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The International Law of Property [1. ed.]
2013957448, 9780199654543

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John G. Sprankling

Table of contents :
Cover
The International Law of Property
Copyright
Preface
Acknowledgements
Contents
Table of Cases
Table of Domestic Legislation
Table of Treaties
List of Abbreviations
Part I
Foundations
1
Origins of International Property Law
A. Introduction
B. Property and Sovereignty
(1) Roman Law
(2) The Peace of Westphalia
(3) Natural Law and the Enlightenment
(4) The Early Twentieth Century
C. The Post-World War II Era
(1) The Human Right to Property
(2) Challenges to the International Minimum Standard
D. The Rise of International Property Law
(1) Generally
(2) The End of the Cold War
(3) Regional Human Rights Treaties
(4) Globalization
(5) The Global Commons
2
An International Definition of “Property”
A. Introduction
B. The Right-Thing Distinction
C. A Basic Definition
(1) Generally
(2) Treaties
(3) Human Rights Decisions
(4) Expropriation Decisions
(5) United Nations Instruments
D. Rights a Person May Have in a Thing
(1) Generally
(2) Ownership
(3) Usufructs
(4) Servitudes
(5) Security Interests
E. Things that May Be the Subjects of Rights
(1) Generally
(2) Land and Other Immovable Things
(3) Tangible Objects
(4) Intangibles
PART II
COMPONENTS
3
The Framework of International Property Law
A. Introduction
B. Private Actors and International Law
(1) Collapse of the Traditional Theory
(2) Property Claims in International Tribunals
(3) A Functional Approach
C. Modalities of International Property Law
(1) Creation of Rights
(2) Protection of Rights
(3) Harmonization of Rights
(4) Restrictions on Rights
(5) Prohibition of Rights
4
Rights in Tangible Objects
A. Introduction
B. Art and Other Cultural Objects
(1) Generally
(2) Illegally Exported Objects
(3) Stolen Objects
(4) Modification of Artistic Works
C. Contraband
D. Diplomats and Property
E. Equipment
(1) Aircraft and Railway Equipment
(2) Other Equipment
F. Hazardous and Toxic Substances
(1) Generally
(2) Hazardous Wastes
(3) Toxic Chemicals
(4) Genetically Modified Organisms
G. Household Possessions
H. Humans and Body Parts
(1) Generally
(2) Prohibition of Slavery
(3) Sale of Body Parts
I. Intergovernmental Organizations and Property
(1) Generally
(2) Rights of Organizations
(3) Rights of Agents and Employees
J. War and Property
(1) Generally
(2) Destruction
(3) Seizure
K. Wild Animals and Plants
(1) Migratory Animals
(2) Endangered Animals and Plants
(3) Species in Antarctica
5
Rights in Intangibles
A. Introduction
B. Cultural Heritage
(1) Generally
(2) Traditional Cultural Expressions
(3) Traditional Knowledge
C. Cyberspace
(1) Generally
(2) Domain Names
(3) Computer Databases
(4) Virtual Property
D. Genetic Material
(1) Generally
(2) Human Genetic Material
(3) Nonhuman Genetic Material within States
(4) Nonhuman Genetic Material in Antarctica
E. Intellectual Property
(1) Generally
(2) Agreement on Trade-Related Aspects of Intellectual Property Rights
(3) Copyright and Related Rights
(4) Geographical Indications
(5) Patents
(6) Trademarks
(7) Trade Secrets
(8) Security Interests in Intellectual Property
F. Judgments and Arbitral Awards
(1) Generally
(2) Domestic Judgments and Awards
(3) Foreign Judgments and Awards
G. Plant Varieties
6
Rights in Land and Other Immovable Things
A. Introduction
B. The Global Commons
(1) Generally
(2) Antarctica
(3) Interior of the Earth
C. Housing
(1) Generally
(2) Security of Tenure
(3) Quality of Housing
D. The Human Right to Land
E. Indigenous and Tribal Peoples
(1) Generally
(2) Protected Groups
(3) Land
(4) Resources
(5) Lack of Possession
F. Nature Preserves and Other Protected Areas
(1) Generally
(2) World Heritage Sites
(3) Wetlands
G. Refugees and Displaced Persons
(1) Generally
(2) Human Rights Decisions
(3) Pinheiro Principles
H. Transboundary Injury
7
Rights in Waters and Oceans
A. Introduction
B. Rights in Fresh Water
(1) Generally
(2) The Human Right to Water
(3) Justiciability
C. Overview of Rights in Oceans
D. Archaeological and Historical Resources
E. Fisheries
(1) Generally
(2) Exclusive Economic Zone
(3) High Seas
F. Genetic Material
G. Icebergs
H. Minerals
I. Navigation
(1) Generally
(2) Occupancy
J. Submarine Cables and Pipelines
K. Vessels
(1) Generally
(2) Security Interests
(3) Seizure
8
Rights in Airspace and Outer Space
A. Introduction
B. Rights in Airspace
(1) Generally
(2) Overflights
(3) Emissions Allowances and Credits
C. Overview of Rights in Outer Space
(1) Global Commons
(2) Outer Space Treaty
(3) Subsequent Developments
D. Celestial Bodies: Ownership
(1) Land Surface and Subsurface
(2) Buildings and Equipment
E. Celestial Bodies: Resources
(1) Generally
(2) Resource Exploitation as a Use
(3) Limits on Use
(4) Usufructs
F. Intellectual Property
G. Ownership of Outer Space
(1) Basic Principle
(2) Orbits
H. Space Objects
(1) Generally
(2) Ownership
(3) Possession
(4) Registration
(5) Sales
(6) Security Interests
(7) Use Restrictions
PART III
THE GLOBAL RIGHT
9
Toward the Global Right to Property
A. Introduction
B. Conventional Law
(1) Generally
(2) Human Rights Conventions
(3) Anti-Discrimination Conventions
C. General Principles of Law
(1) Generally
(2) General Principles as a Source of International Law
(3) The Right to Property as a General Principle
D. Customary Law
(1) Generally
(2) Custom as a Source of International Law
(3) The Right to Property as Customary Law
E. Synthesis
F. Defining the Global Right
10
The Right to Acquire
A. Introduction
B. Recognizing the Right
(1) Generally
(2) Sources of the Right
(3) Status of the Right
C. Scope of the Right
(1) Limits on Nationals
(2) Limits on Aliens
(3) Other Limits
D. Methods of Acquisition
(1) Generally
(2) Acquisitive Prescription
(3) Occupancy
(4) Purchase
(5) Specification
(6) Succession
11
The Right to Use
A. Introduction
B. Recognizing the Right
(1) Generally
(2) Sources of the Right
(3) Status of the Right
C. Overview of State Interference with the Right
D. Direct Expropriation or Seizure
(1) Generally
(2) Human Rights Law
(3) Investment Law
(4) Comparing the Standards
(5) Special Exceptions
E. Damage or Destruction
(1) Generally
(2) Human Rights Law
(3) Investment Law
(4) Comparing the Standards
F. Regulation
(1) Generally
(2) Human Rights Law
(3) Indirect Expropriation
(4) Fair and Equitable Treatment
(5) Comparing the Standards
G. Prohibition of Misuse
H. Duty of State to Protect the Right
(1) Generally
(2) Human Rights Law
(3) Investment Law
12
The Right to Destroy
A. Introduction
B. Recognizing the Right
(1) Generally
(2) Sources of the Right
(3) Status of the Right
C. Exceptions to the Right
(1) Artistic Works
(2) Cultural Heritage Property
(3) Land
13
The Right to Exclude
A. Introduction
B. Recognizing the Right
(1) Generally
(2) Sources of the Right
(3) Status of the Right
C. Special Applications of the Right
(1) Communal Property
(2) Homes
(3) Intellectual Property
D. Exceptions to the Right
(1) Human Rights Law
(2) Investment Law
(3) Necessity
14
The Right to Transfer
A. Introduction
B. Recognizing the Right
(1) Generally
(2) Sources of the Right
(3) Status of the Right
C. Scope of the Right
(1) Communal Property
(2) Human Rights Law
(3) Nemo Dat Principle
D. Methods of Transfer
(1) Abandonment
(2) Inter Vivos Gift
(3) Sale
(4) Succession
PART IV
OUTLOOK
15
Reflections on International Property Law
A. Introduction
B. Jurisprudential Values
(1) Role of Legal Categories
(2) International Property Law as a Category
C. Practical Applications
(1) Generally
(2) International Tribunals
(3) Intergovernmental Organizations
(4) Private Transactions
(5) Global Commons
(6) Municipal Laws
D. Overarching Themes
(1) Generally
(2) Decreasing Relevance of Borders
(3) Global Minimum Standards
(4) International Registries
(5) De Facto Property Rights
(6) Impacts on Vulnerable Groups
(7) The Regulatory Balance
E. The Road Ahead
Bibliography
Index

Citation preview

T H E I N T E R N AT I O N A L L AW O F P RO P E RT Y

The International Law of Property JOHN G SPRANKLING

1

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © John G Sprankling 2014 The moral rights of the author‌have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013957448 ISBN 978–0–19–965454–3 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

To Gail, Tom, and Doug

Preface The journey to this book began with a question: How does international law affect the property rights of private actors? It arose as my coauthors and I were writing Global Issues in Property Law,1 a textbook in a series designed to introduce inter national and comparative law perspectives into courses at American law schools. The conventional wisdom was that property rights were almost exclusively gov erned by municipal law. As a result, the book focused heavily on comparative law. Yet over time it became apparent that the traditional view was simply wrong. Law is commonly conceptualized as a set of interrelated categories, each with distinct characteristics, such as contracts, property, and torts. The legitimacy of law is premised, in part, on its logic and consistency, values that categorization reflects. Moreover, categorization promotes efficiency by allowing lawyers, judges, and scholars to interpret and utilize doctrines within a particular category in a similar manner. But law evolves more quickly than categorization, creating the need for new perspectives. If we ask how international law affects property rights, we find more substance than the conventional wisdom assumes. A significant body of what may be called international property law already exists. In recent decades, treaties, customary norms, general principles, arbitral and judicial decisions, and soft law instruments have increasingly impacted the property rights held by private actors. Accordingly, the time has come to recognize international property law as a distinct legal category. This book is divided into four parts. Part I examines the foundations of inter national property law, tracing the historical trends that led to its evolution and formulating a global definition of “property.” Part II analyzes the international doctrines that affect property rights in specific subject areas: tangible objects; intan gible things; land and other immovable things; water and oceans; and airspace and outer space. Part III develops the thesis that a global right to property exists under international law―a right that applies generally to movable and immovable things regardless of the specific subject area. It also explores the extent to which inter national law recognizes facets of that right: the right to acquire; the right to use; the right to destroy; the right to exclude; and the right to transfer. Finally, Part IV considers the future of international property law. When a coral reef gradually emerges from the ocean to create a new island, it rests on a foundation that has grown upward for decades. In the same manner, international property law is now emerging as a distinct field, with foundational doctrines coalescing into a new legal category. Some components are well estab lished, while others are still evolving. The future of international property law is readily apparent: the field will continue to grow. John G Sprankling et al, Global Issues in Property Law (Thomson West 2006).

1

Acknowledgements Although the field of international property law is new, it is indebted to the prior work of many scholars. John Merryman ignited my interest in comparative property law, and his scholarship continues to be an inspiration. Early analyses of the property jurisprudence of the European Court of Human Rights by Ali Riza Çoban and Theo RG van Banning, together with the work of Luis Valencia Rodríguez on the human right to property and AJ van der Walt on constitutional property clauses, were major influences on my thinking. More broadly, scholars from the Netherlands, South Africa, and many other states deserve recognition for their scholarship on comparative property law. Former Dean Elizabeth Rindskopf Parker, Steven McCaffrey, Claude Rohwer, and other colleagues at the University of the Pacific deserve thanks for encouraging me to explore the relationship between international law and municipal law, and for allowing me to pursue this interest through teaching opportunities in Austria, China, and Russia. I also thank Dean Jay Mootz III and Associate Deans Anne Bloom, Julie Davies, and Dorothy Landsberg for their counsel and understanding. In preparing this book, I was benefitted by the experience and insights of many people. Special thanks go to Raymond Coletta, Michael Mireles, MC Mirow, Rachael Salcido, Thomas Sprankling, and Mark Sundahl for their valuable com ments on draft chapters. Thanks are also due to Russell Frink, Kelsey Lim, Courtney Masterson, Jake Weaver, and Verena Wieditz for their fine research assistance. Any errors that remain in the book are solely attributable to me. I am grateful to Oxford University Press, in particular to John Louth, Merel Alstein, and Anthony Hinton, for their continued support of this project. Their enthusiasm and guidance were instrumental in keeping the book on track. Most importantly, I thank my wife, Gail Heckemeyer, for her loving encourage ment and careful proofreading. John G Sprankling

Contents Table of Cases Table of Domestic Legislation Table of Treaties List of Abbreviations

xix xxv xxix xli I. FOUNDATIONS

1. Origins of International Property Law A. Introduction B. Property and Sovereignty (1) Roman Law (2) The Peace of Westphalia

(3) Natural Law and the Enlightenment (4) The Early Twentieth Century

C. The Post-World War II Era

(1) The Human Right to Property (2) Challenges to the International Minimum Standard (3) Stagnation

D. The Rise of International Property Law (1) Generally (2) The End of the Cold War (3) Regional Human Rights Treaties (4) Globalization (5) The Global Commons

2. An International Definition of “Property” A. Introduction B. The Right-Thing Distinction C. A Basic Definition (1) Generally (2) Treaties (3) Human Rights Decisions (4) Expropriation Decisions (5) United Nations Instruments

D. Rights a Person May Have in a Thing (1) Generally (2) Ownership

3 3 4 4 5 6 8 9 9 12 14 14 14 15 16 18 19 21 21 22 23 23 24 25 26 27 27 27 28

xii

Contents (3) Usufructs (4) Servitudes (5) Security Interests

E. Things that May Be the Subjects of Rights (1) Generally (2) Land and Other Immovable Things (3) Tangible Objects (4) Intangibles

29 30 31 33 33 33 35 36

II. COMPONENTS 3. The Framework of International Property Law A. Introduction B. Private Actors and International Law (1) Collapse of the Traditional Theory (2) Property Claims in International Tribunals (3) A Functional Approach

C. Modalities of International Property Law (1) Creation of Rights (2) Protection of Rights (3) Harmonization of Rights (4) Restrictions on Rights (5) Prohibition of Rights

4. Rights in Tangible Objects A. Introduction B. Art and Other Cultural Objects (1) Generally (2) Illegally Exported Objects (3) Stolen Objects (4) Modification of Artistic Works

C. Contraband D. Diplomats and Property E. Equipment

(1) Aircraft and Railway Equipment (2) Other Equipment

F. Hazardous and Toxic Substances (1) Generally (2) Hazardous Wastes (3) Toxic Chemicals

(4) Genetically Modified Organisms

G. Household Possessions H. Humans and Body Parts (1) Generally (2) Prohibition of Slavery (3) Sale of Body Parts

41 41 42 42 43 44 46 46 47 48 49 50 52 52 52 52 53 56 57 57 59 60 60 64 65 65 65 66 67 68 69 69 69 71

Contents I. Intergovernmental Organizations and Property (1) Generally (2) Rights of Organizations (3) Rights of Agents and Employees

J. War and Property (1) Generally (2) Destruction (3) Seizure

K. Wild Animals and Plants (1) Migratory Animals

(2) Endangered Animals and Plants (3) Species in Antarctica

5. Rights in Intangibles A. Introduction B. Cultural Heritage (1) Generally

(2) Traditional Cultural Expressions (3) Traditional Knowledge

C. Cyberspace

(1) Generally (2) Domain Names (3) Computer Databases (4) Virtual Property

D. Genetic Material (1) Generally

(2) Human Genetic Material (3) Nonhuman Genetic Material within States (4) Nonhuman Genetic Material in Antarctica

E. Intellectual Property (1) Generally

(2) Agreement on Trade-Related Aspects of Intellectual Property Rights (3) Copyright and Related Rights (4) Geographical Indications (5) Patents (6) Trademarks (7) Trade Secrets (8) Security Interests in Intellectual Property

F. Judgments and Arbitral Awards (1) Generally

(2) Domestic Judgments and Awards (3) Foreign Judgments and Awards

G. Plant Varieties

xiii 72 72 72 74 74 74 75 77 79 79 79 80 82 82 83 83 85 86 88 88 89 91 93 96 96 96 97 99 100 100 101 103 105 106 108 109 110 110 110 111 112 113

xiv

Contents

6. Rights in Land and Other Immovable Things A. Introduction B. The Global Commons (1) Generally (2) Antarctica (3) Interior of the Earth

C. Housing

(1) Generally (2) Security of Tenure (3) Quality of Housing

D. The Human Right to Land E. Indigenous and Tribal Peoples (1) Generally (2) Protected Groups (3) Land (4) Resources (5) Lack of Possession

F. Nature Preserves and Other Protected Areas (1) Generally (2) World Heritage Sites (3) Wetlands

G. Refugees and Displaced Persons (1) Generally (2) Human Rights Decisions (3) Pinheiro Principles

H. Transboundary Injury 7. Rights in Waters and Oceans A. Introduction B. Rights in Fresh Water (1) Generally

(2) The Human Right to Water (3) Justiciability

C. Overview of Rights in Oceans D. Archaeological and Historical Resources E. Fisheries (1) Generally (2) Exclusive Economic Zone (3) High Seas

F. Genetic Material G. Icebergs H. Minerals I. Navigation (1) Generally (2) Occupancy

116 116 117 117 117 122 123 123 124 128 130 132 132 133 134 136 138 140 140 140 142 143 143 144 145 147 150 150 150 150 151 153 154 155 157 157 158 159 160 161 162 164 164 165

Contents

xv

J. Submarine Cables and Pipelines K. Vessels (1) Generally (2) Security Interests

166 167 167 167 169

8. Rights in Airspace and Outer Space A. Introduction B. Rights in Airspace (1) Generally (2) Overflights

171 171 172 172 172 173 175 175 176 176 177 177 183 184 184 185 187 189 189 190 190 191 192 192 193 195 195 196 197 198

(3) Seizure

(3) Emissions Allowances and Credits

C. Overview of Rights in Outer Space (1) Global Commons (2) Outer Space Treaty (3) Subsequent Developments

D. Celestial Bodies: Ownership

(1) Land Surface and Subsurface (2) Buildings and Equipment

E. Celestial Bodies: Resources (1) Generally

(2) Resource Exploitation as a Use (3) Limits on Use (4) Usufructs

F. Intellectual Property G. Ownership of Outer Space (1) Basic Principle (2) Orbits

H. Space Objects (1) Generally (2) Ownership (3) Possession

(4) Registration (5) Sales (6) Security Interests (7) Use Restrictions

III. THE GLOBAL RIGHT 9. Toward the Global Right to Property A. Introduction B. Conventional Law (1) Generally (2) Human Rights Conventions

(3) Anti-Discrimination Conventions

203 203 204 204 204 207

xvi

Contents C. General Principles of Law (1) Generally

(2) General Principles as a Source of International Law (3) The Right to Property as a General Principle

D. Customary Law (1) Generally

(2) Custom as a Source of International Law (3) The Right to Property as Customary Law

E. Synthesis F. Defining the Global Right 10. The Right to Acquire A. Introduction B. Recognizing the Right (1) Generally (2) Sources of the Right (3) Status of the Right

C. Scope of the Right

(1) Limits on Nationals (2) Limits on Aliens (3) Other Limits

D. Methods of Acquisition (1) Generally

(2) Acquisitive Prescription (3) Occupancy (4) Purchase (5) Specification (6) Succession

11. The Right to Use A. Introduction B. Recognizing the Right (1) Generally (2) Sources of the Right (3) Status of the Right

C. Overview of State Interference with the Right D. Direct Expropriation or Seizure (1) Generally (2) Human Rights Law (3) Investment Law (4) Comparing the Standards (5) Special Exceptions

E. Damage or Destruction (1) Generally (2) Human Rights Law

209 209 210 213 215 215 216 217 219 219 221 221 222 222 223 228 228 228 231 235 235 235 235 238 240 243 244 250 250 251 251 251 256 256 257 257 257 266 267 267 268 268 269

Contents (3) Investment Law (4) Comparing the Standards

F. Regulation

(1) Generally (2) Human Rights Law (3) Indirect Expropriation (4) Fair and Equitable Treatment (5) Comparing the Standards

G. Prohibition of Misuse H. Duty of State to Protect the Right (1) Generally (2) Human Rights Law (3) Investment Law

12. The Right to Destroy A. Introduction B. Recognizing the Right (1) Generally (2) Sources of the Right (3) Status of the Right

C. Exceptions to the Right (1) Artistic Works

(2) Cultural Heritage Property (3) Land

13. The Right to Exclude A. Introduction B. Recognizing the Right (1) Generally (2) Sources of the Right (3) Status of the Right

C. Special Applications of the Right (1) Communal Property (2) Homes (3) Intellectual Property

D. Exceptions to the Right (1) Human Rights Law (2) Investment Law (3) Necessity

14. The Right to Transfer A. Introduction B. Recognizing the Right (1) Generally (2) Sources of the Right (3) Status of the Right

xvii 270 272 272 272 273 277 285 288 288 290 290 291 292 293 293 293 293 294 297 298 298 300 302 305 305 306 306 307 312 312 312 312 316 317 317 319 320 323 323 324 324 325 331

xviii

Contents

C. Scope of the Right

331 331 332 334 337 337 339 340 341

(1) Communal Property (2) Human Rights Law (3) Nemo Dat Principle

D. Methods of Transfer (1) Abandonment (2) Inter Vivos Gift (3) Sale (4) Succession

IV. OUTLOOK 15. Reflections on International Property Law A. Introduction B. Jurisprudential Values (1) Role of Legal Categories

(2) International Property Law as a Category

C. Practical Applications (1) Generally

(2) International Tribunals (3) Intergovernmental Organizations (4) Private Transactions (5) Global Commons (6) Municipal Laws

D. Overarching Themes (1) Generally

(2) Decreasing Relevance of Borders (3) Global Minimum Standards (4) International Registries (5) De Facto Property Rights (6) Impacts on Vulnerable Groups (7) The Regulatory Balance

E. The Road Ahead Bibliography Index

347 347 348 348 349 350 350 350 351 352 352 353 353 353 354 355 356 357 357 358 359 361 371

Table of Cases African Commission on Human and Peoples’ Rights Association of Victims of Post Electoral Violence v Cameroon Comm no 272/03 (ACmHPR, November 25, 2009) ��291 Bissangou v Congo Comm no 253/02 (ACmHPR, November 29, 2006) ��38, 112 Centre for Minority Rights v Kenya Comm no 276/03 (ACmHPR, November 25, 2009) ��26, 126, 136–7, 139, 140, 253, 263, 308, 312 Constitutional Rights Project v Nigeria Comm no 140/94 (ACmHPR, November 5, 1999) ��263, 276 Free Legal Assistance Group v Zaire Comm nos 25/89, 47/90, 56/91, 100/93 (ACmHPR, April 4, 1996)��153 Institute for Human Rights v Angola Comm no 292/04 (ACmHPR, May 22, 2008) ��68, 263 Institute for Human Rights v Mauritania Comm no 373/09 (ACmHPR, March 3, 2010) ��264 Media Rights Agenda v Nigeria Comm no 105/93 (ACmHPR, October 31, 1998)��276 Mouvement Ivoirien des Droits de l’Homme v Cote d’Ivoire Comm no 262/02 (ACmHPR, May 22, 2008)��206 Social and Economic Rights Action Center v Nigeria Comm no 155/96 (ACmHPR, October 27, 2001)��68, 126, 153, 270, 291 Sudan Human Rights Organisation v Sudan Comm no 279/03-296/05 (ACmHPR, May 27, 2009)��68, 146, 153 Zimbabwe Lawyers for Human Rights v Zimbabwe Comm no 284/03 (ACmHPR, April 3, 2009) ��276 Arbitral Awards ADC Affiliate Ltd v Hungary, ICSID no ARB/03/16 (October 2, 2006)��266 Alpha Projektholding GmbH v Ukraine, ICSID no ARB/07/16 (November 8, 2010)��36 American Manufacturing & Trading, Inc v Zaire, ICSID no ARB/93/1 (February 21, 1997)��271 Asian Agricultural Products Ltd v Sri Lanka, ICSID no ARB/87/3 (June 27, 1990)��271 Azurix Corp v Argentina, ICSID no ARB/01/12 (July 14, 2006)��280–1, 283–4 Biloune and Marine Drive Complex Ltd v Ghana Investments, 95 ILR 184 (1990)��281 Biwater Gauff (Tanzania) v Tanzania, ICSID no ARB/05/22 (July 24, 2008)��266, 271, 279, 281 Burlington Resources, Inc v Ecuador, ICSID no ARB/08/05 (December 14, 2012)��266, 278 CME Czech Republic BV v Czech Republic, UNCITRAL Arb (September 13, 2001)��279 Continental Casualty Co v Argentina, ICSID no ARB/03/09 (September 5, 2008)��328 Electrabel SA v Hungary, ICSID no ARB/07/19 (November 30, 2012)��279 El Paso Energy International Co v Argentina, ICSID no ARB/03/15 (October 31, 2011) ��280–1, 283–4 Feldman v Mexico, ICSID no ARB(AF)/99/1 (December 16, 2002)��282 Fireman’s Fund Insurance Co v Mexico, ICSID no ARB(AF)/02/01 (July 17, 2006)��284 Glamis Gold, Ltd v United States, UNCITRAL Arb (June 8, 2007) ��26, 280 Grand River Enterprises Six Nations, Ltd v United States, UNCITRAL Arb (January 12, 2011)��282 Inmaris Perestroika Sailing Maritime Services v Ukraine, ICSID no ARB/08/0 (March 1, 2012)��278

xx

Table of Cases

International Thunderbird Gaming Corp v Mexico, UNCITRAL Arb (January 26, 2006) ��281 Lena Goldfields Arbitration (UK v Russia), 5 Annual Digest 3 (1930)��8, 9 LG&E Energy Corp v Argentina, ICSID no ARB/02/1 (October 3, 2006)��279–80, 284 Maffezini v Spain, ICSID no ARB/97/7 (November 13, 2000) ��286 Metalclad Corp v Mexico, ICSID no ARB(AF)/97/1 (August 30, 2000)��254, 266, 281, 286–7 Methanex v United States, UNCITRAL Arb (August 3, 2005) ��37, 283 Middle East Cement Shipping & Handling Co SA v Egypt, ICSID no ARB/99/6 (April 12, 2002)��287 MTD Equity v Chile, ICSID no ARB/10/7 (May 25, 2004)��286 National Grid PLC v Argentina, UNCITRAL Arb (November 3, 2008)��266, 328 Neer v Mexico (1926) 4 RIAA 60 ��8 Noble Ventures, Inc v Romania, ICSID no ARB/01/11 (October 12, 2005)��292 Norwegian Shipowners’ Claim (1922) 1 RIAA 307��8, 36 OKO Pankki Oyj v Estonia, ICSID no ARB/04/6 (November 19, 2007) ��32, 287 Pope & Talbot, Inc v Canada, UNCITRAL Arb (June 26, 2000)��282 PSEG Global, Inc v Turkey, ICSID no ARB/02/5 (January 19, 2007)��285, 287 Raibl Claim, 40 ILR 260 (1964) ��30, 34–5, 37 Railroad Development Corp v Guatemala, ICSID no ARB/07/23 (June 29, 2012)��30, 254 Saluka Investments BV v Czech Republic, UNCITRAL Arb (March 17, 2006)��271–2, 286 SD Myers, Inc v Canada, UNCITRAL Arb (November 13, 2000)��280 Sempra Energy International v Argentina, ICSID no ARB/02/16 (September 28, 2007)��281, 285, 287 Swisslion DOO Skopje v Macedonia, ICSID no ARB/09/16 (July 6, 2012) ��286 Technicas Medioambientales Tecmed SA v Mexico, ICSID no ARB(AF)/00/2 (May 29, 2003) ��220, 279, 282–6, 288, 292 Telnor Mobile Communications v Hungary, ICSID no ARB/04/15 (September 13, 2006)��278 Tokeles v Ukraine, ICSID no ARB/02/18 (July 26, 2007)��279 Total SA v Argentina, ICSID no ARB/04/01 (December 27, 2010)��281, 284, 322 Trail Smelter Arbitration (1941) 3 RIAA 1911��148 Unglaube v Costa Rica, ICSID no ARB/08/01 (May 16, 2012)��266, 280, 328, 341 Waste Management, Inc v Mexico, ICSID no ARB(AF)/00/03 (April 30, 2004)��287 Wena Hotels Ltd v Egypt, ICSID no ARB/98/4 (December 8, 2000) ��271 Australia Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193 ��85 Greentree v Minister for the Environment (2005) 223 ALR 679��143 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 ��229–30 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 221 ALR 448��214 Botswana Mosetlhanyane v Attorney General [2011] BLR 1��153–4 Canada Tucows.Com Co v Lojas Renner SA [2011] ONCA 548��90 Vaillancourt v Carbone 14 [1999] RJQ 490��57, 299 China Beijing Moon Village v Beijing National Administration, Haidian District People’s Court, ILDC 846 (2006)��180 Community Court of Justice of the Economic Community of West African States Korauo v Niger (2008) AHRLR 182 (ECOWAS 2008)��70–1

Table of Cases

xxi

European Committee of Social Rights European Roma Rights Centre v Greece, Complaint no 15/2003 (December 8, 2004)��129 FEANTSA v France, Complaint no 39/2006 (December 5, 2007)��127, 129 European Court of Human Rights Abdeyevy v Russia App no 384/5/02 (ECtHR, March 6, 2008)��111 Akdivar v Turkey (1997) 23 EHRR 143��126–7, 270 Alatulkkila v Finland (2006) 43 EHRR 34��259 Amato v Turkey App no 58771/00 (ECtHR, May 3, 2007)��269 Appleby v United Kingdom (2003) 37 EHRR 38 ��311 Ayangil v Turkey App no 33294/03 (ECtHR, November 15, 2011)��319 Ayubov v Russia App no 7654/02 (ECtHR, February 12, 2009)��270 Bilgin v Turkey (2003) 36 EHRR 50��270 Bimer SA v Moldova App no 15084/03 (ECtHR, July 10, 2007)��259 Brumarescu v Romania (2001) 33 EHRR 35��340, 343 Budayeva v Russia App no 15339/02 (ECtHR, March 20, 2008)��291 Bugajny v Poland App no 22531/05 (ECtHR, November 6, 2007)��318 Burdov v Russia (2004) 38 EHRR 29 ��111 Chapman v United Kingdom (2001) 33 EHRR 18��129 Chassagnou v France (1999) 29 EHRR 615��25, 259, 309, 317–18 Cummins v United Kingdom App no 14549/02 (ECtHR, April 1, 2008)��37 Cyprus v Turkey (2001) 35 EHRR 30��144 Dacia SRL v Moldova (2009) 48 EHRR SE17��260 Des v Hungary (2013) 57 EHRR 12��129 Dragomir v Romania App no 31181/03 (ECtHR, October 21, 2008)��260 Former King of Greece v Greece (2000) 33 EHRR 21��259–60 Fredin v Sweden (1991) 13 EHRR 784��259–60, 273–4 Gasan v Russia App no 43402/02 (ECtHR, February 24, 2005) ��37 Gasus Dosier- und Fördertechnik GmbH v Netherlands (1995) 20 EHRR 403��35 Gauci v Malta (2011) 52 EHRR 25��253, 275 Gaygusuz v Austria (1997) 23 EHRR 364��232 Hakansson v Sweden (1990) 13 EHHR 1 ��259 Handyside v United Kingdom (1976) 1 EHRR 737 ��259, 269 Hatton v United Kingdom (2001) 33 EHRR 18��129 Herrmann v Germany (2013) 56 EHRR 7��318–19 Holy Monasteries v Greece (1995) 20 EHRR 1��260 Housing Association of War Disabled and Victims of War v Greece App no 35859/02 (ECtHR, July 13, 2006)��274 Hutten-Czapska v Poland (2007) 45 EHRR 4��25, 259, 275, 333 Istrate v Moldova App no 53773/00 (ECtHR, June 13, 2006)��111 Jacobsson v Sweden (1990) 12 EHRR 56��274 Jahn v Germany (2006) 42 EHRR 49 ��260 James v United Kingdom (1986) 8 EHRR 123 ��259–60, 267, 284, 333–4 JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45��238 Jarnea v Romania App no 36268/02 (ECtHR, May 31, 2012)��253 Khamidov v Russia App no 72118/03 (ECtHR, October 16, 2007) ��269 Lithgow v United Kingdom (1986) 8 EHRR 329 ��37 Loizidou v Turkey (1996) 23 EHRR 513��144, 253 Lopez Ostra v Spain (1995) 20 EHRR 277 ��129 McLeod v United Kingdom (1999) 27 EHRR 493 ��315–16 Marckx v Belgium (1979) 2 EHRR 330��16, 25, 204, 226, 245, 326

xxii

Table of Cases

Mazari v Italy (1999) 28 EHRR CD175 ��124 Mellacher v Austria (1990) 12 EHRR CD97��340 Miltayev v Russia App no 8455/06 (ECtHR, January 15, 2013) ��270 Nowakowski v Poland App no 55167/11 (ECtHR July 24, 2012)��261 Paduraru v Romania (2012) 54 EHRR 18��340, 343 Papamichalopoulos v Greece (1993) 16 EHRR 440��260, 332–3 Pine Valley Developments v Ireland (1992) 14 EHRR 319 ��274 Radanovic v Croatia App no 9056/02 (ECtHR, December 21, 2006)��253 Salus v Slovakia App no 28697/03 (ECtHR, November 3, 2009) ��334 Schneider v Luxembourg App no 2113/04 (ECtHR, July 10, 2007) ��318 Scollo v Italy (1996) 22 EHRR 514��317 Scordino v Italy (2007) 45 EHRR 7��260 Selguk v Turkey (1998) 26 EHRR 477��270 Spadea v Italy (1996) 21 EHRR 482 ��317 Sporrong v Sweden (1983) 5 EHRR 35��25, 259, 275, 326 Stran Greek Refineries v Greece (1994) 19 EHRR 293 ��37, 112 Tarkoev v Estonia App no 14480/08 (ECtHR, November 4, 2010)��37 Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309 ��37 Urbárska Obec Trenčianske Biskupice v Slovakia (2009) 48 EHRR 49��334 Velosa Barreto v Portugal App no 18072/91 (ECtHR, November 21, 1995) ��317 Xenides-Arestis v Turkey App no 46347/99 (ECtHR, December 22, 2005)��144–5 Xenides-Arestis v Turkey II (2007) 44 EHRR SE13��145 yyCypress v Turkey App no 25781/94 (ECtHR, May 10, 2001) ��343 Zubani v Italy (2001) 32 EHRR 14��34, 260 European Court of Justice Booker Aquaculture Ltd v Scottish Ministers Case 20/00 [2003] ECHR 7411 ��261 ERSA v Ministero delle Politiche Agricole e Forestali Case 347/03 [2005] ECR 3785��261 Hauer v Land Rheinland-Pfalz Case 44/79 [1979] ECR 3727��275, 326 Hermann Schraeder HS Kraftfutter GmbH v Hauptzollampt Gronau Case 265/87 [1989] ECR 2237 ��215 Nold, Kohlen- und Baustoffgrosshandlung v Commission Case 240/37 [1974] ECR 491��215, 261 Germany RGZ 79, 397―Felseneiland mit Sirenen (1912) ��299 Inter-American Commission on Human Rights Dann v United States Report no 75/02 (IACmHR, December 27, 2002) ��332 Inter-American Court of Human Rights Abrill Alosilla v Peru Series C no 235 (IACtHR, March 4, 2011)��25 Aloeboetoe v Suriname Series C no 15 (IACtHR, September 10, 1993)��245–6 Barrios Family v Venezuela Series C no 237 (IACtHR, November 24, 2011)�� 68, 314 Cantos v Argentina Series C no 85 (IACtHR, September 7, 2001) ��206 Case of the “Five Pensioners” v Peru Series C no 98 (IACtHR, February 28, 2003)��38 Chaparro Álvarez v Ecuador Series C no 170 (IACtHR, November 21, 2007)��275–6 Ituango Massacres v Colombia Series C no 148 (IACtHR, July 1, 2006)��263, 270 Ivcher–Bronstein v Peru Series C no 74 (IACtHR, February 6, 2001)��38, 276, 340 Mayagna (Sumo) Awas Tingni Community v Nicaragua Series C no 79 (IACtHR, August 31, 2001)��25, 34–5, 132, 135–6, 308, 312, 332 Moiwana Community v Suriname Series C no 145 (IACtHR, June 15, 2005)��138 Palamara-Iribarne v Chile Series C no 135 (IACtHR, November 22, 2005)��226, 333

Table of Cases

xxiii

Salvador Chiriboga v Ecuador Series C no 179 (IACtHR, May 6, 2008)��38, 262–3 Saramaka People v Suriname Series C no 172 (IACtHR, November 28, 2007) ��136–7 Saxhoyamaxa Indigenous Community v Paraguay Series C no 146 (IACtHR, March 29, 2006) ��138 Tibi v Ecuador Series C no 114 (IACtHR, September 7, 2004)��112, 263 Xakmok Kasek Indigenous Community v Paraguay Series C no 214 (IACtHR, August 24, 2010)��138 Yakye Axa Indigenous Community v Paraguay Series C no 125 (IACtHR, June 17, 2005)��139 International Court of Justice Case of Barcelona Traction, Light and Power Company, Ltd (Belgium v Spain) 1970 ICJ Rep 3��69 Case concerning Elettronica Sicula SpA (US v Italy) 1989 ICJ Rep 15��292 Case concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) 1997 ICJ Rep 7��302–3, 321 Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, 2002 ICJ Rep 303��336, 339 Corfu Channel Case (UK v Albania) 1949 ICJ Rep 4 ��148 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Rep 136 ��267 Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep 226��147, 289 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) 1986 ICJ Rep 14��217–18 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark) 1969 ICJ Rep 39��166, 217–18 International Tribunal for the Law of the Sea The “Camouco” Case (Panama v France) ITLOS Case no 5 (February 7, 2000)��169 Iran-United States Claims Tribunal Amoco International Finance Corp v Iran, 15 Iran-US Claims Tribunal Reports 189 (1987)��37 Eastman Kodak Co v Iran, Iran-US Claims Tribunal no 329-227-3 (November 11, 1987) ��320 Otis Elevator Company v Iran, Iran-US Claims Tribunal no 304-284-2 (April 29, 1987) ��319 Starrett Housing Corp v Iran, 4 Iran-US Claims Tribunal Reports 122 (1983)��26, 277, 310 Tippetts v TAMS-AFFA Consulting Engineers, 6 Iran-US Claims Tribunal Reports 219 (1984) ��26, 254, 279–80, 310 Kenya Rono v Rono (2008) 1 KLR (G&F) 803��248 Permanent Court of International Justice Case concerning German Interests in Upper Silesia (Chorzów Factory case) (Germany v Poland) 1928 PCIJ Series A no 17 ��9, 12, 36–7, 266–7 South Africa Bhe v Magistrate Khayelitsha, 2005 (1) BCLR 1 (CC)��248 Van Huyssteen v Minister of Environmental Affairs, 1995 (9) BCLR 1191 (C)��143 United Kingdom Amory v Delamirie [1772] 93 ER 664��239 Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC)��290 Berry v Warnett [1980] 3 All ER 798��339

xxiv

Table of Cases

Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25 (CA)��244 OBG Ltd v Allan [2008] 1 AC 1 (HL)��90 Peckham v Ellison [1998] 31 HLR 1031��321 Robot Arenas Ltd v Waterfield [2010] EWHC 115 (QB)��338 Rochford v Hackman [1852] 68 ER 597��330 Southwark London Borough Council v Williams [1971] Ch 734��320 United Nations Committee against Torture Dzemajl v Yugoslavia Comm no 161/2000��291 United Nations Human Rights Committee Apirana Mahuika v New Zealand, Comm no 547/1993 (2000)��133 Coronel v Colombia, Comm no 778/1997 (2002)��313–14 Georgopolous v Greece, Comm no 1799/2008 (2010)��125 Rojas Garcia v Colombia, Comm no 687/1996 (2001)��314–15 Sultanova v Uzbekistan, Comm no 915/2000 (2006)��313 United States Amaretto Ranch Breeders v Ozimals, 907 F Supp 2d 1080 (ND Cal 2012)��94 Association for Molecular Pathology v US Patent & Trademark Office, 132 S Ct 1794 (2012)��96 Berge v Vermont, 915 A2d 189 (Vt 2006)��321 Carter v Helmsley-Spear, Inc, 71 F3d 77 (2d Cir 1995)��296 Chapin v Sanders, 676 P2d 431 (Wash 1994) ��236 Christofani v Board of Education, 632 A2d 447 (Md Ct Spec App 1993)��338 Diana Shooting Club v Lamoreux, 89 NW 880 (Wis 1902) ��311 Estate of Beck, 676 NYS2d 838 (Sur Ct 1998) ��296 Gruen v Gruen, 496 NE2d 869 (NY 1986)��339 Jacque v Steenberg Homes, Inc, 563 NW2d 154 (Wis 1997)��306 Kaiser Aetna v United States, 444 US 164 (1979) ��311 Kremen v Cohen, 337 F3d 1024 (9th Cir 2003)��90 Martin v City of Indianapolis, 192 F3d 608 (7th Cir 1999)��299 Nemitz v United States, 2004 WL 3167042 (D Nev, April 26, 2004) ��181 Ploof v Putnam, 7 A 188 (Vt 1908)��320 Slaughter-House Cases, 83 US 36 (1873)��227 United States v Eighteenth Century Peruvian Oil on Canvas Painting, 597 F Supp 2d 618 (ED Va 2009)��55 Wetherbee v Green, 22 Mich 311 (1871)��244 White v Brown, 559 SW2d 938 (Tenn 1977) ��330 World Trade Organization Canada―Patent Protection of Pharmaceutical Products, WT/DS/114/R (April 7, 2000) ��107 China―Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/ES362/R (January 26, 2009) ��104 United States―Section 110(5) of the US Copyright Act, WT/DS160/R (June 15, 2000)��105

Table of Domestic Legislation Afghanistan Constitution�� 213, 215 Art 40�� 213, 227

Bahrain Constitution Art 9(c)�� 330

Albania Constitution�� 215 Art 41�� 213, 227

Bangladesh Constitution Art 42(1) �� 227, 329 Art 43(a)�� 313

Algeria Constitution Art 40�� 313 Art 52�� 213, 245 Andorra Constitution�� 215 Art 27�� 213–14 Angola Constitution�� 213 Art 37�� 214 Antigua and Barbuda Constitution�� 215 Art 3�� 214 Argentina Constitution�� 215 Art 14�� 214, 255, 329 Art 17�� 214 Armenia Constitution�� 215 Art 31�� 214 Australia Commonwealth of Australia Constitution Act Art 51(xxxi)�� 214 Racial Discrimination Act 1975 Art 9�� 230 Austria Constitution�� 213, 215 Art 33�� 214 Azerbaijan Constitution�� 213 Art 29(IV) �� 245

Chile Constitution Art 19(23) �� 227 Art 19(24) �� 294 China Constitution Art 13�� 16 Contract Law Arts 130–75�� 227, 241 Art 185�� 340 General Principles of the Civil Law Art 75�� 16 Art 106�� 311 Law of Succession Art 10�� 227, 247 Art 16�� 343 Art 19�� 343 Art 32�� 268 Property Rights Law Art 2�� 255, 311 Art 6�� 227 Art 7�� 227, 290, 297 Art 9�� 227 Art 15�� 227, 241 Art 32�� 311 Art 34�� 311 Art 39�� 255, 296, 311, 330 Art 40�� 297 Art 87�� 321 Art 106�� 335 Art 117�� 29 Art 156�� 30 Art 177�� 338 Arts 179–240�� 31 Art 194�� 338 Art 218�� 338

xxvi

Table of Domestic Legislation

Costa Rica Constitution Art 23�� 313 Cote d’Ivoire Constitution Art 4�� 313 Ethiopia Constitution Art 40(1) �� 255 France Civil Code Art 537�� 330 Art 539�� 330 Art 544�� 23, 255, 296, 310, 330 Art 570�� 243 Art 571�� 243 Art 578�� 29, 296 Art 637�� 30 Art 682�� 320–1 Art 699�� 338 Art 711�� 227, 240 Art 712�� 227 Art 734�� 247 Art 757�� 247 Art 757-1�� 247 Art 757-2�� 247 Art 811�� 268 Art 812�� 268 Art 813�� 268 Art 814�� 268 Art 893�� 339 Art 894�� 339 Art 913�� 342 Art 914�� 342 Art 2220�� 338 Art 2229�� 236 Art 2262�� 236 Art 2279�� 239, 335 Art 2280�� 335 Art 2393�� 31 Georgia Constitution Art 21(1) �� 245 Germany Basic Law Art 14.2�� 294 BGB § 515�� 339

§ 873�� 227, 240 § 900�� 236 § 903�� 255, 310, 330 § 904�� 320 § 917�� 321 § 928(1)�� 337 § 929�� 240 § 935(1)�� 335 § 935(2)�� 335 § 937�� 227, 236 § 950(1)�� 243 § 951�� 243 § 958�� 227, 239 § 959�� 338 § 1004�� 289 § 1030�� 29 § 1037�� 296 §§ 1113–90�� 31 §§ 1204–58�� 31 § 1924�� 247 § 1925�� 247 § 1931�� 247 § 1936�� 268 § 1937�� 342 § 1941�� 342 § 2302�� 342 § 2303�� 342 Japan Civil Code Art 1(3) �� 290 Art 162�� 237 Art 176�� 241 Arts 180–87�� 227 Art 193�� 335 Art 194�� 336 Art 198�� 311 Art 203�� 338 Art 206�� 255, 297, 330 Art 210�� 321 Art 211�� 321 Art 212�� 321 Art 213�� 321 Art 239�� 239 Arts 239–48�� 227 Art 246(1) �� 244 Art 270�� 297 Art 271�� 297 Art 280�� 30 Arts 306–98�� 31 Art 549�� 340 Art 887�� 247 Art 889�� 247

Table of Domestic Legislation Art 890�� 247 Art 900�� 247 Art 959�� 268 Art 964�� 342 Art 1028�� 342 Russian Federation Constitution Art 25�� 313 Art 35(1) �� 15, 330 Art 35(2) �� 15, 255 Art 35(3) �� 15 South Africa Constitution Art 25(3) �� 358 Art 25(5) �� 222 United Arab Emirates Civil Code Art 43�� 321 United Kingdom Administration of Estates Act 1925 s 46 �� 247 s 46(1)�� 268 Factors Act 1889 s 2 �� 335 Inheritance (Provision for Family and Dependents) Act 1975 s 2 �� 342 Law of Property Act 1925 �� 227 s 40(1)�� 241 Property Registration Act 2002 �� 227 Sale of Goods Act 1979 s 21(1)�� 335 s 23 �� 335

xxvii

United States California Civil Code Art 1000�� 227 Art 1006�� 239 Art 1028�� 244 California Probate Code Art 6800�� 268 Uniform Commercial Code Art 2-403(1)�� 335 Art 2-403(2)�� 335 Vietnam Civil Code Art 164�� 255, 311, 330 Art 165�� 290 Art 169(2) �� 311 Art 170�� 227 Art 170(2) �� 247 Art 184�� 311 Art 193�� 297 Art 195�� 338 Art 197�� 330, 339 Art 238(1) �� 244 Art 239�� 239 Art 241�� 239 Art 247(1) �� 237 Art 255�� 311 Art 256�� 335 Art 258�� 336 Art 262�� 320 Art 273�� 321 Art 465�� 340 Art 644�� 268 Art 648�� 342 Art 669�� 342 Art 676�� 247

