatory chill", with
governments hesitating to enact environmental or
public health measures out of fear of violating
international property protections.[29]
Another challenge is determining what constitutes an
illegal deprivation of property. Most international
instruments prohibit "arbitrary" or uncompensated
seizures but preserve governmental authority to
restrict property use through reasonable regulation.
The line between legitimate exercises of state police
power and de facto expropriations often depends
heavily on case-specific facts and competing policy
considerations.[30]
The interaction between international property rights
and state sovereignty raises additional complexities.
Some argue that globalization is eroding national
control over property and that strong investor
protections constrain the ability of states to determine
their own economic and social policies.[31] Assertions
of "permanent sovereignty" over natural resources
point to particular sensitivities over preserving
governmental discretion in this area. However, others
contend that international property rights can foster
cross-border investment, constrain abusive state
practices, and contribute to global rule of law.[32]
Ultimately, international public law seeks to establish
minimum standards for protecting property rights
while providing space for diverse national approaches
in balancing these rights with other public interests. As
global economic integration deepens and new forms
of property emerge, striking this balance will require
ongoing development of international instruments,
national practices, and judicial doctrines.
CONCLUSION
This article has examined the legal issues surrounding
the protection of property rights as a human right
under international public law. It finds that property
rights are firmly established as a universal right in key
international human rights instruments, but the scope
and implementation of this right continue to evolve
through international judicial interpretation and state
practice.
Historically, Western legal and political traditions have
viewed property as an inviolable natural right, while
socialist
and
post-colonial
perspectives
have
emphasized the need for state discretion over
property in service of national development and social
welfare. These tensions are reflected in international
instruments like the Universal Declaration of Human
Rights, which recognizes property rights but
counterbalances
them
with
public
interest
considerations.
Volume 04 Issue 07-2024
28
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
07
P
AGES
:
24-29
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
International courts like the European Court of Human
Rights have interpreted property rights to encompass
a range of tangible and intangible interests, but they
have also upheld governmental authority to regulate
property for legitimate public purposes. Investor-state
arbitral tribunals have robustly protected the rights of
foreign investors against direct and indirect
expropriations, raising concerns about preserving
space for national policy discretion.
The article concludes that international law establishes
baseline requirements for protecting property rights
while preserving a degree of national flexibility in their
implementation. As processes of globalization and
economic development continue to shape property
relations, international legal frameworks and doctrines
will need to further evolve to reconcile private rights
and public interests in service of human welfare and
dignity.
REFERENCES
1.
John Locke, Second Treatise of Government
(1689), ch V.
2.
U.S. Declaration of Independence (1776); U.S.
Constitution, Fifth Amendment.
3.
A.J. van der Walt, Constitutional Property Clauses:
A Comparative Analysis (1999), 17.
4.
Universal Declaration of Human Rights (1948),
Article 17.
5.
William Blackstone, Commentaries on the Laws of
England (1765), Book I Ch 1.
6.
U.S. Declaration of Independence (1776).
7.
U.S. Constitution, Fifth Amendment.
8.
Emmerich de Vattel, The Law of Nations, or
Principles of the Law of Nature Applied to the
Conduct and Affairs of Nations and Sovereigns
(1758), Book II Ch VII §81.
9.
A.J. van der Walt, Constitutional Property Clauses:
A Comparative Analysis (1999), 17.
10.
M. Lippman, 'Law, Lawyers, and Legality in the
Third Reich: The Perversion of Principle and
Professionalism',
Temple
International
and
Comparative Law Journal 11 (1997): 199-308.
11.
UN General Assembly Res 1803 (XVII) on
Permanent Sovereignty over Natural Resources
(1962).
12.
A. Newcombe & L. Paradell, Law and Practice of
Investment Treaties (2009), 1-2.
13.
Universal Declaration of Human Rights (1948),
Article 17.
14.
J. Sprankling, The International Law of Property
(2014), 9.
15.
European Convention on Human Rights (1950),
Protocol 1 Article 1.
16.
Vienna Declaration and Programme of Action
(1993), Article 10.
17.
UN Declaration on the Rights of Indigenous
Peoples (2007), Article 25.
18.
UNCTAD, World Investment Report 2019 (2019),
103.
19.
Sporrong and Lonnroth v Sweden, (1983) 5 EHRR
35.
20.
James v UK (1986) 8 EHRR 123; Jacobsson v
Sweden (1989) 12 EHRR 56.
21.
Ivcher Bronstein v Peru [2001] IACHR 6, [122];
Paeffgen GmbH v Germany (2009) 48 EHRR 693.
22.
Fredin v Sweden (1991) 13 EHRR 784.
23.
Pine Valley Developments Ltd v Ireland (1991) 14
EHRR 319.
24.
James v UK (1986) 8 EHRR 123.
25.
American Convention on Human Rights (1969),
Article 21.
26.
Sawhoyamaxa Indigenous Community v Paraguay
[2006] IACHR 12.
27.
Metalclad Corporation v. United Mexican States,
ICSID Case No. ARB(AF)/97/1 (Aug. 30, 2000).
Volume 04 Issue 07-2024
29
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
07
P
AGES
:
24-29
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
28.
Técnicas Medioambientales Tecmed, S.A. v. United
Mexican States, ICSID Case No. ARB (AF)/00/2 (May
29, 2003).
29.
K. Miles, The Origins of International Investment
Law (2013), 386.
30.
R. Dolzer, 'Indirect Expropriation of Property', in A.
Reinisch (ed.), Standards of Investment Protection
(2008), 13-40.
31.
M. Sornarajah, Resistance and Change in the
International Law on Foreign Investment (2015).
32.
J.W. Salacuse, The Law of Investment Treaties (3rd
ed., 2021), 1-5.