Table of Treaties Additional Protocol to the Convention on Human Rights and Biomedicine concern ing Transplantation of Organs and Tissues of Human Origin (Strasbourg, January 24, 2002) Art 21�� 71 Art 22�� 71 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217)�� 17, 25, 34–5, 38, 68, 112, 124, 133, 152–3, 204–6, 226, 253, 263–4, 276, 291, 303, 308, 317, 327 Art 2�� 229 Art 14�� 17, 112, 136–7, 205, 263–4 Art 27(1) �� 289 Art 27(2) �� 263 African Convention on the Conservation of Nature and Natural Resources (Algiers, September 15, 1968, 1001 UNTS 3) Art VIII �� 79 Agreement Concerning Cooperation on the Civil International Space Station (Washington, January 29, 1998)�� 193–7 Art 5(2) �� 194 Art 6(1) �� 193–4 Art 6(4) �� 194, 197 Art 9(2) �� 197 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York, December 5, 1979, 1363 UNTS 3)�� 177–8, 181–2, 185 Art 1(1) �� 178 Art 7(d) �� 185 Art 8�� 181 Art 9�� 181 Art 9(1) �� 182 Art 11�� 181, 187 Art 11(1) �� 185 Art 11(3) �� 177–8, 185 Art 11(5) �� 185 Art 15(1) �� 181 Agreement relating to the Implementation of Part XI of the United Nations

Convention on the Law of the Sea of December 10, 1982 (New York, July 28, 1994, 1836 UNTS 3)�� 163, 309 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, August 4, 1995, 2167 UNTS 3)�� 159 Agreement on the Privileges and Immunities of the International Criminal Court (New York, September 9, 2002)�� 73–4 Art 2�� 73 Art 4�� 73 Art 6�� 73 Art 7�� 73 Art 8�� 73 Art 10�� 73 Art 13�� 74 Art 15�� 74 Art 16�� 74 Art 18�� 74 Art 19�� 74 Art 21�� 74 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Rome, November 24, 1993, 2221 UNTS 91)�� 159, 356 Art III(1) �� 159 Art III(5) �� 167 Art III(8) �� 159, 167 Art IV�� 167 Art VI�� 167 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Washington, April 22, 1968, 672 UNTS 119)�� 176–7, 185, 195 Art 5�� 195 Art 6�� 195

xxx

Table of Treaties

Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299)�� 19, 45, 48, 91, 94–6, 101–10, 233, 316–17, 329, 355 Preamble �� 101 Art 1(1) �� 356 Art 3�� 233 Art 3(1) �� 102, 233 Art 4�� 102, 233 Art 9(1) �� 103, 298 Art 9(2) �� 45, 91, 103 Art 10(1) �� 103 Art 10(2) �� 91, 94 Art 13�� 104–5 Art 15(1) �� 95, 109 Art 16(1) �� 109, 317 Art 17�� 109, 317 Art 18�� 109 Art 19�� 109 Art 21�� 109, 329 Art 22(1) �� 105 Art 22(2)(a) �� 106 Art 22(2)(b)�� 106 Art 23(1) �� 106 Art 27(1) �� 96, 107 Art 27(2) �� 107 Art 27(3) �� 107 Art 27(3)(b)�� 96, 113 Art 28(1) �� 107 Art 28(1)(a) �� 317 Art 28(2) �� 107, 329 Art 29(1) �� 107 Art 30�� 107, 317 Art 31�� 108, 317 Art 33�� 102, 107 Art 39(2) �� 109–10 Art 41(1) �� 102 Art 42�� 102 Art 45(1) �� 102 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123)�� 17, 25, 34–5, 38, 112, 124, 133, 139, 204–6, 226, 262–3, 275–6, 308, 317, 327, 340, 355 Art 1(1) �� 229 Art 11�� 313 Art 11(2) �� 68, 124 Art 21�� 17, 112, 135, 205, 262–3 Art 21(1) �� 253, 276, 308 Art 21(2) �� 137

Art 29(a)�� 289 Art 30�� 262 Art 32(2) �� 262 Antarctic Treaty (Washington, December 1, 1959, 402 UNTS 71)�� 99–100, 117–21, 181–2 Art I(1)�� 118, 121 Art II �� 118 Art III�� 118 Art III(1)(c)�� 100 Art V(1)�� 118, 121 Art VII�� 118 Art VII(2)�� 121 Art VII(3)�� 118–21 Art VII(5)�� 118 Art VII(5)(b) �� 120 Art VIII �� 118 Art VIII(1)�� 119 Art IX�� 118 Arab Charter on Human Rights (May 22, 2004) �� 17, 124, 204–5, 264, 277, 289, 350 Art 21(1) �� 124 Art 31�� 17, 205, 264 Art 32(2) �� 289 Art 35(2) �� 289 ASEAN-Australia-New Zealand Free Trade Agreement (Cha-am, February 27, 2009) �� 18, 234 Ch 11, art 2(c)�� 32, 36, 234 Ch 11, art 2(c)(vi) �� 30 Ch 11, art 4�� 234, 328, 341 Ch 11, art 7�� 234 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221)�� 48, 86, 91, 93–5, 100, 103–5, 189, 298–9, 316–17, 329, 355 Art 1�� 94 Art 2(1) �� 94, 103, 298 Art 2(3) �� 95, 103 Art 2(5) �� 94, 103 Art 2(6) �� 329 Art 3(1)(a) �� 189 Art 5(1) �� 103 Art 5(2) �� 104 Art 6bis �� 57, 298, 300 Art 6bis(1)�� 95, 105, 298, 329 Art 6bis(2)�� 105 Art 6bis(3)�� 298 Art 7(1) �� 104, 355

Table of Treaties Art 7(6) �� 104, 355 Art 8�� 316 Art 9�� 104, 316 Art 9(1) �� 95 Art 9(2) �� 104, 316 Art 10�� 316 Art 10bis �� 316 Art 11�� 104, 316 Art 11bis �� 104 Art 11ter�� 104, 316 Art 12�� 104, 316 Art 14(1) �� 104 Bonn Convention on the Conservation of Migratory Species of Wild Animals (Bonn, June 23, 1979, 1651 UNTS 333)�� 79, 157 Art I(1)(a)�� 79 Art I(1)(i)�� 79 Art III(5) �� 79 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena, January 29, 2000, 39 ILM 1027) �� 67 Art 2(2) �� 67 Art 3(g) �� 67 Art 7�� 67 Art 8�� 67 Art 10�� 67 Art 15�� 67 Art 16(3) �� 67 Charter of Fundamental Rights of the European Union (December 7, 2000, 40 ILM 266) �� 261, 275, 326 Art 17�� 326 Art 17(1) �� 261, 343 Art 52(1) �� 261 Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako, January 30, 1991, 30 ILM 773) �� 65–6 Convention on Biological Diversity (Rio de Janeiro, June 5, 1992, 1760 UNTS 79)�� 86, 96–100 Art 1�� 97 Art 2�� 96 Art 4�� 100 Art 8(j)�� 86–7 Art 15(1) �� 97 Art 15(2) �� 97 Art 15(4) �� 97

xxxi

Art 15(5) �� 97 Convention on Choice of Court Agreements (The Hague, June 30, 2005, 44 ILM 1294) �� 112–13 Preamble �� 112 Art 2�� 113 Art 3�� 113 Art 8(1) �� 114 Art 9�� 114 Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, October 14, 1994, 1954 UNTS 3)�� 303 Art 5(b) �� 303 Art 5(e)�� 303 Annex I, art 8(3)(b) �� 303 Convention on the Conservation of Antarctic Marine Living Resources (Canberra, May 20, 1980, 1329 UNTS 48)�� 157 Convention on Contracts for the International Sale of Goods (Vienna, April 11, 1980, 1489 UNTS 3)�� 240, 329, 341, 360 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, March 22, 1989, 1673 UNTS 75)�� 65 Art 2(1) �� 65 Art 4(1) �� 65 Art 4(6) �� 65 Art 4(9) �� 65 Art 6(1) �� 65 Art 6(3) �� 65 Annex I �� 65 Convention against Corruption (New York, October 31, 2003, 2349 UNTS 41)�� 58 Art 23(1) �� 58 Art 31�� 58 Convention on Cybercrime (Budapest, November 23, 2001, 2296 UNTS 167)�� 92 Preamble �� 92 Art 2�� 92 Art 4�� 92 Art 5�� 92 Art 6�� 93 Art 8�� 92 Art 9�� 93

xxxii

Table of Treaties

Convention on Diplomatic Relations (Vienna, April 18, 1961, 500 UNTS 95) Art 22�� 59 Art 30�� 59 Art 31(1)(a) �� 59 Art 36(1) �� 59 Art 36(2) �� 59 Art 37(1) �� 59 Art 37(2) �� 59 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13)�� 24, 27, 207–9, 218–19, 225, 226, 248, 309 Art 14(2)(h)�� 151 Art 16�� 208 Art 16(1)(h)�� 24, 207, 225, 229, 254, 309, 327 Convention on the Establishment of a Scheme of Registration of Wills (Basel, May 16, 1972, 1138 UNTS 243)�� 343 Convention on the High Seas (Geneva, April 29, 1958, 450 UNTS 11) Art 2�� 188 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, December 20, 1988, 1582 UNTS 165)�� 58 Art 3(1)(a) �� 58 Art 3(1)(c) �� 58 Art 3(2) �� 51, 58 Art 5(1) �� 58 Art 5(8) �� 58 Convention concerning Indigenous and Tribal Peoples in Independent Countries (Geneva, June 27, 1989, 1650 UNTS 383)�� 133–4, 268, 327, 332 Art 1(1)(a) �� 134 Art 1(1)(b)�� 133 Art 1(2) �� 134 Art 2�� 133 Art 14�� 134 Art 14(1) �� 331 Art 16�� 268, 332 Art 16(4) �� 139 Art 17(1) �� 327, 332 Art 17(2) �� 332

Convention on International Civil Aviation (Chicago, December 7, 1944, 15 UNTS 295)�� 172–3 Art 1�� 172 Art 6�� 172 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285)�� 19, 32, 35, 46, 60, 63–4, 309, 329, 341, 352, 356, 359 Art 1�� 32 Art 2�� 32 Art 2(2) �� 61 Art 7�� 61 Art 7(b) �� 336 Art 8�� 32 Art 8(1) �� 61 Art 8(1)(a) �� 309 Art 8(2) �� 61 Art 10�� 62 Art 13(1)(b)�� 309 Art 16(1) �� 61 Art 17(2)(i)�� 61 Art 18(4) �� 61 Art 29(1) �� 61 Art 29(2) �� 61 Art 29(3) �� 61 Art 41�� 61 Convention on the International Liability for Damage Caused by Space Objects (Washington, March 29, 1972, 961 UNTS 187)�� 176–7, 185, 199 Art II �� 199 Art III�� 199 Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, March 3, 1973, 993 UNTS 243)�� 45, 79, 80 Art I(b)�� 49, 80 Art II �� 79 Art III�� 80 Art III(2) �� 80 Art III(3) �� 80 Art IV�� 80 Art V �� 80 Art VII�� 80 Art VIII(1)�� 80 Convention on Jurisdictional Immunities of States and Their Property (New York, December 2, 2004)�� 24

Table of Treaties Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, May 21, 1997, 36 ILM 703) �� 151 Art 10(2) �� 151 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, November 14, 1970, 823 UNTS 231)�� 53 Preamble �� 53 Art 1�� 54 Art 3�� 54 Art 5�� 54 Art 6(b) �� 54 Art 7(b)(i)�� 54 Art 7(b)(ii)�� 55 Art 13(a)�� 54 Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (Washington, October 12, 1940, 161 UNTS 193)�� 79 Art V �� 79 Art VII�� 79 Art VIII �� 79 Convention on the Privileges and Immunities of the Specialized Agencies (New York, November 21, 1947, 33 UNTS 261)�� 72 Art III(3) �� 352 Convention on the Privileges and Immunities of the United Nations (New York, February 13, 1946, 1 UNTS 16)�� 72, 74 Art I(1)(b) �� 72 Art II �� 73, 74 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo, April 4, 1997) Art 1�� 71 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221)�� 16, 25, 42, 111, 204, 226, 238, 245, 253, 257, 270, 273–5, 284, 291, 308, 315–16, 326, 333, 355 Art 8�� 68, 123, 129, 291, 313, 315

xxxiii

Art 8(1) �� 68 Art 14�� 229 Art 15�� 270 Art 17�� 289 Art 53�� 355 Convention on the Protection of the Underwater Cultural Heritage (Paris, November 2, 2001, 2562 UNTS 3)�� 156–7 Art 1(1) �� 156 Art 2(3) �� 156 Art 2(5) �� 156 Art 2(6) �� 156 Art 4�� 157 Art 7�� 156 Art 10�� 156 Art 12�� 156 Annex rule 2�� 157 Convention for the Protection of the World Cultural and Natural Heritage (Paris, November 16, 1972, 1037 UNTS 151)�� 140–2, 157, 301 Preamble �� 140, 301–2 Art 1�� 140 Art 2�� 141 Art 4�� 141 Art 5(d) �� 140 Art 6(1) �� 141 Art 11�� 141 Art 11(3) �� 141 Art 11(4) �� 142 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958, 330 UNTS 3)�� 113 Art V �� 113 Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (The Hague, February 1, 1971, 1144 UNTS 257)�� 112 Convention on Registration of Objects Launched into Outer Space (New York, November 12, 1974, 1023 UNTS 15)�� 177, 185, 195–7 Preamble �� 196 Art I(b)�� 195 Art II(1)�� 195 Art II(2)�� 195 Art III�� 195

xxxiv

Table of Treaties

Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, June 2, 1988, 27 ILM 868) �� 119, 121 Art 1(6) �� 119, 121 Art 48�� 122 Convention on the Rights of the Child (New York, November 20, 1989, 1577 UNTS 3) Art 24(2) �� 151 Convention on the Rights of Persons with Disabilities (New York, December 13, 2006, 2515 UNTS 3)�� 207–9, 218, 225 Art 12(5) �� 207, 225, 229, 245 Art 28(2)(a) �� 151 Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, October 17, 2003, 2368 UNTS 3)�� 83 Art 2(1) �� 83 Art 11(a)�� 83 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, March 18, 1965, 575 UNTS 159)�� 18, 350, 351 Art 25�� 44 Art 42(1) �� 351 Convention relating to the Status of Refugees (Geneva, July 28, 1951, 189 UNTS 150)�� 225 Art I(A)(1)�� 143 Art 13�� 225, 231 Convention relating to the Status of Stateless Persons (New York, September 28, 1954, 360 UNTS 117)�� 225 Art 13�� 225, 231 Convention on Stolen or Illegally Exported Cultural Objects (Rome, June 24, 1995, 2421 UNTS 457)�� 35, 49, 53, 55 Art 1�� 55 Art 1(b) �� 55 Art 2�� 55 Art 3(1) �� 56 Art 3(2) �� 56 Art 4(1) �� 57 Art 4(4) �� 57 Art 5(1) �� 55 Art 5(3) �� 55–6 Art 6(1) �� 56

Art 6(2) �� 56 Art 10�� 55 Convention to Suppress the Slave Trade and Slavery (Geneva, September 25, 1926, 60 LNTS 253)�� 69 Art 1(1) �� 50, 70 Art 1(2) �� 70 Art 2(b) �� 50, 70 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, December 10, 1984, 1465 UNTS 85) Art 16(1) �� 291 Art 22�� 43 Convention against Transnational Organized Crime (New York, November 15, 2000, 2225 UNTS 209)�� 58 Art 6(1)(b)(i) �� 58 Art 12(1) �� 58 Art 12(8) �� 58 Convention providing a Uniform Law on the Form of an International Will (Washington, October 26, 1973, 12 ILM 1298) �� 49, 343 Annex art 4(1) �� 343 Doha Amendment to the Kyoto Protocol to the UN Framework Convention on Climate Change (Doha, December 8, 2012) �� 174 Art 1�� 174 Dominican Republic-Central America-United States Free Trade Agreement (Washington, August 5, 2004) Art 10.28�� 37 Energy Charter Treaty (Lisbon, December 17, 1994, 2080 UNTS 95)�� 18, 32, 234 Art 1(6) �� 24 Art 1(6)(a) �� 30, 32, 34, 36–7 Art 1(8) �� 234 Art 10(1) �� 285 Art 10(2) �� 234 Art 10(3) �� 234 Art 10(7) �� 328 European Agreement for the Prevention of Broadcasts transmitted from Stations outside National Territories (Strasbourg, January 22, 1965, 634 UNTS 239)�� 165

Table of Treaties European Social Charter (Strasbourg, May 3, 1996, 2151 UNTS 277)�� 124, 127 Part I(31)�� 124, 223 Part II(31) �� 124, 129, 223 General Agreement on Tariffs and Trade (Geneva, October 30, 1947, 55 UNTS 187)�� 232–3 Art I�� 233 Art III(3) �� 233 General Agreement on Trade in Services (Marrakesh, April 15, 1994, 1869 UNTS 183)�� 233 Art I(2)(c)�� 233 Art XVII(1) �� 233 General Framework Agreement for Peace in Bosnia and Herzegovina (Paris, December 14, 1995, 35 ILM 80)�� 44 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, August 12, 1949, 75 UNTS 287)�� 74–5, 77 Art 33�� 77 Art 53�� 76 Art 55�� 78 Hague Convention with Respect to the Laws and Customs of War on Land (The Hague, July 29, 1899)�� 74–5, 77 Art 46�� 77 Art 47�� 77 Art 52�� 77 Art 56�� 75 Hague Convention Respecting the Laws and Customs of War on Land (The Hague, October 18, 1907)�� 74 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, May 14, 1954, 249 UNTS 240)�� 75–6, 300 Art 1�� 76 Art 4�� 76 Art 4(3) �� 76, 78, 300 Art 12�� 78 Art 13�� 78 Art 14�� 78 International Air Transport Agreement (Chicago, December 7, 1944, 171 UNTS 387)�� 173 Art I(1)�� 173

xxxv

International Convention on Arrest of Ships (Geneva, March 12, 1999)�� 169–70 Art 1(1) �� 170 Art 2�� 170 Art 2(2) �� 170 Art 3�� 170 Art 4�� 170 International Convention on the Elimination of All Forms of Racial Discrimination (New York, March 7, 1966, 660 UNTS 195)�� 207–9, 218, 219, 225, 230 Art 5�� 43, 229–30 Art 5(d)(v)�� 207, 225, 229, 351 Art 5(d)(vi)�� 225, 245 Art 14�� 43 International Convention on Maritime Liens and Mortgages (Geneva, May 6, 1993, 33 ILM 353) �� 19, 167–70, 356 Preamble �� 168 Art 1�� 168 Art 2�� 168 Art 3�� 168 Art 3(1) �� 168 Art 4(1) �� 168 Art 5(1) �� 168 Art 5(2) �� 169 Art 6�� 168 Art 7�� 168 Art 8�� 168 Art 12(1) �� 169 Art 12(2) �� 169 Art 12(5) �� 169 International Convention for the Protection of New Varieties of Plants (Geneva, March 29, 1991)�� 113–15 Art 1(iv)�� 114 Art 2�� 114 Art 5(1) �� 114 Art 6(1) �� 114 Art 7�� 114 Art 8�� 114 Art 9�� 114 Art 14(1) �� 114 Art 15(1) �� 114 Art 15(2) �� 115 Art 17�� 114 Art 19�� 114

xxxvi

Table of Treaties

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (New York, December 18, 1990, 2220 UNTS 3)�� 207, 208, 231 Art 14�� 231 Art 15�� 207, 231, 351 Art 32�� 231, 327 International Convention for the Regulation of Whaling (Washington, December 2, 1946, 161 UNTS 72)�� 157 International Convention on Salvage (London, April 28, 1989, 1953 UNTS 194)�� 168 International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171)�� 11, 14, 83, 232, 313–15 Preamble �� 314 Art 1(2) �� 132 Art 5(1) �� 288–9 Art 8(1) �� 70 Art 12(4) �� 144 Art 17�� 313, 314–15 Art 17(1) �� 43, 68, 123, 125, 313 Art 17(2) �� 313 Art 26�� 229, 232 Art 27�� 83, 132 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3)�� 11, 14, 16, 33, 83, 116, 124–6, 128, 130–1, 151, 153, 203, 222, 298–9, 313, 316 Art 1(1) �� 83 Art 1(2) �� 132 Art 2(2) �� 228, 351 Art 5(1) �� 288–9 Art 11�� 152, 222, 242 Art 11(1) �� 68, 123, 130, 222, 242 Art 11(2)(a) �� 132 Art 15�� 132 Art 15(1)(a) �� 83–4 Art 15(1)(c) �� 57, 100, 298–9, 316 Art 15(2) �� 100, 316 Art 27�� 132 International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, November 3, 2001, 2400 UNTS 303)�� 47, 98–9

Art 1(1.1)�� 98 Art 2�� 98 Art 12.2�� 98 Art 12.3�� 98 Art 12.3(d)�� 98 Art 13.2(d)�� 98 International Tropical Timber Agreement (February 1, 2006)�� 304 Art 1�� 304 Kyoto Protocol to the UN Framework Convention on Climate Change (Kyoto, December 11, 1997, 2303 UNTS 162)�� 47, 172–5 Art 6�� 174 Art 6(1) �� 174 Art 12�� 174 Art 12(2) �� 174 Art 17�� 174 Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (Luxembourg, February 23, 2007, 46 ILM 662)�� 62–3, 198, 336 Art XVII�� 63 Art XXV�� 62–3 Madrid Agreement Concerning the International Registration of Marks (Madrid, April 14, 1891, 828 UNTS 389)�� 108 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal, September 16, 1987, 1513 UNTS 3)�� 66 Art 2A �� 66 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya, October 29, 2010)�� 87–8, 99 Art 5(5) �� 87 Art 6(1) �� 99 Art 6(3) �� 99 Art 7�� 87 Art 12�� 87 Art 17(4) �� 99 North American Free Trade Agreement (San Antonio, December 17, 1992, 32 ILM 296) �� 18, 37, 234, 285, 328 Art 1102�� 341

Table of Treaties Art 1102(1) �� 234 Art 1102(2) �� 328 Art 1103�� 341 Art 1103(1) �� 234, 328 Art 1105�� 24 Art 1110�� 24 Art 1139�� 24, 34, 234 Art 1139(g) �� 36–7 Optional Protocol to the International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 302) Art 1�� 43 Paris Convention for the Protection of Industrial Property (Paris, March 20, 1883, 828 UNTS 107)�� 100, 106–7, 109, 190, 316 Art 2(1) �� 107 Art 4�� 106, 190 Art 4ter�� 107 Art 5�� 107, 190 Art 6(1) �� 108 Art 6bis �� 108 Art 6ter�� 108 Art 6quater�� 108–9 Art 9�� 105 Art 10�� 105 Art 10bis �� 105 Art 10bis(2)�� 109 Art 10ter�� 105 Patent Cooperation Treaty (Washington, June 19, 1970, 1160 UNTS 231)�� 106–7 Art 3�� 107 Art 16�� 107 Art 18�� 107 Protocol Additional Relating to the Protection of Victims of International Armed Conflicts (Geneva, June 8, 1977, 1125 UNTS 3)�� 74–5 Art 51(5)(b)�� 75 Art 52(1) �� 75 Art 52(2) �� 75 Art 53�� 76, 78 Art 54(2) �� 76 Art 59(1) �� 75 Protocol Additional Relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, June 8, 1977, 1125 UNTS 609)�� 74–5, 77 Art 4(2)(g)�� 77

xxxvii

Art 14�� 76 Art 16�� 77 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo, July 11, 2003)�� 248 Art 21(1) �� 248 Art 21(2) �� 248 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Cape Town, November 16, 2001, 2367 UNTS 517)�� 60, 62–3, 336 Art III�� 62 Art V(I) �� 62 Art V(II)�� 62 Art XIV(1)�� 62 Art XIV(2)�� 62 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (Berlin, March 9, 2012)�� 184, 196–8, 336 Preamble �� 197 Art I(1)(j)�� 197 Art I(2)(j)�� 197 Art I(2)(k) �� 197 Art II(3)�� 197 Art II(4)�� 197 Art III(b) �� 198 Art IV�� 196 Art V(1)�� 196 Art V(2)�� 196 Art XIX �� 198 Art XXIII�� 196 Art XXVI�� 198 Art XXVI(2)�� 198 Art XXVII(1)�� 198 Art XXVII(3)�� 198 Art XXVII(4)�� 198 Art XXVII(5)�� 198 Art XXVII(6)�� 198 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262)�� 16, 25, 34–5, 37, 111, 204, 215, 226, 258–62, 273–5, 308–9, 318–19, 326, 340, 343, 355, 359–60 Art 1�� 16, 33, 47–8, 204, 206, 232, 253, 258–62, 273

xxxviii

Table of Treaties

Protocol on Environmental Protection to the Antarctic Treaty (Madrid, October 4, 1991, 30 ILM 1461)�� 80–1, 118 Art 2�� 100, 118 Art 3�� 122 Art 3(2) �� 118 Art 3(2)(a) �� 120 Art 3(2)(b)�� 120 Art 3(4) �� 118, 122 Art 6(1)(d)�� 121 Art 7�� 119, 122, 186 Art 8�� 122 Art 8(1) �� 118 Art 8(2) �� 118, 122 Art 13�� 122 Art 13(1) �� 81 Annex II, art 1�� 81 Annex II, art 1(g)�� 81 Annex II, art 3(1)�� 81 Annex II, art 3(2)�� 81 Annex II, art 3(5)�� 81 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (New York, May 31, 2001, 2326 UNTS 211)�� 59 Art 6(1) �� 59 Art 6(2) �� 59 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid, June 17, 1989) �� 108 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplement ing the United Nations Convention against Transnational Organized Crime (New York, November 15, 2000, 2237 UNTS 319)�� 71 Art 3(a)�� 71–2 Art 5(1) �� 71 Protocol for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, May 14, 1954, 249 UNTS 240) Art I(1)�� 78 Art I(2)�� 78 Art I(3)�� 78 Art I(4)�� 78 Ramsar Convention on Wetlands of International Importance Especially as

Waterfowl Habitat (Ramsar, February 2, 1971, 996 UNTS 245)�� 50, 140, 142–3, 303 Art 2(1) �� 142 Art 2(2) �� 142 Art 2(3) �� 142 Art 3(1) �� 142, 303 Rome Statute of the International Criminal Court (Rome, July 17, 1998, 2187 UNTS 90) Art 7(1)(c) �� 70 Art 8(2)(a)(iv)�� 75, 77 Art 8(2)(b)(iv) �� 75 Art 8(2)(b)(xvi)�� 77 Art 8(2)(e)(v)�� 77 Art 8(2)(e)(xii)�� 76 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam, September 10, 1998, 2224 UNTS 337)�� 66 Art 10�� 66 Art 11�� 66 Annex III�� 66 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, March 26, 1999, 2253 UNTS 212)�� 76 Art 7(c)�� 76 Art 7(d) �� 77 Art 10�� 77 Art 11�� 77 Art 13�� 77 Stockholm Convention on Persistent Organic Pollutants (Stockholm, May 22, 2001, 2256 UNTS 119)�� 67 Art 3(1) �� 67 Art 3(2) �� 67 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Geneva, September 7, 1956, 266 UNTS 3)�� 70 Art 1(a)�� 70 Art 1(b) �� 70 Art 1(c)�� 70 Art 3�� 70 Art 6�� 70 Treaty on Principles Governing the Activities of States in the Exploration

Table of Treaties and Use of Outer Space, including the Moon and Other Celestial Bodies (Washington, January 27, 1967, 610 UNTS 205)�� 176–90, 192–5, 198–9 Art I�� 179, 181–2, 185, 187, 190, 192 Art II �� 176, 178–81, 187, 190 Art III�� 179, 185 Art IV�� 176, 179–80, 186, 199 Art VI�� 176, 180, 199 Art VII�� 181 Art VIII �� 183–4, 190, 193, 195 Art IX�� 182, 185–6, 188, 190, 199 Art XI�� 182, 185 Art XII�� 179, 181–2, 185–6, 199 Art XIII �� 185 UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3)�� 19, 20, 29, 30–1, 35, 45–7, 121, 154–67, 169, 173, 309 Preamble �� 154 Art 1�� 154 Art 1(1)(1)�� 123, 163 Art 2�� 157 Art 2(2) �� 162 Art 17�� 164 Art 33(2) �� 155 Art 38�� 165 Art 40(2) �� 162 Art 49�� 157 Art 51�� 157 Art 52�� 164–5 Art 56�� 154 Art 56(1) �� 162 Art 56(1)(a) �� 160, 162 Art 58�� 164, 173 Art 60�� 166 Art 61(1) �� 158 Art 61(3) �� 158 Art 62�� 158 Art 62(2) �� 158 Art 62(4) �� 158 Art 69�� 158 Art 70�� 158 Art 72�� 158 Art 73(2) �� 169 Art 77(4) �� 160, 162 Art 79(3) �� 166 Art 79(4) �� 166 Art 79(5) �� 166

xxxix

Art 80�� 166 Art 86�� 161 Art 87�� 47, 161–2, 165 Art 87(1) �� 31, 162, 165, 173 Art 87(2) �� 162 Art 90�� 164 Art 91(1) �� 167 Art 92(2) �� 119 Art 94(2)(a) �� 167 Art 101�� 169 Art 105�� 169 Art 109�� 165 Art 111(8) �� 169 Art 112�� 166 Art 112(1) �� 166 Art 112(2) �� 166 Art 116�� 159 Art 117�� 159, 160–1, 189 Art 118�� 159–60 Art 119�� 159–60 Art 133�� 160 Art 133(a)�� 163 Art 136�� 122, 154, 156, 163 Art 137�� 154, 156 Art 137(1) �� 123, 163 Art 137(2) �� 163 Art 137(3) �� 163 Art 149�� 155–6 Art 153(2)(b)�� 163 Art 153(6) �� 164 Art 162(2)(x)�� 163 Art 187�� 164 Art 193�� 157 Art 241�� 161 Art 246�� 160 Art 292�� 169 Art 303�� 155–6 Art 303(1) �� 155 Art 303(2) �� 155 Art 303(3) �� 155 Annex III art 1�� 164 Annex III art 3(4)(c)�� 163 Annex III art 4�� 163 Annex III art 6(3)�� 163 Annex III art 16�� 163 Annex III art 18�� 164 Annex III art 20�� 164 Vienna Convention on the Law of Treaties (Vienna, May 23, 1969, 1155 UNTS 331)�� 179 Art 26�� 180 Art 31�� 179

xl

Table of Treaties

Vienna Convention on the Law of Treaties (Cont.): Art 31(1) �� 186, 208 Art 31(3)(a) �� 208 Art 31(3)(c) �� 351 Art 32(a)�� 209 World Intellectual Property Organization Copyright Treaty (Geneva,

December 20, 1996, 2186 UNTS 121)�� 91, 104 Preamble �� 46 Art 2�� 45, 91 Art 5�� 91 Art 6(1) �� 104 Art 7�� 104

List of Abbreviations AAU Assigned amount unit ACHPR African Charter on Human and Peoples’ Rights ACHR American Convention on Human Rights ACmHPR African Commission on Human and Peoples’ Rights ASEAN Association of Southeast Asian Nations BIT Bilateral investment treaty CEDAW Convention on the Elimination of All Forms of Discrimination against Women CER Certified emission reduction CERD International Convention on the Elimination of All Forms of Racial Discrimination CFCs Chlorofluorocarbons CICA Convention on International Civil Aviation CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CPRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families CRPD Convention on the Rights of Persons with Disabilities ECHR Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice EEZ Exclusive economic zone ERU Emission reduction unit FAO UN Food and Agriculture Organization FET Fair and equitable treatment FPS Full protection and security GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade GHGs Greenhouse gases IACmHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights IATA International Air Transport Agreement ICANN Internet Corporation for Assigned Names and Numbers ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICSID International Centre for the Settlement of Investment Disputes IGO Intergovernmental organization IP Declaration UN Declaration on the Rights of Indigenous Peoples ISS International Space Station ITLOS International Tribunal for the Law of the Sea

xlii

List of Abbreviations

ITP Convention Convention concerning Indigenous and Tribal Peoples in Independent Countries ITQ Individual transferable quota ITU International Telecommunication Union MFN Most-favored-nation NAFTA North American Free Trade Agreement OST Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, commonly known as the Outer Space Treaty PCIJ Permanent Court of International Justice RMU Removal unit TCE Traditional cultural expressions TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights UDHR Universal Declaration of Human Rights UDRP Uniform Domain Name Dispute Resolution Policy UNCITRAL UN Commission on International Trade Law UNCLOS UN Convention on the Law of the Sea UNESCO UN Educational, Scientific and Cultural Organization UN GAR UN General Assembly Resolution UPOV International Convention for the Protection of New Varieties of Plants WIPO World Intellectual Property Organization WTO World Trade Organization

PA RT I F O U N D AT I O N S

1 Origins of International Property Law

A. Introduction Property rights are traditionally created and defined by municipal law. As one authority explains, “[a]‌state enjoys an exclusive right to regulate matters pertaining to the ownership of property of every kind which may be said to belong within its territory.”1 Under this view, sovereignty and property are inherently intertwined― and thus international property law cannot exist. In reality, the property rights of individuals, businesses, and other private actors are increasingly affected by international law. This law sometimes creates property rights, either independently of states or in concert with them. Title to deep seabed minerals, security interests in aircraft, and rights to satellite orbits, for example, are all authorized at the global level. International law protects rights that arise under municipal law through uniform rules which safeguard human rights and foreign investments. It also establishes global standards that harmonize property rights in areas such as intellectual property, genetic resources, and cultural objects. Finally, international law restricts property rights or prohibits them altogether in contexts ranging from celestial bodies to ideas to wild animals. The evolution of international property law was fostered by transformative polit ical and economic changes over the last 40 years. The rise of international human rights law led to the widespread recognition of the human right to property. With the end of the Cold War, most socialist states shifted to market economies and embraced private property. Developing nations began to welcome foreign invest ment that enhanced their economies. As a result of globalization, property rights and their owners increasingly spanned national borders, creating the need for inter national coordination and protection. In addition, as technological advances per mitted intensive exploitation of resources in the global commons―areas outside of the territory of any state, such as outer space and the high seas―international regulation of these activities expanded.

1 Charles C Hyde, International Law Chiefly as Interpreted and Applied by the United States (2d rev edn, Little, Brown & Co 1947) (reprinted by Fred B Rothman & Co 1983) vol 1, 650.

4

Origins of International Property Law

As a result, treaties, customary norms, general principles, arbitral and judicial decisions, and soft law instruments have produced a substantial body of inter national property law that blends public law and private law concepts. Private actors are subjects of this law, either directly or indirectly through a state inter mediary. In this context, the historic separation between international law and municipal law is slowly disappearing.

B. Property and Sovereignty (1) Roman Law The concept of a uniform body of property law applicable in all states is ancient. Philosophers have debated for millennia whether property originates from the state or arises independently as a matter of natural law. If property could only be created under the laws of a state, the content and scope of property rights would inevit ably differ among states. Conversely, property rights stemming from natural law would be governed by universal standards and thus identical in all states. While Greek scholars touched on the concept, Roman theorists explored it in depth. For example, Cicero suggested that a person can “claim all things as his own, not under the law of the Roman people but under the law of the philosophers; not by civil ownership but by the common law of nature.”2 He envisioned an era when “[t]‌here will not be one law at Rome and another at Athens . . . but all nations at all times will be bound by this eternal and unchangeable law.”3 The concept of law that arose from the inherent nature of humans was a theme in Roman legal scholarship. The Institutes of Justinian acknowledged that “the law which natural reason has established among all mankind and which is equally observed among all peoples, is called the Law of Nations, as being that which all nations make use of.”4 It stressed that “Natural Laws that are observed without distinction by all nations . . . remain always fixed and unchangeable.”5 Over time, the presence in Rome of many resident foreigners led to the development of the jus gentium, which was closely connected to natural law principles and thought to be universally applicable to persons in all states. The Institutes of Justinian accepted that property rights could arise from either natural law or state action: “Things become the property of individuals in many ways, for by natural law we obtain ownership of certain things . . . [under] the Law of Nations, and we obtain the ownership of others by the Civil Law.”6 It explained that natural law was the older technique for obtaining property, having “originated 2 Marcus Tullius Cicero, On the Commonwealth and On the Laws (CUP 1999) (James EG Zetzel tr) 13. 3 Cicero, On the Commonwealth 33. 4 Institutes of Justinian 1.2.1, in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973). 5 Institutes of Justinian 1.2.11, in Scott, The Civil Law. 6 Institutes of Justinian 2.1.11, in Scott, The Civil Law.

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at the same time with the human race,” while “civil laws only came into existence when states were founded.”7 Richard Schlatter concludes that “the natural right theory of property is an outgrowth of the Roman lawyers’ theory of the natural modes of acquisition.”8

(2) The Peace of Westphalia The vision of universal property law died with the fall of the Roman Empire. The rediscovery of Roman law during the Renaissance sparked new interest in natural law theory, as reflected in the works of Hugo Grotius and other scholars. But the 1648 Peace of Westphalia, which created the modern nation-state system, largely ended any lingering debate about whether property is created by the state or arises under natural law. Under this model, property rights were governed solely by the domestic law of a particular state. The foundation of public international law is the axiom that a state has sover eignty over its territory. The logical corollary of this precept is that each state has the right to adopt laws governing how private actors utilize that territory―including the laws concerning property. This model reflects legal positivism: property rights exist only if and to the extent that they are created by a state. As Jeremy Bentham famously observed: “Property and law are born together, and die together. Before laws were made, there was no property; take away laws, and property ceases.”9 Under this approach, domestic law determines (a) what constitutes property, (b) the forms of property ownership that will be recognized, and (c) the rights and duties of property owners.10 The norm that property rights were governed solely by domestic law was prem ised on the significance of national borders. Under Westphalian theory, the state was an autonomous actor with the unquestioned right to regulate activities within its territory as it thought appropriate. By definition, no state was entitled to inter vene in the internal affairs of another state; to do so would be perceived as an act of hostility. An attempt by one state to create or modify property rights within the territory of another would have been regarded as absurd. A state’s sovereign author ity necessarily carried with it the power to exercise physical control over movable and immovable things within its territory. Because borders delineated the outer limits of domestic law, they also served to notify nationals and aliens alike where the rules governing rights in tangible movable objects would change. The Westphalian approach to property was not absolute. For example, many states accepted the principle that the private property of a foreign diplomat was not subject to the law of the host state. But beyond a few exceptions, international law had no impact on property rights during this era. 7 Institutes of Justinian 2.1.11, in Scott, The Civil Law. 8 Richard Schlatter, Private Property: The History of an Idea (Russell & Russell 1951) 32. 9 Jeremy Bentham, The Theory of Legislation (first published 1802, Oceana Publications 1975) 69. 10 For a contrary view, see L Benjamin Ederington, “Property as a Natural Institution: The Separation of Property from Sovereignty in International Law” (1997) 13 American U Intl L Rev 263.

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(3) Natural Law and the Enlightenment Despite the victory of positivism, the theory that universal property rights could arise independently of the state persisted in European scholarship. Writing in the early seventeenth century, Grotius explained that “God conferred upon the human race a general right over things of a lower order,” creating a “universal right [that] served the purpose of private ownership” that preceded all civil law.11 Subsequently, “things became subject to private ownership . . . by a kind of agree ment, either expressed, as by a division, or implied, as by occupation”―before the state arose.12 Samuel Pufendorf similarly asserted that “there was a tacit convention that each man could appropriate for his own use . . . what he wanted . . . [a]‌nd such a universal use of things in some way took the place of proprietorship.” 13 Under this approach, the state was created to protect pre-existing property rights. In the common law system, the foremost exponent of the natural law approach to property was John Locke. Like continental European scholars, Locke reasoned that God gave Earth and its resources to all mankind in common. Property rights were created before governments existed, when a person used his labor to take con trol of a resource: “Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”14 Because the “end of govern ment” was the “preservation of property,” a state “cannot take from any man part of his property without his own consent.”15 The rediscovery of Roman law by Renaissance scholars, coupled with the nat ural law theories of Grotius, Pufendorf, Locke, and others, influenced William Blackstone’s famous Commentaries on the Laws of England. The first volume of this work, which appeared in 1765, identified the right to property as one of three “absolute” rights in English law―that is, rights that would belong to persons “in a state of nature.”16 Blackstone explained that this right consisted of “the free use, enjoyment, and disposal of all . . . acquisitions, without any control or diminution, save only by the laws of the land.”17 Ultimately, he defined “property” as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”18 Natural law theory, in turn, was utilized by the eighteenth-century revolution ary movement in colonial America as a justification for rejecting British rule. 11 Hugo Grotius, De Jure Belli ac Pactis Libri Tres (first published 1625, Clarendon Press 1925) (Francis W Kelsey tr) vol 2, 186. 12 Grotius, De Jure Belli vol 2, 189. 13 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (first published 1672, Clarendon Press 1934) (CH Oldfather & WA Oldfather trs) vol 2, 546. 14 John Locke, Two Treatises of Government (first published 1689, A Millar et al 1764) (Thomas Hollis ed) vol 2, ch V, para 27. 15 Locke, Two Treatises vol 2, ch XI, para 138. 16 1 Bl Comm 119, 134. 17 1 Bl Comm 134. 18 2 Bl Comm 2.

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A government that violated the universal and fundamental rights of its citizens― such as the right to property―had forfeited its right to rule. In 1776, the Virginia Declaration of Rights proclaimed that all men possessed certain “inherent rights” that predate the creation of governments; as a result, when they “enter into a state of society, they cannot . . . deprive or divest their posterity” of these rights, including “the means of acquiring and possessing property.”19 Declarations adopted by other American colonies, following the Virginia model, expressly endorsed the right to property as natural law. The subsequent national Declaration of Independence stated that “all men . . . are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and that “Governments are instituted among Men” in order “to secure these rights.”20 It is generally accepted that the “pursuit of Happiness” in this context was intended to include the right to property.21 The French Revolution signaled the rebirth of the natural law approach to prop erty in France. The 1789 Declaration of the Rights of Man and of the Citizen iden tified four “natural and imprescriptible rights of man”: “liberty, property, security, and resistance to oppression.”22 The purpose of government or “political associ ation” was the “preservation” of these rights.23 The content of the right to property was delineated in Article 17: “Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.”24 Four years later, the Declaration of the Rights of Man and Citizen reaffirmed these precepts and stressed the universal character of the right; it provided that “forgetfulness and contempts of the nat ural rights of man are the sole causes of the miseries of the world”25 and explained that “[t]‌he right of property is that which belongs to every citizen to enjoy, and to dispose at his pleasure his goods, income, and the fruits of his labor and skill.”26 The American and French formulations of the right to property shared the same core concepts. The right arose as a matter of natural law, independent of state action. The content of the right was uniform in all states, regardless of municipal laws. Finally, the right was vested in private actors, who could assert it, inter alia, against the state. The late eighteenth century was the temporary zenith of the natural law approach to property. The bold American and French declarations had no immediate effect on international law. However, the vision that the right was a universal entitlement had a profound effect on subsequent constitutions adopted in other states. Most constitutions recognized the right to property as a fundamental right. Ultimately, Virginia Declaration of Rights art I (1776). Declaration of Independence (1776) (US) para 2. 21 Pauline Maier, American Scripture: Making the Declaration of Independence (Knopf 1997) 134. 22 Declaration of the Rights of Man and of the Citizen (1789) (France) art 2. 23 1789 Declaration art 2. 24 1789 Declaration art 17. 25 Declaration of the Rights of Man and Citizen (1793) (France) preamble. 26 1793 Declaration art 16. 19 20

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the natural right to property was revived in the post-World War II era as part of the international human rights movement.

(4) The Early Twentieth Century At the dawn of the twentieth century, the Westphalian model continued to domin ate property law. Virtually all states accepted the institution of private property as authorized and regulated under their respective domestic laws. Forms of commu nal property based on customary law were common in many states, particularly in Africa and Asia, but the official legal systems of these states were based on private property. Yet global changes had already eroded the Westphalian model, creating lim ited situations where international law would prevail over municipal law. The model had originated in an era when: (a) international transactions were relatively uncommon; (b) the most important object of property was land; (c) international law as a subject was in its infancy; and (d) the only entity capable of creating and regulating property rights was a state. As conditions changed over time, however, international law gradually began to affect property rights. For example, treaties establishing the laws of war restricted the destruction or seizure of civilian prop erty;27 conventions established global standards for certain forms of intellectual property;28 and customary law began to protect property owned by foreign invest ors. But these principles were not conceptualized as property law doctrines. The most important development was a customary norm requiring limited pro tection of alien property. As a 1926 arbitral commission explained, the treatment of an alien by the host state would violate international law when it amounted to “an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.”29 At the very least, an alien was entitled to the same protection afforded to nationals under the domestic law of the host state. As applied to alien property, these vague concepts came to be known as the international minimum standard, a concept that echoed the natural law vision of a universal property law regime. It was generally accepted by most nations that the international minimum standard required just compensation when a state expropriated alien property. A series of prominent arbitral awards in the early twentieth century reinforced this view. The arbitration of the Norwegian Shipowners’ Claims arose after the United States seized ships owned by Norwegian nationals during World War I without paying full compensation.30 In its 1922 decision, the tribunal ruled that “just com pensation” was due to the owners both under municipal law and “under the inter national law, based on the respect for private property.”31 In the Lena Goldfields

See the discussion in ch 4J. 28 See the discussion in ch 5E. Neer v Mexico (1926) 4 RIAA 60, 61–62. 30 (1922) 1 RIAA 307. 31 Norwegian Shipowners’ Claims 334. 27 29

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Arbitration,32 eight years later, the arbitrator awarded damages for Russia’s expro priation of a foreign mining concession based on the international “principle of ‘unjust enrichment.’ ”33 Nonetheless, a number of Latin American states, in par ticular, repudiated the concept that foreign owners should have greater property rights than nationals of the host state. Under the Calvo doctrine, they asserted that an alien was entitled only to national treatment—that is, the same protection that nationals received under domestic law. The measure of damages for expropriation was defined in the 1928 Case concerning German Interests in Upper Silesia (Chorzów Factory case) as an amount that “must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”34 Subsequently, in a famous exchange of correspondence with the Mexican government, United States Secretary of State Cordell Hull asserted that under international law “no government is entitled to expropriate private property, for whatever purpose, without provision for prompt, adequate, and effective payment therefor”35―a standard later called the “Hull formula.” Despite its growing influence on property rights, international law continued to operate on the premise that it only regulated relations among states. If a state destroyed civilian property or expropriated foreign assets without payment, for example, these were conceptualized only as injuries to the state of the affected nationals. That state could seek damages on their behalf from the host state through diplomacy, arbitration, or other methods. But the affected owners were not viewed as subjects of international law and, accordingly, their indirect rights against the foreign state were not seen as property rights.

C. The Post-World War II Era (1) The Human Right to Property (a) Universal Declaration of Human Rights The natural law vision of a universal right to property was resuscitated as part of the human rights movement following World War II. Recoiling from the atroci ties committed by Nazi Germany during the war, nations came together under the auspices of the United Nations to establish new international norms to govern the relationship between states and their nationals. These norms were expressed as fundamental or “human” rights that a state could not infringe, regardless of national sovereignty. Although this effort focused on civil and political rights, over

(UK v Russia) 5 Annual Digest 3 (1930). Lena Goldfields Arbitration para 25. 34 (Germany v Poland) 1928 PCIJ Series A no 17 (1928) 47. 35 Letter, US Secretary of State to Mexican Ambassador (August 22, 1938). 32 33

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time it expanded to include economic, social, and cultural rights, including the right to property. The first international instrument recognizing a human right to property was the 1948 Universal Declaration of Human Rights (UDHR).36 Echoing the nat ural law rhetoric of its eighteenth-century antecedents, the UDHR acknowledged that “all members of the human family” had certain “equal and inalienable rights” that “should be protected by the rule of law.”37 It was adopted by the UN General Assembly as a nonbinding resolution. The right to property in the UDHR was placed in its Article 17, as homage to the parallel property provision in Article 17 of the Declaration of the Rights of Man and of the Citizen in France. UDHR Article 17 provided: 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

The right to property, like the other rights recognized in the UDHR, was subject to a special restriction contained in Article 29(2): In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

The text of Article 17 was the product of intense negotiations in which the Soviet Union and its allies sought to limit its scope. Their efforts resulted in adding the phrase “alone as well as in association with others” to the original draft, in order to accommodate socialist economies. But their attempts to impose other limits, such as providing that the meaning of “arbitrarily deprived” would be governed by the domestic law of individual states, were unsuccessful. It is notable that the right to property in Article 17 was envisioned as an inter national entitlement held by private actors that could be asserted, inter alia, against the state. The concept that international law could impose obligations on states concerning private property was not novel. After all, the customary norm requir ing the international minimum standard already did this in the context of the relationship between an alien and the host state. But Article 17 was a breakthrough in that it: (a) vested the right to property in private actors; and (b) contemplated that they could assert it against their own state.

(b) Failure of Treaty Negotiations The framers of the UDHR intended that its provisions would be transformed into binding obligations through a subsequent treaty. As negotiations proceeded under the aegis of the UN Commission on Human Rights, it was decided to develop two 36 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 37 UDHR preamble paras 1, 3.

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treaties for this purpose, one dealing with economic, social, and cultural rights and the other addressing civil and political rights. After more than a decade of conten tious negotiations, the International Covenant on Economic, Social and Cultural Rights (ICESCR)38 and the International Covenant on Civil and Political Rights (ICCPR)39 were finally adopted in 1966. But neither treaty contained the right to property. The drafting committee for the treaty that ultimately became the ICESCR examined various proposals for the right to property during negotiating sessions in the early 1950s.40 The Soviet Union and other socialist states led a campaign to either defeat the right altogether or eviscerate its impact. Disputes focused on attempts to limit the scope of the property that the treaty would cover, ensure that domestic law would govern the meaning of the property article, and minimize the effect of the article on expropriation. After extensive bargaining, the drafting subcommittee reached a compromise in 1954 and approved a diluted version of UDHR Article 17: 1. The states parties to this Covenant undertake to respect the right of everyone to own property alone as well as in association with others. This right shall be subject to such limitations and restrictions as are imposed by law in the public interest and in the inter est of social progress in the country concerned. 2. No one shall be deprived of his property without due process of law. Expropriation may take place only for considerations of public necessity or utility as defined by law and subject to such compensation as may be prescribed.41

While Article 17 proclaimed that each person “has” the right to property, the draft merely provided that states would “undertake” to respect the right. The draft also permitted the right to be limited by the “interest of social progress in the country concerned,” which implied less respect for property than Article 29(2) reflected. Finally, the constraints on expropriation were intentionally ambiguous, leaving open the issues of which “law” would apply to the determination of “public neces sity or utility” and the amount of “compensation.” The UN Commission on Human Rights subsequently considered―and rejected―the draft article. The process involved five separate votes on different portions of the article; each portion was approved by a majority vote. But when the commission voted on the entire article, it failed to pass by a vote of seven to six, with five abstentions. At this point, the vision of a binding international right to property finally collapsed. No further consideration was given to including the right before the ICESCR was adopted in 1966.

38 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 39 International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171). 40 For a detailed analysis of this drafting history, see Theo RG van Banning, The Human Right to Property (Intersentia 2002) 42–46. 41 Van Banning, Human Right to Property 44.

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Origins of International Property Law

(2) Challenges to the International Minimum Standard (a) Sovereignty and Natural Resources A surge of nationalizations in the decades after World War II challenged the viability of the international minimum standard.42 Eastern European states and China expropriated alien property as their economies transitioned toward socialism. Many Arab states nationalized foreign-owned oil concessions. Developing countries around the world expropriated farm land, mines, indus trial facilities, utilities, and other productive assets owned by nationals of their former colonial powers. The resulting disputes were generally resolved through negotiations by which the former owners received some compensation, but commonly a smaller amount than the Chorzów Factory standard or the Hull formula would require. A series of UN General Assembly Resolutions between 1962 and 1974 sig naled the willingness of developing states, supported by the Soviet bloc, to reject the pre-war standard. The opening salvo was General Assembly Resolution 1803, the “Declaration on Permanent Sovereignty over Natural Resources,” which proclaimed “the inalienable right of all states freely to dispose of their natural wealth and resources in accordance with their national interests.”43 Its Paragraph 1 declared that the “right of peoples and nations to permanent sov ereignty over their natural wealth and resources must be exercised in the inter est of their national development and of the well-being of the people of the State concerned”―implying that this process was not subject to international constraints. Paragraph 4 generated particular concern among western states. On the one hand, it provided that nationalization “shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both foreign and domestic”; this language suggested that international limitations would apply. It also specified that where nationalization occurred, the owner “shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law,”44 which seemed to echo the traditional standard. A Soviet amendment to base compensation solely on domestic law was defeated, as was a proposal by the United States to base com pensation on the Hull formula. But the apparent clarity of the paragraph was muddied by a reservation in the preamble. It stated that “nothing in paragraph 4 below in any way prejudices the position of any Member State on any aspect of the question of the rights and obli gations of successor States and Governments in respect of property acquired before

See Andreas F Lowenfeld, International Economic Law (2d edn, OUP 2008) 483–85. UN GAR 1803 (XVII), UN Doc A/RES/1803 (December 14, 1962) preamble para 5. UN GAR 1803 (XVII) art 4.

42 43 44

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the accession to complete sovereignty of countries formerly under colonial rule.”45 This proviso implied that a state could ignore international law when expropriating property that had been acquired by foreign owners during its colonial era.

(b) The “New International Economic Order” In 1973, the adoption of General Assembly Resolution 317146 by an overwhelming majority definitively rejected the pre-war approach. Like its predecessor, the reso lution arose in the context of protecting state sovereignty over natural resources. A coalition of developing states and Soviet bloc nations swept aside objections by western states, declaring that compensation for the expropriation of foreign prop erty would be exclusively determined by domestic law: [T]‌he application of the principle of nationalization carried out by States, as an expression of their sovereignty in order to safeguard their natural resources . . . implies that each State is entitled to determine the amount of possible compensation and the mode of payment, and that any disputes which might arise should be settled in accordance with the national legislation of each State carrying out such measures.47

The reference to “possible compensation” implied that a state might decide that no compensation would be paid. In any event, the text made it clear that international law would not affect the amount and method of compensation. A year later, a majority of developing states, supported by the Soviet bloc, approved General Assembly Resolution 3281: the “Charter of Economic Rights and Duties of States.”48 The charter sought to implement a “new international eco nomic order”49 based on 15 core principles that would govern economic, political, and other relations among all states. The confrontational tenor of the document was reflected in its ninth principle: “Remedying of injustices which have been brought about by force and which deprive a nation of the natural means necessary for its normal development.”50 The charter appeared to reject the international minimum standard. It empha sized that each state had “the right . . . [t]‌o regulate and exercise authority over for eign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities.”51 The charter further proclaimed the right of all states to “nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers permanent.”52 UN GAR 1803 (XVII) preamble para 5. UN GAR 3171 (XXVII), UN Doc A/RES/3171 (December 17, 1973). 47 UN GAR 3171 (XXVII) art 3. 48 UN GAR 3281 (XXIX), UN Doc A/RES/3281 (December 12, 1974). 49 UN GAR 3281 (XXIX) preamble para 4. 50 UN GAR 3281 (XXIX) ch I(i). 51 UN GAR 3281 (XXIX) ch II, art 2(2)(a). 52 UN GAR 3281 (XXIX) ch II, art 2(2)(c). 45 46

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Any dispute about “the question of compensation” would be resolved under “the domestic law of the nationalizing State,”53 not international law. Like all General Assembly resolutions, these instruments had no binding force either as treaties or statements of customary international law. Yet because the pre-war standard was based on customary law―and thus reliant on opinio juris54― its rejection by a clear majority of nations was problematic. The resolutions appeared to signal the emergence of a consensus that states were not obligated to follow the traditional standard, establishing the foundation for a new norm that expropriation would be governed solely by municipal law.

(3) Stagnation By the mid-1970s, the development of international property law had effectively halted. The concept of a binding international right to property had been rejected in 1966 when the ICESCR was adopted without a property provision. The “new international economic order” threatened to unravel the pre-war consensus that alien property was entitled to international protection. A common theme linked both events: property would be governed solely by domestic law. Moreover, the political and economic forces underlying these developments appeared unlikely to wane in the future. It was foreseeable that the Soviet bloc would continue to oppose private property for ideological reasons; indeed, the legitimacy of these states was premised on the rejection of broad property rights. At the same time, developing states were energized by the vision of a new global economic system that was premised on national sovereignty, with minimal international constraints. Each state would establish its own economic regime, disregarding the international rules that had traditionally shielded for eign investments.

D. The Rise of International Property Law (1) Generally Over the past 40 years, international property law has expanded at an accelerat ing pace. The principal causes of this growth were the end of the Cold War, the development of human rights law, the process of globalization, and more intensive uses of the global commons. Other factors included: (a) the implementation of express ICESCR and ICCPR provisions that relate to property, such as the right to an adequate standard of living, the right to housing, and the right to intellectual property; (b) efforts to expand international law through instruments negotiated under the auspices of the International Institute for the Unification of Private Law,

UN GAR 3281 (XXIX) ch II, art 2(2)(c).

53

For discussion of opinio juris, see ch 9D(2).

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the World Trade Organization, and other entities;55 and (c) a dramatic increase in regulatory activity by the United Nations and its agencies.

(2) The End of the Cold War The ideological opposition to private property that prevailed during much of the post-World War II era faded away with the end of the Cold War and the remark able shift toward market economies in Russia, China, and other former socialist states. In Europe, this transition was symbolized by the 1989 fall of the Berlin Wall, which led to the independence of Bulgaria, Czechoslovakia, East Germany, Hungary, Poland, and Romania from Soviet domination. The Soviet Union offi cially dissolved two years later, leaving Russia as the successor state, while 14 other former Soviet republics gained independence. As part of this transition, Russia and the newly independent states embraced the goal of developing market economies founded on private property and began the process of privatization. Scholars have observed that this involved far more than merely transferring the ownership of state-owned assets to private actors. Rather, it was “a process by which the very institution of property, in the sense in which lawyers and economists employ the term, [was] reintroduced into East European Societies.”56 In order to facilitate privatization, Russia, China, and most other socialist states amended their constitutions to create a broad right to private property and, in varying degrees, adopted legislation to protect and regulate property rights. The 1993 constitution for the new Russian Federation provided that “[t]‌he right of private property shall be protected by law.”57 Accordingly, “[e]veryone shall have the right to have property and to possess, use and dispose of it both individually and jointly with other persons.”58 The constitution also restricted the ability of the state to take private property: it could be taken only (a) for “State requirements” and (b) with “prior and fair compensation.”59 In China, the movement toward privatization was slower, but more extensive. Under the banner of “Socialism with Chinese Characteristics,” Deng Xiaoping and other progressive leaders introduced market-based reforms in 1978. Collective farmers were allowed to farm private plots; small private businesses were permitted; and certain state-owned enterprises were transferred to private owners. The pace of reform accelerated in later decades, and China developed the second largest econ omy in the world. The protection of private property rights was an integral compo nent of these reforms. The 1986 General Principles of the Civil Law mandated that 55 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Sellier 2009), for example, includes suggested principles of European law that would apply to ownership of goods. 56 Roman Frydman & Andrzej Rapaczynski, Privatization in Eastern Europe: Is the State Withering Away? (OUP 1994) 10. 57 Constitution of the Russian Federation art 35(1). 58 Constitution of the Russian Federation art 35(2). 59 Constitution of the Russian Federation art 35(3).

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“[a]‌citizen’s lawful property shall be protected by law.”60 Subsequently, the 2004 amendments to the Chinese constitution elevated the right to property to con stitutional status: “[c]itizens’ lawful private property is inviolable.”61 Thus, “[t]he State, in accordance with law, protects the rights of citizens to private property.”62 The constitution limited the ability of the state to take private property, providing that it could be taken only (a) “in the public interest,” (b) “in accordance with law,” and (c) upon payment of compensation.63 In less than two decades, Russia, China, and other socialist states shifted from rejecting private property on ideological grounds to embracing it for economic rea sons. This extraordinary turnaround eliminated most of the traditional opposition toward recognizing the right to property at the international level.

(3) Regional Human Rights Treaties Despite its omission from the ICESCR, the right to property was widely accepted at the supranational level. Today two-thirds of all nations are parties to regional human rights conventions that recognize the right to property.64 Moreover, human rights tribunals in Africa, the Americas, and Europe have interpreted the nature and scope of the right in hundreds of decisions, creating a body of international property law jurisprudence. The most successful regional human rights instrument is the Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the European Convention on Human Rights (ECHR),65 which is currently in force in 47 states, including Russia and former socialist states in Eastern Europe. The right to property, which took effect in 1954, was added to the convention as Article 1 of Protocol 1.66 It provides, inter alia: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the con ditions provided for by law and by the general principles of international law.

The European Court of Human Rights (European Court), which was established to implement the ECHR, is authorized to consider petitions from individual citizens which assert that a member state has violated their protected rights. Although the text of Article 1 refers to the “peaceful enjoyment . . . of possessions,” the European Court interpreted it in Marckx v Belgium as “in substance, guaranteeing the right to property.”67 Until the 1980s, cases involving the right rarely came before the General Principles of the Civil Law (China) art 75. Constitution of the People’s Republic of China art 13. 62 Constitution of the PRC art 13. 63 Constitution of the PRC art 13. 64 See the discussion in ch 9B(2). 65 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 66 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 67 Marckx v Belgium (1979) 2 EHRR 330 para 61. 60 61

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court. Over the past three decades, however, the court has decided more than 1,000 cases involving this right―many of them brought against Russia or other former socialist states. As a result, the contours of the right to property under the ECHR are well defined. Regional tribunals in Africa and the Americas have relied on ECHR decisions to assist in interpreting the rights to property established by their conventions. In the Americas, the first binding instrument to recognize the human right to property was the American Convention on Human Rights (ACHR),68 which entered into force in 1978.69 Its Article 21 provides in part: “Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.” The Inter-American Court of Human Rights (Inter-American Court) was subsequently created to apply and interpret the ACHR in response to individual complaints presented through the Inter-American Commission on Human Rights. Since its founding, the Inter-American Court has produced a number of decisions on the scope of the right to property. The African Charter on Human and Peoples’ Rights (ACHPR)70―ratified by most African states―entered into force in 1986. Its Article 14 sets forth the right to property: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.” The African Commission on Human and Peoples’ Rights was later established to adjudicate complaints of human rights violations under the ACHPR. Since 1988, it has decided hundreds of cases, including a number of disputes involving the right to property. The status of the human right to property in the Middle East is less clear. The Arab Charter on Human Rights (Arab Charter),71 which entered into force in 2008, recognizes the right in Article 31: “Everyone has a guaranteed right to own private property. No person shall under any circumstances be divested of all or any part of his property in an arbitrary or unlawful manner.” Unlike the conventions for Africa, the Americas, and Europe, however, the Arab Charter does not establish a tribunal with the power to hear individual complaints. The only major region of the world not governed by a human rights conven tion is Asia. In 2012, the ten member states of the Association of Southeast Asian Nations adopted the ASEAN Human Rights Declaration,72 a nonbinding instru ment that recognizes the right to property. Its Article 17 provides that “[e]‌very person has the right to own, use, dispose of and give that person’s lawfully acquired possessions alone or in association with others. No person shall be arbitrarily deprived of such property.”

American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). The ACHR superseded the nonbinding 1948 American Declaration on the Rights of Man, which also recognized the right to property. 70 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 71 Arab Charter on Human Rights (May 22, 2004), reprinted in 24 Boston U Intl LJ 149 (2006). 72 ASEAN Human Rights Declaration (November 18, 2012), reprinted in 32 Human Rights LJ 219 (2012). 68 69

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Origins of International Property Law

(4) Globalization The globalization of economic activity in recent decades has also contributed to the development of international property law. Property transactions increasingly span national borders, creating the need for harmonization of municipal laws. The attitude of developing states toward foreign investment began to shift in the 1980s, particularly for investments in sectors other than resource exploitation. Many states liberalized their domestic policies in order to attract foreign invest ors. In this process, capital-exporting states sought to insulate investor-owned property from future expropriation and other interference through the use of bilateral investment treaties (BITs).73 Today, over 2,500 BITs have been adopted between developing states and capital-exporting states. A number of multilateral investment treaties have also been adopted, including the 1994 Energy Charter Treaty,74 the 1994 North American Free Trade Agreement (NAFTA),75 and the 2009 ASEAN-Australia-New Zealand Free Trade Agreement.76 These treaties provide broad protection against direct and indirect expropriation of foreign investments that supersedes domestic law, typically requiring that compensation be governed by the Hull formula: prompt, effective, and adequate. Additional investor protections such as “fair and equitable treatment” and “full protection and security” are also routinely included. Considered as a whole, these trea ties provide more protection for alien owners than the international minimum standard. Arbitration tribunals established under the aegis of the International Centre for the Settlement of Investment Disputes (ICSID), the UN Commission on International Trade Law, and other entities are empowered to adjudicate claims against host states by private investors. Three-quarters of all nations, for example, have ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States,77 which governs ICSID arbitrations. To date, more than 500 cases have been filed with these entities, resulting in a large body of arbitral decisions that interpret investment treaty provisions. One author ity comments that “arbitral practice . . . suggests that BITs form part of a uniform treaty-overarching framework of investment protection that is based on uniform principles.”78 This observation reflects the reality that arbitral tribunals tend to accord precedential value to prior decisions. From the perspective of property law, this network of treaties and arbitral decisions may be viewed as creating prin ciples of international law that govern land, industrial facilities, mines, utilities, and other assets owned by foreign investors.

See the discussion in ch 11C. Energy Charter Treaty (Lisbon, December 17, 1994, 2080 UNTS 95). 75 North American Free Trade Agreement (San Antonio, December 17, 1992, 32 ILM 296). 76 ASEAN-Australia-New Zealand Free Trade Agreement (Cha-am, February 27, 2009). 77 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, March 18, 1965, 575 UNTS 159). 78 Stephan W Schill (ed), International Investment Law and Comparative Public Law (OUP 2010) 32. 73 74

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The impact of globalization on property law is not limited to foreign invest ment. The pace of international transactions involving other forms of property has skyrocketed in recent decades, creating the need for a coherent and predictable legal infrastructure at the global level. This need has generally been addressed by treaties dealing with specific types of property. The 1993 International Convention on Maritime Liens and Mortgages79 implemented a global regime to harmonize domestic laws dealing with security interests in vessels. The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)80 established inter national standards that govern the validity and enforcement of most types of intellectual property. Another example is the 2001 Convention on International Interests in Mobile Equipment,81 which created a uniform international system for security interests in aircraft, rail cars, and other items of equipment that regularly cross national borders.

(5) The Global Commons The development of advanced technology to exploit the global commons―regions outside the territorial jurisdiction of any state, such as the high seas, Antarctica, outer space, and perhaps cyberspace―has generated new needs for uniform prop erty law standards. The only effective method to create or regulate property rights in the global commons is through international law. Although treaties and other instruments have begun to develop property concepts that apply within this region, many questions remain unanswered. Between 1967 and 1979, a series of treaties established the international regime governing human activities in outer space.82 The recent trend toward the privatiza tion of space has raised concerns about the extent to which these treaties permit property rights. Although the better view is that the moon, other celestial bodies, and outer space itself may not be subject to de jure private property rights, the treaty regime would seem to allow the development of de facto rights under some circumstances. A related issue is whether the exploitation of space resources such as minerals is permitted. The 1982 UN Convention on the Law of the Sea (UNCLOS)83 endorsed the customary norms governing the high seas that had arisen over centuries: the high seas are open for use by all states, but may not be subject to the sovereignty of any state.84 Because advances in fishing technology threatened the long-term sus tainability of many ocean fisheries, however, UNCLOS restricted the traditional 79 International Convention on Maritime Liens and Mortgages (Geneva, May 6, 1993, 33 ILM 353). 80 Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299). 81 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285). 82 See the discussion in ch 8C. 83 UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). 84 See the discussion in ch 7C.

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Origins of International Property Law

freedom to fish the high seas in the interest of conservation. Mechanisms developed to implement this conservation program rely, in part, on creating de facto property rights in fish. In the same manner, deep sea mining technology has evolved to the point where it is possible to harvest valuable mineral resources on the seabed beneath the high seas. UNCLOS has created an international entity to grant and regulate private property rights in these minerals in order to facilitate their exploit ation by private actors. Cyberspace is arguably an area outside national jurisdiction, much like the high seas or outer space. Like other portions of the global commons, it is open for use by nationals of any state. Moreover, because territorial boundaries have no mean ing in cyberspace, the effective regulation of property rights must occur at the international level. The need for global protection is particularly acute for digital property, such as books, games, magazines, movies, newspapers, songs, and other forms of property that primarily or exclusively exist only in digital form―and can be transferred through cyberspace in a millisecond to millions of persons in mul tiple states. Because digital property has no physical presence―other than a string of binary numbers that might be in a computer server anywhere in the world―it cannot effectively be regulated by any one state. A more controversial question is whether international law should recognize rights in virtual property: intangible objects that exist in a computer-generated virtual world, such as avatars or virtual businesses. International law has only just begun to address property rights in cyberspace.

2 An International Definition of “Property”

A. Introduction International law has not developed a generally accepted definition of “property.” This chapter formulates a basic definition to serve as a foundation for the balance of the book. It demonstrates that the core meaning of the term can be derived from international law sources. By analogy, John Cribbet famously commented that in the United States the question “[w]‌hat is property?” was “unanswerable.”1 Yet the American property law system functions well because there is a shared understand ing about the essential meaning of the term―despite theoretical disagreements at the margins. One reason for this lacuna at the international level stems from the assumption that property rights arise solely from municipal law, obviating the need for a global metric. As one commentator noted over 60 years ago, “the absence of an adequate definition of property is characteristic of international law.”2 During the twentieth century, definitional problems surfaced in the context of expropriation. The early friendship, commerce, and navigation treaties that vaguely ensured the protection of alien “property, rights and interests” against expropriation, for example, were mainly premised on municipal law. Municipal law determined whether an alien was permitted to acquire property rights within the host state and, if so, the nature and content of those rights.3 However, once those rights were acquired, the inter national minimum standard of protection for alien property restricted the conduct of the host state. In effect, it could not decrease the rights of a foreign owner below the standard unless compensation was paid. Though poorly defined due to the ad hoc nature of investment arbitration decisions, this standard implied that inter national law protected some minimal quantum of property rights. The advent of international human rights law made it apparent that the defini tion of “property” could not be derived purely from municipal law. If this were the case, any state could eviscerate the international protections afforded to property 1 John E Cribbet, “Concepts in Transition: The Search for a New Definition of Property” (1986) 1986 U Illinois L Rev 1, 1. 2 Samy Friedman, Expropriation in International Law (Stevens & Sons 1953) 145. 3 See the discussion of investment law in ch 11.

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An International Definition of “Property”

under the Universal Declaration of Human Rights (UDHR)4 and later instru ments simply by redefining the term through domestic legislation. The negoti ations leading up to the UDHR reflected this tension. Some delegates argued that municipal law should govern the scope of the right to property, while others suc cessfully insisted that a uniform international standard was necessary. A second reason for the lack of an international definition may be the paucity of relevant comparative law scholarship on property. Although property law is an important subject in common law systems, as John Merryman has observed, “there is really no such field as property in the civil law.”5 This situation has begun to change in recent years. Civil law and common law scholars have made extraor dinary contributions to comparative property law jurisprudence. But almost all of this work is either highly theoretical or devoted to national systems. Little atten tion has been devoted to doctrinal analysis of property at the international level, which is the focus of this book. Admittedly, “property” is a slippery concept to define in any national legal sys tem. It is more difficult at the international level because of the differences among legal traditions and the challenges of translating terms of art. But the quality and quantity of international law sources on property issues have evolved to the point where it is possible to distill a basic definition of the term.

B. The Right-Thing Distinction The English word “property” is derived from the Latin root proprietas, which essen tially means ownership. In the common law tradition, inquiries into the meaning of “property” typically begin by considering whether it refers to (1) a “thing” that a person can own (eg a book) or (2) “rights” among persons that concern a thing (eg ownership of a book). Ordinary people routinely use the term to refer to things. In contrast, legal professionals generally understand the term in a technical sense to mean rights that a person has in relation to a thing. But even here, the term is often utilized in an informal sense to refer to a thing―almost always as a short hand reference to the situation where a person holds complete ownership of the item, as in the phrase “the property owned by X.” This lack of definitional clarity has caused confusion even within English-speaking countries. However, in context it is usually possible to ascertain whether the term is being used to denote a thing or rights in a thing. In the civil law tradition, the same Latin root is the source of the French term propriété, the Spanish term propiedad, and parallel words in other Romance languages that connote ownership―that is, comprehensive rights in things. For example, Article 544 of the French Civil Code defines propriété as “the right to enjoy and 4 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 5 John H Merryman, “Ownership and Estate (Variations on a Theme by Lawson)” (1974) 48 Tulane L Rev 916, 917.

A Basic Definition

23

dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.”6 The “things” which may be the object of property rights under this statute are usually denominated as biens. Accordingly, the concept that property refers to rights in a thing is generally accepted in civil law systems. Even in this setting, however, terms such as propriété and propiedad are sometimes used to connote the thing which is the object of the right―particularly in the situation of complete ownership―as opposed to the right itself. Difficulty arises at the international level because translations of the English term “property” often reflect the lay meaning of the term. For example, propriété and propiedad are usually translated into English as “ownership,” while biens and its Spanish equivalent bienes are frequently translated as “property.”

C. A Basic Definition (1) Generally A working definition of “property” may be gleaned from the manner in which the term is used in treaties, human rights jurisprudence, expropriation decisions, United Nations instruments, and other sources which are discussed below. This process demonstrates that modern international law generally uses the same right-thing formulation that is found in the civil law and common law traditions.7 “Property” may be broadly defined under international law as an entitlement of a person that is related to a thing. It consists of certain rights with regard to the thing that are usually effective against all other persons, that is, in rem rights. However, under international human rights law and international investment law, it also extends to certain in personam rights. The thing which is the object of the entitlement may be tangible (eg a house, land, wheat, airplane, or livestock) or intangible (eg a copyright, patent, contract, share of stock, or license). Under this approach, two questions must be answered: (a) What rights may a person have in a thing? and (b) What things may be the subject of those rights? Because the term “property” is frequently used to denote a thing, rather than a right, semantic exactitude cannot be anticipated. Yet the notion of property-asthing necessarily carries with it an overlay of legal rights to that “property” which might be expressed as “ownership,” a “property right,” or a similar term. It is mean ingless to say that a particular item such as a book is “property” without defining the scope of the legal rights that relate to the book. Even where the “thing” may be described as “property,” the content of the holder’s “ownership” or “property right”

Art 544 C civ (France). The civil law tradition has been particularly influential in shaping modern international law. Indeed, “[i]‌t is difficult to overstate the influence of the civil law tradition on . . . the law of inter national organizations . . . and international law.” John H Merryman & Rogelia Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3d edn, Stanford U Press 2007) 3. 6 7

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An International Definition of “Property”

must be determined. As a result, even under the property-as-thing approach, the same two questions must be answered.

(2) Treaties An example of the right-thing distinction is found in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).8 The English version of its Article 16(1)(h) guarantees “[t]‌he same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property [in the French version, biens], whether free of charge or for a valuable consideration.” It thus provides protection for “rights” in specific things (biens). The Convention on Jurisdictional Immunities of States and Their Property9 reflects the same distinction. For example, one section provides that a state may not invoke immunity from jurisdiction before a court of another state in a proceeding that relates to the determination of “any right or interest of the State in movable or immovable property [in the French version, biens] arising by way of succession, gift or bona vacantia.”10 Treaties seeking to restrict expropriation of foreign-owned assets by the host state traditionally used the phrase “property, rights and interests” or, in French, “biens, droits et intérêts.” Modern multilateral and bilateral treaties tend to categorize the protected asset as an “investment,” which is then broadly defined to circumvent any potential ambiguity stemming from the term “property.” This approach also utilizes the right-thing formulation. For example, the Energy Charter Treaty defines an “investment” as “every kind of asset, owned or controlled directly or indirectly by an Investor,” including “tangible and intangible, and movable and immovable property [in the French version, biens], and any property rights such as leases, mortgages, liens, and pledges.”11 An “investment” has both a rights compo nent (ownership or control) and a things component (biens). The North American Free Trade Agreement (NAFTA) protects an “investment of an investor of a Party,” which incorporates the right-thing approach.12 In this context, “investment” is defined to include “real estate or other property, tangible or intangible, acquired in the expectation or used for the purpose of economic benefit or other businesses purposes.”13 The French text of this clause describes the protected “property” as “les biens immobiliers ou autres biens corporels et incorporels,” in the sense of things. However, the “investment of an investor of a Party” is defined to mean an “investment” that is “owned or controlled directly or 8 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13). 9 Convention on Jurisdictional Immunities of States and Their Property, UN GAR 59/38, UN Doc A/RES/59/38 (December 2, 2004). 10 Convention on Jurisdictional Immunities art 13(b). 11 Energy Charter Treaty (Lisbon, December 17, 1994, 2080 UNTS 95) art 1(6). 12 North American Free Trade Agreement (San Antonio, December 17, 1992, 32 ILM 296) arts 1105, 1110, 1139. 13 NAFTA art 1139.

A Basic Definition

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indirectly” by a national from a member state. The “investment of an investor of a Party” thus contains both a rights component (ownership or control) and a things component (biens).

(3) Human Rights Decisions The most extensive effort to define property at the international level stems from the decisions of human rights tribunals. The main regional human rights treat ies are the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),14 the American Convention on Human Rights (ACHR),15 and the African Charter on Human and Peoples’ Rights (ACHPR).16 Each treaty protects the right to property, but does not define the term. As a result, the regional tribunals have grappled with the question. The European Court of Human Rights has consistently held that although Article 1 of ECHR Protocol 117 provides that each person is “entitled to the peace ful enjoyment of his possessions [in the French version, biens],” in “substance” this provision is “guaranteeing the right of property.”18 In a series of decisions, the court has recognized that this includes the right to use,19 to transfer,20 and to exclude others from the covered possessions.21 The “possessions” covered by this right include movable and immovable things, including intangibles such as intel lectual property, contracts, judgments, licenses, and public benefits.22 The jurisprudence of the Inter-American Court of Human Rights has evolved in a similar direction. In the landmark decision of Mayagna (Sumo) Awas Tingni Community v Nicaragua, it explained that the right to property in ACHR Article 21 extended to “those material things [in the Spanish version, bienes] which can be possessed, as well as any right which may be part of a person’s patrimony; that con cept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.”23 In Abrill Alosilla v Peru, the court expanded on this theme, noting that “its case law [had] developed a broad concept of property [in the Spanish version, propiedad] that covers, among other things, the use and enjoyment of goods [bienes], defined as both material, appropriable things and as intangible objects, as well as all rights that could form part of a person’s wealth.”24 Additional guidance is found in a case report by the 14 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 15 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 16 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 17 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 18 Marckx v Belgium (1979) 2 EHRR 330 para 63. 19 Sporrong v Sweden (1982) 5 EHRR 35 para 60. 20 Hutten-Czapska v Poland (2006) 45 EHRR 4 para 202. 21 Chassagnou v France (1999) 29 EHRR 615 para 74. 22 See the discussion in section E. 23 Series C no 79 (IACtHR, August 31, 2001) para 144. 24 Series C no 235 (IACtHR, March 4, 2011) para 82.

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An International Definition of “Property”

Inter-American Commission on Human Rights, which stated that the “common meaning of the word property [in the Spanish version, propiedad ]” denotes “the right to dispose of something in every legal way, to possess it, use it, and to exclude everyone else from interfering with it.”25 The Principles and Guidelines adopted by the African Commission on Human and Peoples’ Rights to interpret the ACHPR also reflect the right-thing distinc tion.26 They provide that “[t]‌he right to property is a broad right that includes the protection of the real rights of individuals and peoples in any material thing which can be possessed as well as any right which may be part of a person’s patrimony.”27 In the case of Centre for Minority Rights v Kenya, the commission further explained that the right to property includes “the right to undisturbed possession, use and control,” the right of access, and the right to exclude others.28

(4) Expropriation Decisions Decisions by arbitration tribunals in modern expropriation disputes also support the right-thing understanding of property. Direct expropriation by the host state, such as physically seizing assets or taking title from the investor, requires compen sation under international law because all of the investor’s rights in the asset have been eliminated.29 In cases where indirect expropriation is claimed, many tribunals have focused on the extent to which the state action has impaired the investor’s property rights in the asset―an approach that uses the right-thing distinction.30 For example, in Glamis Gold, Ltd v United States, the tribunal noted that an expropriation would be found where the host state adopted measures that would “substantially impair the investor’s economic rights, i.e., ownership, use, enjoyment or management of the business.”31 Another panel reasoned that an indirect expropriation occurred when “the owner was deprived of fundamental rights of ownership” in the invest ment for longer than an “ephemeral” period.32 A third illustration is found in Starrett Housing Corp v Iran, where the tribunal observed that “it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated.”33

IACmHR Report no 39/96 (October 15, 1996) para 26. African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (2011) (ACHPR Principles). 27 ACHPR Principles para 53. 28 Centre for Minority Rights v Kenya Comm no 276/03 (ACmHPR, November 25, 2009) para 186. 29 See the discussion in ch 11D. 30 See the discussion in ch 11F(3). 31 UNCITRAL arbitration (June 8, 2007) para 357. 32 Tippetts v TAMS-AFFA Consulting Engineers, 6 Iran-US Claims Tribunal Reports 219, 225 (1984). 33 4 Iran-US Claims Tribunal Reports 122, 154 (1983). 25 26

Rights a Person May Have in a Thing

27

(5) United Nations Instruments The right-thing formulation is also evident in United Nations sources. Two dec ades ago the noted Venezuelan scholar Luis Valencia Rodríguez prepared a study on the human right to property at the request of the UN Commission on Human Rights. His task was to examine the extent to which this right “contributes to the development of individual liberty and initiative, which serve to foster, strengthen and enhance the exercise . . . of human rights and fundamental freedoms.”34 Citing CEDAW, his report explained that the “contents of the right to own property [in the Spanish version, el derecho a la propiedad ] may be regarded as a number of exclusive powers of ownership, including ‘acquisition, management, administra tion, enjoyment and disposition of property [bienes].’ ”35 More recently, the 2007 UN Declaration on the Rights of Indigenous Peoples sought to delineate the scope of property rights held by indigenous groups.36 It provides that these groups have the “right to own, use, develop and control the lands, territories and resources that they possess.”37 They also hold “the right to maintain, control, protect and develop their intellectual property” arising from their cultural heritage.38 These references indicate that (a) property consists of the rights to own, develop, control, and otherwise utilize certain things and (b) the things which are the object of these rights are land, territory, intellectual property, and other resources.

D. Rights a Person May Have in a Thing (1) Generally In international law, “property” is most commonly equated with the complete ownership of a particular thing―a comprehensive set of rights over the thing, including the rights to use, destroy, and transfer it and to exclude others from it. In addition to complete ownership, international law recognizes three categor ies of lesser property rights. Municipal laws typically authorize the usufruct or a similar use right, which permits the holder to possess, use, and receive the fruits from immovable or movable things that are owned by another. International law has developed an analogous right in certain contexts. Another lesser property right commonly found in municipal laws is the servitude―the right to use land or other immovable assets owned by another for a limited purpose, such as road access or utility pipelines. Again, international law recognizes a similar concept. A third, UN GAR 45/98, UN Doc A/RES/45/98 (December 14, 1990). Independent Expert Report, The Right of Everyone to Own Property Alone as Well as in Association with Others, UN Commission on Human Rights, UN Doc E/CN.4/1994/19 (November 25, 1993) (by Luis Valencia Rodríguez) 90. 36 Declaration on the Rights of Indigenous Peoples, UN GAR 61/295, UN Doc A/RES/61/295 (September 13, 2007) (IP Declaration). 37 IP Declaration art 26(1). 38 IP Declaration art 31(1). 34 35

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An International Definition of “Property”

lesser right typically found in municipal law is a lien, mortgage, or other form of security interest, and this also has a counterpart in international law.

(2) Ownership “Property,” whether used alone or in the context of “the right to property,” usu ally connotes ownership. The precise content of ownership differs to some extent among different legal traditions, particularly at the margins. Differences on the point also exist among states within each particular tradition. Scholars tend to focus on these distinctions, rather than exploring the extent to which agreement exists on the core meaning of the concept. For example, there are clear theoretical differences between the civil law and common law approaches to property rights in land. English land law, which formed the foundation of the common law approach, was premised on the assumption that only the king could own land. All other persons could merely hold an estate in land―a complex set of rights and duties that fell short of the absolute owner ship that characterizes the modern civil law approach. Yet the modern fee simple absolute―the maximum set of rights in land recognized by the common law―is not meaningfully different from the civil law concept of absolute ownership. As James Gordley summarizes, “[t]‌he rights of a person with full ownership in civil law are much the same as those of one who holds a fee simple at common law.”39 One useful attempt to formulate a supranational definition of ownership, albeit in the context of movable items, is found in the Draft Common Frame of Reference, a scholarly effort to craft a European contract law governing goods. The definition of “ownership” in English, translated in French as “droit de propriété,” seeks to span the civil law and common law systems. It provides that: “ ‘Ownership’ is the most comprehensive right a person, the ‘owner,’ can have over property [in the French version, bien], including the exclusive right, so far as consistent with applicable laws or rights granted by the owner, to use, enjoy, modify, destroy, dispose of and recover the property.”40 Although the Draft Common Frame of Reference definition hinges on national law to some extent, it provides a helpful framework for an international definition of the rights component of ownership. “Ownership” in international law may be defined as: (a) a comprehensive set of rights, including the right to use, to destroy, to transfer, and to exclude, in relation to (b) things, which may be movable or immovable, and tangible or intangible. The specific rights held by an owner are discussed in detail in Chapters 11–14. Chapter 11 examines the most fundamental attribute of ownership―the right to use. As a general matter, it is widely accepted that owners are entitled to enjoy and utilize their things as they see fit, under both international and municipal 39 James R Gordley, Foundations of Private Law: Property, Tort, Contracts, Unjust Enrichment (OUP 2006) 50. 40 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Selliers 2009) art VIII-1:202.

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29

law. Chapter 12 considers the extent to which the right to destroy may be viewed as a component of ownership. By definition, many things that are the subject of owner ship will be destroyed in the course of normal use, either because they are intended to be entirely consumed or because their useful life has ended. However, the extent to which this right extends to irrational destruction is controversial. Chapter 13 ana lyzes the right of owners to exclude others from possession and use of their things. It is generally accepted under both international and municipal law that the right to exclude, as a general matter, is a central component of ownership. Finally, Chapter 14 addresses the right to transfer―the right of owners to sell, give, bequeath, lend, encumber, or otherwise convey rights in things on such terms and conditions as they deem appropriate. This right is a core attribute of ownership under both municipal and international law.

(3) Usufructs International law recognizes a use right that is akin to the civil law usufruct or the common law life estate, lease, or profit. Like other property rights, such a usufruct may be characterized as an entitlement of a person that is related to an immovable or movable thing. It differs from ownership in certain respects. First, although the holder is entitled to the exclusive possession and use of the thing, and to all fruits it produces, he or she may not cause damage to the thing itself. Second, the duration of a usu fruct may be limited in time, unlike ownership which is usually viewed as perpetual. Finally, the rights of the usufruct holder are effective against both the owner and the world in general. Civil law systems view the usufruct as a property right. For example, the French Civil Code defines the usufruct or usufruit as “the right to enjoy things of which another has ownership in the same manner as the owner himself, but on condition that their substance be preserved.”41 The parallel doctrine under German law is the Niessbrauch.42 In addition, many Asian systems influenced by the civil law tradition accept the usufruct as a property right. In China, for example, the Property Rights Law provides that “a usufructory shall, according to law, have the right to possess, use and benefit from the immovables or movables owned by another.”43 The common law life estate and lease are analogous to the usufruct, in that the holder has exclusive possession of the thing and is entitled both to use it and to obtain its fruits, again for a limited time period. Just as the holder of a usufruct may not dam age the thing, the doctrine of waste imposes a similar restriction on the life tenant and the lessee. A related concept is the profit a prendre, which entitles the holder to enter land owned by another and remove minerals or other resources, but typically without the right to exclusive possession of the affected land. International law has recognized a usufruct-like right in limited situations. For example, under the UN Convention on the Law of the Sea (UNCLOS),44 a private Art 578 C civ (France). § 1030 BGB (Germany). 43 Property Rights Law art 117 (China). 44 UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). 41 42

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entity may obtain from an international authority the exclusive right to explore for and exploit the mineral resources of a designated portion of the deep seabed.45 Another illustration is found in fishing rights on the high seas. Under custom ary international law, as codified by UNCLOS, each state is permitted to utilize the fishery resources of the high seas.46 This authorization indirectly establishes a usufruct-like right in the nationals of each state to utilize those resources. Although international law is far from clear on the issue, many authorities believe inter national law permits private actors to exploit mineral resources that may be found on the moon and other celestial bodies, a right that would be akin to a usufruct.47 Usufruct-like rights are also protected as forms of property under international investment law. The Energy Charter Treaty, for example, defines a protected “investment” to include “every kind of asset,” including “property rights such as leases.”48 The ASEAN-Australia-New Zealand Free Trade Agreement similarly pro vides that an “investment” by a foreign national includes “any concession to search for, cultivate, extract or exploit mineral resources” in the host state.49 In addition, usufruct-like rights such as mining concessions and leases have been recognized as property by arbitral tribunals under international expropriation law. In the Raibl Claim an international tribunal held that a concession to exploit minerals was a form of “property” that had been expropriated.50 Another example is Railroad Development Corp v Guatemala, in which the panel characterized the investor’s “50-year right to rebuild and operate the Guatemalan rail system” as a “usufruct.”51

(4) Servitudes International law also recognizes a right to use immovable property that is much like the civil law servitude or the common law easement. Unlike ownership, such a servitude is a limited right to use land or airspace in a designated location for a particular purpose, such as for access to another region or for utility pipelines or wires. By definition, the servitude is effective against both the landowner and all other persons in general. Most nations accept the servitude or the easement as a property right. The French Civil Code defines the servitude as “a charge imposed on an immovable for the use and utility of another immovable belonging to another owner.”52 Under German law, BGB Article 1018 establishes the Dienstbarkeit or servitude as an in rem right. The Property Rights Law53 in China similarly recognizes the servitude as a property right, as does the Japanese Civil Code.54 In England, the United States, See the discussion in ch 7H. See the discussion in ch 7E. 47 See the discussion in ch 8E. 48 Energy Charter Treaty art 1(6)(a). 49 ASEAN-Australia-New Zealand Free Trade Agreement (Cha-am, February 27, 2009) ch 11, art 2(c)(vi). 50 40 ILR 260, 277 (1964). 51 ICSID no ARB/07/23 (June 29, 2012) para 30. 52 Art 637 C civ (France). 53 Property Rights Law art 156 (China). 54 Civil Code art 280 (Japan). 45 46

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and other common law jurisdictions, the easement is a nonpossessory property right to use land in the possession of another for a limited purpose. One example of an international law counterpart to the servitude is the orbital right allocated by the International Telecommunication Union to owners of satel lites. The holder is entitled to have its satellite utilize a particular orbit for a desig nated purpose, usually communications, during a specified time period.55 Another parallel situation is the freedom to place and maintain submarine cables and pipe lines on the deep seabed.56 Codifying customary international law, UNCLOS acknowledges that each state―and thus, in a derivative sense, any national of that state―is entitled to utilize the seabed for this purpose.57

(5) Security Interests Another type of property right recognized under international law is the security interest. A security interest is a right in a specific thing that secures the perfor mance of an obligation, usually a debt owed to a creditor. If the obligated person fails to perform the obligation, the holder of the interest may utilize the value of the thing to satisfy the obligation, typically by causing it to be sold and using the proceeds to pay the debt. The things subject to the right may be movable or immovable, tangible or intangible. The security interest differs from ownership in key respects. First, the per mitted scope of the entitlement is narrow. The holder of a security interest in land, for example, is generally not entitled to occupy, use, or enjoy it; rather, he or she merely holds the right to utilize the land to satisfy an underlying obligation if the obligated person defaults. Second, a security interest is effec tive not only against the world in general, but also against the owner of the affected property. It accordingly limits the ability of the owner to use and transfer property. A security interest has long been accepted as a specialized type of property right under the municipal law of almost all states. French law recognizes mortgages, liens, and pledges as property interests. For example, the mortgage or hypothèque is an interest in specific immovable property that secures the performance of an obli gation.58 German law characterizes security interests in land, movable objects, and rights (Sicherungsrechte) as property rights.59 Security interests such as mortgages and other types of liens are commonly used in England, the United States, and other common law states. Japanese law similarly recognizes a variety of security interests, including the lien, pledge, and hypotec.60 Finally, in China the Property Rights Law authorizes security interests in the form of mortgages, pledges, and liens.61

See the discussion in ch 8G(2). 56 See the discussion in ch 7J. UNCLOS art 87(1). 58 See eg Art 2393 C civ (France). 59 See eg §§ 1113–90, 1204–58 BGB (Germany). 60 Civil Code arts 306–98 (Japan). 61 Property Rights Law arts 179–240 (China). 55 57

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In recent decades, international law has recognized the security interest as a property right in certain situations. One example is found in the Convention on International Interests in Mobile Equipment.62 In order to facilitate the acquisi tion and use of valuable mobile equipment that regularly crosses international borders―such as aircraft and trains―the convention establishes a global regime for creating and enforcing security interests in such equipment. The heart of the convention is the “international interest,” which includes an interest that is granted by a debtor to a creditor in a “uniquely identifiable object” of mobile equipment to secure the performance of an obligation, most commonly a debt.63 In the event of default, inter alia, the creditor may cause the object to be sold in a commercially reasonable manner and apply the proceeds towards discharge of the underlying obligation.64 The Legislative Guide on Secured Transactions issued by the UN Commission on International Trade Law seeks to harmonize national laws on security interests in order to facilitate international transactions. It defines a “security right” to mean “a property right in a movable asset that is created by agreement and secures pay ment or other performance of an obligation, regardless of whether the parties have denominated it as a security right.”65 The Draft Common Frame of Reference also recognizes a “security right” as a type of in rem right, the right of a person “directly relating to an asset.”66 Security interests are also viewed as property rights under international invest ment law. For example, the Energy Charter Treaty defines a protected “invest ment” to include “property rights [in the French version, droits de propriété] such as . . . mortgages, liens, and pledges.”67 The ASEAN-Australia-New Zealand Free Trade Agreement uses a nearly identical definition, providing that an “investment” includes “other property rights such as mortgages, liens or pledges.”68 Bilateral investment treaties frequently contain similar provisions. For instance, in OKO Pankki Oyj v Estonia the claimant lenders asserted that the host state had violated its obligation to provide fair and equitable treatment to their investment by, inter alia, attempting to invalidate mortgages placed on six vessels as security for repay ment of certain loans.69 The relevant BIT between Finland and Estonia provided that an investment included “any other property rights such as mortgages, liens or pledges.”70 The tribunal held that the claimants’ mortgage rights and other entitle ments qualified as an “investment” under this standard, and ultimately found the state liable in damages.71 62 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285). 63 Convention on International Interests arts 1, 2. 64 Convention on International Interests art 8. 65 UNCITRAL Legislative Guide on Secured Transactions (2007) para 21. 66 Draft Common Frame of Reference art VIII-1:204 comment a. 67 Energy Charter Treaty art 1(6)(a). 68 ASEAN-Australia-New Zealand Free Trade Agreement art ch 11, art 2(c). 69 ICSID no ARB/04/6 (November 19, 2007). 70 OKO Pankki Oyj para 177. 71 OKO Pankki Oyj paras 179, 282–85.

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E. Things that May Be the Subjects of Rights (1) Generally A wide range of things may be subject to property rights under international law, whether they are movable or immovable, or tangible or intangible. It is uniformly accepted that “property” in this context includes rights in tangible things, whether movable or immovable. The extent to which rights in intangible items are accepted as “property” is less clear, at least at the margins. There is no doubt that intellec tual property, shares of stock, bonds, and other financial instruments may be the objects of property rights. In addition, at least under some circumstances, property rights may also exist in contracts, licenses and similar authorizations, and public benefits such as pensions. International law rejects the Marxist tenet that the means of production―such as factories, farm land, mines, and other facilities that provide useful products to society―cannot be subject to private ownership. Reflecting this view, UN General Assembly Resolution 45/98 stated that the right to property protected under the UDHR includes both: “(a) Personal property, including the residence of one’s self and family; and (b) Economically productive property, including property associ ated with agriculture, commerce and industry.”72

(2) Land and Other Immovable Things Property rights in immovable things―including land, houses, and industrial and commercial facilities―are recognized under international law. For example, United Nations declarations and human rights decisions acknowledge the rights of aboriginal peoples to the lands that their ancestors historically occupied, even where formal title to the land is held by other parties under national law.73 Other instruments similarly protect the rights of refugees and other displaced persons who have been deprived of houses, lands, and other property.74 In addition, the International Covenant on Economic, Social and Cultural Rights75 and related instruments have been interpreted as providing protection against the forced evic tion of occupants from homes and land, regardless of whether they hold title under domestic law.76 Land and other immovable items are also generally viewed as things subject to property rights by regional tribunals. The European Court has observed that the term “possessions” in Article 1 of ECHR Protocol 1 has an “autonomous meaning” and is thus “independent from formal classification in domestic law.”77 The court UN GAR 45/98, UN Doc A/RES/45/98 (December 14, 1990) para 3. See the discussion in ch 6E. See the discussion in ch 6C. 75 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 76 See the discussion in ch 6C(2). 77 eg Beyeler v Italy (2000) 33 EHRR 52 para 100. 72 73 74

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has held in a number of cases that land and other immovable assets constitute “possessions” under the ECHR.78 The Inter-American Court has similarly stressed that the right to “property” protected by the ACHR extends to all immovable assets.79 The African Commission has also concluded that right to property under the ACHPR covers housing, land, and other immovable items.80 Because virtually all states recognize that property rights may exist in land and other immovable assets, the notion that international human rights law would extend the right to property to such assets is noncontroversial. Investment law supports the proposition that internationally recognized prop erty rights may exist in land and other immovable assets. For decades, tribunals have concluded that an expropriation of “property” occurs when, inter alia, a state seizes title to, or permanent possession of, land or another immovable asset owned by a foreign investor.81 Moreover, modern multilateral and bilateral invest ment treaties typically permit foreign nationals to acquire rights in land and other immovable assets in the host state. Although such treaties commonly utilize the term “investment,” it is routinely defined to include rights in land and other immovable assets. The Energy Charter Treaty, for example, authorizes investments in “immovable . . . property,”82 while NAFTA covers investments in “real estate or other property.”83 These treaties indicate that rights in immovable assets are char acterized as “property,” to at least some extent, under international law. Expropriation disputes are governed by a complex blend of municipal law and international law. As a general matter, each state has the authority to determine which types of foreign investments, if any, will be permitted within its territory. This authority carries with it the power to decide whether a foreign investor will be able to acquire legal interests in particular investments. In addition, because substantive property law rules have not historically existed in international law, tri bunals have necessarily relied on municipal law to determine the scope and extent of the rights held by a foreign investor. However, at a minimum, international law does affect the threshold definition of “property” in the expropriation context. The question of whether rights in a particular asset constitute “property” for the purposes of expropriation must be resolved by international law, regardless of how they are characterized under municipal law. While municipal law governs the scope and extent of an investor’s rights, international law must determine whether these rights are characterized as “property” with respect to liability for expropri ation. Otherwise, the host state could circumvent international law simply by characterizing an alien asset as “non-property.” For example, in the Raibl Claim before the Anglo-Italian Conciliation Commission, it was necessary to determine whether a foreign-owned mining eg Zubani v Italy (1996) 32 EHRR 14. eg Mayagna (Sumo) Awas Tingni Community para 144. ACHPR Principles paras 53–55; see also Media Rights Agenda v Nigeria Comm no 105/93 (ACmHPR, October 31, 1998). 81 See the discussion in ch 11D. 82 Energy Charter Treaty art 1(6)(a). 83 NAFTA art 1139. 78 79 80

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concession in Italy constituted “property” under the Peace Treaty between Italy and the Allied Powers, which would entitle the private owner to compensation for wartime damage.84 The treaty defined “property” to include “all movable and immovable property, whether tangible or intangible, including industrial, literary and artistic property, as well as all rights or interests of any kind in property.”85 The commission rejected Italy’s assertion that the meaning of “property” in this context should be determined under municipal law and explained that the term could be “defined directly by international law.”86 It reasoned that the international definition was not limited to “property in the sense of the real right of continental legal systems, but must be regarded as a ‘subjective patrimonial right,’ comprehend ing claims based on the law of contract.”87 While suggesting that some concessions might not constitute property, it observed that when a concession “necessarily entails the progressive destruction of the property―that is, in the present case, the mine―over and above ordinary use, such exploitation must indisputably be characterized as an injury to the patrimonial rights of the concessionary.”88

(3) Tangible Objects Under international law, property rights may exist in tangible objects. For exam ple, UNCLOS provides that title to minerals extracted from the deep seabed is awarded to the successful mining entity;89 the Convention on Stolen or Illegally Exported Cultural Objects regulates property rights in cultural items;90 and the Convention on International Interests in Mobile Equipment91 establishes an inter national system of security interests in equipment. More broadly, the right to property established under regional human rights conventions generally extends to all tangible objects. Inter-American Court deci sions interpreting the right under the ACHR have established that it applies to “all . . . movables.”92 The African Commission has stated that the right to property under the ACHPR covers “any material thing that can be possessed.”93 Finally, the European Court has held that the scope of “possessions” protected under the ECHR includes the “ownership of physical goods.”94 Cases decided under these conventions have adjudicated disputes concerning the right to property in a wide

40 ILR 260 (1964). Raibl Claim 262. 86 Raibl Claim 277. 87 Raibl Claim 278. 88 Raibl Claim 279. 89 See the discussion in ch 7H. 90 Convention on Stolen or Illegally Exported Cultural Objects (Rome, June 24, 1995, 2421 UNTS 457). 91 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285). 92 eg Mayagna (Sumo) Awas Tingni Community para 144. 93 ACHPR Principles para 35. 94 Gasus Dosier- und Födertechnik GmbH v Netherlands (1995) 20 EHRR 403 para 46. 84 85

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variety of objects, including books, computers, documents, equipment, gold, household items, livestock, and vehicles. International investment law also demonstrates that property rights may exist in tangible objects. Arbitration decisions have held that an expropriation of prop erty occurs when a state takes title to or permanent possession of tangible objects owned by a foreign investor, or implements other measures that substantially inter fere with the investor’s property rights in such objects.95 In addition, multilat eral and bilateral investment treaties protect rights that foreign investors obtain in tangible objects. The Energy Charter Treaty, for instance, covers investments in “every kind of asset” including “tangible and intangible, movable and immovable, property.”96 NAFTA extends beyond investments in “real estate” to include “other property, tangible or intangible.”97 A final illustration is the ASEAN-Australia-New Zealand Free Trade Agreement, which defines an investment as “every kind of asset . . . including . . . movable and immovable property.”98

(4) Intangibles Defining the scope of intangible things in which property rights may exist is more difficult. International law clearly recognizes property rights in certain intangi ble items. For example, a series of treaties regulates rights in intellectual property such as copyrights, patents, and trademarks;99 international law is also begin ning to protect the intangible cultural heritage of aboriginal and tribal peoples.100 Furthermore, treaties authorize the creation and sale of rights to emit greenhouse gases,101 and a series of international instruments provide for the enforcement of foreign judgments and arbitral awards.102 The concept of “property” has been defined under international investment law to include a wide array of intangible items. Almost 90 years ago, in the Case concerning German Interests in Upper Silesia (Chorzów Factory), the Permanent Court of International Justice held that Poland had expropriated a German company’s contractual rights to manage and operate a nitrate factory and explained that this conduct violated “the principle of respect for vested rights.”103 The notion that “property” for purposes of expropriation law is broader than in rem rights has influenced courts and tribunals adjudicating expropriation disputes. For instance, it is well settled that rights in shares of stock, bonds, bank notes, loans, options, and other financial instruments are viewed as “property” for purposes

95 eg Alpha Projektholding GmbH v Ukraine, ICSID no ARB/07/16 (November 8, 2010). 96 Energy Charter Treaty art 1(6)(a). 97 NAFTA art 1139(g). 98 ASEAN-Australia-New Zealand Free Trade Agreement ch 11, art 2(c). 99 See the discussion in ch 5E. 100 See the discussion in ch 5B. 101 See the discussion in ch 8B(3). 102 See the discussion in ch 5F. 103 (Germany v Poland) Judgment, PCIJ Series A no 7, 22 (1926). See also Norwegian Shipowners’ Claims (Norway v US) 1 RIAA 307 (1922).

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of expropriation.104 It is also generally accepted that contract rights―particularly those that are closely connected to land or other tangible assets, as reflected in the Raibl Claim and Chorzów Factory cases―are considered as “property” in this context.105 Interests in licenses, permits, and similar authorizations issued by host states under municipal law have also been seen as “property” subject to expropri ation in certain situations.106 Modern investment treaties generally encompass all forms of intangible assets. The Energy Charter Treaty defines an “asset” to include “intangible . . . prop erty.”107 Under NAFTA, an “investment” specifically covers “other property, tan gible or intangible” acquired for economic benefit or other business purposes.108 Finally, the Central America-Dominican Republic-United States Free Trade Agreement provides that an “investment” includes interests in items such as shares of stock, bonds, contracts, intellectual property rights, licenses, permits, and “other . . . intangible . . . property.”109 The outer parameters of intangible things subject to expropriation law remain uncharted. In many situations the terms of a specific treaty control how an “investment”―the surrogate for the more uncertain term “property”―will be interpreted. Arbitration tribunals have tended to utilize an expansive definition. As the Iran-United States Claims Tribunal summarized in Amoco International Finance Corp v Iran, “Expropriation, which can be defined as a compulsory trans fer of property rights, may extend to any right which can be the subject of a com mercial transaction.”110 In the same vein, in Methanex Corp v United States, a case arising under NAFTA, the tribunal explained that “the restrictive notion of prop erty as a material ‘thing’ is obsolete and has ceded its place to a contemporary conception which includes managerial control over components of a process that is wealth producing.”111 Similarly, international human rights law protects property rights in intangible items. The most extensive jurisprudence in this area stems from the European Court, which has defined the term “possessions” in the ECHR to include cer tain rights that might not be regarded as “property” under the municipal laws of some member states. For example, shares of stock,112 business licenses,113 judg ments,114 arbitration awards,115 pensions,116 and other public benefits117 have all eg OKO Pankki Oyj v Estonia, ICSID No ARB/04/06 (November 19, 2007) (loans). See the discussion in ch 11. See the discussion in ch 11. 107 Energy Charter Treaty art 1(6)(a). 108 NAFTA art 1139(g). 109 Central America-Dominican Republic-United States Free Trade Agreement (Washington, August 5, 2004) art 10.28. 110 15 Iran-US Claims Tribunal Reports 189, 220 (1987). 111 Final Award (August 3, 2005) IV D para 17. 112 Lithgow v UK (1986) 8 EHRR 329. 113 Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309. 114 Gasan v Russia App no 43402/02 (ECtHR, February 24, 2005). 115 Stran Greek Refineries v Greece (1994) 19 EHRR 293. 116 Tarkoev v Estonia App no 14480/08 (ECtHR, November 4, 2010). 117 Cummins v UK App no 14549/92 (ECtHR, April 1, 2008). 104 105 106

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been viewed as possessions by the court. The Inter-American Court has stated that the right to property under the ACHR extends to “all . . . intangible assets”118 and to “any . . . intangible object of value.”119 Thus, it has held that interests in shares of stock120 and pensions121 are protected under the ACHR. Finally, on the only occasion where it has considered whether a right in an intangible was covered by the ACPHR, the African Commission drew “inspiration from the jurisprudence” of the ECHR in finding that a judgment was protected by the right to property.122 Salvador Chiriboga v Ecuador Series C no 179 (IACtHR, May 6, 2008) para 55. Ivcher-Bronstein v Peru Series C no 84 (IACtHR, February 6, 2001) para 122. 120 Ivcher-Bronstein para 122. 121 Case of the “Five Pensioners” v Peru Series C no 98 (IACtHR, February 23, 2003). 122 Bissangou v Congo Comm no 253/02 (ACmHPR, November 29, 2006) para 76. 118 119

PA RT I I COMPONENTS

3 The Framework of International Property Law

A. Introduction International law traditionally ignored the property rights of private actors. It presup posed that property existed as a general matter, and that this property was created and regulated by municipal law. But because international law was conceptualized as gov erning only relations among states, the private actors who held these rights were―by definition―not subjects of this law. As a result, international law dealt with property only in a tangential fashion. The international principles protecting the property of diplomats, restricting damage to civilian property during armed conflicts, and limit ing the expropriation of alien property, for example, arose in this limited context; a violation was viewed as an injury to the state, not to the property owner. Today the relationship between international law and property is substantially more complex. Under international human rights law, a citizen may bring a claim against the state in a regional human rights tribunal for interference with the right to property. Similarly, authorities increasingly agree that a foreign investor has a direct right to pursue an expropriation claim against the host state in an international tribu nal, not merely a derivative right stemming from its state. In addition to these direct rights, international law may be viewed as creating indirect or derivative property rights in some circumstances. Finally, international law mandates restrictions and prohibitions relating to the property rights of private actors, which are imposed at the national level, either through self-executing treaties or domestic legislation. The reality that international law affects the property rights of individuals, busi nesses, and other private actors can no longer be ignored. Particularly since the end of World War II, the volume of international law concerning private property has expanded exponentially. This book adopts a functional approach to defining the scope of international property law by examining both public law and private law principles. These principles may be divided into five basic categories. Modern international law directly or indirectly: (1) creates property rights; (2) protects property rights stemming from municipal law; (3) coordinates property rights arising under municipal law; (4) restricts property rights authorized under municipal law; and (5) prohibits the creation of property rights under municipal law. The principles discussed in this book provide the framework for what may ulti mately become an integrated system of international property law. Investment treaties

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and human rights conventions, in particular, have generated a substantial body of property law jurisprudence that addresses the relationship between states and private owners. Scholars suggest that a common law of investment protection is beginning to emerge, stemming from treaty provisions, general principles of law, and arbitration panel decisions1―a body of law that may equally well be characterized as a com ponent of the broader regime of international property law. In the same manner, scholars analyzing how the European Court of Human Rights has interpreted the right to property under the Convention for the Protection of Human Rights and Fundamental Freedoms2 have discerned recurring patterns and themes in its case law,3 some of which have been followed by other human rights tribunals. Treaties, custom ary norms, general principles of law, tribunal decisions, United Nations instruments, and other forms of soft law have all contributed to the evolving body of international property law.

B. Private Actors and International Law (1) Collapse of the Traditional Theory Under classic theory, individuals and other private actors were not viewed as sub jects of international law. As a leading authority observes, although such actors could “enjoy certain rights and duties in conformity with, or according to, international law,” the state to which they belonged was the only recognized subject at the inter national level.4 In effect, the state acted as an intermediary between the international system and private actors. As a subject of international law, the state held rights and owed duties in relation to other states. But the rights of private actors that indirectly stemmed from international law―through the state―were conceptualized as “rights derived from national law”5 or derivative rights. Today it is generally accepted that private actors are subjects of international law, at least under certain circumstances. For example, Malcolm Shaw observes that in mod ern practice “individuals have become increasingly recognised as participants and sub jects of international law,” in part because treaties have “enabled individuals to have direct access to international courts and tribunals.”6 Ian Brownlie notes that “[t]‌here is no general rule that the individual cannot be a ‘subject of international law,’ ” though he comments that the classification is “unhelpful.”7 The Oppenheim treatise questions 1 See eg Campbell McLachlan et al, International Investment Arbitration: Substantive Principles (OUP 2007) 19. 2 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 3 See eg Ali Reza Çoban, Protection of Property Rights within the European Convention on Human Rights (Ashgate 2003); Theo RG van Banning, The Human Right to Property (Intersentia 2002). 4 Robert Jennings & Arthur Watts, Oppenheim’s International Law (9th edn, Longman 1992) vol 1, 846. 5 Jennings & Watts, Oppenheim’s International Law vol 1, 847. 6 Malcolm N Shaw, International Law (5th edn, CUP 2003) 232–33. 7 Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 65.

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the thesis that international law was ever concerned solely with states, because “[m]any of its rules are directly concerned with regulating the position and activities of individuals; and many more indirectly affect them.”8 It continues: States can . . . and occasionally do . . . confer upon individuals . . . international rights . . . ie rights which they can acquire without the intervention of municipal legislation and which they can enforce in their own names before international tribunals. Moreover, the quality of individuals (and private companies and other legal persons) as subjects of international law is apparent from the fact that, in certain spheres, they enter into direct legal relationships on an inter national plane with states and have, as such, rights and duties flowing directly from inter national law. It is no longer possible, as a matter of positive law, to regard states as the only subjects of international law.9

(2) Property Claims in International Tribunals Under these standards, private actors must be viewed as subjects of international law with respect to property rights―at a minimum―where they are authorized to pre sent a property-related claim to an international tribunal. Accordingly, the principles that govern these disputes should be viewed as components of international law. In the human rights context, for example, a series of treaties provides that indi viduals may bring direct claims against their states in international tribunals for improper interference with the right to property. Human rights conventions author ize the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Commission on Human and Peoples’ Rights to adjudi cate such complaints. Indeed, over 1,000 property-related lawsuits have been filed in the European Court alone. Direct claims against states for violations of prop erty rights may also be considered by certain United Nations entities. Under the Optional Protocol to the International Covenant on Civil and Political Rights,10 an owner may file a complaint with the UN Human Rights Committee when a state arbitrarily or unlawfully interferes with the family home.11 The International Convention on the Elimination of All Forms of Racial Discrimination provides that complaints of racial discrimination by the state with respect to, inter alia, the right to own property may be heard by the UN Committee on the Elimination of Racial Discrimination.12 The UN Committee against Torture is empowered by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to hear individual claims that the conduct of a state with respect to a person’s property constitutes “other cruel, inhumane or degrading” punishment.13 8 Jennings & Watts, Oppenheim’s International Law vol 1, 846. 9 Jennings & Watts, Oppenheim’s International Law vol 1, 847–48. 10 Optional Protocol to the International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 302) art 1. 11 International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171) art 17(1). 12 International Convention on the Elimination of All Forms of Racial Discrimination (New York, March 7, 1966, 660 UNTS 195) arts 5, 14. 13 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, December 10, 1984, 1465 UNTS 85) art 22.

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The Framework of International Property Law

Moreover, a private owner may bring a direct claim against the host state in international tribunals for interference with property held in the form of foreign investments. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States authorizes legal or natural persons to arbi trate expropriation and other investment-related claims against the host state before an international panel.14 To date, over 500 such claims have been filed. Investment disputes involving states and private actors are also heard by other tribunals, such as panels established under the UN Commission on International Trade Law Arbitration Rules.15 Another example is the Iran-United States Claims Settlement Declaration, which empowered an international tribunal to adjudicate claims by nationals of the two states arising out of debts, contracts, expropriations, and “other measures affecting property rights” related to events during the Iranian Revolution of 1979.16 Finally, individuals and other private actors have been authorized to pursue direct claims against states stemming from the loss or damage of property in armed conflicts. The UN Compensation Commission, created under a UN Security Council resolution, resolved thousands of property-related disputes that arose out of the 1990–91 Gulf War.17 The treaty creating the Commission for Real Property Claims of Displaced Persons and Refugees empowered the commission to receive and decide claims filed by private actors relating to real property that was lost or damaged during the 1992–95 conflict in Bosnia and Herzegovina.18 Another example is the Housing and Property Claims Commission in Kosovo. It was estab lished by the UN Interim Administration Mission to resolve disputes concerning discriminatory measures adopted by Yugoslavia that adversely affected property rights in homes and other residential property, and it eventually adjudicated tens of thousands of claims made by private actors.19

(3) A Functional Approach The relationship between international law and private owners encompasses far more than the basic scenario where an owner is authorized to pursue a property-related claim against a state in an international tribunal. Brownlie’s comment that classifying an individual as a subject of international law may be “unhelpful” has particular resonance in the context of property rights, because this

14 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, March 18, 1965, 575 UNTS 159) art 25. 15 UN Commission on International Trade Law, Arbitration Rules (2010) art 1. 16 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (January 19, 1981, 20 ILM 230) art VII. 17 UN Security Council Resolution 674, UN Doc S/RES/674 (October 29, 1990). 18 General Framework Agreement for Peace in Bosnia and Herzegovina (Paris, December 14, 1995, 35 ILM 80). 19 UN Interim Administration Mission in Kosovo reg no 199/23, UN Doc UNMIK/REG/1999/23 (November 15, 1999).

Private Actors and International Law

45

law affects such rights in a broader and more complex manner than is reflected by the traditional approach. In some situations, international law directly creates property rights in pri vate actors. For instance, under the UN Convention on the Law of the Sea (UNCLOS),20 an international authority is empowered to allocate property rights in deep seabed minerals to private actors. Because these rights arise in a region beyond the jurisdiction of any state, the parameters of the basic scenario do not apply. A private actor holding internationally created property rights must surely be viewed as a subject of international law. More broadly, as the Oppenheim trea tise observes, private actors may hold “rights . . . in conformity with, or according to, international law,”21 which may be viewed as indirect or derivative rights; these often include property rights. Where a state serves as an intermediary or conduit for the transmission of rights from the international plane to private actors, this process creates derivative property rights which, in a functional sense, are within the scope of international property law. In this sense, a derivative property right is one created at the international level that is intended to be utilized, in whole or in part, by private actors. International law increasingly regulates the property rights of private actors. In recent decades the range and complexity of international regulation of all kinds has expanded in an unprecedented manner, to the point that it “dictates with increasing specificity the provisions to be adopted at the national and sub-national levels.”22 As Paul Stephan explains, in this environment states often serve “more as agents of the international bodies than as their principals”23 by imposing interna tionally created standards on private actors. In the property context, for example, international law sometimes requires states to implement particular restrictions on property rights at the national level. One illustration is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),24 which limits an owner’s rights to use and transfer, inter alia, certain products derived from endangered species. A restriction on property rights imposed by international law that is implemented through state action and intended to apply to private actors, in whole or in part, may be called a derivative restriction. Another category of international regulation consists of prohibitions on recog nizing any property rights. For example, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)25 and the World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty)26 provide that property UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). Jennings & Watts, Oppenheim’s International Law vol 1, 846. Jacob Katz Cogan, “The Regulatory Turn in International Law” (2011) 52 Harv Intl LJ 321, 325. 23 Paul B Stephan, “The New International Law―Legitimacy, Accountability, Authority, and Freedom in the New Global Order” (1999) 70 U Colorado LR 1555, 1557. 24 Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, March 3, 1973, 993 UNTS 243). 25 Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299) art 9(2). 26 World Intellectual Property Organization Copyright Treaty (Geneva, December 20, 1996, 2186 UNTS 121) art 2. 20 21 22

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The Framework of International Property Law

rights cannot exist in the idea for an artistic or literary work. This provision over whelmingly affects the rights of private actors, not the rights of states. As the preamble to the WIPO Copyright Treaty specifies, the treaty provisions seek to maintain “a balance between the rights of authors and the larger public interest.”27 An international prohibition of property rights that is implemented through state intermediaries and intended to apply to private actors, in whole or in part, may be termed a derivative prohibition. From a functional perspective, derivative restrictions, derivative prohibitions, and other international mandates that impose uniform standards affecting the property rights of private actors should be viewed as components of international property law. Although these standards are formally implemented through the vehicle of municipal law, it would be disingenuous to pretend that they do not have an international character.

C. Modalities of International Property Law (1) Creation of Rights In some situations, property rights arise directly under international law. For example, UNCLOS establishes a global regime for the exploitation of deep seabed minerals that creates two types of direct property rights. A corporation or other private actor may receive the exclusive right to exploit the mineral resources in a designated section of the seabed―akin to a usufruct―from an international authority.28 UNCLOS also provides that such a private actor will receive “title” to the minerals that are excavated in such a region.29 The Convention on International Interests in Mobile Equipment30 establishes an international system by which a creditor can obtain and perfect a security inter est in aircraft or railroad equipment.31 Such an “international interest” is author ized under the convention as a matter of international law. A third example is found in the growing body of international human rights law which recognizes that indigenous peoples have a right to ownership of the lands their ancestors traditionally occupied. In this context, the direct property right arising under international law takes priority over conflicting rights held by other private actors under municipal law. In addition, international law creates property rights indirectly by authorizing states―and hence their nationals―to participate in certain activities. The deriva tive rights created in this context may be viewed as a hybrid, stemming from both

WIPO Copyright Treaty preamble para 5. See the discussion in ch 7H. 29 See the discussion in ch 7H. 30 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285). 31 See the discussion in ch 4E(1). 27 28

Modalities of International Property Law

47

international and municipal law. In most such situations, these rights are primarily intended to be exercised by private actors, not the state itself. The role of the state is limited to serving as an intermediary. For instance, the Kyoto Protocol to the UN Framework Convention on Climate Change32 and related instruments establish an international regime for trading greenhouse gas emissions allowances and related credits in order to help meet emissions reduction targets. But this does not require a member state to permit its nationals to engage in such trading.33 In this sense, international law creates derivative rights by establishing a legal framework within which a state may allow private actors to acquire and trade these rights, without any expectation that the state itself will necessarily participate in such markets. Indeed, this approach is premised on the assumption that a robust private market is an efficient technique for reducing emissions. Another illustration is contained in the UNCLOS provisions that allow states to permit their citizens to engage in fishing activities on the high seas and thereby obtain derivative property rights in the fish that they catch―a type of usufruct.34 Although some states operate government-owned fishing fleets, most fishing activ ities are carried out by private actors, as reflected by UNCLOS and the customary norm which preceded it. In this setting, states act as conduits by transferring fish ing rights from the international level to private actors. Finally, the network of treaties governing access to genetic resources creates derivative rights in private actors, akin to usufructs. The International Treaty on Plant Genetic Resources for Food and Agriculture,35 for instance, establishes a global system whereby both state actors and “legal and natural persons” from any member state must be allowed access to and use of plant genetic resources located in other states.36 The treaty further provides that an equitable share of any proceeds from the commercialization of a product based on such resources, as decided by an international body, will be paid by the user of the material.

(2) Protection of Rights In some contexts, international law protects property rights held by private actors against state interference where those rights either exclusively or predominantly originate from municipal law. The leading illustrations are found in human rights law and investment law. The protective modality is reflected in regional human rights conventions that constrain the authority of a member state to interfere with property rights which have previously arisen under its municipal law. Protocol 1 to the Convention for 32 Kyoto Protocol to the UN Framework Convention on Climate Change (Kyoto, December 11, 1997, 2303 UNTS 162). 33 See the discussion in ch 8B(3). 34 See eg UNCLOS art 87. 35 International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, November 3, 2001, 2400 UNTS 303). 36 See the discussion in ch 5D(3).

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The Framework of International Property Law

the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that “[n]‌o one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of law.”37 Once a private actor has acquired title to a “possession” under municipal law, this provision bars the state from seizing title to it or otherwise interfering with ownership unless such action is consistent with the principles of legality, pub lic interest, and proportionality that the European Court of Human Rights has established in its jurisprudence.38 Other human rights instruments, ranging from anti-discrimination treaties to United Nations guidelines, similarly restrict a state from interfering with property rights that already exist under its municipal law.39 A series of international investment law doctrines safeguards the property rights of foreign nationals against undue interference.40 The municipal law of the host state largely determines whether a particular foreign investment will be permitted, even though treaties may limit its discretion to some extent. Accordingly, as a gen eral matter, the property rights of a foreign investor are acquired pursuant to the municipal law that exists at the time the investment is made. However, by setting limits on the host state’s authority to interfere with the investment, international law serves to protect the investor’s property rights.

(3) Harmonization of Rights Another modality is that international law establishes uniform standards to coor dinate or harmonize property rights that are created under municipal law, espe cially for objects of property likely to be involved in international transactions. In this context, there is an obvious risk that the property laws of different states may conflict. A coherent and predictable legal infrastructure is essential to protect nationally created property rights in the transboundary situation. The assumption underlying harmonization is that each state benefits more by agreeing to a uniform approach than by following its own idiosyncratic regime. Intellectual property law is a classic example of how the international system harmonizes property rights. Rights in copyrights, patents, trademarks and other forms of intellectual property arise under municipal law. Yet because these forms of property are both integral to international commerce and vulnerable to piracy, global minimum standards that govern the validity, nature, and enforcement of intellectual property rights are vital. A series of treaties, most notably TRIPS, has established an international regime to harmonize the municipal laws that govern these rights.41 For instance, TRIPS incorporates the key provisions of the Berne Convention for the Protection of Literary and Artistic Works42 and extends their 37 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262) art 1. 38 See the discussion in ch 11D(2), F(2). 39 See the discussion in ch 11D(2), F(2). 40 See the discussion in ch 11D(2), F(2). 41 See the discussion in ch 5E. 42 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221).

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scope to almost all nations. As a result, TRIPS effectively defines the minimum international standard for the types of works that may be copyrighted, the dur ation of copyrights, and the scope of the rights created by copyrights. It also estab lishes uniform standards for the enforcement of copyrights under municipal and international law. Another example is found in the international standards governing the owner ship of paintings, sculptures, archaeological relics, and other objects of cultural importance. The Convention on Stolen or Illegally Exported Cultural Objects43 creates a global regime that harmonizes municipal laws governing cultural objects that are stolen or illegally exported. In general, the convention provides that the possessor of a stolen cultural object must return it to the state of origin upon request, even if the possessor purchased title to the object in good faith. However, compensation must be paid if the possessor exercised due diligence in the acquisi tion process. In effect, the convention provides a mechanism for reconciling con flicting claims of title to a cultural object. Similar provisions apply to a cultural object that has been illegally exported. The harmonization modality is also evidenced by treaties that govern the property rights of owners who reside in multiple states during their lifetimes. For instance, the Convention providing a Uniform Law on the Form of an International Will44 authorizes the use of a uniform will that is valid in all member states to devise or bequeath any type of property―movable or immovable, tangible or intangible― wherever in the world it may be located. The convention establishes minimum standards for a globally effective will that member states must adopt as part of their municipal law.

(4) Restrictions on Rights In recent decades, international law has increasingly required states to impose spe cific restrictions on their nationals through municipal law, including limitations on the scope of property rights. These limitations stem from a consensus that it is necessary to curtail the rights of private actors in order to implement public pol icies endorsed by the global community. One example is found in the restrictions on the export and import of endan gered species, which limit the rights to use and transfer that an owner would otherwise hold. Under CITES, the owner of a specimen of an endangered animal or plant may not export or import it unless special permits can be obtained. In this context, a “specimen” includes any covered animal or plant, living or dead, and also any “recognizable part or derivative thereof.”45 Among other limitations, an export permit will not be issued if the specimen will be primarily used for 43 Convention on Stolen or Illegally Exported Cultural Objects (Rome, June 24, 1995, 2421 UNTS 457). 44 Convention providing a Uniform Law on the Form of an International Will (Washington, October 26, 1973, 12 ILM 1298). 45 CITES art I(b).

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The Framework of International Property Law

commercial purposes. Accordingly, even the owner who has acquired title to a covered specimen in good faith may not be able to import it, and would thus be deprived of its use. International restrictions on the utilization of wetlands provide another illustra tion. Under the Ramsar Convention on Wetlands of International Importance Especially as Wildfowl Habitat,46 states must implement plans for the “wise use” of wetlands in their respective territories, including privately owned wetlands. This regime effectively requires owners to maintain the ecological character of their wetlands through sustainable development.47 Unsustainable uses such as develop ing a wetland for residential, commercial, or industrial purposes are barred, while sustainable uses like harvesting natural crops, fishing, and hunting are permitted. Another derivative restriction stems from the customary norm that a state may not permit its territory to be used in a manner that harms persons or property in other states.48 To comply, each state must restrict the manner in which own ers may use their lands so as to avoid causing transboundary injuries. The Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, which seek to delineate the scope of this norm, would require each state to adopt municipal legislation or other measures that impose strict liability on landowners whose activities cause significant damage to persons, property, or the environment outside of its control―effectively limiting the man ner in which land may be used.49

(5) Prohibition of Rights The prohibition modality is another aspect of international property law. In certain situations, international law prohibits states from creating or recognizing property rights for public policy reasons, superseding any inconsistent municipal law. The leading example is the global ban against slavery. International law flatly prohibits the creation or recognition of property rights in human beings. The 1926 Convention to Suppress the Slave Trade and Slavery, which defined slavery as “the status or condition of a person over whom any or all of the powers attached to the right of ownership are exercised,” required all member states to abolish the practice “as soon as possible.”50 Since then, international law has completely prohibited slavery, as reflected in treaties and customary law.51 In addition, a variety of treaties require member states to adopt municipal laws that criminalize the possession of certain drugs, crime proceeds, and other forms 46 Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, February 2, 1971, 996 UNTS 245). 47 See the discussion in ch 12C(3). 48 See the discussion in ch 6H. 49 UN International Law Commission, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, UN Doc A/CN.4/L.686 (May 26, 2006). 50 Convention to Suppress the Slave Trade and Slavery (Geneva, September 25, 1926, 60 LNTS 253) arts 1(1), 2(b). 51 See the discussion in ch 4H(2).

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of contraband.52 For example, the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires parties to adopt measures that des ignate the possession of covered “narcotic drugs and psychotropic substances” as a crime, even when these substances are intended for personal consumption.53 In such situations, international law precludes a state from creating or recognizing property rights in private actors. See the discussion in ch 4C. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, December 20, 1988, 1582 UNTS 165) art 3(2). 52 53

4 Rights in Tangible Objects

A. Introduction International law creates, restricts, prohibits, and otherwise affects property rights in a wide array of tangible objects, ranging from art to railway equipment to wild animals. Consistent with the traditional wisdom that property rights are governed by municipal law, the international doctrines that impact these rights are usually not conceptualized as property law. Rather, they are seen as components of other subdivisions of international law, such as international environmental law or the law of war. However, they may be viewed as property law doctrines under the framework developed in Chapter 3, most commonly as either derivative restric tions or derivative prohibitions.1 Four themes link the doctrines in this chapter. First, the objects that they con cern are usually valuable (eg rare animal parts or cultural objects) or dangerous (eg genetically modified organisms or toxic substances). As such, they have sufficient importance to trigger international concern. Second, these doctrines generally have a transboundary component, usually because the objects have crossed or may cross national borders. Because nationals from multiple states are involved, inter national action is particularly appropriate. Third, the doctrines usually affect the rights and duties of private actors, not states. In this setting, states essentially act as conduits for imposing global standards on such actors. Finally, these doctrines all stem from treaties, reflecting a consensus among states that municipal law should be superseded by international law.

B. Art and Other Cultural Objects (1) Generally Art, antiquities, and similar cultural objects are regularly sold in international com merce, often with little concern for the validity of the seller’s title. As one scholar 1 The principles governing the international sale of goods are beyond the scope of this work because they (a) are governed by the specialized field of international trade law and (b) predominantly have a contractual character.

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laments, “[c]‌ultural property is the last major valuable asset which can be traded without fully checking the title, and the only one where concealment of provenance is defended.”2 The issue arises most commonly when the object is either: (a) stolen from a prior owner such as a museum or private collector; or (b) exported from its nation of origin without a permit and sold to a bona fide purchaser for value in another nation.3 In the latter situation, the object is often an archaeological relic that was illegally excavated. Two major conventions address this subject: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Cultural Property Convention)4 and the Convention on Stolen or Illegally Exported Cultural Objects (Cultural Objects Convention).5 These conventions protect the property rights in such objects that have been established under the municipal laws of states of origin, while imposing derivative prohibitions on putative owners in other states. Another issue in this area is the distortion, mutilation, or other modification of artistic works by private owners. International law recognizes that even where art ists have conveyed or released the economic rights in their works, they retain the moral right of integrity―the right to object to a modification of such a work that injures the artist’s honor or reputation. This doctrine imposes a derivative restric tion on the right of an owner to freely use or abuse an artistic work.6

(2) Illegally Exported Objects (a) Import and Export Controls The Cultural Property Convention seeks to stem the illegal trade in cultural prop erty by establishing a global system of import and export controls that is enforced by member states. In functional terms, it imposes derivative restrictions on property rights in cultural objects. Ratified by most nations―including such key importing nations as Germany, Japan, and the United States―it entered into force in 1972. The preamble to the convention stresses the global importance of cultural prop erty. It proclaims that such property is “one of the basic elements of civilization and natural culture” and that the interchange of such property among nations “increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations.”7

2 Lyndel Prott, “The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects— Ten Years On” (2009) 14 Unif L Rev 215, 217. 3 Special rules apply to the protection of cultural property during wartime, as discussed later in part J. 4 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, November 14, 1970, 823 UNTS 231). 5 Convention on Stolen or Illegally Exported Cultural Objects (Rome, June 24, 1995, 2421 UNTS 457). 6 In addition, international law may be developing the norm that a state or private owner may not mutilate or abuse cultural heritage property. See the discussion in ch 12C(2). 7 Cultural Property Convention preamble paras 2, 3.

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An object is classified as “cultural property” under the convention if two criteria are satisfied. It must be specifically designated by a state as “being of importance for archaeology, prehistory, history, literature, art or science.”8 In addition, the object must fall within one of 12 general categories, such as “products of archaeological excavations,” “antiquities more than one hundred years old,” “pictures, paintings and drawings produced entirely by hand,” or “rare manuscripts.”9 By relying on decisions of individual states, the convention fails to establish a uniform global standard for defining cultural property. The heart of the convention is the provision that the “import, export or transfer of ownership of cultural property” in a manner that violates its terms “shall be illicit.”10 Member states are required to prohibit export of cultural property from their respect ive territories unless it is accompanied by an appropriate certificate.11 One would logically expect that the same restriction would apply to imports―such that member states would also be required to ban the import of a cultural object that lacked such a certificate. However, the obligation imposed on importing states is narrower: states are only required to prohibit the import of cultural objects that are “stolen from a museum or a religious or secular public monument or similar institution” in a member state after the convention entered into force.12 The convention does not bar imports of cul tural objects, for example, that are (a) stolen from another type of owner, (b) illegally excavated and then exported, or (c) legally acquired and then exported.13 In effect, the principal enforcement burden is placed upon the state of origin, which is usually less likely than the importing state to have the resources necessary for this task.

(b) Return to Original Owner Despite the reference to “transfer of ownership” in its title, the Cultural Property Convention has little impact on the ownership of cultural property. It vaguely pro vides that member states undertake “to prevent by all appropriate means transfers of ownership of cultural property likely to promote the illicit import or export of such property,”14 including transfers of ownership by or to private actors. Yet even this language is qualified by an introductory phrase that any such effort must be “consistent with the laws of each State,”15 which allows member states to vary as to how they regulate sales and other transfers. The most innovative portion of the convention is a mechanism to compel the return of illegally imported cultural property. However, it applies only if such 8 Cultural Property Convention art 1. 9 Cultural Property Convention art 1. 10 Cultural Property Convention art 3. 11 Cultural Property Convention art 6(b). 12 Cultural Property Convention art 7(b)(i). 13 Article 5 also provides that member states will undertake “as appropriate for each country” to set up one or more national services to protect cultural heritage by, inter alia, “contributing to the forma tion of draft laws and regulations designed to secure the . . . prevention of the illicit import, export and transfer of important cultural property.” This language is essentially aspirational. 14 Cultural Property Convention art 13(a). 15 Cultural Property Convention art 13(a).

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property has been stolen from “a museum or secular public monument or simi lar institution.” In this situation, upon the request of the state of origin made through “diplomatic offices,” the importing state must “take appropriate steps to recover and return any such cultural property”―including property held by private actors.16 The state of origin “shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.”17 This international standard effectively supersedes the municipal law governing ownership of cov ered objects. Even the private owner who has valid title to such an object must be divested of such title when an appropriate request is made. In effect, this is a derivative prohibition. In contrast, the subsequent Cultural Objects Convention creates a broader sys tem for compelling the return of an illegally exported cultural object, even from a bona fide purchaser.18 The convention applies to “claims of an international char acter” for the recovery of illegally exported cultural objects.19 Although the con vention has entered into force, most of the states that have ratified it are viewed as sources of cultural objects, rather than importing states. This is important because the convention is not retroactive; it applies only to transactions that occur after the relevant state has ratified its terms.20 Because few importing states have ratified the convention, its mechanism has received little use to date. “Cultural objects” are subject to this convention if two requirements are satis fied: (a) they “are of importance for archaeology, prehistory, history, literature, art or science” on “religious or secular grounds” and (b) they fall within one of the same 12 categories of protected items used in the earlier Cultural Property Convention.21 These requirements create a uniform international definition of a cultural object, in contrast to the earlier convention which allowed each state to define its scope. Under the Cultural Objects Convention, a court or other competent authority must order the return of a cultural object from a private owner if the request ing state establishes that the removal of the object from its territory “significantly impairs” one or more of these interests: (a) the physical preservation of the object or its context; (b) the integrity of a complex object; (c) the preservation of infor mation of a scientific or historical character; or (d) the traditional or ritual use of the object by a tribal or indigenous community.22 Alternatively, the authority may

16 Cultural Property Convention art 7(b)(ii). For example, in United States v Eighteenth Century Peruvian Oil on Canvas Painting, 597 F Supp 2d 618 (ED Va 2009), the United States seized two paintings from Peru that had been imported by a Bolivian citizen who held export permits from both Peru and Bolivia. 17 Cultural Property Convention art 7(b)(ii). 18 The export of a cultural object is deemed to be illegal under the convention if it violates a national law “regulating the export of cultural objects for the purpose of protecting its cultural heri tage.” Cultural Objects Convention art 1(b). 19 Cultural Objects Convention art 1. 20 Cultural Objects Convention art 10. 21 Cultural Objects Convention art 2. 22 Cultural Objects Convention art 5(1), (3).

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issue such an order if the requesting state “establishes that the object is of signifi cant cultural importance” to it.23 The owner who acquired an object after the illegal export and “neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported” is entitled to payment of reasonable compensation by the requesting state.24 The circumstances of the acquisition, including the absence of an export certificate, are considered in assessing whether the owner knew or should have known that the export was illegal.25 Because the Cultural Property Convention requires parties to prohibit the export of a cultural object without authorization, the seller of an illegally exported object will presumably lack the required certificate in most instances. The absence of this certificate would prob ably bar the purchaser from obtaining compensation. The provisions of the Cultural Objects Convention that require the return of a covered object constitute a derivative prohibition on property rights. In effect, the international standard is used to invalidate the title that the owner holds pursuant to municipal law, leaving the owner only with a claim for compensation.

(3) Stolen Objects The Cultural Objects Convention also addresses the issue of stolen cultural objects. A central goal of the convention is to reconcile the competing interests of (a) the owner whose cultural object has been stolen and (b) the good faith purchaser of that object in another state. Article 3 flatly provides that “[t]‌he possessor of a cultural object which has been stolen shall return it,”26 a standard that protects the property rights of the original owner. Viewed from the standpoint of the good faith possessor, the convention imposes a derivative prohibition―under inter national law, the possessor cannot retain title. This provision is controversial because it applies to objects that are not conven tionally viewed as “stolen.” For the purposes of the convention, a “stolen” object includes one that has been illegally excavated.27 Suppose A excavates an archaeo logical relic in violation of domestic law and sells the object to B, a private actor who purchases in good faith. B then exports the relic in compliance with domestic law to another state, where it is purchased by C, another private actor who buys in good faith. Under the convention, the state of origin is entitled to compel C to return the object. It is not necessary for that state to prove any of the factors required for the return of an illegally exported object, such as its ritual use by a tribe or its significant cultural importance. The requirement that the bona fide purchaser return a stolen object is coun terbalanced by the right to receive compensation under some circumstances. In

Cultural Objects Convention art 5(3). Cultural Objects Convention art 6(2). 27 Cultural Objects Convention art 3(2).

Cultural Objects Convention art 6(1). Cultural Objects Convention art 3(1).

23

24

25

26

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general, a purchaser is entitled to reasonable compensation if the purchaser (a) nei ther knew nor ought reasonably to have known that the object was stolen and (b) “exercised due diligence when acquiring the object.”28 A number of factors are considered to determine if the purchaser acted with due diligence, including the price paid and whether the purchaser consulted any accessible register of stolen objects or consulted relevant agencies.29

(4) Modification of Artistic Works International law recognizes that the creator of a painting, sculpture, or other artis tic work holds a right of integrity which states must protect under municipal law. This right empowers the creator to prevent any distortion, mutilation, or other modification of the work that would impair the creator’s honor or reputation. The right arises under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention);30 it is also protected by the International Covenant on Economic, Social and Cultural Rights (ICESCR).31 Although it does not have an economic character, this entitlement may be viewed as a specialized type of prop erty right because it authorizes an artist to control the use of the work. While the purpose of the right is to protect the creator, it has the practical effect of restricting the owner’s property rights in the work. In this situation, the derivative restriction imposed by international law means that the owner receives a type of usufruct, not full ownership. The owner cannot make any significant change in the work that would have a negative impact on its artistic integrity, because this would harm the reputation of the artist. For example, the Canadian case of Vaillancourt v Carbone 14 involved a sculpture consisting of ten totem poles that was erected on privately owned land; the land was sold to a new owner who caused about 80% of the work to be torn down and thrown away.32 The court reasoned that this partial destruction of the work was a form of mutila tion that was prohibited under the municipal law that Canada had adopted to comply with the Berne Convention, and awarded $125,000 in damages to the sculptor.

C. Contraband A series of treaties requires states to adopt domestic laws that criminalize the possession, transfer, or use of drugs, proceeds of crime, and other items that may be broadly characterized as “contraband.” In effect, international law Cultural Objects Convention art 4(1). Cultural Objects Convention art 4(4). Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) (Berne, September 9, 1886, 828 UNTS 221) art 6bis. 31 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3) art 15(1)(c). 32 [1999] RJQ 490. 28 29 30

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prohibits states from creating or recognizing property rights in such items. These provisions accordingly constitute derivative prohibitions on property rights. Most states are parties to the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.33 The convention requires parties to adopt legislation or other measures to criminalize conduct such as: (a) the posses sion of “narcotic drugs or psychotropic substances for personal consumption”;34 (b) the possession of such drugs or substances for the purpose of distribution or sale;35 and (c) the “acquisition, possession or use of property” knowing that it was derived from an offense under the convention.36 Similarly, such states must implement measures to enable the confiscation of drugs, substances, and equipment used in connection with such crimes, together with the proceeds derived from those crimes, unless this would prejudice the rights of bona fide third parties.37 Another example is the Convention against Transnational Organized Crime,38 which concerns proceeds received by an organized group from the commission of a serious transnational crime. Each member state must adopt measures to criminal ize the “acquisition, possession or use of property, knowing, at the time of receipt, that such property is the proceeds of crime.”39 In addition, each state is required to enact laws that facilitate the confiscation of both (a) the proceeds of crime from offenses covered by the convention and (b) “[p]‌roperty, equipment or other instru mentalities” used in or destined for use in covered offenses,40 unless such action harms bona fide third parties.41 The Convention against Corruption imposes similar requirements in the con text of government corruption.42 For example, it requires that each member state enact legislation to criminalize the acquisition, possession, or use of property with knowledge that such property is the proceeds of a crime covered by the conven tion.43 It also requires that member states implement domestic measures to permit the confiscation of the proceeds of specified crimes involving government corrup tion and the instrumentalities involved in such crimes.44

33 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, December 20, 1988, 1582 UNTS 165). 34 Convention against Illicit Traffic in Narcotic Drugs art 3(2). 35 Convention against Illicit Traffic in Narcotic Drugs art 3(1)(a). 36 Convention against Illicit Traffic in Narcotic Drugs art 3(1)(c). 37 Convention against Illicit Traffic in Narcotic Drugs arts 5(1), (8). 38 Convention against Transnational Organized Crime (New York, November 15, 2000, 2225 UNTS 209). 39 Convention against Transnational Organized Crime art 6(1)(b)(i). 40 Convention against Transnational Organized Crime art 12(1). 41 Convention against Transnational Organized Crime art 12(8). 42 Convention against Corruption (New York, October 31, 2003, 2349 UNTS 41). 43 Convention against Corruption art 23(1). 44 Convention against Corruption art 31.

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The Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition45 imposes a similar confiscation regime. It applies to firearms, ammunition, and related items that have been either manufactured in violation of domestic law or sold, transported, or other wise transferred across national boundaries in violation of the procedures estab lished by the convention. All member states must adopt measures to enable the confiscation of such items that have been illegally manufactured or trafficked.46 Moreover, such states are required to prevent unauthorized persons from taking possession of these illegal items by “seizing and destroying such firearms, their parts and components and ammunition unless other disposal has been officially authorized.”47

D. Diplomats and Property The principle that a state may not interfere with the personal property of diplo matic personnel has long been a norm of customary international law. This norm was codified and expanded by the Vienna Convention on Diplomatic Relations,48 which provides that the papers, correspondence, and other “property” of a dip lomatic agent, including a “private residence,” enjoy the same inviolability as the premises of a diplomatic mission.49 The property of a diplomatic agent is accord ingly “immune from search, requisition, attachment or execution.”50 Similarly, a state must permit the entry into its territory of “[a]‌rticles for the personal use” of such an agent or the agent’s family without any duties, taxes, customs, or similar charges.51 The “personal baggage” of a diplomatic agent is also exempt from inspec tion.52 Members of the family of a diplomatic agent forming part of the household enjoy the same rights.53 Members of the administrative and technical staff of a mission, together with their families forming their respective households, hold somewhat similar rights.54

45 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (Firearms Protocol) (New York, May 31, 2001, 2326 UNTS 211). 46 Firearms Protocol art 6(1). 47 Firearms Protocol art 6(2). 48 Vienna Convention on Diplomatic Relations (Vienna, April 18, 1961, 500 UNTS 95). 49 Convention on Diplomatic Relations art 30. The principal exception is that such an agent is not immune from jurisdiction in the case of a “real action relating to private immovable property situated in the territory of the receiving State.” Convention on Diplomatic Relations art 31(1)(a). 50 Convention on Diplomatic Relations art 22. In addition, like the premises of the mission, state agents may not enter the “private residence” of a diplomatic agent without consent. Convention on Diplomatic Relations art 30. 51 Convention on Diplomatic Relations art 36(1). 52 Convention on Diplomatic Relations art 36(2). 53 Convention on Diplomatic Relations art 37(1). 54 Convention on Diplomatic Relations art 37(2).

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E. Equipment (1) Aircraft and Railway Equipment (a) Generally Aircraft, trains, and other types of mobile equipment routinely cross national bor ders. It has often been difficult for creditors to enforce their security interests in such equipment, given the reality that the domestic laws governing such rights vary widely. Moreover, the traditional conflict of laws principle that applies the law of the forum state may impair the rights of creditors from other states. A creditor holding a security interest in an aircraft under the laws of state A, for example, could encounter obstacles in trying to enforce that interest if the validity or scope of that interest were determined by the law of state B, where the aircraft came to be located. The Convention on International Interests in Mobile Equipment (Cape Town Convention)55 establishes an international system for the creation and enforcement of security interests in mobile equipment such as aircraft and railway equipment. The main objective of the convention is to facilitate asset-based financing and leasing of such equipment by providing a uniform global regime to protect the interests of creditors. It is premised on the concept that a “sound, internationally adopted legal regime for security, title-retention and leasing interests will encourage the provision of finance and leasing and reduce its cost.”56 The convention utilizes an innovative structure. The basic provisions applicable to all forms of mobile equipment are set forth in the convention. However, the convention does not take effect until an industry-specific protocol, which contains specialized provisions to tailor the system to the needs of the particular industry, is adopted. With the ratification of the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Aircraft Protocol)57 in 2006, the provisions governing aircraft equipment came into force. Additional protocols governing railway equipment58 and space assets59 have been negotiated, but are not yet in force. The convention has three core features. First, it creates an “international inter est” in mobile equipment. Second, it establishes a global system for registering such

55 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285). For a comprehensive analysis of the convention, see Roy Goode, Convention on International Interests in Mobile Equipment and Protocol thereto on Matters Specific to Aircraft Equipment: Official Commentary (rev edn, International Institute for the Unification of Private Law 2008). 56 Goode, Official Commentary 12. 57 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Cape Town, November 16, 2001, 2367 UNTS 517). 58 See discussion later in this chapter. 59 See the discussion in ch 8 H(6).

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interests. Finally, it provides the interest holder with a series of remedies in the event of default. An “international interest” is defined as an interest in “a uniquely identifiable object” of aircraft equipment, railway rolling stock, or space assets that is (i) given to a creditor under a security agreement, (ii) retained by the seller under a title reservation agreement, or (iii) retained by the lessor under a lease.60 Thus, in addition to formal security interests, the convention applies to rights that arise out of sale or lease trans actions but serve the function of security interests. The agreement creating such an interest must be in writing, relate to an object which the interest holder has the power to dispose of, adequately identify the object, and allow the amount of any secured obligation to be determined.61 The priority of international interests is determined by a first-in-time system. A reg istered interest has priority over: (i) any other interest subsequently registered; and (ii) an unregistered interest, even if the holder of the first-registered interest had actual knowledge of that unregistered interest.62 The convention also applies to the sale or lease of covered equipment, protecting the buyer or lessee from unregistered or subse quently registered interests.63 The registration system established under the convention is a remarkable achieve ment―an international mechanism for defining and coordinating security inter ests among private actors, independent of municipal laws. It is the first global title system for any form of property rights. Although the system necessarily focuses on the registration of security interests, to the extent that it allows the registration of a seller’s interest under a title reservation agreement it serves as an ownership registry. Assignments, subordinations, and other transfers of international interests may also be registered.64 The convention mandates “an efficient notice-based electronic regis tration system”65 that is “made searchable in chronological order of receipt.”66 This is intended as a public system that can be quickly searched over the internet by potential creditors or other interested parties. In the event of default, the convention provides that the creditor may take posses sion of the object, receive any income from it, and/or sell or lease it.67 If the security agreement so provides, the creditor may utilize self-help to exercise these remedies, as long as this is done in a “commercially reasonable manner.”68 Alternatively, the creditor may apply to a national court for an order authorizing one or more of these remedies. In a similar manner, the conditional seller or lessor may terminate the

60 Cape Town Convention art 2(2). A detailed discussion of equipment leasing is beyond the scope of this book. 61 Cape Town Convention art 7. 62 Cape Town Convention art 29(1), (2). 63 Cape Town Convention arts 29(3), 41. 64 Cape Town Convention art 16(1). 65 Cape Town Convention art 17(2)(i). 66 Cape Town Convention art 18(4). 67 Cape Town Convention art 8(1). 68 Cape Town Convention art 8(2).

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agreement if a default occurs and take possession of the object through self-help or pursuant to a court order.69

(b) Aircraft Equipment The Aircraft Protocol applies the convention regime to “aircraft objects,” which include most airframes, aircraft engines, and helicopters.70 The international regis try contemplated by the convention began operation in 2006 and has handled up to 60,000 electronic registrations each year through the internet. The Aircraft Protocol adds new provisions to implement the sales component of the Cape Town Convention by allowing the registration of both a “contract of sale” and a prospective sale. A contract that is in writing, relates to an aircraft object that the seller has the power to dispose of, and enables the aircraft object to be identified may be registered in the international registry.71 Such a contract “transfers the interest of the seller in the aircraft object to the buyer according to its terms.”72 Consistent with the convention, the buyer of an aircraft object under a registered contract of sale obtains title free from a subsequently registered inter est and free from an unregistered interest, even if the buyer has actual knowledge of the unregistered interest.73 However, the protocol makes it clear that the buyer takes title subject to any previously registered interest.74 The expansion of the reg istry contemplated by the Cape Town Convention to include contracts of sale is a major change. It further extends the scope of the system beyond security interests and into the regime of ownership.

(c) Railway Equipment The Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock75 (Luxembourg Protocol) was negotiated in 2007, and is not yet in force. It largely follows the text of the Aircraft Protocol, deviating only as necessary to adjust its provisions to deal with railway equipment. One important difference is that the Luxembourg Protocol adds a special public service exemption.76 Trains are commonly used for both public transportation and shipment of freight. A creditor’s decision to take possession of such equipment upon default could interfere with vital services. The protocol allows a state to adopt a declaration that limits the creditor’s rights in “railway rolling stock habitually Cape Town Convention art 10. Aircraft Protocol arts I(2)(c), II(1). For a comprehensive analysis of the Aircraft Protocol, see Goode, Official Commentary. 71 Aircraft Protocol arts III, V(1). 72 Aircraft Protocol art V(2). 73 Aircraft Protocol art XIV(1). 74 Aircraft Protocol art XIV(2). 75 Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (Luxembourg, February 23, 2007, 46 ILM 662). 76 Luxembourg Protocol art XXV. 69 70

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used for the purpose of providing a service of public importance.”77 If a default occurs, a state or other governmental entity may take possession of this equipment and continue to operate it, but must (i) preserve and maintain it and (ii) pay the creditor either the “market lease rental” or such other amount as the state may establish, whichever is greater.78 A second difference is that the Luxembourg Protocol does not apply to contracts of sale, although it allows the registration of “notices of sale.”79 It specifies that such a notice is for “information only” and does not “affect the rights of any person, or have any other effect, under the Convention or this Protocol.”80 It is possible, however, that such registration might be deemed to give notice of a sale under the domestic laws that govern the priority of creditor’s rights.

(d) Future Expansion The Cape Town Convention and its protocols are widely hailed as a successful example of legal harmonization. As Roy Goode has observed: “The creation of a sui generis international interest and of an International Registry in which to register it for priority purposes are both unique in the history of international lawmaking.”81 It appears likely that this framework will be extended to other types of equipment. The concept that private actors can obtain direct property rights in objects that are located within the territory of sovereign states―solely as a matter of international law―is revolutionary. The convention is one of the clearest exam ples to date of an instance where international law can be said to create property rights. Accordingly, it raises the broader issue of where this technique might be utilized in the future, considering the factors that have contributed to its success. The types of equipment subject to this regime to date―aircraft, rail way equipment, and space assets―are relatively expensive; this creates a need for asset-based financing. Because these assets are inherently mobile, a uniform regime is essential for the protection of secured creditors. Finally, the parties involved in these transactions tend to be sophisticated business entities, and special consumer protections are accordingly unnecessary. Looking forward, the convention approach could be applied―at a minimum―to other types of mobile equipment where similar factors are present, such as commercial trucks, cargo containers, and oil rigs. More fundamentally, the registration system contemplated by the Cape Town Convention, and already implemented under the Aircraft Protocol, comes close to being an international title system for aircraft objects that covers not only security interests and pending contracts, but also extends to ownership itself―a Luxembourg Protocol art XXV. Luxembourg Protocol art XXV. 79 Luxembourg Protocol art XVII. 80 Luxembourg Protocol art XVII. 81 Goode, Official Commentary 1. 77 78

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comprehensive global regime for registering titles to movable assets. It is generally accepted that a notice-based registry is an efficient and cost-effective system for protecting the rights of secured creditors and other parties. Such a system might be expanded over time to include other types of movable assets, either within the Cape Town Convention framework or outside of it.

(2) Other Equipment An alternative approach for protecting security interests in the international con text is embodied in the Legislative Guide on Secured Transactions issued by the UN Commission on International Trade Law,82 a soft law instrument. It encom passes all forms of security interests, including financial leases and security agree ments whereby a seller retains title, and it applies to most types of tangible objects, including equipment, inventory, and related business assets. However, its provi sions do not apply to rights in assets that are subject to other international regimes, such as aircraft, railroad equipment, space assets, and vessels.83 The guide consists of detailed recommendations that are designed to assist states in formulating modern secured transactions laws that are harmonized with the laws of other states. It offers legal approaches that can be implemented in states “with divergent legal traditions,” including the civil law, common law, Chinese and Islamic traditions.84 Unlike the Cape Town Convention, the guide envisages a “purely domestic regime” for each state, one that is as similar as possible to paral lel regimes in other states.85 To the extent that such harmonization is incomplete, the guide recommends a conflict of laws approach to resolve disputes that involve parties from multiple states. The recommendations in the guide are based on certain core principles. Each state should adopt comprehensive rules that govern all forms of security transac tions, all potential types of parties, and all types of movable assets; it should also provide for security rights in the future assets of a grantor, and extend such rights into proceeds from the sale or other transfer of assets. A state should establish a general security rights registry. Multiple security rights should be permitted in the same asset, and priority among multiple security rights should be determined by the order of registration or some other predictable method. The parties should be free to design their own security agreements, regardless of the numerus clausus principle. Finally, secured creditors should be permitted to enforce their rights without judicial process.86

82 UN Commission on International Trade Law, Legislative Guide on Secured Transactions (December 14, 2007). 83 Legislative Guide on Secured Transactions 39. 84 Legislative Guide on Secured Transactions 1. 85 Legislative Guide on Secured Transactions 2. 86 Legislative Guide on Secured Transactions 23–26.

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F. Hazardous and Toxic Substances (1) Generally A series of modern treaties regulates the possession, use, and transfer of hazardous and toxic substances―ranging from chemicals to genetically modified organisms to firearms―most commonly in order to protect human health and the environ ment. Analyzed from a property law perspective, these treaties impose derivative restrictions and prohibitions on the property rights held by private actors.

(2) Hazardous Wastes One example of derivative restrictions on ownership stems from the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention),87 which creates an international regime that limits the scope of an owner’s right to use and transfer hazardous wastes. The covered substances include both wastes from certain production processes (eg manufac turing explosives, paint, and pharmaceuticals) and wastes that contain particu larly dangerous substances (eg arsenic, lead, and mercury).88 “Wastes,” in turn, are defined as substances or objects that are “disposed of,” intended to be disposed of, or required to be disposed of under domestic law.89 Yet wastes may have value as raw materials for recycling activities, particularly in developing counties. The convention creates a prior informed consent system for the transboundary movement of covered wastes from the territory of the exporting state to or through the territory of an importing state or transit state. In general, the exporting state must ensure that advance notification is provided to the importing state about the nature of the particular wastes that will be exported.90 It may not author ize the export until it has received both (a) the written consent of the importing state and (b) confirmation of the existence of a contract between the exporter and the disposer that requires “environmentally sound management” of the wastes.91 Moreover, an owner may transport covered wastes across a national border only under narrow circumstances, such as where the exporting state does not have the technical capacity to dispose of the wastes properly or the wastes will be used as raw materials for recycling or recovery in the importing state.92 In addition, the convention bars the export of covered wastes to both (a) any state that has prohibited the import of such wastes and (b) the Antarctic region.93 Most African states, for example, are parties to the Convention on the Ban of the 87 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, March 22, 1989, 1673 UNTS 75). 88 Basel Convention annex I. 89 Basel Convention art 2(1). 90 Basel Convention art 6(1). 91 Basel Convention art 6(3). 92 Basel Convention art 4(9). 93 Basel Convention arts 4(1), (6).

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Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, which bans the import of hazardous wastes in the region.94 An amendment to the Basel Convention that would prohibit the export of such wastes from developed states to developing states for any purpose― including recycling―has been ratified by many states, but is not yet in force.

(3) Toxic Chemicals The first major instrument to regulate the production, consumption, and trans portation of chemical substances was the Montreal Protocol on Substances that Deplete the Ozone Layer.95 It required all states to reduce their production and consumption of chlorofluorocarbons (CFCs) and other ozone-depleting chemicals in phases under a set timetable. For example, it mandated that each developed nation reduce its consumption and production of most CFCs to zero by 1996.96 In later protocols, additional chemicals were added to the regime and the timetables were accelerated. Within a few years, the consumption and production of all the chemicals covered by the protocol will be banned. From the perspective of prop erty law, the protocol imposed derivative restrictions on the ability of private actors to transfer and use covered chemicals. Another notable effort to regulate chemicals at the international level is the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade,97 which reflects both the harmonization and restriction modalities. The chemical review committee established under the convention is empowered to create a list of particularly dan gerous chemicals. In this process, the committee considers recommendations from member states that have banned or severely restricted certain chemicals under their domestic laws in order to protect human health or the environment. Currently listed chemicals include asbestos compounds, DDT, mercury compounds, PCBs, and forms of lead.98 Once a chemical has been listed, each member state must determine whether to permit its future importation.99 A state is free to permit such imports based on its own circumstances and interests. However, states have tended to respect the international consensus that a ban is appropriate, leading to a certain degree of harmonization. After a chemical is listed, each state must ensure that private actors within its territory do not export it to a state that has chosen to prohibit such imports.100

94 Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako, January 30, 1991, 30 ILM 773). 95 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal, September 16, 1987, 1513 UNTS 3). 96 Montreal Protocol art 2A. 97 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam, September 10, 1998, 2224 UNTS 337). 98 Rotterdam Convention annex III. 99 Rotterdam Convention art 10. 100 Rotterdam Convention art 11.

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More recently, the Stockholm Convention on Persistent Organic Pollutants101 imposed stringent regulations on certain organic chemicals. The covered sub stances are particularly dangerous because they (a) remain intact for lengthy peri ods, (b) bioaccumulate in the tissue of organisms, and (c) are toxic to humans and other species. The convention requires member states to prohibit the production and use of these chemicals, with narrow exceptions.102 In addition, it allows a party to import a covered chemical only for the purpose of “environmentally sound disposal” or for one of the few permitted uses, and imposes similar restrictions on exports.103 While the convention does not ban the possession of such substances by private actors, it imposes restrictions on the use and transfer of such substances which amount to a virtual prohibition.

(4) Genetically Modified Organisms The Cartagena Protocol on Biosafety to the Convention on Biological Diversity104 requires that member states impose derivative restrictions on ownership of any “living modified organism.” This is defined as “any living organism that possesses a novel combination of genetic material obtained through the use of modern bio technology.”105 Each party must take measures to ensure that the “development, handling, transport, use, transfer and release of any living modified organisms” by private or state actors are implemented in a manner that prevents or reduces the risks to biological diversity and human health.106 These measures must, inter alia, “prevent unintentional transboundary movements” of covered organisms.107 The heart of the protocol is an import–export regime much like the system for hazardous wastes under the Basel Convention. The importing state must give informed consent before the transboundary movement of any living modified organisms that are intended to be introduced into its environment, unless such organisms are intended for direct use as food or feed, or in processing.108 The exporting state is required to give advance notice of an intended movement to the importing state; the importing state will then approve or prohibit the import in a written decision, or request additional information.109 The importing state may deny import permission in order to avoid potential adverse effects, even where there is a lack of scientific certainty on the issue.110

101 Stockholm Convention on Persistent Organic Pollutants (Stockholm, May 22, 2001, 2256 UNTS 119). 102 Stockholm Convention art 3(1). 103 Stockholm Convention art 3(2). 104 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena, January 29, 2000, 39 ILM 1027). 105 Cartagena Protocol art 3(g). 106 Cartagena Protocol art 2(2). 107 Cartagena Protocol art 16(3). 108 Cartagena Protocol art 7. 109 Cartagena Protocol arts 8, 10. 110 Cartagena Protocol arts 10, 15.

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G. Household Possessions Ownership of household possessions such as clothing, furniture, and other per sonal items is protected by international human rights law. ICESCR Article 11.1 acknowledges the right of each person “to an adequate standard of living for him self and his family, including adequate . . . housing.”111 Similarly, Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that no person shall be subject to “arbitrary or unlawful interference with his . . . home.”112 It is generally accepted that these provisions protect not only the family home but also the possessions within it. In addition, the American Convention on Human Rights (ACHR),113 the ASEAN Human Rights Declaration,114 and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)115 contain specific provisions that expressly protect the home―and, by extension, household possessions― in addition to the general right to property. For example, the ECHR states that “[e]‌veryone has the right to respect for his private and family life, his home and his correspondence.”116 The African Charter on Human and Peoples’ Rights117 has also been interpreted as creating a right to housing.118 Interference with property rights in household possessions sometimes occurs during police or security operations. In the Barrios Family v Venezuela case, the Inter-American Court held that the seizure of “household appliances, money, medicines, clothes and articles of personal hygiene” by police agents during the illegal search of a home violated the right to property under the ACHR.119 A num ber of other decisions by human rights tribunals have similarly held that looting or destruction of household items by state actors violated the right to property.120 Refugees and displaced persons who flee their homes due to armed conflicts or natural disasters are unable to protect the household possessions they left behind. In this context, the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons provide that each person has both “the right to the peaceful enjoyment of his or her possessions” and “the right to have restored ICESCR art 11.1. International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171) art 17(1). 113 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123) art 11(2). 114 ASEAN Human Rights Declaration (November 18, 2012) (reprinted in 32 Human Rights LJ 219 (2012)) art 28(a). 115 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 231 UNTS 221) art 8. 116 ECHR art 8(1). 117 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 118 Social and Economic Rights Action Center v Nigeria Comm no 155/96 (ACmHPR, October 27, 2001). 119 Barrios Family v Venezuela Series C no 237 (IACtHR, November 24, 2011) para 149. 120 See eg Institute for Human Rights v Angola Comm no 292/04 (ACmHPR, May 22, 2008) (loot ing); Sudan Human Rights Organisation v Sudan, Comm no 279/03-296/05 (ACmHPR, May 27, 2009) (destruction). 111 112

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to them any . . . property of which they were arbitrarily or unlawfully deprived.”121 The principles call on states to adopt measures to prevent the “looting of contested or abandoned housing” and to provide restitution where covered property has been taken or destroyed.122

H. Humans and Body Parts (1) Generally A fundamental precept of international law is that a state may not recognize prop erty rights in human beings. In the Case of Barcelona Traction, Light and Power Company, Ltd,123 the International Court of Justice noted that erga omnes obliga tions arose as a matter of customary law “from the principles and rules concerning the basic rights of the human person, including protection from slavery.”124 The prohibition of slavery is embodied in both customary and conventional law. From the perspective of property law, the ban on slavery is a derivative prohibition. Advances in medical technology during the twentieth century raised a new issue: to what extent does international law recognize property rights in human organs, tissues, and other body parts?125 The global shortage of organs and tissue for transplantation results in thousands of deaths each year. It is widely accepted that voluntary donation of such body parts to save human lives should be encour aged. In this sense, the law recognizes that the donor has the right to control the disposition of body parts―at least short of suicide―and this has been viewed in some states as a form of property right. It is less clear whether a person should have the right to sell body parts. International law seems to be moving toward a ban on the sale of body parts; such a ban would restrict an owner’s right to transfer such property, and thus constitute a derivative restriction.

(2) Prohibition of Slavery The first major treaty to address this issue was the 1926 Convention to Suppress the Slave Trade and Slavery (Slavery Convention),126 negotiated under the super vision of the League of Nations. Defining slavery as “the status or condition of a 121 UN Sub-Commission on the Protection and Promotion of Human Rights, Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc E/CN.4/ Sub.2/2005/17 (June 28, 2005) (Pinheiro Principles) principles 2.1, 7.1. 122 Pinheiro Principles 2.1, 20.4, 21. 123 (Belgium v Spain) 1970 ICJ Rep 3 (February 5). 124 Barcelona Traction, Light and Power Company 32. 125 “Body parts” as used above connotes organs, tissue, and other portions of the human body that cannot be replenished. Thus, this section does not address property rights in blood, hair, and other parts that are replenished; these may be sold or otherwise transferred under the domestic law of many states. 126 Convention to Suppress the Slave Trade and Slavery (Geneva, September 25, 1926, 60 LNTS 253).

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person over whom any or all of the powers attaching to the right of ownership are exercised,”127 it directed all member states to “bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.”128 It further required the parties to suppress the slave trade, including all acts involved in the (a) acquisition of a slave and (b) disposal by sale or exchange of a slave.129 Yet slavery and practices similar to slavery continued to exist in parts of the world. Accordingly, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery130 was negotiated under the auspices of the UN Economic and Social Council. It required member states to adopt domestic legislation providing that (a) enslaving another person or (b) conveying a slave from one country to another would be a criminal offense.131 In addition, adopting the definition from the Slavery Convention that slav ery included “any . . . of the powers attaching to the right of ownership,” the sup plementary convention prohibited certain slavery-like practices. It banned debt bondage―the practice of allowing a person to “pledge . . . his personal services . . . as security for a debt,” thus effectively placing a lien on a human being.132 It also abol ished serfdom, defined as the “status of a tenant who is by law, custom or agree ment” required to live and work on land owned by another.133 Finally, it proscribed practices by which a woman could be (a) given in marriage without her consent in return for consideration, (b) transferred by her husband or his family to another for consideration, or (c) inherited by another person upon her husband’s death.134 More recently, the ICCPR expressed the prohibition in an absolute form: “No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.”135 Yet slavery persists, as evidenced by the 2008 decision in the case of Korauo v Niger.136 At the age of 12, plaintiff Korauo was sold to a 46-year-old man “in the context of wahiya, a practice . . . which consists of acquiring a young girl, generally under conditions of servitude, for her to serve both as domestic servant and concubine.”137 When the plaintiff eventually left the household under a pretext and married someone else, the master filed a bigamy lawsuit against her, claiming that she was his wife. Having been sentenced to prison, the plaintiff sued Niger in the Community Court of Justice of the Economic Community of West African States. The court held that Niger had violated the Slavery Convention, the Slavery Convention art 1(1). Slavery Convention art 2(b). 129 Slavery Convention arts 1(2), 2(b). 130 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Supplementary Convention) (Geneva, September 7, 1956, 266 UNTS 3). 131 Supplementary Convention arts 3, 6. 132 Supplementary Convention art 1(a). 133 Supplementary Convention art 1(b). 134 Supplementary Convention art 1(c). 135 ICCPR art 8(1). “Enslavement” when committed as part of a widespread or systematic attack directed against a civilian population is a war crime. Rome Statute of the International Criminal Court (Rome Statute) (Rome, July 17, 1998, 2187 UNTS 90) art 7(1)(c). 136 (2008) AHRLR 182 (ECOWAS 2008). 137 Korauo para 9. 127 128

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ICCPR, and other human rights treaties by failing to protect the plaintiff from slavery. It observed: “Even with the provision of square meals, adequate clothing and comfortable shelter, a slave still remains a slave if he is illegally deprived of his freedom through force or constraint.”138

(3) Sale of Body Parts A number of nonbinding international instruments and binding regional regimes seek to prohibit the sale of human organs and tissue. For example, the Guiding Principles on Human Cell, Tissue and Organ Transplantation issued by the World Health Organization provide that “[p]‌urchasing, or offering to purchase, cells, tissues or organs for transplantation, or their sale by living persons or by the next of kin for deceased persons, should be banned.”139 Conventions adopted by member nations of the Council of Europe endorse the same principle.140 Finally, the European Union has enacted Directive 2010/45/EU, which provides that “Member States shall ensure that donations of organs from deceased and living donors are voluntary and unpaid.”141 A joint study by the United Nations and the Council of Europe found “a remarkable consensus that trafficking in organs and tissues is heinous, unethical and illicit.”142 It recommended that an international legal instrument be negoti ated, based on “the principle of the prohibition of making financial gains with the human body or its parts.”143 Although this has not yet been accomplished, it appears likely that international law will eventually prohibit the sale of body parts, just as it prohibited slavery. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the Convention against Transnational Organized Crime,144 prohibits trafficking in persons for the purpose of removing organs―which indirectly restricts the sale of such organs. The protocol requires each party to adopt legislation and other measures to provide that such “traffick ing in persons” is a criminal offense.145 Under the protocol, “trafficking in per sons” is defined to include the recruitment of persons by means of “the giving or Korauo para 79. World Health Organization, Guiding Principles on Human Cell, Tissue and Organ Transplantation, Resolution WHA63.22 (May 21, 2010) principle 5. 140 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo, April 4, 1997) art 1; Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin (Strasbourg, January 24, 2002) arts 21, 22. 141 Council Directive 2010/45/EU of July 7, 2010 on standards of quality and safety of human organs intended for transplantation [2010] OJ L207/14 art 13(1). 142 United Nations/Joint Council of Europe, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of Removal of Organs (2009) 96. 143 United Nations/Joint Council of Europe, Trafficking in Organs, Tissues and Cells 96–97. 144 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol) (New York, November 15, 2000, 2237 UNTS 319). 145 Trafficking Protocol arts 3(a), 5(1). 138 139

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receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”; exploitation in this context includes the removal of organs.146 Despite the title of the underlying convention, it is not necessary that such trafficking behavior be either (a) transnational or (b) by an organized criminal group.

I. Intergovernmental Organizations and Property (1) Generally Hundreds of intergovernmental organizations have arisen in recent decades. In this context, an intergovernmental organization (IGO) is an international organization (a) whose members consist of states and (b) which performs quasi-governmental functions. Examples include the United Nations and its specialized agencies, the International Monetary Fund, the International Criminal Court, and the Inter-American Tropical Tuna Commission. Given its international character, an IGO cannot be subject to the municipal laws of any state. It is generally accepted that the international legal personality of an IGO―including its privileges and immunities―is conferred upon it by states, typically through a treaty or similar instrument. The property rights of an IGO accordingly arise under international law, not municipal law.147

(2) Rights of Organizations The nature and scope of property rights held by an IGO in tangible objects and other items vary depending on the particular treaty or other instrument involved. However, because such instruments are often based on the Convention on the Privileges and Immunities of the United Nations,148 a certain amount of similar ity is evident. The convention provides that the UN shall have the capacity “to acquire and dispose of immovable and movable property.”149 It then creates seven special protections: (a) UN property is immune from any form of legal process unless this right is waived; (b) this property is immune from search, requisition, confiscation, and expropriation; (c) this property is immune from “any other form of interference, whether by executive, administrative, judicial or legislative action”; (d) the UN premises are inviolable; (e) the archives of the UN and all documents belonging to it are inviolable; (f ) the UN may hold and transfer funds, gold, and Trafficking Protocol art 3(a). eg Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 428, noting that assets held by certain IGOs “are forms of property title to which is not derived from any system of municipal law.” 148 Convention on the Privileges and Immunities of the United Nations (New York, February 13, 1946, 1 UNTS 16). See also the Convention on the Privileges and Immunities of the Specialized Agencies (New York, November 21, 1947, 33 UNTS 261). 149 Convention on the Privileges and Immunities of the United Nations art I(1)(b). 146 147

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currency without being subjected to financial controls, regulations, or moratoria; and (g) the assets, income, and property of the UN are exempt from taxes and customs duties.150 Taken together, these provisions largely insulate property owned by the UN from municipal laws. The continuing influence of this convention on the property rights of IGOs was reflected 50 years later in the 2002 Agreement on the Privileges and Immunities of the International Criminal Court,151 which sets forth the same protections in virtually identical language.152 In contrast, an IGO whose responsibility is farther removed from a core govern ment function typically enjoys less protection for property rights. For example, the Articles of Agreement for the World Bank153 provide that it has the capacity to acquire and to dispose of immovable and movable property, but then restrict the scope of protection afforded to its property. Echoes of the UN convention can be seen in provisions that specify that the bank’s property will be immune from requisition, confiscation, expropriation or other seizure, and from taxation, and that its archives are inviolable.154 However, the protection against legal process is more nuanced; the bank’s property is immune from seizure, attachment, or execu tion only “before the delivery of a final judgment against the Bank.”155 The bank’s property is to be free from restrictions, regulations, controls, and moratoria of any kind, but only to “the extent necessary to carry out the operations provided for in this Agreement.”156 Accordingly, property owned by the bank is subject to munici pal laws to some degree. Due to the historic lack of property law doctrines at the international level, the interpretation of such instruments may be problematic. Because there is no inter nationally accepted definition of “property,” references to “immovable and mov able property” in the UN convention and similar instruments are ambiguous. For instance, it may be unclear whether contracts or governmental licenses can be the subject of property rights held by an IGO. Municipal laws differ on this question, suggesting the need for an international standard. Similarly, the notion that the property of an IGO cannot be subject to any regulation by a state must be viewed as overbroad. Despite the substantial latitude that must be accorded to an IGO in order for it to function in diverse economic and political settings, it cannot have the right, for instance, to utilize its property in a manner that threatens the lives or property of others. A state may not permit its territory to be used so as to injure people or property located in another state,157 and it would be illogical to accord greater rights to an IGO.

Convention on the Privileges and Immunities of the United Nations art II. Agreement on the Privileges and Immunities of the International Criminal Court (ICC Agreement) (New York, September 9, 2002). 152 ICC Agreement arts 2, 4, 6, 7, 8, 10. 153 International Bank for Reconstruction and Development, Articles of Agreement (as amended effective February 16, 1989). 154 Articles of Agreement for the World Bank arts VII(4), (5), (9). 155 Articles of Agreement for the World Bank art VII(3). 156 Articles of Agreement for the World Bank art VII(6). 157 See discussion in ch 6H. 150 151

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(3) Rights of Agents and Employees The instrument that establishes the property rights of an IGO may also protect the property of its agents, employees, and others, in much the same way that the prop erty of diplomats is protected. The Convention on the Privileges and Immunities of the United Nations provides that representatives of member states to UN organs or to UN conferences will enjoy (a) immunity from seizure of their personal bag gage, (b) inviolability for all papers and documents, and (c) in general, such other privileges and immunities relating to property “as diplomatic envoys enjoy.”158 Lesser protection is accorded to experts performing missions for the UN; only their personal baggage, papers, and documents are shielded from state action.159 Another example is the Agreement on the Privileges and Immunities of the International Criminal Court, which provides that representatives of states attend ing meetings of the Assembly of States Parties to the Statute will have essentially the same rights with respect to property as do representatives of member states to UN organs and conferences.160 In addition, the agreement provides protection for the personal baggage and documents of judges, prosecutors, defense counsel, wit nesses, experts, and others performing functions for the court.161

J. War and Property (1) Generally The laws of war restrict the authority of a hostile state to destroy or seize property owned by private actors. In particular, the Hague Convention with Respect to the Laws and Customs of War on Land (1899 Hague Convention),162 the Hague Convention Respecting the Laws and Customs of War on Land (1907 Hague Convention),163 the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV),164 and its Protocol Additional Relating to the Protection of Victims of International Armed Conflicts (Geneva Protocol I)165 establish a framework to safeguard private property to the extent rea sonably feasible during war. Limited protection is also accorded to such property during domestic armed conflicts pursuant to the Protocol Additional Relating to 158 Convention on the Privileges and Immunities of the United Nations art 11. See discussion above on property of diplomats. 159 Convention on the Privileges and Immunities of the United Nations art 22. 160 ICC Agreement art 13. 161 ICC Agreement arts 15, 16, 18, 19, 21. 162 Hague Convention with Respect to the Laws and Customs of War on Land (The Hague, July 29, 1899). 163 Hague Convention Respecting the Laws and Customs of War on Land (The Hague, October 18, 1907). 164 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, August 12, 1949, 75 UNTS 287). 165 Protocol Additional Relating to the Protection of Victims of International Armed Conflicts (Geneva, June 8, 1977, 1125 UNTS 3).

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the Protection of Victims of Non-International Armed Conflicts (Geneva Protocol II).166 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention)167 and its protocols establish special protections for cultural property held by states or private actors during armed con flicts. These treaties exemplify the protection modality of international property law, in that they restrict the authority of a state to interfere with property rights created under municipal law.

(2) Destruction (a) Overview The Regulations Concerning the Laws and Customs of War on Land (Hague Regulations), an annex to the 1907 Hague Convention, recognize the general principle that it is forbidden to destroy enemy property unless it is “imperatively demanded by the necessities of war.”168 In addition, any attack on or bombard ment of undefended towns, dwellings, or other buildings is prohibited.169 The property of institutions dedicated to religion, charity, education, or the arts and sciences is similarly protected against destruction or willful damage.170 More broadly, Geneva Protocol I prohibits direct attacks on “civilian objects.”171 In this setting, a civilian object is defined as any object―in effect, any movable or immovable thing―that is not a “military objective.”172 “Military objectives” are “objects which by their nature, location, purpose or use make an effective contri bution to military action and whose total or partial destruction, capture or neu tralization, offers a definite military advantage under the circumstances.”173 Any tangible or immovable item owned by a private actor may not be directly attacked unless it can be classified as a military objective.174 The protocol also prohibits any attack that may be expected to cause damage to civilian objects that would be excessive “in relation to the concrete and direct military advantage anticipated.”175 In addition, Geneva Protocol I provides special protection for property that is essential to the survival of the civilian population during an international armed conflict. It is prohibited to “attack, destroy, remove or render useless objects 166 Protocol Additional Relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, June 8, 1977, 1125 UNTS 609). 167 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, May 14, 1954, 249 UNTS 240). 168 Hague Regulations art 23(g). In addition, extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, is classified as a war crime. Rome Statute art 8(2)(a)(iv). 169 Hague Regulations art 25; Geneva Protocol I art 59(1). 170 Hague Regulations art 56; 1899 Hague Convention art 56. 171 Geneva Protocol I art 52(1). 172 Geneva Protocol I art 52(1). 173 Geneva Protocol I art 52(2). Such conduct is also a war crime. Rome Statute art 8(2)(b)(ii). 174 Reprisals against civilian property are also prohibited. Geneva Convention IV art 33. 175 Geneva Protocol I art 51(5)(b). Such conduct also constitutes a war crime. Rome Statute art 8(2)(b)(iv).

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indispensable to the survival of the civilian population, such as food-stuffs, agricul tural areas for the production of food-stuffs, crops, livestock, drinking water instal lations and supplies and irrigation works” for the purposes of either (a) denying their sustenance value to the civilian population or (b) inducing the population to move out of the region.176 Geneva Protocol II, which applies to non-international armed conflicts, contains a similar prohibition.177 When active warfare ceases and territory is occupied by a hostile state, private property is entitled greater protection against destruction. Geneva Convention IV specifies that an occupying power may not destroy “real or personal property” that belongs individually or collectively to individuals or to social or cooperative organizations, unless such destruction is “rendered absolutely necessary by military operations.”178

(b) Cultural Property A series of post-World War II treaties has created a regime for comprehensive protection of cultural property during armed conflicts. In this context, “cultural property” refers to movable or immovable things that have “great importance to the cultural heritage of every people,” such as monuments of architecture, art, or history; works of art; manuscripts, books, and other objects of artistic, histor ical, or archaeological interest; and scientific collections.179 Under the 1954 Hague Convention, a state may not commit any act of hostility directed against cultural property, except where military necessity imperatively requires a waiver of protec tion.180 Nor may a state use such property or its immediate surroundings for pur poses that are likely to expose it to destruction or damage during armed conflict, absent imperative military necessity.181 In addition, a state is required to prevent “any acts of vandalism directed against cultural property.”182 In 1999, the Second Protocol183 to the Convention imposed more specific limits on military operations that endanger cultural property. A state must avoid launch ing an attack that may be expected to cause incidental damage to such property that would be “excessive in relation to the concrete and direct military advantage anticipated.”184 Similarly, an attack must be cancelled or suspended if it becomes apparent that its object is protected cultural property, and the likely incidental Geneva Protocol I art 54(2). Geneva Protocol II art 14. In addition, “destroying or seizing the property of an adversary” dur ing a domestic armed conflict is a war crime unless “imperatively demanded by the necessities of the conflict.” Rome Statute art 8(2)(e)(xii). 178 Geneva Convention IV art 53. 179 1954 Hague Convention art 1. 180 1954 Hague Convention art 4. See also Geneva Protocol I art 53 (prohibiting acts of hostility against “historic monuments, works of art or places of worship that constitute the cultural or spiritual heritage of peoples”). 181 1954 Hague Convention art 4. 182 1954 Hague Convention art 4(3). 183 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, March 26, 1999, 2253 UNTS 212). 184 Second Protocol art 7(c). 176 177

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damage to the property would be excessive when compared to the military bene fits of the attack.185 Finally, “enhanced protection” is afforded to cultural property that an international committee has concluded (i) has “the greatest importance for humanity,” (ii) is protected by domestic law which recognizes its exceptional value, and (iii) is not and will not be used for military purposes.186 Each state must refrain from attacking cultural property under such enhanced protection unless the prop erty, by its use, has become a military objective. In this situation, the property may be attacked if this is the only feasible means of terminating the use, the attack is ordered at the highest level of operational command, appropriate advance notice is given, and other restrictive criteria are met.187 Geneva Protocol II seeks to protect cultural property during domestic armed conflicts. It prohibits “any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”188

(3) Seizure (a) Overview A substantial body of international law restricts the seizure of property owned by private actors when national territory is occupied by a hostile state. In this situ ation, the 1899 Hague Convention and the Hague Regulations both provide that “private property . . . must be respected” and “cannot be confiscated” by the hostile state.189 Moreover, these conventions and Geneva Convention IV all prohibit pil lage.190 In this context, “pillage” means taking tangible objects without the owner’s consent in the course of military operations, such as where a soldier loots an unoc cupied home in a captured city. Geneva Protocol II similarly bans pillage during domestic conflicts.191 However, private property may be requisitioned to meet the needs of the occupying forces, as long as such requisitions are in proportion to the resources of the state.192 The 1899 Hague Convention and the Hague Regulations pro vide that requisitions must be paid for in cash where possible; if not, the owner must receive a receipt for the requisitioned items and be paid the amount due as soon as possible.193 A special rule applies to the confiscation of equipment Second Protocol art 7(d). Second Protocol art 10, 11. 187 Second Protocol art 13. 188 Geneva Protocol II art 16. 189 1899 Hague Convention art 46; Hague Regulations art 46. “Extensive . . . appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is also a war crime. Rome Statute art 8(2)(a)(iv). 190 1899 Hague Convention art 47; Hague Regulations art 47; Geneva Convention IV art 33. “Pillaging a town or place, even when taken by assault” constitutes a war crime. Rome Statute art 8(2)(b)(xvi). 191 Geneva Protocol II art 4(2)(g). Pillage is also a war crime in this context. Rome Statute art 8(2) (e)(v). 192 1899 Hague Convention art 52; Hague Regulations art 52. 193 1899 Hague Convention art 52; Hague Regulations art 52. 185 186

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used for the transmission of news (eg telephones or radio equipment) or the transportation of persons or things (eg aircraft, trucks, and railway equipment). Such equipment may be seized by the hostile army, even if owned by private actors, but “must be restored and compensation fixed when peace is made.”194 In addition, under Geneva Convention IV an occupying power may not req uisition food or medical supplies, except (i) for use by occupation forces and administration personnel and (ii) if the “requirements of the civilian popula tion have been taken into account.”195 In this situation, the occupying power must make arrangements to ensure that fair value is paid for requisitioned goods.196

(b) Cultural Property Cultural property, whether owned by private actors or the occupied state, receives enhanced protection against seizure.197 The occupying power must prevent any form of theft, pillage, or misappropriation of such property.198 In addition, it may not requisition movable cultural property located in the territory it occupies.199 Cultural property that is being transported within a territory or to another terri tory under international supervision to safeguard it from potential danger due to armed conflict is immune from seizure or capture.200 A series of rules addresses exports of cultural property from an occupied ter ritory during an armed conflict. In general, the occupying power has a duty to prevent such exports.201 If cultural property is nonetheless imported into any state from the occupied territory, that state must (i) take the property into its custody and (ii) return it, when hostilities are over, to the competent authorities of the previously occupied territory.202 In this situation, the occupying power that failed to prevent the export must pay an indemnity to the “holders in good faith” of the property which has to be returned.203

Hague Regulations art 53. Geneva Convention IV art 55. Geneva Convention IV art 55. 197 The 1907 Hague Regulations also insulate certain types of cultural property from seizure. Article 56 provides that “[a]‌ll seizure of. . . institutions [dedicated to religion, charity and education], historic monuments [and] works of art and science, is forbidden. . . .” 198 1954 Hague Convention art 4(3). In addition, no state may use historic monuments, works of art, or places of worship “which constitute the cultural or spiritual heritage of peoples” in support of its military effort. Geneva Protocol I art 53. 199 1954 Hague Convention art 4(3). 200 1954 Hague Convention arts 12, 13, 14. 201 Protocol for the Protection of Cultural Property in the Event of Armed Conflict (Cultural Property Protocol) (The Hague, May 14, 1954, 249 UNTS 240) art I(1). 202 Cultural Property Protocol art I(2), (3). 203 Cultural Property Protocol art I(4). 194 195 196

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K. Wild Animals and Plants (1) Migratory Animals The Bonn Convention on the Conservation of Migratory Species of Wild Animals204 implements a global consensus that prohibits ownership of endangered wild animals which migrate across national borders.205 In this context, a species is deemed to be migratory if a significant proportion of its members cyclically and predictably cross one or more borders.206 A species is endangered if it is “facing a very high risk of extinction in the wild in the near future.”207 Migratory species that are endangered are listed in Appendix I to the convention. The current list includes animals such as the Bactrian camel, Barbary deer, mountain gorilla, marine otter, Humboldt penguin, and West African manatee. Under the convention, each state that an endangered migratory species inhab its, visits, or crosses must adopt domestic legislation which prohibits the “taking” of such animals,208 subject to limited exceptions. In turn, “taking” is defined to include hunting, capturing, and deliberate killing.209 Because such animals cannot be legally captured or killed, they must be allowed to remain free and thus cannot become private property. Accordingly, the convention imposes a derivative prohi bition on property rights.

(2) Endangered Animals and Plants The principal treaty affecting property rights in endangered animals and plants is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).210 CITES applies to three categories of animal and plant spe cies: (a) species threatened with extinction that may be affected by trade; (b) species that may be threatened with extinction in the future unless trade in such species is regulated; and (c) species identified by a member state where international trade controls are needed to prevent exploitation.211 It seeks to protect these species by establishing a global system that restricts their import and export, thus reducing the economic incentive to kill them. 204 Bonn Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention) (Bonn, June 23, 1979, 1651 UNTS 333). 205 A number of regional conventions contain similar provisions. For example, Articles V, VII, and VIII of the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (Washington, October 12, 1940, 161 UNTS 193) restrict the taking of certain animals in the western hemisphere. See also the African Convention on the Conservation of Nature and Natural Resources (Algiers, September 15, 1968, 1001 UNTS 3) art VIII. 206 Bonn Convention art I(1)(a). 207 Bonn Convention Conference of the Parties, Resolution 5.3 (April 1997), clarifying the mean ing of Article I(1)(e) of the convention. 208 Bonn Convention art III(5). 209 Bonn Convention art I(1)(i). 210 Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, March 3, 1973, 993 UNTS 243). 211 CITES art II.

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Under CITES, the owner of a “specimen” of an endangered animal or plant may not import or export that specimen unless special permits can be obtained from the relevant states. In this context, a “specimen” includes any animal or plant covered by CITES, whether alive or dead. It also includes any “readily recogniz able part or derivative thereof,”212 subject to narrow exceptions.213 For example, a tiger skin or elephant tusk would be a recognizable part of an endangered animal, and thus a “specimen.” But powdered rhinoceros horn―though derived from an endangered species―would be unrecognizable as such and thus not a “specimen.” CITES requires member states to enforce the convention by adopting domes tic measures that prohibit trade in specimens in violation of its provisions.214 In order to export a specimen of a species threatened with extinction, such as an ele phant, the owner must obtain both an export permit and an import permit.215 The exporting state may grant an export permit only when: (a) such export “will not be detrimental to the survival of the species”; (b) the specimen was not obtained in violation of domestic laws; (c) a living specimen will be shipped so as to “mini mize the risk of injury, damage to health or cruel treatment”; and (d) an import permit has been granted by the importing state.216 The importing state may issue an import permit only if: (a) the import will be for “purposes which are not det rimental to the survival of the species involved”; (b) the proposed recipient of a living specimen is “suitably equipped to house and care for it”; and (c) the speci men is not to be used for “primarily commercial purposes.”217 The requirements are less stringent for specimens of species that are not currently threatened with extinction.218 From the perspective of property law, the import–export controls that states must implement under CITES are derivative restrictions on an owner’s rights to use and transfer covered plants and animals. In addition, CITES requires all parties to adopt measures that (a) penalize the possession of illegally exported specimens and (b) provide for their confiscation or return to the state of export.219 For example, presumably even a good faith buyer of an elephant tusk that has been illegally exported is not entitled to own the tusk, because domestic law must provide for its confiscation. These provisions are derivative prohibitions on ownership.

(3) Species in Antarctica Antarctica is the only land mass on Earth that is outside national jurisdiction, according to the majority view.220 The Protocol on Environmental Protection to CITES art I(b). CITES art VII. 214 CITES art VIII(1). 215 CITES art III. 216 CITES art III(2). 217 CITES art III(3). 218 CITES arts IV, V. 219 CITES art VIII(1). 220 It should be noted that certain states claim sovereignty over portions of Antarctica. See the discussion in ch 6B(2). 212 213

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the Antarctic Treaty221 prohibits the “taking” of any native bird, mammal, or plant in Antarctica without a permit.222 Member states are required to adopt domestic measures to ensure that their nationals comply with this protocol.223 In this con text, “taking” means (a) to kill, injure, capture, handle, or molest such an animal or (b) to “remove or damage such quantities of native plants that their local distri bution or abundance would be significantly affected.”224 A taking permit will be issued only under narrow circumstances, such as to obtain specimens for scientific use or zoos.225 More restrictive conditions are imposed when a permit is sought to take a “specially protected species”: the taking must be for a “compelling scientific purpose” and must not jeopardize the survival of the species or local population.226 Accordingly, as a general rule, native animals and plants on Antarctica are not subject to private ownership. The protocol constitutes a derivative prohibition on property rights. 221 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol) (Madrid, October 4, 1991, 30 ILM 1461) annex II art 3(1). 222 Environmental Protocol annex II, art 1, 3(1). 223 Environmental Protocol art 13(1). 224 Environmental Protocol annex II, art 1(g). 225 Environmental Protocol annex II, art 3(2). 226 Environmental Protocol annex II, art 3(5).

5 Rights in Intangibles

A. Introduction Intellectual property is the most prominent category of international property law. The municipal laws governing copyrights, patents, trademarks, and other traditional components of intellectual property are harmonized through a net work of treaties that establish minimum global standards. International law has also begun to affect property rights in other intangible items, such as computer databases, virtual objects, domain names, genetic material, and traditional cul tural knowledge, most commonly through the harmonization modality. The precept that property rights were governed by domestic law was prem ised on the significance of national borders. A state enjoyed sovereign authority over its territory, and thus had the power to exercise physical control over tan gible movable and immovable things within that territory. The application of this regime to rights in intangibles―which by definition lacked physicality― was problematic. Yet it functioned adequately in an era when intangibles had relatively minor economic importance and global mobility was limited. Today national borders are less relevant to determining property rights in intangible things. Because they lack physical substance, intangibles are more mobile than other objects of property rights. In our digital era, intangibles can be transferred to multiple persons in multiple states through the inter net in a manner that is instantaneous, secret, and difficult to trace. Moreover, many people may utilize an intangible without depleting it, unlike a tangible object. In addition, a particular intangible―for example, the genetic sequence for a medicinal plant―may be simultaneously located “in” many states. Only an international regime can adequately safeguard property rights in such intangibles. More fundamentally, harmonization is necessary to facilitate international transactions. Certain intangible assets are extraordinarily valuable, while oth ers have similar potential in the future, and the sheer quantity of intangi ble assets is expanding at an exponential rate. The development of uniform global standards for determining the validity and extent of property rights in

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intangibles―beyond traditional forms of intellectual property―will help to mini mize the inevitable differences among domestic laws.1 The extension of international property law to intangibles other than traditional intellectual property has proceeded at a slow and uneven pace. Intangibles arising from scientific or technological innovations, for example, may not yet be recog nized as property under the domestic law of particular states. Even where these forms of property are accepted as a general matter, states may not have developed domestic legal principles that delineate their content and scope, which renders international agreement more difficult.

B. Cultural Heritage (1) Generally Indigenous peoples around the world have passed down cultural traditions, expres sions, rituals, and lore from generation to generation for centuries. Today many of these items―ranging from traditional medicines to religious artwork to oral stories―have potential economic value in the international market. Particularly over the past 20 years, debate has occurred over the extent to which international law should protect this cultural information through the recognition of communal property rights or other mechanisms. As a general matter, international human rights law acknowledges the import ance of allowing everyone to enjoy their cultural heritage. The International Covenant on Economic, Social and Cultural Rights (ICESCR)2 proclaims that all peoples are entitled to “freely pursue their . . . cultural development” and recognizes “the right of everyone . . . [t]‌o take part in cultural life.”3 More specific protection is accorded by the International Covenant on Civil and Political Rights (ICCPR),4 which states that persons belonging to ethnic, religious, or linguistic minorities “shall not be denied the right, in community with the other members of their group, to enjoy their own culture.”5 Building on this foundation, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage6 provides that each member state must take the “necessary measures” to safeguard the intangible cultural heritage present in its territory.7 In this context, “intangible cultural heritage” refers to the practices, 1 The standards governing securities, receivables, and financial instruments at the global level are components of international trade law and are accordingly beyond the scope of this work. 2 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 3 ICESCR arts 1(1), 15(1)(a). 4 International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171). 5 ICCPR art 27. 6 Convention for the Safeguarding of the Intangible Cultural Heritage (Intangible Cultural Heritage Convention) (Paris, October 17, 2003, 2368 UNTS 3). 7 Intangible Cultural Heritage Convention art 11(a).

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representations, expressions, knowledge, and skills that are transmitted from gen eration to generation, primarily by communities and groups.8 This definition encompasses the cultural heritage of both indigenous peoples and non-indigenous groups. But because the obligations it imposes on states are too vague to create meaningful protection, the convention is essentially an aspirational framework for future action. Subsequent efforts have focused on protecting the intangible cultural heritage of indigenous peoples. In 2007, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples9 by an overwhelming vote. Its Article 31 provides: 1. Indigenous peoples have the right to maintain, control, protect, and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellec tual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

The declaration contemplates two distinct forms of protection. One is commonly described as “defensive protection,” that is, precluding outsiders from obtaining property rights over cultural information. The second is termed “positive protec tion,” defined as allowing indigenous communities to benefit from the commercial use of this information. The UN Committee on Economic, Social and Cultural Rights subsequently interpreted the “right of everyone . . . [t]‌o take part in cultural life” as set forth in ICESCR Article 15(1)(a) to include the right of indigenous peoples to “ensure respect for their right to maintain, control, protect and develop their cultural her itage, traditional knowledge and traditional cultural expressions.”10 It concluded that states should “respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights.”11 Efforts to convert these concepts into a treaty regime that provides effective legal protection for cultural information have encountered difficulty. As the references to “rights” in these instruments imply, the most relevant body of law is inter national intellectual property law. Yet the assumptions that underlie this law reflect a western approach to property, which (a) favors individual ownership, (b) seeks

8 Intangible Cultural Heritage Convention art 2(1). 9 UN Declaration on the Rights of Indigenous Peoples, UN GAR 61/295, UN Doc A/RES/61/295 (September 13, 2007). 10 UN Committee on Economic, Social and Cultural Rights, General Comment No 21, UN Doc E/C.12/GC21 (December 21, 2009) para 37. 11 General Comment No 21 para 37.

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to maximize economic value, (c) carefully defines the scope of the protected right, and (d) protects the right only for a specified time period in order to minimize monopoly control.12 But cultural information does not fit neatly into this pat tern. It is (a) usually “owned” on a communal basis, (b) prized for its cultural importance rather than its market value, (c) often vaguely defined and changeable over time, and (d) held in perpetuity by the indigenous group over generations.13 Accordingly, creating western-style property rights may either underprotect or overprotect this cultural information.

(2) Traditional Cultural Expressions The principal effort to protect cultural heritage information at the international level has been sponsored by the World Intellectual Property Organization (WIPO), a United Nations agency. Treaty negotiations have been contentious because of the fundamental differences between western property systems and traditional cultures. To facilitate agreement, the WIPO negotiators divided the subject matter into two categories, each of which would be covered in a separate treaty: (a) traditional cul tural expressions (eg art, music, performances, and symbols); and (b) traditional knowledge (eg technical knowledge and skills). The WIPO Draft Articles for the Protection of Traditional Cultural Expressions14 have been under negotiation for some years and are best described as a work in progress. In general, the articles would establish an international standard of pro tection for covered expressions, while allowing each state to select the legal mech anisms used to implement that standard within its territory. Thus, the articles seek to harmonize domestic laws, rather than to create property rights at the inter national level. A distinctive feature of the proposed system is that the beneficiaries of protection would be indigenous peoples or communities, not individuals.15 If requested by the beneficiaries, a government authority would assist with the man agement of their rights.16 The articles define traditional cultural expressions (TCE) as any forms of expres sion that reflect traditional culture in verbal, musical, performance, tangible, or other manners.17 This includes expressions such as stories, legends, songs, cere monies, dances, art, handicrafts, and architecture.18 It is roughly analogous to the

See the discussion in section E. An example is Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193 (Australia), where an Aboriginal artist received permission from his community to use ritual knowledge to create an artwork and later sued a fabric company that infringed his copyright. Noting that Australian law did not allow a copyright to be owned on a communal basis, the court reasoned that the artist held his copyright as a fiduciary for his people. 14 World Intellectual Property Organization, The Protection of Traditional Cultural Expressions: Draft Articles (TCE Draft Articles), WIPO/GRTKF/IC/25/4 (July 2013). 15 TCE Draft Articles art 2. 16 TCE Draft Articles art 4. 17 TCE Draft Articles art 1(1). 18 TCE Draft Articles art 1(1). 12 13

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scope of copyright law, which covers the manner in which an idea is expressed but not the idea itself. In order to qualify for protection, the TCE must meet add itional criteria, such as (a) constituting the unique product of or being associated with the cultural or social identity of the beneficiaries and (b) being maintained, used or developed as part of that identity.19 WIPO has considered two options for delineating the scope of protection for TCE. The minimalist approach only requires that the “economic and moral inter ests of the beneficiaries” in their TCE be “safeguarded as appropriate and accord ing to national law, in a reasonable and balanced manner.”20 The reference to “economic and moral interests” somewhat parallels the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)21 and thus suggests a copyright perspective. However, the articles provide that each state would be permitted to develop its own form of protection. The more robust option requires states to accord protection of economic and moral rights to TCE in at least five specific contexts: (a) preventing unauthorized disclosure or other exploitation; (b) ensuring that the beneficiaries are acknowledged as the source; (c) preventing use that distorts a covered expression or otherwise diminishes its cultural significance; (d) protecting against any false or misleading use that suggests endorsement of goods or services; and (e) allowing the beneficiar ies to authorize commercial use.22 These categories are based on intellectual prop erty law doctrines, respectively: (a) trade secrets; (b) the moral right of attribution; (c) the moral right of integrity; (d) trademark law; and (e) copyright law. These limitations would only govern the use of TCE occurring “outside the membership of the beneficiary community or outside [the] traditional or cultural context.”23 In addition, the draft articles would permit states to authorize the use of TCE in certain circumstances that would not cause unreasonable harm to the interests of the beneficiaries.24

(3) Traditional Knowledge The first major treaty concerning the protection of traditional knowledge was the 1992 Convention on Biological Diversity (Biodiversity Convention).25 It contem plated that member states would “as far as possible and appropriate” respect the “knowledge, innovations and practices” of indigenous and local communities con cerning the use of biological diversity.26 States were required to: (a) “promote” the use of this knowledge “with the approval and involvement” of the community; and TCE Draft Articles art 1(2). TCE Draft Articles art 3, option 1. 21 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221). 22 TCE Draft Articles art 3, option 2. 23 TCE Draft Articles art 5(2). 24 TCE Draft Articles art 5(3). 25 Convention on Biological Diversity (Rio de Janeiro, June 5, 1992, 1760 UNTS 79). 26 Biodiversity Convention art 8(j). 19 20

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(b) “encourage” the equitable sharing of the benefits arising from the use of such knowledge.27 In practice, however, these provisions were treated as aspirational and largely ignored. The 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol)28 is more specific. Each party must take measures with the aim of ensuring that traditional knowledge associated with genetic resources held by indigenous and local communities is accessed only with the “prior and informed consent” of those communities.29 This language is further qualified in that the obligation is subject to “domestic law,” and a party need only take measures “as appropriate.”30 In addition, each party should ensure that the benefits from the use of such traditional knowledge are shared with the particular community in a “fair and equitable way.”31 Taken together, these provisions indir ectly recognize a derivative property right in traditional knowledge in indigenous communities, in that they are entitled to (a) control access to such knowledge and (b) receive economic benefits from its exploitation.32 The WIPO Draft Articles on the Protection of Traditional Knowledge33 would potentially provide greater protection for traditional knowledge than the Biodiversity Convention or the Nagoya Protocol, although it is uncertain whether these articles will ultimately be adopted in a binding form. The articles raise more serious concerns than their counterpart provisions dealing with TCE because they seek to provide legal protection for facts and ideas, rather than mere expressions. The knowledge that the draft articles would protect is comparable to the subjects protected by patent law―ie inventions and processes with practical value in areas such as agriculture, medicines, and environmental protection. The scope of the protected knowledge, the duration of protection, and the treatment of knowledge in the public domain have all been difficult issues in the negotiations. Although some areas of disagreement remain, the draft articles generally define “traditional knowledge” as “know-how, skills, innovations, practices, teachings and learnings” of indigenous peoples and local communities that are “dynamic and evolving” and passed on from “generation to generation,” and which may exist in “codified, written or other forms.”34 Protection would extend only to traditional knowledge that is (a) linked to the cultural heritage of such peoples Biodiversity Convention art 8(j). Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya, October 29, 2010). 29 Nagoya Protocol art 7. 30 Nagoya Protocol art 7. 31 Nagoya Protocol art 5(5). 32 Parties to the protocol must also endeavor to support the development of (1) minimum require ments for mutually agreed upon terms for the “fair and equitable sharing of benefits” from trad itional knowledge associated with genetic resources and (2) model contractual clauses for this purpose. Nagoya Protocol art 12. 33 World Intellectual Property Organization, The Protection of Traditional Knowledge: Draft Articles (TK Draft Articles), WIPO/GRTKF/IC/24/4 rev 2 (April 26, 2013). 34 TK Draft Articles art 1.1. 27 28

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and communities and (b) developed, maintained, and transmitted between gen erations in a “collective context.”35 Traditional knowledge that has long been widely known or used outside of the relevant people or community would not be covered. The negotiations produced two divergent views about the appropriate scope of protection. The minimalist option consists of vague provisions that are similar in tone to the approaches outlined in the Biodiversity Convention and the Nagoya Protocol. For example, it requires states to adopt measures to: (a) “discourage” the unauthorized use of traditional knowledge; (b) “encourage” beneficiaries and users to establish “mutually agreed terms” for the use of such knowledge; and (c) “encourage” the development and use of “voluntary codes of conduct.”36 The more robust option creates an international regime of derivative property rights in traditional knowledge, using a combination of patent law and moral rights principles. Each state would confer specific “rights” on indigenous peoples and local communities.37 In turn, these beneficiaries would “have the right to initiate legal proceedings” if their substantive rights were violated.38 Under this option, the beneficiaries would be entitled, inter alia, to: (a) maintain, control, and develop their traditional knowledge; (b) authorize or deny access to such knowledge based on prior and informed consent; (c) receive a “fair and equitable share of benefits” arising from the utilization of such knowledge; (d) ensure that users acknowledge the source of the knowledge; and (e) require that users utilize the knowledge in a manner that respects the “cultural norms and practices of the beneficiary” and “the moral rights associated with traditional knowledge.”39

C. Cyberspace (1) Generally Cyberspace may be viewed as part of the global commons: a “region” outside the territorial jurisdiction of any state, like the high seas or outer space.40 The concept that cyberspace exists in a spatial sense―that it is a place―is a helpful metaphor. Cyberspace has a physical structure in the form of computer servers, cables, and other equipment spread across the planet; and most of this structure exists within national borders. Yet no single state has sufficient control of this physical infra structure to regulate the entire network. Territorial borders are meaningless in cyberspace. A cyberspace user in State B may utilize the internet in a manner that adversely affects a national of State C, leaving that person with no effective recourse under domestic law. Moreover, although a user does “enter” cyberspace in a sense, it may be difficult to determine

TK Draft Articles art 1.3. 36 TK Draft Articles art 3.1, option 2. TK Draft Articles art 3.1, option 1. 38 TK Draft Articles art 3.3. 39 TK Draft Articles art 3.2. 40 See the discussion in chs 7C and 8C. 35 37

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the name, location, and nationality of that person―unlike the traditional situation where a state can easily identify and regulate anyone seeking to enter its territory. From the perspective of property law, analogizing cyberspace to a global com mons has two implications. First, a global commons region is open for use by any state―and, in a derivative sense, any national of any state―absent a contrary norm. Accordingly, as a general principle, each person holds a derivative property right to use cyberspace, unless precluded by law. The second implication of the analogy is that effective regulation―including property rights in cyberspace and analogous interests―can only occur at the international level.

(2) Domain Names The most effective mechanism for regulating cyberspace is to control access to it. If cyberspace is compared to the business district of a city, then the landlord who offers space to prospective tenants has the ability to regulate how those tenants behave―and, in an indirect sense, how the customers of those tenants may act. Today the metaphorical landlord is the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit, quasi-governmental corporation organized under the laws of California that functions with limited international oversight. ICANN establishes and enforces the rules that allow the internet to function. Most importantly, it supervises the system for allocating domain names in cyber space. A domain name is essentially the address for a particular computer server, which functions as a portal by allowing all internet users to interact with the con tent on that server. Without an ICANN-registered domain name, the content on a particular server cannot be linked to the internet and is thus inaccessible in cyberspace. Domain name registrars under the ICANN regime are authorized to assign domain names to applicants on a first-in-time basis, so long as the name is not in current use, does not infringe a trademark, and meets other criteria. In a broad sense, ICANN effectively subdivides cyberspace and assigns rights to use portions of that “space.” History explains the seeming anomaly of a domestic corporation controlling access to a global commons. The internet evolved from a network of computer servers controlled by the United States government. Over time, the United States withdrew from supervising the internet in stages, first by contracting with Network Solutions, Inc. to manage the domain name system, and eventually by turning over this function to ICANN. The Internet Assigned Numbers Authority, which is directly responsible for allocating domain names, is operated by ICANN under a contract with the US Department of Commerce. In form, ICANN is a private corporation run by a board of directors. To avoid undue government influence, its bylaws provide that “no official of a national government or a multilateral entity established by treaty or other agreement between national governments” may serve as a director.41 However, since ICANN serves a governmental function pursuant to its contract, it is more appropriate to view it as a quasi-governmental entity. 41

Bylaws for Internet Corporation for Assigned Name and Numbers art VI(4).

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In some respects, ICANN resembles an intergovernmental organization. Its oper ations are subject to limited international supervision through its Governmental Advisory Committee, which consists of states and other international entities. The ICANN Bylaws provide that the committee will “provide advice on the activities of ICANN . . . as they relate to concerns of governments and . . . where they may affect public policy issues.”42 The bylaws further provide that the advice of the committee “shall be duly taken into account” by ICANN in the formulation and adoption of policies.43 In addition, ICANN has worked closely with WIPO in developing and enforcing its Uniform Domain Name Dispute Resolution Policy (UDRP), the procedure for resolving disputes concerning the registration of domain names. The legal status of domain names has not been definitively resolved. In form, a domain name is a license provided by a quasi-governmental entity to a state or private actor, and thus arguably governed by contract law. However, the weight of authority―and the better view―is that a domain name should be viewed as a property right, somewhat like a trademark. In Kremen v Cohen,44 for example, a United States court rejected the contract approach, and instead concluded that the registrant “had an intangible property right in his domain name.”45 It explained that “[r]‌egistering a domain name is like staking a claim to a plot of land at the title office” in that “[i]t informs others that the domain name is the registrant’s and no one else’s.”46 Courts in a number of nations have adopted this view.47 Because the regime for creating and enforcing rights to domain names has a global character, it may be viewed as a component of international property law. A domain name can be characterized as a property right under the international definition developed earlier in this book.48 Such a name is an entitlement because it is issued by a quasi-governmental entity; and the name can be viewed as an intan gible “thing” much like a trademark. Like other property rights, a domain name is effective against virtually all other persons, in part through the international enforcement mechanism established and enforced through WIPO. Moreover, the registrant is entitled to use the name, transfer it, and exclude others from its use― traditional hallmarks of ownership. The UDRP is a component of international property law in that it establishes criteria determining whether a particular domain name is valid when an infringe ment claim is made by a third party. As a condition of receiving a domain name, the registrant must agree to arbitrate any claim that the name infringes existing rights held by others. The registration will be cancelled if a third party can estab lish: (a) the domain name is “identical or confusingly similar to a trademark or service mark” in which it has rights; (b) the registrant “has no rights or legitimate ICANN Bylaws art XI(2.1). ICANN Bylaws art XI(2.1). 44 337 F3d 1024 (9th Cir 2003) (US). 45 Kremen 1030. 46 Kremen 1030. 47 See eg Tucows.Com Co v Lojas Renner SA, 2011 ONCA 548 (Canada); OBG Ltd v Allan [2008] 1 AC 1 (HL) (UK). 48 See the discussion in ch 2C. 42 43

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interests in respect of the domain name”; and (c) the domain name was “registered and is being used in bad faith.”49 The WIPO Arbitration and Mediation Center is the principal forum for adjudicating such disputes, and the arbitration decisions emanating from this process have created a sizable body of international case law.

(3) Computer Databases The international law governing property rights in computer databases is in tran sition. A database is a computerized system for storing and manipulating data in order to produce useful information, akin to a traditional book or encyclopedia. Databases are used for a variety of purposes, ranging from education to entertain ment to science. Yet while the information contained in a database is often expen sive to obtain, unauthorized parties around the world may have the technological ability to extract all or substantially all of the data over the internet, without the consent of the site owner and without payment. International law currently pro vides only modest protection for databases, which may reduce the incentive to create them. The principal international regime that bears on the protection of computer databases is copyright law, as reflected in the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),50 and other instru ments. It is axiomatic that data cannot be copyrighted; copyright law protects the expression of an idea, not the idea itself. Accordingly, TRIPS provides that inter national copyright protection extends “to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”51 The WIPO Copyright Treaty contains identical language.52 However, TRIPS mandates that member states provide protection for “[c]‌ompilations of data or other material . . . which by reason of the selection or arrangement of their contents constitute intellectual creations.”53 The scope of this protection “shall not extend to the data or material itself.”54 Thus, international law does not bar a person from extracting the informa tion contained in a database belonging to another and then reusing it or reselling it for a profit. While the structure of a database may be protected, its contents are not. The most promising model for international protection is the 1996 European Union Database Directive.55 It creates a sui generis right in the maker of a database to “prevent extraction and/or re-utilization” of the whole or a substantial part of

UDRP para 4(a). Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299). 51 TRIPS art 9(2). 52 WIPO Copyright Treaty (Geneva, December 20, 1996, 2186 UNTS 121) art 2. 53 TRIPS art 10(2). See also WIPO Copyright Treaty art 5. 54 TRIPS art 10(2). 55 Council Directive 96/9/EC of March 11, 1996 on the legal protection of databases [1996] OJ L 77 (Database Directive). 49 50

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the “contents” of that database.56 To qualify for this right, the maker must establish that there has been a “substantial investment” in obtaining, verifying, or presenting the contents.57 The initial duration of the right is 15 years. However, any “substan tial change” in the database contents, either qualitatively or quantitatively, which would result in the database being considered to be a “substantially new invest ment” creates a new 15-year term of protection.58 As a later EU report conceded, this provision “comes close to protecting data as property.”59 In effect, the directive creates a limited property right in data, which may be “transferred, assigned or granted” to others.60 The potential international significance of the directive is found in its reciprocity provision.61 The sui generis right automatically applies to databases whose makers are nationals of an EU state or who have their habitual residences within the EU.62 But it also applies to databases developed by nationals of other countries if those countries “offer comparable protection to databases” produced by EU nationals or habitual residents.63 This extends an invitation to any non-EU state to join the framework created by the directive, which has the potential to create a global regime for database protection. To date, the only serious international effort to regulate cyberspace is the 2001 Convention on Cybercrime,64 which seeks to prevent damage to computer data and systems. Noting the “continuing globalisation of computer networks” and the need for “international co-operation in criminal matters,”65 it requires par ties to adopt domestic legislation that criminalizes certain computer-related con duct. Much of the convention concerns criminal activity originating in one state and conducted over the internet that damages computer data or systems in a sec ond state. For example, prohibited conduct includes: (a) intentionally accessing a computer system without right; (b) intentionally damaging, deleting, altering, or suppressing computer data without right; (c) harming the operation of a com puter system by inputting, damaging, or deleting data; and (d) causing a “loss of property to another person” by the “input, alteration, deletion or suppression” of computer data with fraudulent intent.66 56 Database Directive art 7(1). The Database Directive sets forth a series of exceptions to this right, such as the use of “insubstantial parts” for any purpose or certain extractions used for teaching or scientific research. Database Directive arts 8, 9. 57 Database Directive art 7(1). A series of decisions by the European Court of Justice has estab lished that “obtaining” the contents of a database means seeking out “existing independent materials and collecting them in a database,” rather than merely compiling data which is obtained as a byprod uct of a different main activity. See eg Case C-203/02 British Horseracing Board Ltd v William Hill Organisation Ltd (ECJ, November 9, 2004) para 42. 58 Database Directive art 10. 59 Commission on European Communities, DG Internal Market and Services Working Paper: First evaluation of Directive 96/9/EC on the legal protection of databases (December 12, 2005) 24. 60 Database Directive art 7(3). 61 Database Directive recital 56. 62 Database Directive art 11(1). 63 Database Directive recital 56. 64 Convention on Cybercrime (Budapest, November 23, 2001, 2296 UNTS 167). 65 Convention on Cybercrime preamble. 66 Convention on Cybercrime arts 2, 4, 5, 8.

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Two other provisions of the convention affect property rights in a more con ventional sense. It requires member states to criminalize the possession or distri bution of computer programs or passwords that can be used to commit covered crimes.67 The convention also provides that the possession or distribution of child pornography through a computer system must be a crime.68 Accordingly, such programs, passwords, and pornography fall into the category of contraband―like illegal drugs or the proceeds of transnational crime.69 International law prohibits member states from recognizing property rights in these items.

(4) Virtual Property The development of virtual worlds in cyberspace has generated controversy about whether international law should recognize rights in “virtual property.” In this context, virtual property may be defined as two or three-dimensional graphic rep resentations of intangible objects that are perceived by humans as existing in a computer-generated virtual world, such as avatars, buildings, clothing, furniture, and terrain in an online game. Depending on the particular situation, a participant in such a simulated world may be able to see, hear, utilize, and create virtual objects by using raw materials provided by the program. Millions of people around the world are active participants in such virtual worlds. In addition to serving an entertainment function, virtual property has substan tial value in the real world. The sale of currency, land, tools, weapons, and other virtual objects that have been created or otherwise obtained by users generates millions of dollars each year in real-world transactions. In addition, the tens of thousands of businesses which entrepreneurs operate in virtual worlds―ranging from tattoo parlors to resorts―produce income in the real world. The line between the virtual world and the physical world has accordingly begun to blur. Each virtual world is owned and operated by a commercial entity that requires participants to consent to standardized license terms as a condition of accessing the site. Such terms typically provide that (a) the ownership of virtual objects that a participant may create in the future is vested in the site owner or (b) such objects cannot be owned at all. The enforceability of such agreements is usually governed by municipal law. However, in some circumstances, international copyright law may supersede the provisions of such licenses, thus creating derivative property rights in private actors. The Berne Convention would seem to require that states provide copyright pro tection for avatars and other virtual objects, at least in some situations, regardless of who holds the copyright. The definition of “literary and artistic works” that the convention protects is broad, covering “every production in the literary, scientific and artistic domain, whatever may be the mode or form of expression,” includ ing “cinematographic works to which are assimilated works created by a process

Convention on Cybercrime art 6. See the discussion in ch 4C.

67 69

Convention on Cybercrime art 9.

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analogous to cinematography.”70 The audiovisual features of an online video game or a virtual world are encompassed within this definition, which would logically include virtual objects that are sufficiently delineated, such as the visual image of an avatar. In the same manner that domestic laws may extend copyright pro tection to a literary or audiovisual character―regardless of the work in which it appears―the personality, abilities, and other characteristics of an avatar or other virtual object might also be protected. An example is Amaretto Ranch Breeders v Ozimals,71 involving a claim that the seller of virtual horses had infringed the copy right in virtual bunnies marketed by another business, where the court assumed that the underlying copyright was valid. This analysis logically leads to the question of who is entitled to Berne Convention protection―the user, the site owner, or both? Although the con vention specifies that its purpose is to protect the rights of “authors,”72 it does not define who an “author” is. Rather, the question is largely left to domestic law. There is general agreement that the author is the person who has created the particular work. Yet, by definition, the raw materials from which a virtual object is constructed are supplied by the applicable computer program operated by the site owner. Such a program may be sufficiently complex to allow the user to make many, perhaps hundreds, of decisions about how the object should be configured. In this situation, the raw materials might be analogized to a selection of paints used by an artist to create a painting; the user would hold the copyright in the virtual object, just as the artist is entitled to the copyright in the painting. Alternatively, both the Berne Convention and TRIPS provide that copyright pro tection extends to the selection or arrangement of preexisting materials used to create a compilation.73 Where a user exercises only limited originality in combin ing raw materials, the resulting virtual object might still qualify for protection as a compilation. Depending on domestic law, a final possibility is that the user and the site owner might be considered to be joint authors of the work, each entitled to copyright protection. One potential limit on the enforceability of license provisions that restrict a user’s ability to assert a copyright claim is the concept in some states that copyright can vest initially only in a natural person, not a legal entity. It has been suggested that the framers of the Berne Convention assumed that only a natural person could be an “author,”74 although the text of the convention does not address the question. Under this approach, a user’s advance agreement that the copyright in a subsequently created virtual object will belong to the site owner is not enforce able, even though a post-creation assignment would be valid. At a minimum, the domestic law of many states provides that a copyright can vest initially only in a

Berne Convention art 2(1). 907 F Supp 2d 1080 (ND Cal 2012) (US). 72 Berne Convention art 1. 73 Berne Convention art 2(5); TRIPS art 10(2). 74 Sam Ricketson & Jane C Ginsberg, International Copyright and Neighbouring Rights (2d edn, OUP 2006) 369. 70 71

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natural person, not a legal entity such as a site owner, which would similarly super sede such license provisions. The Berne Convention requirement that states respect the moral rights of authors poses another challenge to contractual arrangements. Article 6bis provides that even after the transfer of economic rights in a work, the author still has the right to claim authorship of the work and the right to object to any modification of the work that would be “prejudicial to his honor or reputation.”75 Although such rights can presumably be waived under domestic law, a standard form that purports to both grant economic rights and waive moral rights might not be con sistent with the article. As one authority observes, “[o]‌therwise, the independence of moral and economic rights risks becoming purely formal, reducing in fact or practice to their independent statement in separate catch-all clauses of the same contract.”76 The TRIPS provisions governing the protection of trademarks should also apply in virtual worlds. The owner of a virtual business who utilizes a distinctive sign, symbol, or name to market goods, for example, would seem to qualify for trademark protection.77 Nothing in TRIPS restricts its application to the physical world; and the goal of promoting international trade that TRIPS is designed to serve applies equally to commerce in virtual worlds. Accordingly, at a minimum, if a business in a particular virtual world infringed a trademark held by another busi ness in that world, the owner of the second business should be entitled to obtain relief in the physical world. Even assuming that international law would safeguard a user’s copyright, moral rights, and trademark relating to a virtual object or business, the resulting protection falls far short of full ownership. The user who holds a copyright in an avatar can prevent others from reproducing―and thus utilizing―the avatar.78 The user could also potentially bar others from modifying the avatar.79 But the user is not entitled to continue using the avatar for its basic purpose―as an actor in a particular virtual world―unless the site owner consents. The Berne Convention offers even less protection to the user who develops a virtual busi ness. Although others could not infringe the user’s copyright by, for example, erecting an identical virtual structure, the site owner could presumably close the business altogether or alter the configuration of the virtual world so that custom ers could no longer reach it. Enhanced international protection for property rights in virtual objects may be appropriate in the future, particularly if the boundary between virtual worlds and the real world continues to erode. Given the parameters within which the issue arises―cyberspace transactions involving a multitude of participants from many states―global measures are necessary for effective protection.

Berne Convention art 6bis(1). Ricketson & Ginsberg, International Copyright 599–600. 77 TRIPS art 15(1). 78 Berne Convention art 9(1). 79 Berne Convention arts 2(3), 6bis(1). 75 76

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D. Genetic Material (1) Generally The biotechnology industry uses genetic material to create commercial products worth billions of dollars, ranging from genetically-engineered crops to new cancer drugs. The Biodiversity Convention defines “genetic material” as “any material of plant, animal, microbial or other origin containing functional units of heredity.”80 In a physical sense, this material includes genes, parts of genes, DNA molecules, fragments of DNA, and the complete genome for a particular living thing―items that are so tiny and ephemeral as to be considered “intangibles” for the purpose of this chapter. Genetic material with commercial potential is both valuable and portable. Over the past three decades, an international framework has evolved to regulate access to genetic material, with the goals of (a) ensuring its availability to private actors and other users and (b) providing fair compensation to source states for its use. However, the potential ownership of human genetic material presents special concerns.

(2) Human Genetic Material Scientists have successfully decoded large sections of the human genome, isolating the protein sequences that constitute the structure of certain genes. The question of whether private property rights can exist in human genetic information has yet to be definitively answered. The Universal Declaration on the Human Genome and Human Rights, adopted by UNESCO in 1997, provides that “[t]‌he human genome in its natural state shall not give rise to financial gains.”81 Although the declaration is nonbinding, it appears to reflect an international consensus that―at a minimum―human genetic material should not be purchased or sold.82 International patent law has not yet addressed this issue. TRIPS provides that states must make patents available for “any inventions.”83 However, it would appear that human genetic information in its natural state does not qualify for patent pro tection because it is not “invented,” but rather is “found.”84 Under this analysis, international law would not mandate the patentability of human genetic informa tion, although a state presumably could extend such protection under domestic legislation. Alternatively, to the extent that TRIPS might be construed as mandat ing patentability in this context, a state is permitted to exclude from patentability “animals” and “essential biological processes for the production of . . . animals.”85 Biodiversity Convention art 2. UNESCO, Universal Declaration on the Human Genome and Human Rights (November 11, 1997) art 4. 82 See also the discussion on the sale of body parts in ch 4H(3). 83 TRIPS art 27(1). See the discussion of TRIPS in section E(2). 84 eg Association for Molecular Pathology v US Patent & Trademark Office, 132 S Ct 1794 (2012) (US) (holding that genes cannot be patented). 85 TRIPS art 27(3)(b). 80 81

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This language literally includes humans―and thus human genetic information― though it seems unlikely that this meaning was originally intended.

(3) Nonhuman Genetic Material within States (a) Public Domain or Sovereign Rights? When the biotechnology industry began, the dominant view, particularly among developed states, was that genetic resources were part of the international pub lic domain and could be freely used by nationals from all states.86 This view was reflected in the nonbinding 1983 International Undertaking on Plant Genetic Resources,87 the first international instrument concerning the use of genetic resources. It provided that plant genetic resources were “a heritage of mankind and consequently should be available without restriction.”88 Consistent with the pub lic domain approach, a robust multilateral system arose for voluntarily allowing access to genetic resources, facilitated by efforts of the UN Food and Agriculture Organization (FAO) and a network of international agricultural research centers that held extensive ex situ collections of seeds and other resources. Yet most of the world’s biodiversity―and thus most genetic material―is located within developing states. These states fundamentally disagreed with the public domain approach. The 1992 Biodiversity Convention effectively ended any debate on the issue by acknowledging “the sovereign rights of States over their natural resources,” including “genetic resources.”89 The authority to grant access to such resources rests with each “national government and is subject to national legislation.”90 But the scope of these sovereign rights is not absolute. The Biodiversity Convention requires each party to “endeavor to create conditions to facilitate access” to such resources for other member states on “mutually agreed terms,” mainly limited by the vague requirements that the source state (i) give “prior informed consent” and (ii) not “impose restrictions that run counter to the object ives of this Convention.”91 The convention specifies that its objectives are “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits” from the use of genetic resources.92 Subsequent instruments have delineated the right of access to genetic resources in more depth, extending it beyond states to individuals, business entities, and other private actors. International law has begun to create a system that recognizes the derivative rights of private actors to access and utilize genetic materials that are otherwise subject to state sovereignty. See also the discussion of the breeder’s rights in plant varieties in section G. UN Food and Agricultural Organization, International Undertaking on Plant Genetic Resources, Resolution no 8/83 (Rome, November 23, 1983). 88 International Undertaking on Plant Genetic Resources art 1. 89 Biodiversity Convention art 15(1). 90 Biodiversity Convention art 15(1). 91 Biodiversity Convention art 15(2), (4), (5). 92 Biodiversity Convention art 1. 86 87

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(b) Contours of the Access Regime The 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Genetic Resources Treaty)93 builds on the preexisting system of voluntary exchanges by creating a binding regime for access to “genetic material of plant origin of actual or potential value for food or agriculture.”94 It establishes a multilateral system whereby member states are required to provide access to the genetic materials within their respective territories for over 60 food and forage crops, as specified in its Annex I, for the purpose of “utilization and conservation for research, breeding and training for food and agriculture.”95 The treaty provides that member nations must “take the necessary legal or other appropriate measures to provide . . . access.”96 Access must be available not only to other member states, but also “to legal and natural persons under the jurisdiction” of any party.97 Access will be “accorded expeditiously,” either free of charge or for a minimal cost.98 The treaty specifies that the genetic material will be provided to the recipient pursuant to a “Standard Material Transfer Agreement.”99 Under this agreement, the recipient who commer cializes a product that utilizes the genetic material will pay “an equitable share of the benefits” arising from that product, in an amount decided by an international board established by the treaty, not by the member state.100 Currently, this amount is set at 1.1% of the gross income from the sale of the product.101 More broadly, the nonbinding 2002 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (Bonn Guidelines)102―approved by 180 states―seek to provide source states and users of genetic materials with a framework to implement the provi sions of the Biodiversity Convention. The guidelines outline the elements of a prior informed consent system, including (i) the contents of an application to use genetic material, (ii) the requirements for mutually agreed terms, (iii) monitoring and reporting systems, and (iv) a dispute resolution procedure. 93 International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, November 3, 2001, 2400 UNTS 303). 94 Plant Genetic Resources Treaty arts 1(1.1), 2. 95 Plant Genetic Resources Treaty art 12.3. However, access to plant genetic resources found in situ “will be provided by national legislation” or, absent such legislation, “in accordance with such standards as may be set by the Governing Body.” Plant Genetic Resources Treaty art 12.3. 96 Plant Genetic Resources Treaty art 12.2. 97 Plant Genetic Resources Treaty art 12.2. 98 Plant Genetic Resources Treaty art 12.3. 99 The Governing Board adopted the Standard Material Transfer Agreement (SMTA) in 2006. UN Food and Agricultural Organization Conference, Resolution no 2/2006 (June 16, 2006). 100 Plant Genetic Resources Treaty art 13.2(d)(ii). However, the recipient of such access may not “claim any intellectual property or other rights” that limit access to the plant genetic resources (or their genetic parts or components) in the form received from the system. Plant Genetic Resources Treaty art 12.3(d). For example, the recipient may not seek a patent on a genetic resource in the form that she receives it. 101 SMTA annex 2. 102 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (The Hague, April 2002).

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The most recent instrument in this series is the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol),103 which is not yet in force. It seeks to clarify the nature and scope of the right of access to genetic resources as a general matter, including resources that are not covered by the Plant Genetic Resources Treaty. The protocol provides that access to genetic resources shall be subject to the “prior informed consent” of the source state.104 To facilitate this process, each party must, inter alia, (i) utilize “fair and non-arbitrary rules and procedures” on accessing genetic resources, (ii) ensure a “clear and transparent written decision” in a cost-effective manner, (iii) establish “clear rules and procedures for requiring and establishing mutually agreed terms,” and (iv) provide “a permit or its equivalent as evidence of the decision to grant prior informed consent.”105 The permit will constitute an “internationally rec ognized certificate of compliance” with the proper procedures for accessing the genetic material.106

(c) Property Rights in Genetic Material The treaties and other instruments discussed above reflect a compromise between the sovereign rights of nations over the genetic resources within their territories and the interest of the international community in ensuring that these resources are available for scientific and commercial use. They create an international system whereby member states are required to permit the access and use of their genetic resources by foreign entities and individuals. As such, they effectively create deriva tive property rights in private actors, much like a usufruct. The right of access under the Plant Genetic Resources Treaty is relatively clear, because in most instances the source state does not have the ability to make a discretionary decision affecting such access. The treaty provisions constitute prior informed consent to access on standardized terms. In contrast, the scope of the right of access to genetic resources under the Biodiversity Convention, the Bonn Guidelines, and the Nagoya Protocol is less clear. Here the rules governing access will vary among states, limited mainly by the vague requirement that they be “fair and non-arbitrary.”

(4) Nonhuman Genetic Material in Antarctica It is generally accepted that Antarctica is part of the global commons, despite territorial claims by some states.107 The 1959 Antarctic Treaty and its protocols

103 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya, October 29, 2010). 104 Nagoya Protocol art 6(1). 105 Nagoya Protocol art 6(3). 106 Nagoya Protocol art 17(4). 107 See the discussion in ch 6B(2).

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establish the international standards that govern Antarctica.108 Antarctica has been designated as a “natural reserve” which is open for scientific research.109 Neither the treaty nor its protocols expressly prohibit access to or use of genetic materials found in Antarctica by states or private actors. Indeed, the treaty generally provides that “scientific observations and results” from Antarctica shall be “exchanged and made freely available” to the greatest extent practicable.110 The member states of the Antarctic Treaty Consultative Meeting have agreed that this language applies to biological prospecting activities in Antarctica, which suggests that such prospect ing is permissible.111 It seems unlikely that the Biodiversity Convention would apply to Antarctica, assuming that the pending sovereignty claims are unsuccessful. The convention provisions that relate to the “components of biological diversity”―including genetic material―apply only “in areas within the limits of [a state’s] national jurisdiction.”112 Taken together, these authorities support the view that private actors are entitled to access and utilize genetic resources located in Antarctica, which may be viewed as a derivative property right. However, because the researcher who extracts genetic information from Antarctic sources may not exclude others from its use, the com mercial value of this information may be limited.

E. Intellectual Property (1) Generally Intellectual property law is the leading example of how the international system harmonizes property rights.113 Historically, intellectual property was governed solely by domestic laws that varied widely among states. Two nineteenth-century treaties signaled a shift toward international coordination of these laws: the 1883 Paris Convention for the Protection of Industrial Property (Paris Convention)114 and the 1886 Berne Convention. Successive treaties further developed the inter national framework. Yet the standards that arose from these instruments were not comprehensive, and the mechanisms for enforcing intellectual property rights were weak. Antarctic Treaty (Washington, December 1, 1959, 402 UNTS 71). Protocol on Environmental Protection to the Antarctic Treaty (Madrid, October 4, 1991, 30 ILM 1461) art 2. 110 Antarctic Treaty art III(1)(c). 111 Antarctic Treaty Consultative Meeting XXVIII, CEP VIII, Resolution 7 (June 17, 2005). 112 Biodiversity Convention art 4. 113 International intellectual property law has been examined in detail in treatises, articles, and many other publications. This section provides a brief survey of the subject for the purpose of illus trating how it relates to the larger field of international property law, particularly as an example of the harmonization modality. 114 Paris Convention for the Protection of Industrial Property (Paris, March 20, 1883, 828 UNTS 107). 108 109

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International human rights law has indirectly encouraged harmonization. The 1948 UDHR proclaimed that “[e]‌veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic pro duction of which he is the author.”115 Subsequently, the 1966 ICESCR―while not creating a right to property in general―contained language similar to the UDHR provision. It provided that all states “recognize the right of everyone . . . [t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”116 The ICESCR further provided that states were obligated to take steps to “achieve the full realization of this right.”117 Because it stems from the inherent dignity of each person, not from a desire to incentivize socially valuable creative endeavors, the human right embodied in the ICESCR cannot be equated with a right to intel lectual property.118 However, the concept that a uniform global legal regime should govern scientific, literary, and artistic creations from the standpoint of human rights would logically extend to intellectual property rights as well.

(2) Agreement on Trade-Related Aspects of Intellectual Property Rights A major step toward international harmonization of intellectual property laws was the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994, under the aegis of the World Trade Organization (WTO). TRIPS acknowledges that “intellectual property rights are private rights,” and seeks to provide “adequate standards and principles concerning the availability, scope and use” of such rights in the context of international trade.119 It (a) creates over arching standards that apply to all types of covered intellectual property, (b) estab lishes minimum standards for each type of intellectual property, and (c) mandates an effective enforcement regime to ensure national compliance. TRIPS covers seven types of intellectual property: copyrights; trademarks; geographical indica tions; industrial designs; patents; designs of integrated circuits; and trade secrets.120 All member states must adhere to the minimum standards required by TRIPS, but any state is free to provide greater protection for such intellectual property under domestic law.121

UDHR art 27(2). ICESCR art 15(1)(c). 117 ICESCR art 15(2). 118 For further discussion of the issue from the human rights perspective, see UN Committee on Economic, Social and Cultural Rights, General Comment No 17, UN Doc E/C.12/GC/17 (January 12, 2006). 119 TRIPS preamble paras 2(b), 4. 120 The five most important categories of intellectual property covered in TRIPS―copyrights, geo graphical indications, patents, trademarks, and trade secrets―are discussed below. Industrial designs and integrated circuit designs are more technical in nature and are not covered. 121 The special problem of intellectual property rights arising out of activities in outer space is discussed in ch 8F. 115 116

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TRIPS creates global standards that apply to all covered types of intellectual property. Under the national treatment principle, each party must “accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property,” with limited exceptions.122 For example, TRIPS establishes a general rule that the term of a patent must be at least 20 years.123 A state could choose to provide greater pro tection under its domestic law, such as by establishing a 25-year term. However, the national treatment requirement means that it must provide the same patent term for nationals of other parties.124 Another overarching TRIPS principle is most-favored-nation treatment. If a member state grants any “advantage, favour, privilege or immunity” to the nationals of another member, it must be “accorded immediately and unconditionally to the nationals of all other Members.”125 The second key aspect of TRIPS is that it imposes global minimum standards for each of the seven types of covered intellectual property, which parties must imple ment through municipal law. This follows the model of the Berne Convention, which developed uniform copyright standards at the international level in the nineteenth century. TRIPS largely incorporates the Berne Convention standards for copyright, but it creates new substantive standards for each other form of cov ered intellectual property. Finally, TRIPS establishes a framework for the enforcement of intellectual prop erty rights by both private actors at the domestic level and states at the global level. It establishes minimum uniform standards that member states must follow in order to allow private owners of intellectual property to enforce their rights in domestic courts. Members must “ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement.”126 States must “make available to right holders civil judicial procedures concerning the enforcement” of such rights that meet specified standards for fair and equit able procedure.127 Significantly, the judicial authorities must have the authority to order the infringer to pay compensatory damages to the right holder, in an amount “adequate to compensate for the injury the right holder has suffered” due to the infringement.128 The more powerful enforcement mechanism is at the international level. As a condition of joining the WTO, all states must consent to a binding international system for the resolution of trade disputes, including disputes arising under TRIPS. A state which believes that another state has violated its TRIPS obligations may file a complaint with the WTO Dispute Resolution Body. If a member state fails to comply with the decision of the panel charged with adjudicating the controversy,

TRIPS art 3(1). 123 TRIPS art 33. The national treatment standard in international trade law is also utilized in investment law. See the discussion in ch 10C(2). 125 TRIPS art 4. 126 TRIPS art 41(1). 127 TRIPS art 42. 128 TRIPS art 45(1). 122 124

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it may be subject to trade sanctions. In the context of intellectual property disputes, the Dispute Resolution Body functions as an international tribunal with the power to both (a) interpret the meaning of TRIPS provisions and (b) enforce its decisions with meaningful sanctions. WTO panel decisions have begun to create a corpus of intel lectual property jurisprudence at the international level.

(3) Copyright and Related Rights Copyright laws adopted at the domestic level protect the rights of authors in literary and artistic works. Beginning with the adoption of the Berne Convention, substantial progress has been made in harmonizing national copyright laws to ensure a minimum level of protection for all authors, regardless of nationality. Today over 160 nations are members of the Berne Convention, and the incorporation of most Berne Convention protections into TRIPS129 extends its reach to additional states. The Berne Convention is the heart of international copyright law. It applies to “literary and artistic works,” which are defined to “include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression,” such as books, lectures, dramatic works, musical compositions, mov ies, paintings, sculptures, architectural works, photographs, maps, choreographic works, and applied art.130 Translations, adaptations, and other alterations of such works are also covered.131 In addition, collections of literary or artistic works such as encyclopedias and anthologies are protected by copyright to the extent that the selection and arrangement of their content involves creative work.132 TRIPS supple ments this coverage by providing that computer programs are protected as literary works.133 The provision that the Berne Convention covers the “expression” of a literary, scientific, or artistic “production” indicates that it would not encompass a mere idea for such a work. TRIPS eliminates any doubt on this point, stating that copy right protection does not extend to “ideas, procedures, methods of operation or mathematical concepts as such.”134 This creates a derivative prohibition on the ability of states to create property rights in these items under domestic law. For example, a state may not authorize its nationals to obtain property rights in the idea for a novel, painting, or other literary or artistic work. In a broad sense, the Berne Convention mandates two types of protec tion for covered works. Each state must follow the principle of national treat ment: “[a]‌uthors shall enjoy . . . in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals . . .”135 In addition, every state must ensure that its laws provide at least the minimum international standards specified in the convention. This 129 TRIPS requires member nations to comply with Articles 1 through 21 of the Berne Convention, except for Article 6bis. TRIPS art 9(1). 130 Berne Convention art 2(1). 131 Berne Convention art 2(3). 132 Berne Convention art 2(5). 133 TRIPS art 10(1). 134 TRIPS art 9(2). 135 Berne Convention art 5(1).

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harmonization requirement has established a common core of copyright protec tion in all member states. Any state is free to extend a greater degree of protection for authors, consistent with the national treatment principle. The rights guaranteed by the Berne Convention may “not be subject to any formality,”136 such as registration with a government office. Rather, they arise auto matically when an author creates a covered literary or artistic work. The prohibi tion of formalities means, in turn, that once such a work is created it is entitled to copyright protection in all states that are parties to the convention, without the need for applications or filings in individual states. In this sense, the convention authorizes an international copyright that is valid and enforceable in all member states. The basic term of protection created by the Berne Convention is the life of the author plus 50 years, although states may provide a longer term.137 This protection extends both to the author “and his successors in title”―a provision that acknow ledges the author’s right to transfer his copyright to others. The Berne Convention mandates that each party provide an author with a series of exclusive rights in the work, which constitute derivative property rights. For example, an author has the exclusive right to authorize the reproduction of the work,138 with special exceptions for uses such as teaching, scholarship, and press quotations. Other protections include the right to authorize the public perfor mance of a dramatic or musical work,139 the broadcasting of the work to the pub lic,140 and the public recitation of a literary work.141 Similarly, the author holds the sole right to authorize “adaptations, arrangements and other alterations” of the work.142 Although the convention provides the author with an exclusive right to distribute only cinematographic works and cinematographic adaptations,143 the subsequent WIPO Copyright Treaty expands this right to the public distribution of copies of all types of literary and artistic works.144 The Berne Convention authorizes states to place additional limitations on the reproduction right in (a) “certain special cases” as long as (b) this does not con flict with “a normal exploitation of the work” and (c) it does not “unreasonably prejudice the legitimate interests of the author.”145 TRIPS Article 13 extends this provision to all the exclusive rights recognized by the convention in almost identi cal language. 136 Berne Convention art 5(2). For example, in China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/ES362/R (January 26, 2009), a WTO panel found that China’s requirement that foreign works undergo “content review” before being published was an invalid “formality.” 137 Berne Convention arts 7(1), (6). 138 Berne Convention art 9. 139 Berne Convention art 11. 140 Berne Convention art 11bis. 141 Berne Convention art 11ter. 142 Berne Convention art 12. 143 Berne Convention art 14(1). 144 WIPO Copyright Treaty art 6(1). However, a state may provide that this right is exhausted after the first sale of a particular copy of the work with the author’s authorization. WIPO Copyright Treaty art 6(1). The treaty also provides that authors of computer programs, cinematographic works, and phonograms shall have the exclusive right to authorize commercial rentals of such works, subject to limiting conditions. WIPO Copyright Treaty art 7. 145 Berne Convention art 9(2).

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The meaning of Article 13 was explored by a WTO panel considering a com plaint brought by the European Union against the United States.146 At the time, Section 110(5) of the US Copyright Act provided that certain restaurants, bars, and retail stores could broadcast music to their customers without any payment to the copyright holder. The European Union challenged this “business exemp tion,” claiming that it was not justified by Article 13, and the panel agreed. First, the panel concluded that Section 110(5) did not involve a “certain special case,” mainly because the law exempted a large number of businesses; it noted that “a substantial majority of eating and drinking establishments and close to half of retail establishments are covered by the exemption.”147 It also concluded that the second criterion was not satisfied because the substantial number of businesses exempted would be “a major source of royalties” that copyright owners would expect to receive.148 Finally, it defined “unreasonable prejudice” to mean an “unreasonable loss of income to the copyright owner.”149 Although the annual loss estimated by the parties varied widely (from less than $1,000,000 to over $53,000,000), the panel found that it was too large for the third criterion of Article 13 to be satisfied. The Berne Convention also requires states to adopt legislation to protect the moral rights of an author, even after the author has transferred the economic rights in the work.150 One protected interest is the right of attribution: “the right to claim authorship of the work.”151 The other moral right recognized by the convention is the right of integrity: “the right to object to any distortion, mutilation or other modification of the work which would be prejudicial to [the author’s] honor or reputation.”152 Absent a waiver, these moral rights continue to exist after the death of the author “at least until the expiry of the economic rights” and may be exercised by the author’s successors as authorized under domestic law.153

(4) Geographical Indications Controversy about whether international protection should extend to geograph ical indications was largely resolved by TRIPS, which requires all states to protect such indications.154 In this context, a “geographical indication” is a name, sign, or other medium (a) that identifies a good as originating in the territory of a member state or a region within that territory and (b) “where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”155

United States―Section 110(5) of the US Copyright Act, WT/DS160/R (June 15, 2000). United States―Section 110(5) of the US Copyright Act para 6.133. United States―Section 110(5) of the US Copyright Act para 6.206. 149 United States―Section 110(5) of the US Copyright Act para 6.229. 150 See the discussion of the right of integrity in ch 12C(1). 151 Berne Convention art 6bis(1). 152 Berne Convention art 6bis(1). 153 Berne Convention art 6bis(2). 154 Although the Paris Convention addressed the question of a “false indication” of the source of goods, its provisions were relatively ineffective. See Paris Convention arts 9, 10, 10bis, 10ter. 155 TRIPS art 22(1). 146 147 148

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A geographical indication functions much like a trademark in that it informs consum ers about the nature or quality of particular goods, regardless of the identity of the entity that produced the goods. Under TRIPS, each member state must provide legal means for interested persons to prevent the “use of any means in the designation or presentation of a good that indicates or suggests” that it “originates in a geographic area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good.”156 This provision applies even where the geographical indication is literally true, if it “falsely represents” that the goods originate in a different territory. For exam ple, the famous Gruyère cheese is produced in a particular region of Switzerland, and “Gruyère” is recognized as a geographical indication. Under TRIPS, a cheese maker located in a town called Gruyère in Canada could not sell “Gruyère cheese.” Although the geographical indication would be literally true, consumers would be confused about the origin of the cheese. More expansive protection is accorded to geographical indications for wines and spirits. Member states must permit interested parties to prevent the use of geograph ical indications for wines and spirits “not originating in the place indicated by the geographical indication in question”―even where the public is not misled as to their origin.157 Even if (a) the true origin of the goods is indicated or (b) a geographical indication is accompanied by terms such as “kind,” “type,” “style,” or “imitation,” use of the indication may be prevented.

(5) Patents Patent protection is inherently territorial. An inventor must apply for a patent in each state where protection is desired. Accordingly, a global patent does not exist. The principal function of international property law in this area is to harmonize municipal law. Three conventions dominate the field: (a) the 1883 Paris Convention; (b) the 1970 Patent Cooperation Treaty;158 and (c) TRIPS, which is the most important instrument. The Paris Convention contains a number of provisions dealing with patents, but fails to establish a comprehensive regime. For example, the convention seeks to resolve conflicts between the domestic laws of different states that impair an inventor’s ability to secure patents for the same invention in multiple states, in part by providing a tem porary right of priority.159 In addition, it adopts the overarching principle of national treatment for patents and other covered forms of intellectual property. Foreign invent ors “shall have the same protection” that nationals enjoy under domestic law, and “the

156 TRIPS art 22(2)(a). It also mandates that member states provide legal means for parties to pre vent any act that constitutes unfair competition under Article 10bis of the Paris Convention, which includes the use of “false indications” in connection with goods under some circumstances. TRIPS art 22(2)(b). 157 TRIPS art 23(1). 158 Patent Cooperation Treaty (Washington, June 19, 1970, 1160 UNTS 231). 159 Paris Convention art 4.

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same legal remedy against any infringement of their rights.”160 Finally, the conven tion authorizes parties to adopt legislation providing for the issuance of compulsory licenses to use a patented invention when the exclusive rights are abused by the patent holder, such as “failure to work” the patent.161 The Patent Cooperation Treaty facilitates the process for obtaining patent pro tection in multiple states. It authorizes an inventor to file a patent application with an “international searching authority,” which will review existing patents and other literature, and provide a written opinion as to whether such an application would be successful at the domestic level.162 In the second phase of the process, the inventor can submit the application to the patent office of each state where protection is sought. In contrast to these piecemeal efforts, TRIPS establishes minimum global stand ards for patent protection. It provides that patents “shall be available for any inven tions, whether products or processes, in all fields of technology” as long as they are “new, involve an inventive step and are capable of industrial application.”163 Parties must require the applicant to “disclose the invention” with sufficient clarity and detail that it could be “carried out by a person skilled in the art.”164 However, a party may deny patent protection for inventions in certain circumstances, such as to “protect ordre public or morality” or where the invention could impair human, animal, or plant life or health or cause serious harm to the environment.165 Protection may also be refused for diagnostic, therapeutic, and surgical methods, and for plants and animals other than microorganisms.166 TRIPS specifies that a patent shall confer on its owner certain “exclusive rights.”167 In the case of a product patent, the owner has the right to prevent third parties from “making, using, offering for sale, selling, or importing for these pur poses that product” without the owner’s consent.168 When the subject of the patent is a process, the owner may prevent others from “using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that pro cess.”169 The patent owner also has the right to assign or license the patent, and to transfer it by succession.170 The term of protection provided under a patent must continue for at least 20 years from the application date.171 Under TRIPS, states may provide exceptions to the owner’s exclusive rights, but this must not “unreasonably conflict with a normal exploitation of the pat ent” or “unreasonably prejudice the legitimate interests of the patent holder.”172

Paris Convention art 2(1). Paris Convention art 5. The convention also provides the equivalent of the right of attribution for an inventor. Paris Convention art 4ter. 162 Patent Cooperation Treaty arts 3, 16, 18. 163 TRIPS art 27(1). 164 TRIPS art 29(1). 165 TRIPS art 27(2). 166 TRIPS art 27(3). 167 TRIPS art 28(1). 168 TRIPS art 28(1). 169 TRIPS art 28(1). 170 TRIPS art 28(2). 171 TRIPS art 33. 172 TRIPS art 30. See eg Canada―Patent Protection of Pharmaceutical Products, WT/DS/114/R (April 7, 2000), finding that domestic law that permitted stockpiling of pharmaceuticals violated Article 30 because the quantity was not “limited.” 160 161

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In addition, states may allow third parties to use a patent without the owner’s consent under narrow circumstances. Such an authorization must, inter alia, (a) be based on its “individual merits,” (b) occur after the proposed user has made efforts to obtain permission from the owner on reasonable commercial terms, (c) be non-exclusive and non-assignable, (d) be predominantly for the domestic market of the party, and (e) provide for payment of “adequate remuneration” to the owner, considering the “economic value of the authorization.”173

(6) Trademarks The international regime governing trademarks is another example of the har monization modality. The principal instruments defining the global standards for trademark protection are the Paris Convention and TRIPS. In addition, the Madrid Agreement Concerning the International Registration of Marks (Madrid Agreement)174 and its Protocol175 have simplified the procedural aspects of obtain ing protection. The overarching principle of national treatment established in the Paris Convention for patents, trademarks, and other covered types of intellectual prop erty has long been a component of international trademark law. Beyond this point, the convention had only minimal impact on trademarks. For example, parties were required to refuse or cancel the registration of a trademark that was likely to cause confusion with a well-known trademark already in use in that state, and to refuse registration for a mark that utilized a state emblem or flag.176 Limits were also imposed on the transferability of trademarks.177 In general, however, the conven tion contemplated that trademarks would be governed by municipal law. It speci fied that “[t]‌he conditions for the filing and registration of trademarks shall be determined in each country . . . by domestic legislation.”178 The Madrid Agreement and its Protocol establish procedures for obtaining trademark protection in multiple states by a single filing. Although the provisions of these instruments differ to some extent, they share the same core concept: a national of a member state can file one application for trademark registration with the International Bureau of WIPO, which will then forward copies of the applica tion to all states where protection is sought. This system does not create an interna tional trademark. Rather, each state will separately consider the application under its domestic laws.

TRIPS art 31. Madrid Agreement Concerning the International Registration of Marks (Madrid Agreement) (Madrid, April 14, 1891, 828 UNTS 389). 175 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) (Madrid, June 27, 1989). 176 Paris Convention arts 6bis, 6ter. 177 Paris Convention art 6quater. 178 Paris Convention art 6(1). 173 174

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Comprehensive harmonization of trademark laws was finally accomplished through TRIPS, which imposes minimum uniform standards that all states must utilize. It provides that any “sign, or any combination of signs” capable of dis tinguishing the goods and services of one business from another business may constitute a trademark.179 For example, names, letters, numerals, “figurative com ponents,” and color combinations may be registered as trademarks.180 However, if the mark is not inherently distinctive, a state may refuse registration until it has acquired distinctiveness through use.181 A state may also refuse registration for reasons specified in the Paris Convention. TRIPS provides that the owner of a registered trademark shall have the “exclusive right to prevent all third parties . . . from using in the course of trade” identical or similar signs for goods or services that are identical or similar to the goods or services covered by the registered mark where this would result in a “likelihood of confusion.”182 A state may provide limited exceptions to the rights created by a trademark, such as “fair use of descriptive terms,” as long as these exceptions take into account the legitimate interests of the owner and of third parties.183 A registered trademark has a term of seven years, which may be renewed indefinitely.184 However, if domestic law requires continued use of the mark to maintain registration, at least three years of non-use are required before cancellation. Even so, cancellation may not occur where the registrant has valid reasons for non-use.185 Although a party may impose conditions on the transfer of trademarks, compul sory licensing is prohibited. In addition, the owner has the right to assign the mark “with or without the transfer of the business to which the trademark belongs.”186

(7) Trade Secrets International law historically provided little protection for trade secrets. The Paris Convention required member states to extend protection against unfair competi tion, including “any act of competition contrary to honest practices in industrial or commercial matters.”187 But this vague provision was ineffective. TRIPS established global standards for the protection of trade secrets under the rubric of “undisclosed information.” In this context, undisclosed information is defined as information that: (a) “is secret,” in that it is not “generally known among or readily accessible to persons within the circles that normally deal” with that kind of information; (b) “has commercial value because it is secret”; and (c) “has been subject to reasonable steps under the circumstances” to keep it secret on the part of the person who lawfully controls it.188 Each member state must ensure that persons

TRIPS art 15(1). 180 TRIPS art 15(1). 181 TRIPS art 15(1). TRIPS art 16(1). 183 TRIPS art 17. 184 TRIPS art 18. 185 TRIPS art 19. 186 TRIPS art 21. This provision limits the scope of Paris Convention art 6quater. 187 Paris Convention art 10bis(2). 188 TRIPS art 39(2). 179 182

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may prevent such information lawfully within their control from being “disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices.”189 The term “a manner contrary to honest commer cial practices” includes (a) breach of contract, (b) breach of confidence, (c) induce ment to breach confidence, and (d) the “acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.”190

(8) Security Interests in Intellectual Property International law has not developed a binding regime to govern security inter ests in intellectual property, in contrast to the systems established for mobile equipment191 and vessels.192 However, the Supplement on Security Interests in Intellectual Property to the Legislative Guide on Secured Transactions193 issued by the UN Commission on International Trade Law represents a first step toward harmonization.194 The supplement consists of model legislative provisions that are designed to aid states in developing domestic laws governing security interests in intellectual prop erty, in such a manner as to harmonize them with the laws of other states. It applies to “all transactions” in intellectual property that serve “security purposes, regard less of the form of the transaction.”195 The covered intellectual property includes copyrights, patents, trademarks, trade secrets, and “any other asset considered to be intellectual property” under the domestic law of the state or pursuant to an international agreement to which the state is a party.196 The recommended provi sions govern the creation, registration, priority, scope, and enforcement of security interests in intellectual property.

F. Judgments and Arbitral Awards (1) Generally Under international human rights law and the domestic law of many states, a judgment is viewed as a form of intangible property. Accordingly, when citizen A obtains a judgment in the courts of State B, the failure of the state to enforce that judgment is an interference with A’s property right, which may provide

TRIPS art 39(2). 190 TRIPS art 39(2), note 10. See the discussion in ch 4E(1). 192 See the discussion in ch 7K(2). 193 For a discussion of the provisions of the Legislative Guide that apply to security interests in tangible objects see ch 4E(2). 194 UN Commission on International Trade Law, Supplement on Security Interests in Intellectual Property to the Legislative Guide on Secured Transactions (2011). 195 Supplement on Security Interests 23. 196 Supplement on Security Interests 7. 189 191

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A with a direct claim against the state. The same analysis applies to an arbitral award, although with lesser force because such an award may be viewed as a contract right. In the same manner, the international framework governing the enforce ment of foreign judgments and arbitral awards may be viewed as a system for harmonizing property rights created at the domestic level. Assume that citizen A obtains a judgment in the courts of State B against C, a national of State D; A then sues in the courts of State D to enforce the judgment against C. In enforcing the judgment, State D is recognizing a property right held by A, which arose under the domestic law of State B. State D is also impairing property rights held by C, which arose under its own domestic law, in the assets used to satisfy the judgment.

(2) Domestic Judgments and Awards The traditional view is that the enforceability of a domestic judgment or other award is solely a question of national law. Just as the law of the forum state deter mines whether the plaintiff has a legal basis for asserting a claim, it also governs the enforceability of any resulting judgment. However, international human rights law generally recognizes that a judgment is a property right. Regional tribunals have accordingly held that a state’s refusal to enforce a judgment is a violation of the right to property. Under the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)197 and its protocol,198 a final money judgment is deemed to be a “possession” that is protected from undue government interference.199 The failure of a government to enforce a judgment against it200 or against a non-state actor201 for a long period of time is seen as an omission that violates the right to property. For example, in the case of Abdeyevy v Russia202 the European Court of Human Rights found a violation where it took 11 months or longer to enforce certain judgments; but it found no violation as to a second group of judgments that were enforced within five months because “the delays were not so long as to . . . interfere with the applicants’ rights to the peaceful enjoyment of their pos sessions.”203 Over the past two decades, the European Court has decided over 100 cases involving claims that a state’s delay in enforcing a judgment violated the right to property.

197 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 198 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 199 See eg Burdov v Russia (2004) 38 EHRR 29. 200 See eg Burdov. 201 See eg Istrate v Moldova App no 53773/00 (ECtHR, June 13, 2006). 202 App no 38405/02 (ECtHR, March 6, 2008). 203 Abdeyevy para 16.

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The African Commission on Human and Peoples’ Rights relied on this ECHR jurisprudence in its Bissangou v Congo decision,204 finding that the state’s unjustified refusal to enforce a judgment against it violated the complainant’s right to property under Article 14 of the African Charter on Human and Peoples’ Rights.205 The Inter-American Court has reached much the same result under Article 21 of the American Convention on Human Rights,206 without utilizing ECHR case law.207 Similarly, the European Court has held that a state’s refusal to enforce an arbitra tion award may violate the right to property. In the case of Stran Greek Refineries v Greece,208 the applicants received an arbitration award against Greece which had the force of a final judgment under domestic law. The national parliament later enacted a statute which provided that certain arbitration awards, including the applicant’s award, “shall no longer be valid or enforceable.”209 The court reasoned that the statute violated the right to property because “it was impossible for the applicants to secure enforcement of an arbitration award having final effect.”210

(3) Foreign Judgments and Awards International efforts to harmonize domestic laws to facilitate enforcement of for eign judgments have enjoyed little success. For example, the 1971 Convention on the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters,211 which would have established international standards, was ratified by only four nations and is not in force. A subsequent effort to negotiate a replace ment convention failed due to profound disagreements as to its scope, but eventu ally produced a narrower instrument, the 2005 Convention on Choice of Court Agreements.212 The Convention on Choice of Court Agreements seeks to establish an “inter national legal regime” to govern the recognition and enforcement of foreign judgments arising out of proceedings involving an “exclusive choice of court agree ment.”213 Under the convention, an exclusive choice of court agreement is a con tract that the courts of a particular state will have sole jurisdiction over any dispute arising out of the legal relationship between the parties.214 The convention applies to judgments rendered in a wide variety of civil and commercial lawsuits, though claims involving family law matters, personal injury, consumer claims, and certain other topics are excluded from its coverage.215 Comm no 253/02 (ACmHR, November 29, 2006). African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 206 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 207 eg Tibi v Ecuador Series C no 114 (IACtHR, September 7, 2004). 208 (1994) EHRR 293. 209 Stran Greek Refineries para 20. 210 Stran Greek Refineries para 67. 211 Convention on the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters (The Hague, February 1, 1971, 1144 UNTS 257). 212 Convention on Choice of Court Agreements (The Hague, June 30, 2005, 44 ILM 1294). 213 Convention on Choice of Court Agreements preamble para 1. 214 Convention on Choice of Court Agreements art 3. 215 Convention on Choice of Court Agreements art 2. 204 205

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The core of the convention is the mandate that “[a]‌judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States.”216 Enforcement may be refused for certain procedural reasons: insufficient notice, fraud in obtaining the judgment, or inconsistency of the judgment with an earlier judgment between the same parties.217 In addition, a court may refuse to enforce the judgment if: (a) the underlying agreement was void; (b) a party lacked capacity to enter into the agree ment; or (c) enforcement would be “manifestly incompatible with the public policy” of the forum state.218 Despite its promise, the convention has been rati fied only by a handful of states, leading critics to suspect that it will not achieve widespread acceptance. In contrast, the system for enforcing foreign arbitral awards is a successful harmonization effort. Most states are parties to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards.219 It requires that par ties both recognize foreign arbitral awards as binding and enforce them under domestic procedural rules, without restrictions based on the subject matter of the arbitration. Most of the justifications for refusing enforcement of the award are procedural in nature, such as the failure to give notice of the arbitration proceed ings, improper composition of the arbitration panel, a decision beyond the scope of the arbitration agreement, or the lack of a final award.220 Only three substan tive bases for refusing enforcement are recognized: (a) the arbitration agreement is invalid under the law of the state where it was made; (b) the subject matter is not capable of arbitration under the law of the state where enforcement is sought; or (c) enforcement of the award would be against the public policy of that state.221

G. Plant Varieties The question of rights in plant varieties is distinct from both patent law and rights in genetic materials. TRIPS requires that each state provide for the protection of rights in plant varieties either by patents or by an “effective sui generis system.”222 It is generally accepted that the system created by the International Convention for the Protection of New Varieties of Plants (UPOV)223 satisfies this mandate. UPOV establishes minimum international standards for granting rights in plant varieties that all member states must implement through domestic legislation, including Convention on Choice of Court Agreements art 8(1). Convention on Choice of Court Agreements art 9. Convention on Choice of Court Agreements art 9. 219 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958, 330 UNTS 3). 220 Convention on the Recognition and Enforcement of Foreign Arbitral Awards art V. 221 Convention on the Recognition and Enforcement of Foreign Arbitral Awards art V. 222 TRIPS art 27(3)(b). 223 International Convention for the Protection of New Varieties of Plants (UPOV) (Geneva, March 29, 1991). The 1991 version of the convention has been ratified by the largest group of states, but some states still adhere to a prior version. 216 217 218

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the requirement of national treatment.224 It accordingly serves as a mechanism for private actors at the domestic level to obtain derivative property rights in such varieties. UPOV provides that all parties “shall grant and protect breeders’ rights.”225 In this context, a “breeder” is a person who breeds, or discovers and develops, a vari ety of plant, or the employer or successor of such a person.226 The application for a breeder’s right will be granted where a plant variety satisfies four criteria: it must be new, distinct, uniform, and stable.227 A variety is “new” if material of the variety has not been sold or otherwise transferred to others with the consent of the breeder for longer than a certain period of time, ranging from one to six years depending on the circumstances.228 “Distinctiveness” means that the variety must be “clearly distinguishable from any other variety whose existence is a matter of common knowledge” when the application is filed.229 “Uniformity” is vaguely defined to require that the variety be “sufficiently uniform in its relative characteristics,” while a variety meets the “stability” criterion if its relevant characteristics remain unchanged after each propagation.230 Once granted, a breeder’s right continues for a fixed term of at least 20 years or, in the case of trees and vines, at least 25 years.231 In general, no one may perform any of the following acts with regard to the seeds or other “propagating material” of the protected variety without authoriza tion from the owner of the breeder’s right: “production or reproduction”; condi tioning for the purpose of propagation; offering for sale; selling or other marketing; exporting; importing; or stockpiling for any of these purposes.232 However, UPOV establishes a series of exceptions to the scope of the breeder’s right. For example, it does not extend to acts that are done: (a) “privately and for non-commercial purposes”; (b) for experimental purposes; or (c) for the purpose of breeding other varieties.233 In addition, a member state may restrict the exercise of the breeder’s right in the public interest, but the breeder must receive “equitable remuneration” if such a restriction allows third parties to perform any act for which the breeder’s consent would normally be required.234 The principal controversy concerning UPOV is whether it prohibits farmers from saving the seeds from a protected variety and using them to plant crops in later years. Because consent from the owner of the breeder’s right is required for any “production or reproduction” of the “propagating material,” the convention does bar this practice as a general matter. However, there are two potentially rele vant exceptions that would protect the farmer’s traditional right to use such seeds. Article 15(2) allows any party to adopt legislation that restricts the breeder’s right

224 The UPOV Council has issued detailed model laws for states to adopt in order to implement its terms. UPOV, Guidance for the Preparation of Laws Based on the 1991 Act of the UPOV Convention (October 20, 2011). 225 UPOV art 2. 226 UPOV art 1(iv). 227 UPOV art 5(1). 228 UPOV art 6(1). 229 UPOV art 7. 230 UPOV arts 8, 9. 231 UPOV art 19. 232 UPOV art 14(1). 233 UPOV art 15(1). 234 UPOV art 17.

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so as to “permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety.”235 In addition, even if a state fails to exercise this option, the exception for private and noncommercial use would permit subsistence farmers to reuse seeds on their lands. UPOV art 15(2).

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6 Rights in Land and Other Immovable Things

A. Introduction Under the Westphalian model, each state is entitled to sovereign control over its territory. As a result, a state necessarily has the power to create and define the property rights that private actors may hold in land within its territory. Because sovereignty and property rights in land are closely connected, international law has traditionally had only a minor impact on these rights. In recent decades, however, principles of international human rights law have begun to supplant municipal law in situations involving the land rights of vulner able groups. A substantial body of international law now safeguards the rights of indigenous and tribal peoples in their ancestral lands, even when they do not hold formal title. The right of refugees and other displaced persons to recover the houses, land, and other property they left behind are increasingly protected. The right to housing recognized under the International Covenant on Economic, Social and Cultural Rights (ICESCR)1 and regional human rights conventions has also expanded the scope of international law. All persons are entitled to housing of adequate quality and to protection against forcible eviction. More broadly, it has been suggested that the right to housing, combined with the right to food, may justify recognition of a human right to land. International law effectively regulates the manner in which certain lands may be used, imposing derivative restrictions on property rights. The global system of nature preserves and other protected areas limits the use of private land within or nearby these zones. Moreover, the duty to avoid transnational injuries bars own ers from using their lands in a manner that causes damage to property in other states―a form of international nuisance law.2 Concern about interference with sovereignty does not extend to the global com mons. Antarctica is governed by an international treaty regime that bars ownership of land, but would seemingly allow the creation of lesser forms of property rights.

1 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 2 The emerging duty to use land in a sustainable manner is discussed in ch 12C(3).

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B. The Global Commons (1) Generally The global commons consists of regions that are beyond the national jurisdiction of any state, and therefore subject only to international law. Antarctica, the high seas, and outer space are widely accepted as components of the global commons; it may extend as well to the interior of the Earth.3 Although the global commons is open to all states and their nationals, it is not subject to private ownership. However, each person has a derivative right to utilize the global commons― effectively a usufruct―unless constrained by international law or municipal law. This chapter analyzes the manner in which the specialized treaty regime governing Antarctica affects property rights, and also addresses the issue of property rights in the interior of the Earth. The scope of property rights in the high seas and outer space is discussed in chapters 7 and 8, respectively.

(2) Antarctica (a) The Antarctic Treaty System Most states agree that Antarctica is part of the global commons and, accordingly, cannot be the sovereign territory of any nation. However, the seven states that have asserted claims to portions of Antarctica reject this position.4 The 1959 Antarctic Treaty5 engineered a compromise between these competing positions by which (i) the claimant states agreed to suspend their sovereignty claims and (ii) all mem ber states agreed on an interim legal regime to govern human activities on the con tinent. To date, the treaty has been ratified by 50 states, including all the claimant states. In the long run, it seems unlikely that the international community will acqui esce to the pending sovereignty claims. Although many states have not ratified the treaty, the current parties include all of the states most likely to conduct activities in Antarctica, based on their resources, technology, and economic sys tems. The discussion below focuses on how the regulatory framework established under the treaty, its protocols, and related documents affect the property rights of private actors. Notably, nothing in the treaty prohibits commercial or other non-governmental activities in Antarctica. Nor does the treaty expressly address the question of property rights in the continent. The treaty reflects an implicit assumption that Antarctica will be largely or exclu sively devoted to scientific research sponsored by national governments.6 While it

Cyberspace may also be part of the global commons. See the discussion in ch 5C(1). The seven claimant states are Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. 5 Antarctic Treaty (Washington, December 1, 1959, 402 UNTS 71). 6 The treaty applies to the entire area south of 60° South Latitude, which encompasses both Antarctica and the surrounding oceans. Antarctic Treaty art VI. 3 4

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requires that the continent be used for “peaceful purposes only”7 and expressly pro hibits a few uses (eg military bases, nuclear explosions, and disposal of radioactive waste),8 most of its provisions are designed to facilitate scientific research at “sta tions” or “installations.”9 For example, Article III states that in order to promote international cooperation in scientific investigation, observations and reports from the Antarctic “shall be exchanged and made freely available.” However (i) each nation must give notice to other member states of all expeditions to or within Antarctica by its ships or nationals,10 and (ii) all areas of Antarctica, including stations and installations, must be open at all times to inspection by designated observers.11 Over time, the treaty has been supplemented by a series of protocols, together with resolutions and other instruments adopted by the Antarctic Treaty Consultative Meeting, the conference of the parties established to implement the treaty system. The most important instrument is the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol).12 It designates Antarctica as a “natural reserve, devoted to peace and science.”13 Accordingly, the protocol lim its activities that may be conducted in Antarctica in two key respects. First, it mandates an assessment of the potential environmental impacts of a proposed activity in the region before it may be carried out.14 Second, it requires that the activity be planned and conducted so as to avoid significant adverse environmen tal impacts.15 Reflecting the growing diversity of activities and actors involved in Antarctica, the protocol states that these restrictions extend to “tourism” and other “non-governmental activities.”16 This acknowledges the general understanding that private actors are entitled to operate on the continent to some extent. The question of private property rights in Antarctica has primarily arisen in the context of land-based tourism. In welcoming delegates to the Antarctic Treaty Meeting of Experts on Tourism and Non-governmental Activities in Antarctica in 2004, a Norwegian diplomat observed that the discussion of permanent tourist facilities “may raise the question of private property rights on the continent, for which no agreed framework in the Antarctic Treaty exists.”17 While the ensuing discussion reflected a substantial difference of opinion between states on the point, the chairman of the meeting conceded that “the Environmental Protocol does not specifically prohibit the establishment of private or commercial land-based 7 Antarctic Treaty art I(1). 8 Antarctic Treaty arts I(1), V(1). 9 Antarctic Treaty arts II, III, VII, VIII, IX. 10 Antarctic Treaty art VII(5). 11 Antarctic Treaty art VII(3). 12 Protocol on Environmental Protection to the Antarctic Treaty (Madrid, October 4, 1991, 30 ILM 1461). 13 Environmental Protocol art 2. 14 Environmental Protocol art 8(1). 15 Environmental Protocol art 3(2). 16 Environmental Protocol arts 3(4), 8(2). 17 Antarctic Treaty Consultative Meeting, Chairman’s Report from Antarctic Treaty Meeting of Experts on Tourism and Non-governmental Activities in Antarctica annex 5 (2004).

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facilities.”18 The discussion below examines the extent to which property rights may exist in Antarctica in four contexts: buildings and equipment; ice; land; and minerals.19

(b) Buildings and Equipment The treaty contemplates that states may have “stations, installations, and equip ment” in Antarctica.20 In fact, an extensive network of stations has developed. Because nothing in the treaty or its protocols requires that these facilities be owned or operated by states, it would seem that private ownership is permitted. Given the lack of any body of international law or Antarctic-specific law that governs private property, the law of each state would govern property rights in the buildings and other equipment brought to Antarctica by its nationals. In general, a state contin ues to have jurisdiction over its nationals and their property in other areas of the global commons, such as the high seas and outer space.21 The Antarctic Treaty rec ognizes this concept by specifying that observers and scientific personnel assigned to a station operated by another state shall be subject only to the jurisdiction of their home state.22 Thus, presumably a state could permit buildings within its sta tions to be owned and operated by private actors, even if formal property rights in the underlying land are barred.

(c) Ice Antarctic ice contains most of the world’s fresh water supply. For decades, entre preneurs have speculated that it might someday be cost-effective to detach large chunks of ice from the continent and transport them to nations facing water short ages in Africa, the Middle East, or elsewhere.23 Nothing in the treaty prohibits the exploitation of ice in the region. Moreover, while the Environmental Protocol bars all activities relating to “mineral resources,” ice is apparently not a mineral covered by this provision.24 Harvesting of ice would therefore appear to be permissible as a general matter under both instruments. Antarctic Treaty Consultative Meeting, Chairman’s Report annex 5. Property rights in animals and plants from Antarctica are discussed in ch 4K(3), while rights in genetic material from this region are addressed in ch 5D(4). 20 Antarctic Treaty art VII(3). 21 For example, a ship on the high seas is subject to the exclusive jurisdiction of the flag state. UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3) art 92(2). 22 Antarctic Treaty art VIII(1). 23 For a discussion of ownership rights in icebergs that have detached from Antarctica see ch 7G. 24 The Convention on the Regulation of Antarctic Mineral Resource Activities (Mineral Convention) (Wellington, June 2, 1988, 27 ILM 868) would have authorized the exploitation of “mineral resources,” defined as “all non-living natural non-renewable resources, including fossil fuels, metallic and non-metallic minerals.” Mineral Convention art 1(6). The subsequent Environmental Protocol uses the same phrase in its Article 7, providing that activities relating to “mineral resources” are generally prohibited, but it does not define the phrase. It appears that the parties to the protocol intended the term to have the same meaning as in this convention. This definition does not include ice, which is a renewable resource. 18 19

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However, under the environmental constraints imposed by the protocol, it seems likely that ice harvesting may be improper in certain situations. The proto col requires that activities within the treaty area―whether undertaken by govern ments or private actors―be planned and conducted so as to limit adverse impacts on the Antarctic environment and related ecosystems.25 These activities must be conducted so as to avoid, inter alia, (i) adverse effects on climate patterns, (ii) sig nificant changes in the terrestrial or glacial environments, and (iii) degradation of, or substantial risk to, areas of scientific, aesthetic, or wilderness significance.26 If undertaken on a sufficiently large scale, ice harvesting might violate one or more of these tenets. For example, if a substantial amount of ice were removed by a private company, this would seemingly constitute a significant change in a glacial environment. The Antarctic Treaty Consultative Meeting has expressed concern that ice har vesting might damage the environment.27 Its Recommendation XV-21, which became effective in 2004, notes that the removal of ice in the coastal regions could create a number of environmental issues, especially if this involved land-based installations. Accordingly, the recommendation recognized “the desirability that commercial exploitation of Antarctic ice not occur . . . prior to examination by the Contracting Parties to the Antarctic Treaty of the issues posed by such activity.”28 This is far from a prohibition.

(d) Land Nothing in the treaty or its protocols prevents a claimant state from creating pri vate property rights in land over which it claims sovereignty. To date, however, this has not occurred. It seems unlikely to occur in the future, as the sovereignty claims become attenuated with the passage of time. The more likely possibility is that the stations authorized under the treaty regime may provide a foundation for recognizing property rights in land. Although no member state may raise a new claim of territorial sovereignty, the regime impli citly recognizes that each state has de facto sovereignty over the land beneath its stations. The Antarctic Treaty acknowledges that (i) a state may have “stations, installations, and equipment” in Antarctica and (ii) that these stations may be “occupied by its nationals.”29 Today some stations have begun to resemble small towns, providing a wide array of facilities for hundreds of residents. For example, McMurdo Station has more than 100 buildings and can accommodate over 1200 residents in the summer season. The station is served by a network of water, sew age, telephone, and power facilities.

Environmental Protocol art 3(2)(a). Environmental Protocol art 3(2)(b). 27 Antarctic Treaty Consultative Meeting recommendation XV-21 (1989). 28 Antarctic Treaty Consultative Meeting recommendation XV-21. 29 Antarctic Treaty art VII(3), (5)(b). 25 26

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The Antarctic Treaty allows a state to exercise almost total jurisdiction over its stations, a level of control that approaches sovereignty. The treaty does not impose any limits on the number, location, or size of stations. Nor does it restrict the period of time that stations may continue to occupy the land surface; presum ably they may endure as long as the treaty continues. Finally, the treaty does not restrict the uses to which those stations may be devoted, except in minor respects.30 The principal limitation on the state’s control is that stations must be “open at all times to inspection” by observers designated by other treaty parties, who shall have “complete freedom of access any time.”31 However, inspections are infrequent. Many stations have never been visited by an inspection team. Although the Environmental Protocol imposes additional restrictions on stations, it does not fundamentally change the level of national control. It generally requires member states to cooperate in planning and conducting activities on the continent. This includes a provision that each party shall “endeavor” to “consult with other Parties with regard to the choice of sites for prospective stations and facilities” to avoid cumulative negative impacts on the environment.32 The protocol mandates (i) a prior environmental assessment of a proposed or substantially expanded station and (ii) the implementation of such a station project in a manner which avoids significant adverse environmental impacts. It seems unlikely, however, that these restrictions would pre clude a state from constructing a new station or expanding an existing station. Under this regime, a state would presumably be allowed to create a form of pri vate property rights in the land underlying its stations, perhaps akin to a lease or usufruct. The protocol acknowledges that non-governmental activities may occur on the continent, which―at a minimum―leaves open the question of whether this might involve some type of property ownership, such as a hotel or other land-based tourist facility.

(e) Minerals The potential creation of property rights in Antarctic mineral resources has been a controversial topic. The Antarctic Treaty did not address the legality of min ing. The 1988 Convention on the Regulation of Antarctic Mineral Resource Activities33 would have established an international regime for granting permits to states or private entities for the exploration and development of oil, gas, and other “non-living natural non-renewable resources”34―much like the system for permits to mine deep seabed minerals under the UN Convention on the Law of the Sea (UNCLOS).35 The permit contemplated by this convention would have given a Antarctic Treaty arts I(1), V(1). Antarctic Treaty art VII(2), (3). 32 Environmental Protocol art 6(1)(d). 33 Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, June 2, 1988, 27 ILM 868) (Mineral Convention). 34 Mineral Convention art 1(6). 35 UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). See the discussion in ch 7H. 30 31

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holder “exclusive rights” to exploit the mineral resources in a designated region.36 However, the convention was never ratified by any state. The adoption of the Environmental Protocol in 1991 effectively ended any debate on the issue among member nations. Its Article 7 provides that “[a]‌ny activ ity relating to mineral resources, other than scientific research, shall be prohibited.” On its face, this article does not refer to activities by private actors, unlike Articles 3 and 8 which expressly regulate “non-governmental activities.”37 But any sug gestion that this omission permits private actors to engage in mining activities is refuted by Article 13, which requires member states to take appropriate measures, including the adoption of laws and regulations, to ensure compliance with the protocol. Each party is thus obligated to prohibit mining activities in Antarctica as part of its domestic law.

(3) Interior of the Earth It may also be appropriate to classify the interior of the Earth as part of the global commons, like Antarctica, the high seas, and outer space. This approach would limit the extent to which national sovereignty―and thus private property rights― may exist in the interior below a certain depth. The interior of the Earth consists of different layers.38 The outermost layer is the lithosphere, a thin and rigid shell that is essentially floating over a more flex ible interior. The lithosphere has an average depth of 100 kilometers and occupies only 5% of the Earth’s volume. From the bottom of the lithosphere, it is approxi mately 6300 kilometers to the center of the Earth. This region is occupied by four more layers―the asthenosphere, mesosphere, outer core, and inner core―which comprise the other 95% of the planet’s volume. Subsurface pressure and tempera ture increase with depth, producing conditions that humans cannot tolerate. For example, the temperature at the center of the Earth is thought to exceed 6700°C, while the pressure is believed to be about three million times greater than at the surface. In addition, large areas of the subsurface below the lithosphere are relatively plastic, consisting of molten rock and other mobile materials. For these reasons, virtually all of the Earth’s interior is inaccessible to humans. Human activity is only possible in the shallowest portions of the lithosphere, at depths of less than 50 kilometers. A strong argument can be made that the global commons extends to the region between (a) the seabed under the high seas that is subject only to international jurisdiction and (b) the center of the Earth. No state has a colorable claim to national sovereignty over this region. UNCLOS provides that “[t]‌he Area and its resources are the common heritage of mankind.”39 In this context, the “Area” is Mineral Convention art 48. Environmental Protocol arts 3(4), 8(2). 38 See John G Sprankling, “Owning the Center of the Earth” (2008) 55 UCLA L Rev 979, 992–98. 39 UNCLOS art 136. 36 37

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defined as the seabed and ocean floor and “subsoil thereof ” beyond the limits of national jurisdiction.40 Although the definition of “subsoil” is vague, the best interpretation is that the Area extends downward from the seabed to the center of the planet. UNCLOS specifies that “no natural or juridical person [may] appropri ate”41 any part of the Area. The clear implication of this language is that private property rights may not exist in the Area, including the region below the seabed, unless especially authorized by international law.42 The status of the deep subsurface that lies between the land surface of states and the center of the Earth is a more difficult question. It is commonly assumed that the territory of a state extends downward from the surface to the center of the planet. Under this view, a state is authorized to create property rights in such subsurface territory. This analysis makes sense as applied to the shallow portions of the lithosphere where human activity is possible. But its extension to the deep subsurface is problematic. This region is so remote, pristine, and inhospitable to human activity that it closely resembles conditions on the high seas and outer space. Under this analysis, the deep subsurface should be viewed as part of the global commons, and therefore not subject to private ownership.

C. Housing (1) Generally The right to housing is a fundamental human right. The ICESCR recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate . . . housing.”43 In a related vein, the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to “arbitrary or unlawful interference with his . . . home.”44 The regional human rights conventions also provide special protection for the home. Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) proclaims that “[e]‌veryone has the right to respect for his . . . home.”45 It further provides that: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the inter ests of national security, public safety or the economic well-being of the country, for the UNCLOS art 1(1)(1). UNCLOS art 137(1). 42 However, the Authority created to administer the mineral resources in the Area has the ability to create private property rights in such minerals, as discussed in ch 7H. 43 ICESCR art 11(1). 44 International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171) art 17(1). 45 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221) art 8. 40 41

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prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.46

The protection afforded by this article is primarily negative. It prevents certain forms of government interference with the home, but does not compel the state to provide housing. As the European Court of Human Rights summarized, the article “does not guarantee the right to have one’s housing problem solved by the author ities.”47 In contrast, the European Social Charter both recognizes that “[e]‌veryone has the right to housing” and requires states to fulfill this right.48 Under its Article 31, each party must undertake measures “to promote access to housing of an adequate standard,” to reduce homelessness, and to make the price of housing affordable.49 The American Convention on Human Rights (ACHR)50 and the Arab Charter on Human Rights (Arab Charter)51 echo the ICCPR approach. The ACHR pro vides that no one shall be “the object of arbitrary or abusive interference with . . . his home,”52 while the Arab Charter states that no one shall be “subjected to arbitrary or unlawful interference with his . . . home.”53 Although the African Charter on Human and Peoples’ Rights (ACHPR)54 does not contain an express right to hous ing, the African Commission on Human and Peoples’ Rights has inferred a right to shelter from the more general right to property in its Article 14.55 The ASEAN Human Rights Declaration follows the ICESCR model; it states that “[e]‌very per son has the right to an adequate standard of living . . . including . . . [t]he right to adequate and affordable housing.”56

(2) Security of Tenure (a) The Right to Occupy Millions of people around the world―ranging from slum dwellers in Latin America to villagers in Africa―do not have security of tenure in their homes. In the typical situation, residents live in a dwelling without a legally recognized right to do so, while formal title to the underlying land is vested in the state or an absentee private owner.

ECHR art 8. Marzari v Italy (1999) 28 EHRR CD175, 179. 48 European Social Charter (Strasbourg, May 3, 1996, 2151 UNTS 277) parts I(31), II(31). 49 European Social Charter part II(31). 50 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 51 Arab Charter on Human Rights (May 22, 2004), reprinted in 24 Boston U Intl LJ 149 (2006). 52 ACHR art 11(2). 53 Arab Charter art 21(1). 54 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 55 Social and Economic Rights Action Center v Nigeria Comm no 155/96 (ACmHPR, October 27, 2001) para 63. 56 ASEAN Human Rights Declaration (November 18, 2012) (reprinted in 32 Human Rights LJ 219 (2012)) art 23(c). 46 47

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A number of authorities recognize that an integral part of the right to adequate housing is security of tenure―a legal right to occupy the home. ICESCR General Comment No 4 specifies that “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.”57 It provides that states should take steps to confer legal security of tenure upon those who lack it in order to comply with the international right to housing. As the UN Secretary-General has noted, “legal protection in the form of granting an occupancy permit or title to a piece of land destined for residen tial use is the single most important step Governments can take in honouring their commitment to the right to adequate housing.”58 Security of tenure does not necessarily connote ownership. The legal right to live in rental housing, coopera tive housing, or informal settlements will satisfy the international standard. In practice, states have been slow to provide security of tenure. Where formal title is held by a private owner, the state can confer security of tenure on occupants only by infringing the rights of the owner; this may entitle the owner to receive compensation. Alternatively, where title is vested in the state, providing the resi dents with security of tenure may interfere with the state’s future ability to devote the land to more valuable uses. As a result, international efforts to implement the right to housing have primarily focused on avoiding forced evictions.

(b) Forced Evictions More than five million people are subjected to forced evictions every year. In this context, a “forced eviction” is the coerced or involuntary removal of residents from their homes without appropriate legal protection. Forced eviction often occurs in cities for purposes such as urban redevelopment, sporting events, or housing renovation. It also takes place in rural areas through forced relocations for infra structure projects such as dams, energy projects, mining activities, and industrial facilities. Evictions are commonly justified as necessary for major public projects that serve the general welfare. For example, slum housing cannot be replaced with new housing units unless the occupants leave their homes. Yet these evictions are often conducted without regard for the rights of displaced residents. A growing body of international law recognizes that forced evictions may violate the right to housing.59 ICESCR General Comment No 4 states that forced evic tions are “prima facie incompatible with the requirements of the Covenant” and can only be justified “in the most exceptional circumstances” and in accordance with “the relevant principles of international law.”60 The comment also observes 57 UN Committee on Economic, Social and Cultural Rights, General Comment No 4, UN Doc E/1992/23 (December 13, 1991) para 8(a). 58 Forced Evictions, Analytical Report Compiled by the Secretary-General, UN Doc E/ CN.4/1994/20 (December 7, 1993) para 160. 59 Another constraint on forced evictions is ICCPR Article 17(1), which provides that “[n]‌o one shall be subjected to arbitrary or unlawful interference with his . . . home.” The UN Human Rights Committee relied on this provision in Georgopolous v Greece, Comm no 1799/2008 (July 29, 2010), finding that the demolition of a shed occupied by Roma families violated this provision. 60 General Comment No 4 para 1.

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that protection against forced evictions extends to residents with and without security of tenure. ICESCR General Comment No 7 analyzes the circumstances under which forced evictions are permissible.61 It mandates that evictions be conducted: (i) in accordance with domestic and international law; (ii) for a justifiable reason; (iii) in a reasonable and proportional manner; and (iv) pursuant to procedural safeguards, including prior consultation, compensation, and resettlement assistance.62 The comment calls upon states to adopt legislation that provides “the greatest possible security of tenure to occupiers of houses and land” and strictly controls the manner in which such evictions are carried out.63 States are required to prevent improper evictions, whether carried out by government officials or private actors.64 The substantive standards provided by General Comment No 7 are hazy. Although many forced evictions occur as a result of development, the comment offers little guidance as to when evictions are justifiable in this situation. It merely quotes ICESCR Article 4, which provides that protected rights―such as the right to housing―may be restricted “solely for the purpose of promoting the general welfare in a democratic society.”65 Almost any large public project would seemingly satisfy this standard. The comment also notes that the forced eviction of individual residents “may” be justifiable, such as “in the case of the persistent non-payment of rent or of damage to rented property without any reasonable cause.”66 This suggests an owner may evict a particular resident only for good cause. Given this confusing framework, it is unsurprising that forced eviction cases have most commonly involved the extreme situation of homes being intentionally destroyed by government agents.67 For example, the case of Social and Economic Rights Action Center v Nigeria68 arose when security forces attacked and burned homes in several villages to dislodge political opponents, leaving thousands of peo ple homeless. Citing General Comment No 4 for the proposition that all persons should be protected against forced eviction, the African Commission found that the conduct of the government “clearly demonstrates a violation of this right.”69 A similar situation was presented in the case of Akdivar v Turkey,70 where secur ity forces burned homes in their pursuit of an insurgent group. In response to the homeowners’ claims that they were “victims of a government policy of forced

61 UN Committee on Economic, Social and Cultural Rights, General Comment No 7, UN Doc E/1993/22 (May 20, 1997). 62 General Comment No 7 paras 4–16. 63 General Comment No 7 para 10. 64 General Comment No 7 para 9. 65 General Comment No 7 para 6. 66 General Comment No 7 para 12. 67 See also the discussion in ch 11E(2). 68 Comm no 155/96 (ACmHPR, October 27, 2001). See also Centre for Minority Rights v Kenya Comm no 276/03 (ACmPHR, November 25, 2009) para 200, citing General Comment Nos 4 and 7 to help interpret the ACHPR in a forced eviction dispute. 69 Social and Economic Rights Action Center para 63. 70 23 EHRR 143 (1996).

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eviction,” the European Court ruled that these actions violated both the right to property and the right to respect for the home.71 In 2007, the UN Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living issued the Basic Principles and Guidelines on Development-Based Evictions and Displacement (Basic Principles),72 a soft law instrument. These principles are helpful because they pro vide more detailed guidance than General Comments Nos 4 and 7. They apply to “acts and/or omissions involving the coerced or involuntary displacement of indi viduals, groups and communities from homes and/or lands and common property resources that were occupied or depended upon, thus eliminating or limiting the ability of an individual, group, or community to reside or work in a particular dwelling, residence or location, without the provision of, and access to, appropriate forms of legal protection.”73 In summary, any such eviction must be (i) authorized by domestic law, (ii) carried out in accordance with international human rights law, (iii) “undertaken solely for the purpose of promoting the general welfare,” (iv) reasonable and proportional, and (v) accompanied by full and fair compensation.74 These protections apply equally to residents who hold “title to home and property under domestic law” and those who do not.75 The main substantive restriction in the Basic Principles is that a forced eviction must be undertaken solely to promote the general welfare. The phrase “promotion of the general welfare” has a specialized meaning in this context. It refers to “steps taken by States consistent with their international human rights obligations, in particular the need to ensure the human rights of the most vulnerable.”76 The only example provided of a “justified” eviction is one for the purpose of land reform or redistribution.77 Taken together, these provisions imply that forced evictions are more likely to be appropriate when they are undertaken for the limited purpose of implementing a state’s human rights obligations. Almost any large-scale develop ment project might arguably be viewed as an effort, at least in part, to promote human rights. The Basic Principles also create procedural protections.78 Before any evic tion, appropriate notice should be given to all potentially affected people, public Akdivar paras 85, 88. UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, UN Doc A/HRC/4/18 annex I (February 5, 2007). 73 Basic Principles para 4. This definition of forced eviction is more sweeping than earlier formula tions in that it includes eviction from “land and common property resources,” not merely “homes.” 74 Basic Principles para 21. 75 Basic Principles para 21. 76 Basic Principles para 17 note d. 77 Basic Principles para 22. 78 In FEANTSA v France, the European Committee of Social Rights interpreted Article 31 of the European Social Charter as providing similar procedural rights in forced evictions, including prior consultation to explore alternatives to eviction, reasonable notice, restrictions on the time of eviction, restrictions on the manner of eviction to “respect the dignity of the persons involved,” and measures to re-house evicted persons. European Committee of Social Rights, Complaint no 39/2006 (December 5, 2007) paras 87, 88. 71 72

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hearings should be conducted, alternatives to eviction must be explored, and the authorities must demonstrate that eviction is “unavoidable and consistent with international human rights commitments protective of the general welfare.”79 Evictions must be conducted in a manner that respects the dignity and security of the residents and at an appropriate time, and any use of force must be consistent with the principles of necessity and proportionality.80 Finally, evicted residents are entitled to receive temporary replacement housing, compensation for their losses (including compensation related to the loss of slum dwellings and other informal property), and either the right to return to their homes, if possible, or alternative permanent housing.81 Although the state is primarily responsible for complying with these principles, private actors such as project managers, financial institutions, transnational corpo rations, and landowners also bear some responsibility. A state must both: (i) avoid violating the obligations set forth in the principles; and (ii) “ensure that other par ties within [its] jurisdiction and effective control” do not violate them.82 In effect, the international law governing forced evictions is a de facto method of establishing security of tenure for residents who lack a legal right of occupancy. Even squatters and other illegal occupants cannot be forcibly evicted unless the state or private actor complies with substantive and procedural requirements. For example, the fact that a family occupies a slum dwelling on state property without official permission is not a sufficient basis to evict it. Similarly, a family whose occupancy is based on customary or informal title is protected from eviction by a private owner absent good cause.

(3) Quality of Housing ICESCR General Comment No 4 explains that the standard for adequate hous ing is defined by seven main factors: (a) legal security of tenure; (b) availability of essential services and facilities such as safe drinking water, energy for cook ing, heating, and lighting, and sanitation and washing facilities; (c) affordability; (d) habitability, defined as providing the occupants with adequate space and pro tecting them from threats to health and safety; (e) accessibility; (f ) a location that allows access to employment, health care, schools, and other social facilities; and (g) cultural adequacy.83 Despite the framework created under the ICESCR, the international right to housing of adequate quality is more theory than reality. It is a generally accepted principle of international human rights law that the state’s duty to fulfill a particular right is limited by the concept of progressive realization. This reflects the reality that most states do not have sufficient resources to fully imple ment social and economic rights.

Basic Principles paras 37–44. Basic Principles paras 59–68. 83 General Comment No 4 para 8.

Basic Principles paras 45–51. Basic Principles paras 11–12.

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The principal decisions enforcing the obligation to provide quality housing have arisen under Article 31 of the European Social Charter.84 In FEANTSA v France,85 the European Committee of Social Rights observed that the article required a dwelling that is “safe from a sanitary and health point of view,” one which “possesses all basic amenities, such as water, heating, waste disposal, sanita tion facilities, and electricity; is structurally secure; not overcrowded; and with secure tenure supported by the law.”86 It found that France violated this standard by making insufficient progress in repairing up to 600,000 substandard dwellings within its territory. The case of European Roma Rights Centre v Greece87 involved a similar situation; it was brought on behalf of thousands of Roma people living in settlements in Greece with substandard housing that afforded little or no access to water, electricity, or sewage disposal facilities. The committee noted that its case law under Article 31 required states to ensure that “existing housing be of an adequate standard and include essential services (such as heating and electricity).”88 Relying on this provision in part, the committee found that Greece had violated its international obligations. In contrast, the European Court of Human Rights has held that ECHR Article 8 does not obligate the state to provide housing: “Whether the State provides funds to enable everyone to have a home is a matter for political not judicial deci sion.”89 Rather, the article has been construed as precluding undue state interfer ence with homes that already exist; the state may also be liable if it fails to prevent third parties from interfering with homes. However, the court has recognized that the state may have a positive duty to pre vent noise,90 fumes,91 and similar nuisance-like intrusions that impede a resident from using and enjoying a home, most commonly on the theory that the state has failed to protect against the actions of third parties. An example is the case of Des v Hungary,92 where heavy trucks seeking to avoid a new toll on a private highway dramatically increased the traffic level on the public road outside the complainant’s house. The added noise, pollution, and smells produced by this traffic rendered the home almost uninhabitable.93 The ECHR observed that the right to respect for the home included “the quiet enjoyment of that area within reasonable limits.”94 Because the noise exceeded the levels allowed by domestic law, and the state had not taken steps to prevent this violation, the court found a violation of Article 8. European Social Charter art 31. European Committee of Social Rights, Complaint no 39/2006 (December 5, 2007). 86 FEANTSA para 76. 87 European Committee of Social Rights, Complaint no 15/2003 (December 8, 2004). 88 European Roma Rights Centre para 24. 89 Chapman v UK (2001) 33 EHRR 18 para 99. 90 eg Hatton v UK (2002) 34 EHRR 1 (aircraft noise); Moreno Gomez v Spain (2005) 41 EHRR 40 (nightclub noise). 91 eg Lopez Ostra v Spain (1995) 20 EHRR 277 (smells, noise, and fumes from waste treatment plant). 92 (2013) 57 EHRR 12. 93 Des para 22. 94 Des para 21. 84 85

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D. The Human Right to Land Should international law recognize the right to land as a human right? Although the ICESCR does not include a general right to property, it acknowledges the right of all persons to an adequate standard of living, “including adequate food, clothing and housing.”95 In recent years, it has been suggested that a human right to land is an inherent part of the rights to food and housing.96 The UN Special Rapporteur on Adequate Housing has recommended that the Human Rights Council “[r]‌ecognize the right to land as a human right and strengthen its protec tion in international human rights law.”97 Discussion of the human right to land has primarily focused on protecting cur rent occupants and users of farmland and other productive lands who may hold traditional or customary rights, but lack formal title. In this context, there is little functional difference between (1) granting security of tenure to such land occu pants and users and (2) protecting them from forced evictions. Meaningful protec tion against forced eviction is a de facto form of security of tenure. One source of support for a human right to land is derived from the right to food. As ICESCR General Comment No 12 recognizes, the right to adequate food requires “access at all times to adequate food or means for its procurement.”98 A major method of procurement is “feeding oneself directly from productive land or other natural resources.”99 The obligation of each state to ensure that “enter prises or individuals do not deprive individuals of their access to adequate food”100 implies that the state must take adequate measures to protect the formal or infor mal land rights of persons who grow their own food. The UN Special Rapporteur on the Right to Food developed this theme in principles designed to address the challenges created by large-scale land acquisi tions that threaten occupants and users with eviction.101 In particular, he observed that “[t]‌he human right to food would be violated if people depending on land for their livelihoods, including pastoralists, were cut off from access to land, without suitable alternatives.”102 He suggested, inter alia, that: (1) any shift in land use may occur only with the “free, prior, and informed consent of the local communities involved”; and (2) each state should adopt legislation protecting the land rights of local communities and individuals, allowing them to obtain “individual titles or collective registration of the land they use.”103 95 ICESCR art 11(1). 96 eg Oliver de Schutter, “The Emerging Human Right to Land” (2010) 12 Intl Comm L Rev 303. 97 UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to An Adequate Standard of Living, UN Doc A/HRC/4/18 (February 5, 2007) 12. 98 UN Committee on Economic, Social and Cultural Rights, General Comment No 12, UN Doc E/C.12/1999/5 (May 12, 1999) para 6. 99 General Comment No 12 para 12. 100 General Comment No 12 para 15. 101 UN Human Rights Council, Report of the Special Rapporteur on the Right to Food, Addendum, UN Doc A/HRC/13/33/Add.2 (December 28, 2009). 102 Report of the Special Rapporteur on the Right to Food para 4. 103 Report of the Special Rapporteur on the Right to Food annex principles 2, 3.

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The second source of support for a human right to land is based on the right to housing, as an extension of the restrictions on forced eviction. The Basic Principles issued by the UN Special Rapporteur on Adequate Housing extend protection from forced eviction not only to homes, but also to “lands and common property resources that were . . . depended upon” by residents, regardless of whether “they hold title to home and land under domestic law.”104 The implication is that evic tion from nonresidential land, such as farms, forests, and grazing lands, is restricted by the right to housing. The linkage between adequate housing and access to farms and other productive lands is economic. As the Special Rapporteur has explained, “[i]‌nadequate housing is often the consequence of being barred [from] access to land and common property resources.”105 A person who is unable to utilize land for farming or other forms of productive economic activity is unlikely to acquire the resources necessary to afford adequate housing. The most recent effort to implement the human right to land is found in the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Voluntary Guidelines)106 issued by the UN Food and Agriculture Organization in 2012. One guideline provides that states should: Recognize and respect all legitimate tenure right holders and their rights. They should take reasonable measures to identify, record and respect legitimate tenure holders and their rights, whether formally recorded or not; to refrain from infringement of tenure rights of others; and to meet the duties associated with tenure rights.107

In this context, “legitimate tenure rights” include those that are “not currently pro tected by [national] law,”108 such as those based on customary tenure109 or informal tenure.110 The Voluntary Guidelines specify that “States should provide appropri ate recognition and protection of the legitimate tenure rights of indigenous peo ples and other communities with customary tenure systems.”111 The reference to “other communities with customary tenure systems” would expand the protection already afforded to indigenous and tribal peoples to millions of other people hold ing customary tenure. The recognition of a human right to land might ultimately impose a duty on each state to fulfill the right by redistributing land to those who lack it. Such a duty does not exist under current international law. For example, the ICESCR merely requires that states take “measures . . . which are needed” to improve the production, conservation and distribution of food by “reforming agrarian sys tems in such a way as to achieve the most efficient development and utilization of Basic Principles paras 4, 21. Report on the Special Rapporteur on Adequate Housing 10. 106 UN Food and Agriculture Organization, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012). 107 Voluntary Guidelines para 3.1.1. 108 Voluntary Guidelines para 4.4. 109 Voluntary Guidelines para 8.2. 110 Voluntary Guidelines para 10.1. 111 Voluntary Guidelines para 9.4. 104 105

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natural resources.”112 This falls short of mandating redistribution. The Voluntary Guidelines also indicate that states are not obligated to redistribute land. They provide that “where appropriate under national contexts, States may consider allo cation of public land, voluntary and market based mechanisms as well as expro priation of private land, fisheries or forests for a public purpose.”113

E. Indigenous and Tribal Peoples (1) Generally Indigenous and tribal peoples around the world have long occupied undeveloped and sparsely populated lands. These groups typically use land in a communal manner for subsistence farming and hunting, without holding formal title. As the Inter-American Court of Human Rights observed, “the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival.”114 In recent decades, timber, minerals, and other valuable resources on these lands have attracted increased attention from governments and private actors who seek to exploit them. The resulting disputes have produced a growing body of law gov erning the land rights of indigenous and tribal peoples. The ICCPR and ICESCR have been interpreted as protecting the land rights of indigenous and tribal peoples. Article 1(2), which is identical in both conventions, acknowledges that “[a]‌ll peoples may, for their own ends, freely dispose of their natural wealth and resources.”115 Similarly, ICCPR Article 27 protects the rights of all minority groups “to enjoy their own culture.”116 As General Comment No 23 to the ICCPR indicates, under this article the right of individuals to enjoy a par ticular culture “may consist in a way of life which is closely associated with territory and the use of its resources.”117 Moreover, ICESCR Article 15, which safeguards the right of everyone “[t]o take part in cultural life,” also protects land rights.118 General Comment No 21 construes this article to require that states “take meas ures to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources.”119 Decisions by the UN Human Rights Committee have interpreted these provisions as protecting

ICESCR art 11(2)(a). Voluntary Guidelines para 15.1. Mayagna (Sumo) Awas Tingni Community v Nicaragua Series C no 79 (IACtHR, August 31, 2001) para 149. 115 ICESCR art 1(2); ICCPR art 1(2). 116 ICESCR art 27. 117 UN Human Rights Committee, General Comment No 23, UN Doc CCPR/C/21/Rev.1/ Add.5 (April 8, 1994) art 3.2. 118 ICESCR art 15. 119 UN Committee on Economic, Social and Cultural Rights, General Comment No 21, UN Doc E/C.12/GC/21 (December 21, 2009) para 36. 112 113 114

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the rights of indigenous peoples to the resources they have traditionally used even where they lack formal title.120 A number of other instruments have also addressed this subject, most notably the 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ITP Convention)121 and the 2007 UN Declaration on the Rights of Indigenous Peoples (IP Declaration).122 In addition, a series of decisions by the Inter-American Court of Human Rights has interpreted the scope of the right to property in the ACHR, creating a substantial body of case law. These decisions have influenced the African Commission on Human and Peoples’ Rights as it interprets the property rights of indigenous peoples under the ACHRP. The growing body of international law in this area addresses four issues. First, what constitutes an “indigenous people” or a “tribal people”? Second, are indi genous and tribal peoples entitled to ownership of the lands they have traditionally occupied? Third, to what extent may a state limit the ownership rights of these groups? Finally, what remedies are available if a protected group is no longer in possession of its land?123

(2) Protected Groups The first international instrument to recognize the land rights of indigenous and tribal peoples was the ITP Convention. Although there is no internation ally accepted definition of either term, the convention provides a useful starting point. The most important criterion is self-identification: “Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.”124 More specifically, the convention defines “indigenous peoples” as: peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographic region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries, and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.125

This standard has two parts: (a) descent from people who inhabited the region before European conquest or colonization; and (b) retention of distinctive social,

120 eg Apirana Mahuika v New Zealand, UN HRC Comm no 547/1993, UN Doc CCPR/ C/70/D/547/1993 (2000). 121 Convention concerning Indigenous and Tribal Peoples in Independent Countries (Geneva, June 27, 1989, 1650 UNTS 383). 122 UN Declaration on the Rights of Indigenous Peoples, UN GAR 61/295, UN Doc A/ RES61/295 (September 13, 2007). 123 The special protections afforded to indigenous and tribal peoples overlap with the more general principles that apply to all types of forced evictions and displacements that are discussed elsewhere in this chapter. 124 ITP Convention art 2. 125 ITP Convention art 1(1)(b).

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economic, cultural and political institutions. The breadth of this definition is sweeping. The first criterion applies to hundreds of millions of people, particularly in Africa, the Americas, Asia, and Oceania. The second criterion is more restrictive, but seemingly would cover many peoples in rural areas who, at least in part, still follow distinctive traditions. The ITP Convention also applies to “tribal peoples.” While these peoples are not indigenous to the region they inhabit, they share certain characteristics with indigenous peoples. The convention establishes two criteria for identifying a tribal people: (a) their “social, cultural and economic conditions distinguish them from other sections of the national community”; and (b) their status is regulated, at least in part, by “their own customs or traditions or by special laws or regulations.”126 A group’s self-identification as a tribal people is the most important factor.127 This broad standard would apply to many groups in portions of Africa, the Americas, Asia, and Oceania. The scope of these definitions is controversial because international law increas ingly protects the property rights of indigenous and tribal groups―even if they lack formal title―over competing ownership claims by states or private parties. Notably, although the IP Declaration contains 46 articles that set forth the rights of “indigenous peoples,” it fails to define the term. The parties were unable to reach agreement on a definition even after lengthy negotiations, leaving the reach of the declaration unclear.

(3) Land The ITP Convention obligates states to respect the land rights of indigenous and tribal peoples. Its Article 14 provides, inter alia: 1. The rights of ownership and possession of the [indigenous and tribal] peoples concerned over the lands which they traditionally occupy shall be recognised. 2. Governments shall take steps as necessary to identify the lands which the peoples con cerned traditionally occupy, and to guarantee effective protection of their rights of own ership and possession.

Because the convention was ratified by only a small number of nations, mainly in Latin America, its direct effect has been limited. However, it has served as a helpful interpretive aid for the Inter-American Court in cases involving indigenous and tribal land rights. The other major instrument in this area is the IP Declaration, a nonbinding resolution adopted by the UN General Assembly. Its Article 26 provides similar ownership protection, but is limited in scope to indigenous peoples: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

ITP Convention art 1(1)(a).

126

ITP Convention art 1(2).

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2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition to these lands, territories and resources. Such recog nition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.128

Article 27 requires that states implement a “fair, independent, impartial, open and transparent process” to “recognize and adjudicate” the rights of indigenous peoples in their lands, presumably with the goal of ensuring that they be awarded formal title. Although the principal value of the declaration is symbolic, it serves to encapsulate key concepts derived from the case law of regional human rights tribunals. Since 2001, a series of decisions by the Inter-American Court has created a substantial body of law on the ownership rights of indigenous peoples. The leading case of Mayagna (Sumo) Awas Tingni Community established the basic principles governing this area. The community, a group of 600 indigenous peo ple living in Nicaragua, claimed ownership of 500 square miles of undeveloped forest land that had been traditionally occupied by its ancestors. In 1996, the Nicaraguan government granted a 30-year logging concession over portions of this land to a Korean corporation. After unsuccessfully attacking this decision in domestic courts, the community filed a petition with the Inter-American Commission on Human Rights, claiming a violation of ACHR Article 21, which provides that “[e]‌veryone has the right to the use and enjoyment of his property.” The commission, in turn, brought an action against Nicaragua in the Inter-American Court. Stressing that the connection of indigenous peoples to their lands was not “merely a matter of possession and production” but rather “a material and spir itual element which they must fully enjoy,” the court concluded that Nicaragua had violated the right to property.129 It reasoned that Article 21 protected not only property owned by individuals, but also the rights of members “within the framework of communal property.”130 The court directed Nicaragua to “carry out the delimitation, demarcation, and titling of the territory belonging to the Community.”131 Until that process was completed, Nicaragua was required to abstain from any action by government officials or third persons acting with their consent to affect the community’s use or enjoyment of its lands. Mayagna (Sumo) Awas Tingni Community established two core principles: first, indigenous peo ples have a legal right to ownership of the lands that their ancestors traditionally occupied; second, the state has an affirmative obligation to provide these peoples with formal title.

IP Declaration art 26. 129 Mayagna (Sumo) Tingni Community para 149. Mayagna (Sumo) Tingni Community para 148. 131 Mayagna (Sumo) Tingni Community para 153. 128 130

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The Inter-American Court expanded the same protection to tribal peoples in the case of Saramaka People v Suriname.132 The dispute developed when the gov ernment of Suriname granted logging and mining concessions in territory occu pied by the Saramaka people. This people did not qualify as an indigenous group because its members were descendants of African slaves who were brought to Suriname during European colonization and later escaped into the interior of the country, where they established self-governing communities. The court held that the Saramaka were a tribal people because their “social, cultural and economic characteristics are different from other sections of the national community, par ticularly because of their special relationship with their ancestral territories, and because they regulate themselves, at least partially, by their own norms, customs, and/or traditions.”133 Noting the similarities between indigenous and tribal peo ples, the court concluded that its “jurisprudence regarding indigenous peoples’ right to property is also applicable to tribal peoples.”134 The African Commission on Human and Peoples’ Rights similarly protected land rights in the case of Centre for Minority Rights v Kenya.135 The case arose in 1978 when the government of Kenya removed members of the Endorois com munity from their ancestral lands around Lake Borgoria in order to create a game reserve; the Endorois claimed that this violated their right to property under ACHPR Article 14. The commission first held that the Endorois constituted an indigenous people because their culture, religion, and traditional way of life were all intimately intertwined with their traditional lands, and they considered them selves to be a distinct people.136 Citing the Mayagna (Sumo) Awas Tingi Community and Saramaka People decisions together with other international sources, the com mission interpreted Article 14 as providing that: “(1) traditional possession of land by indigenous people has the equivalent effect as that of a state-granted full prop erty title; [and] (2) traditional possession entitles indigenous people to demand official recognition and registration of property title.”137

(4) Resources International law recognizes that indigenous and tribal peoples own the natural resources on their traditional lands, such as water, timber, and minerals. However, because the right to property is not absolute, the state may allow others to exploit these resources under circumstances that are fair to the affected people. These themes are reflected in the IP Declaration. Its Article 26 confirms that indigenous peoples “have the right to own, use, develop and control the . . . resources that they possess by reason of traditional ownership.” In order to develop any mineral, water

Series C no 172 (IACtHR, November 28, 2007). Saramaka People para 84. 134 Saramaka People para 86. 135 Comm no 276/03 (ACmHPR, November 25, 2009). 136 Centre for Minority Rights paras 156–62. 137 Centre for Minority Rights para 209. 132 133

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or other resources on these lands, the state must (a) obtain the “free and informed consent” of the group, (b) provide “just and fair redress” for the resources taken, and (c) take appropriate measures to mitigate “adverse environmental, economic, social, cultural or spiritual impact.”138 The Inter-American Court expanded on this framework in the Saramaka People case. Relying on the IP Declaration, UN Human Rights Committee decisions, its own prior case law, and other international sources, the court developed a com prehensive standard to determine when a state could restrict the property rights of indigenous and tribal peoples in natural resources. It reasoned that the people’s communal right to property protected only “those natural resources traditionally used and necessary for the very survival, development and continuation of such people’s way of life.”139 The court agreed that a state could restrict a group’s rights in natural resources to some extent, but stressed that this could not endanger “the very survival of the group and of its members.”140 The court held that the state was required to implement three safeguards to protect the long-term survival of an indigenous or tribal community. First, it must consult in good faith with the community about any exploitation plan. In the case of large-scale projects that would have a “major impact,” the state is required to obtain the “free, prior, and informed consent” of the community.141 Second, the state must guarantee that the community will receive a “reasonable benefit” from the plan consistent with ACHR Article 21(2), which provides that no one may be deprived of property without just compensation.142 Finally, the state must ensure that the plan will not proceed until a “prior environmental and social impact assessment” is performed.143 The Saramaka People standard was transplanted into African human rights juris prudence in the Centre for Minority Rights decision. In evaluating whether Kenya’s seizure of the Endorois land violated the right to property in ACHPR Article 14, the African Commission reasoned that the seizure was legal only if it was done (a) “in the interest of public need or in the general interest of the community” and (b) “in accordance with appropriate laws.”144 The commission adopted the Saramaka People criteria as part of the test for applying the legality prong of this standard. Ultimately it concluded that there was no effective consultation with the Endorois people; they did not receive reasonable benefit; and no prior envir onmental and social assessment was conducted. For these reasons and others, the commission found a violation of the right to property.

138 IP Declaration art 32. The ITP Convention recognizes the right of such peoples to participate in the “use, management and conservation” of the natural resources on their lands. If the state retains ownership of those resources, it must consult with the affected people in advance of any exploitation and pay “fair compensation” for any damage caused by such activities. ITP Convention art 15(2). 139 Saramaka People para 122. 140 Saramaka People para 128. 141 Saramaka People paras 133, 134. 142 Saramaka People paras 129, 138. 143 Saramaka People para 129. 144 Centre for Minority Rights para 211.

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(5) Lack of Possession In many instances, indigenous and tribal peoples seek to reclaim possession of their traditional lands. The lands may be occupied by farmers, ranchers, or others who acquired title from the state or another private owner. Depending on the particular case: (a) the protected group may have left voluntarily or been physic ally evicted; (b) the dispossession may have occurred recently or in the distant past; and (c) the current owners may or may not have acquired ownership in good faith. International human rights law has begun to develop a framework to address the complex issues that arise in this situation. There is an emerging consensus that the state is obligated to return these lands, at least under some circum stances. For example, in Moiwana Community v Suriname,145 the Inter-American Court ruled that the tribe members were still the “legitimate owners of their traditional lands” they had vacated 19 years before.146 The principal questions in this area are: (a) When is the right to reclaim possession time-barred?; (b) Must the state expropriate land from the current owner in order to return it to the protected group?; and (c) If the state cannot return the land, what remedy must it provide? The jurisprudence of the Inter-American Court has begun to examine these issues in depth, and its approach has been largely followed by the African Commission. The Inter-American Court has held that the right to restitution of traditional lands is not infinite, but does endure as long as the protected group maintains its special relationship to those lands. In the case of Sawhoyamaxa Indigenous Community v Paraguay, the court explained that “the spiritual and material basis for indigenous identity is mainly supported by their unique relationship with their traditional lands.”147 Because the indigenous people still continued their trad itional hunting, fishing, and gathering activities on the land, the court held that the restitution right had not lapsed. The court also noted that the right would not have lapsed if the group had been prevented from conducting activities for reasons beyond their control, such as violence or threats.148 Accordingly, in a later case where the group was unable to access its lands because they had become part of a private nature preserve, the court ruled that the restitution right remained in effect.149 When formal title to land claimed by a protected group is held by a private owner, one potential solution is for the state to expropriate the land and return it to the protected group. The mere fact that the land is being productively used by the current owner does not justify the state’s failure to act; otherwise the right to

Series C no 145 (IACtHR, June 15, 2005). Moiwana Community para 134. 147 Series C no 146 (IACtHR, March 29, 2006) para 131. 148 Sawhoyamaxa Indigenous Community para 132. 149 Xakmok Kasek Indigenous Community v Paraguay Series C no 214 (IACtHR, August 24, 2010) paras 112–16. 145 146

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reclaim traditional lands would be meaningless. In the case of Yakye Axa Indigenous Community v Paraguay,150 the Inter-American Court held that the state must decide “on a case by case basis” whether the land should be returned to the community or retained by the current owner, using factors that the court has employed to assess the legitimacy of state action that impairs the right to property under the ACHR, such as legality, public interest, and proportionality.151 Although noting that the interests of an indigenous community would not necessarily prevail, the court’s reasoning seemed to favor expropriation. For example, it observed that disregard ing ancestral land rights could threaten “the very survival of the indigenous com munities.”152 It also mentioned that expropriating lands of private owners might be necessary to reach the objective of “preserving cultural identities in a democratic and pluralist society.”153 In summary, the court suggested that expropriation could only be refused for “concrete and justified reasons.”154 There is increasing agreement on the appropriate remedy when it is impos sible to return ancestral lands. ITP Convention Article 16(4) mandates that the state provide “lands of quality and legal status at least equal to that of the lands previously occupied,” unless the peoples concerned prefer and receive monetary compensation.155 The Inter-American Court adopted this standard in the Yakye Axa Indigenous Community case. It emphasized that the choice among the delivery of alternative lands, payment of compensation, or a combi nation of both must reflect a “consensus with the peoples involved” in accord ance with their values and customs.156 In a similar vein, the IP Declaration requires compensation in “the form of lands, territories and resources equal in quality, size and legal status or of monetary consideration or other redress” unless the group agrees otherwise.157 The jurisprudence of the Inter-American Court influenced the approach taken by the African Commission in the Centre for Minority Rights case. Citing Yakye Axa Indigenous Community and similar decisions, the commission held that when the lands of indigenous peoples cannot be returned, they are entitled “to obtain other lands of equal extension and quality.”158 Alternatively, the commission sug gested that the state could provide compensation for the loss of the land based on international principles that apply to forced evictions. It explained that “fair compensation” for the land would include: (a) compensation for the lost land at “full replacement cost”; (b) assistance with moving and support during a transi tion period in the resettlement site; and (c) assistance in restoring or improving

Series C no 125 (IACtHR, June 17, 2005). Yakye Axa Indigenous Community para 144. 152 Yakye Axa Indigenous Community para 147. 153 Yakye Axa Indigenous Community para 148. 154 Yakye Axa Indigenous Community para 149. 155 ITP Convention art 16(4). 156 Yakye Axa Indigenous Community paras 150–51. 157 IP Declaration art 28(2). 158 Centre for Minority Rights para 209. 150 151

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the group’s “former living standards, income earning capacity and production levels.”159

F. Nature Preserves and Other Protected Areas (1) Generally Over 100,000 nature preserves and other protected areas have been established around the world, covering about 12% of the planet’s surface. Many of these protected areas were established unilaterally by individual states without any international involvement. However, other areas have been created by states within the framework of multilateral conventions, particularly the Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention)160 and the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention).161 The international standards that govern these areas affect the rights of private landowners in two respects. First, all or part of a protected area may be privately owned land. In this situation, international law directly restricts how the owner may use the land. Second, these conventions often require that use restrictions be imposed on private land that is adjacent or close to a protected area, to serve as a buffer zone.

(2) World Heritage Sites The 1972 World Heritage Convention established a global program for protect ing properties with outstanding cultural or natural heritage value. The convention proclaims that the “deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world,” and that such “unique and irreplaceable property” should be safeguarded regardless of its location.162 Under the convention, each member state must “take the appropriate legal . . . measures” that are necessary for the protection and conservation of its cul tural and natural heritage.163 In this context, “cultural heritage” refers to monu ments, separate or connected buildings, and other works of man which possess outstanding universal value.164 “Natural heritage” is defined as natural features,

Centre for Minority Rights para 237. Convention for the Protection of the World Cultural and Natural Heritage (Paris, November 16, 1972, 1037 UNTS 151). 161 Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, February 2, 1971, 996 UNTS 245). 162 World Heritage Convention preamble paras 2, 5. 163 World Heritage Convention art 5(d). 164 World Heritage Convention art 1. 159 160

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geological and physiographical formations, and other natural sites of outstanding universal value.165 Any member state may nominate cultural and natural heritage sites of “out standing universal value” within its territory for inclusion on the UNESCO World Heritage List.166 The Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value reviews each nomination and lists the site if the relevant criteria are satisfied. To date, more than 960 sites have been placed on the list. The convention reflects a compromise between national sovereignty and inter national values. Sovereignty is respected because each state has the right to control which sites within its territory are subject to the convention. The inclusion of a property on the list―which increases the level of international involvement― requires the consent of the state where it is located.167 The convention acknowledges that the duty to protect and conserve each site “belongs primarily to that State.”168 Yet it also provides that each site “constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.”169 The convention notes that the protection of a designated heritage site is “without prejudice to property right[s]‌provided by national legislation,”170 but the restric tions imposed upon listed sites may substantially limit the rights of private owners. In order for a site to be listed, the state must have “adequate long-term legislative, regulatory, institutional and/or traditional protection and management” in place to ensure that it is safeguarded.171 These legislative and regulatory measures should “assure the survival of the property and its protection against development and change that might negatively impact” its value.172 As a result, the permitted uses for a listed site must be both ecologically and culturally sustainable.173 For example, the domestic laws governing many natural heritage sites permit only non-consumptive uses such as tourism. Some sites are so fragile that no human uses of any kind are permitted. If a state wishes to place a property on the list, it must agree to comply with these international constraints. The privately owned land located within a site can be restricted by the same domestic measures that ensure the public portion of the site will be protected.174 Thus, for example, if a listed natural heritage site partially consists of private lands, the state may be required to prohibit the owner from further developing the property. The second method by which the convention affects private property rights lies in the provisions governing buffer zones. The use of private land adjoining World Heritage Convention art 2. World Heritage Convention art 11. World Heritage Convention art 11(3). 168 World Heritage Convention art 4. 169 World Heritage Convention art 6(1). 170 World Heritage Convention art 6(1). 171 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines) (July 2012) para 97. 172 Operational Guidelines para 98. 173 Operational Guidelines para 119. 174 UNESCO, Managing Natural World Heritage (2012) 36. 165 166 167

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a listed site may interfere with the protected cultural or natural heritage values. Accordingly, as part of the nomination process, a buffer zone is usually required in order to protect the site. This zone will include the “immediate setting of the nominated property, important views and other areas or attributes that are func tionally important as a support to the property and its protection.”175 As part of the listing process, the state must agree to impose “complementary legal and/or customary restrictions . . . on . . . use and development [of the buffer zone] to give an added layer of protection” to the listed site.176 For example, it might be appropriate to regulate farming practices within the buffer zone in order to prevent alien spe cies from invading an adjacent natural heritage site. A cultural heritage site might be protected by adopting restrictions that prohibit high-rise construction in the buffer zone in order to avoid negative visual impacts. As a practical matter, the ability of the international community to enforce these use restrictions is limited. If a site is threatened by serious and substantial danger, it may be placed on the List of World Heritage in Danger.177 In the case of a cultural heritage site, for example, such dangers could include deterioration of planning coherence, serious deterioration of urban space, or a change in the legal status of the site that diminishes its protection.178 Yet if the state fails to take adequate steps to address the danger, the only potential international sanction is that the site may be removed from the list.179 Ultimately, this is a toothless sanction; sites are rarely delisted.

(3) Wetlands Another network of protected areas has arisen under the Ramsar Convention. The convention provides that each party shall designate wetlands within its territory that have “international significance” in terms of ecology, botany, zoology, limnol ogy, or hydrology for inclusion in a List of Wetlands of International Importance.180 Although the convention states that inclusion on the list does not “prejudice the exclusive sovereign rights” of the affected state, this is its practical effect. The con vention requires the state to “promote the conservation” and, as far as possible, the “wise use” of that area.181 Today there are more than 2000 wetlands on the list, covering over 193,000,000 hectares. The guidelines for the listing process acknowledge that the ecological and hydrological functions of wetlands provide valuable services, products, and other benefits to humans.182 Under the “wise use” standard, the state must follow land Operational Guidelines para 104. Operational Guidelines para 104. 177 World Heritage Convention art 11(4). 178 Operational Guidelines para 179. 179 Operational Guidelines para 192. 180 Ramsar Convention art 2(1), (2). 181 Ramsar Convention arts 2(3), 3(1). 182 Ramsar Convention, Strategic Framework and Guidelines for the Future Development of the List of Wetlands of International Importance of the Convention on Wetlands (November 16, 2008) para 22. 175 176

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use practices that ensure that a listed site “will continue to provide these functions and values for future generations.”183 Each member nation is expected to manage its Ramsar sites “so as to maintain the ecological character of each site” and thereby “retain those essential ecological and hydrological functions which ultimately pro vide its ‘benefits/services.’ ”184 As a practical matter, this standard makes it difficult to develop a wetland for agriculture or other intensive uses. Where a wetlands area designated for listing includes private land, the state is required to ensure that the owners comply with the land use constraints set forth in the convention. For example, in the Australian case of Greentree v Minister for the Environment,185 a portion of the defendants’ farm was located within a listed wetland. Consistent with its Ramsar obligations, Australia had adopted a statute that prohibited anyone from taking an action that would have a significant impact on the ecological character of a listed wetland. When the defendant owners cleared and ploughed a large portion of protected wetlands, the court issued an order that prohibited such activities in the future and imposed $450,000 in penalties. A state may also be required to restrict development on private land located near a listed wetland. The logical implication is that a private land development project that would have a significant adverse effect on a protected wetland might not be permitted. As illustrated by the South African case of Van Huyssteen v Minister of Environmental Affairs,186 some states have adopted this view. The case arose when a corporation applied to rezone land that it owned near designated Ramsar wetlands in order to build a steel mill. The plaintiffs brought suit to delay the rezoning deci sion until an environmental assessment of the project was completed, asserting that the mill project might damage the wetlands. The court granted the plaintiffs’ application, noting that the wetlands were part of a sensitive ecosystem of inter national importance.

G. Refugees and Displaced Persons (1) Generally International law has begun to address the property rights of refugees and dis placed persons. In this context, a “refugee” is a person who is outside of his or her home country “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and is either unable to return or unwilling to return due to such fear.187 A “dis placed person” is one who has been forced to flee a home or place of residence as a result of “armed conflict, situations of generalized violence, violations of human Ramsar Convention, Strategic Framework para 23. Ramsar Convention, Strategic Framework para 25. 185 (2005) 223 ALR 679 (Australia). 186 1995 (9) BCLR 1191 (C) (South Africa). 187 Convention relating to the Status of Refugees (Geneva, July 28, 1951, 189 UNTS 150) art I(A)(1). 183 184

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rights or natural or man-made disasters,” whether or not the person has crossed an international boundary.188 It is well settled that international law protects the right of a refugee or displaced person to return to the state of origin. The UDHR proclaims that “[e]‌veryone has the right to leave any country . . . and to return to his country.”189 The ICCPR expresses the same theme: “No one shall be arbitrarily deprived of the right to enter his own country.”190 The international principles governing the property rights of returning refugees and displaced persons are less developed. Yet, particularly in the past 20 years, decisions by regional human rights tribunals and soft law instru ments adopted by UN entities have fostered the evolution of a new norm: refugees and displaced persons are entitled to have their homes, lands, and other property returned to them or, if this cannot be done, to be compensated for their loss.

(2) Human Rights Decisions In the leading case of Loizidou v Turkey,191 the Greek Cypriot applicant owned ten parcels of undeveloped land in northern Cyprus and was in the process of building apartments on the land, where she intended to live with her family. After Turkish troops invaded, she fled the region; Turkish authorities prevented her from return ing to her land. She brought suit against Turkey in the European Court of Human Rights, claiming a violation of her right to property. The court held that this “con tinuous denial of access” to the land was an illegal interference with her property rights, noting that she “has effectively lost all control as well as all possibilities to use and enjoy her property.”192 This decision was effectively extended to all similarly situated Greek Cypriot property owners in the subsequent case of Cyprus v Turkey.193 There the European Court found a continuing violation of the right to property for all Greek Cypriot owners “in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory.”194 It also found a continuing violation of the right to respect for the home “by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.”195 The final decision in this series is Xenides-Arestis v Turkey,196 which considered the appropriate remedy for the violation of displaced Greek Cypriots’ rights. Noting that 1400 property cases brought by Greek Cypriots against Turkey were 188 UN Commission on Human Rights, Final Report of Special Rapporteur, addendum, UN Doc E/CN.4/Sub.2/2005/17/Add.1 (July 11, 2005) para 2. 189 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948) art 13(2). 190 ICCPR art 12(4). 191 (1997) 23 EHRR 513. 192 Loizidou para 63. 193 (2002) 35 EHRR 30. 194 Cyprus para H5(9). 195 Cyprus para H4(1). 196 App no 46347/99 (ECtHR, December 22, 2005).

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pending before it, the European Court stressed the need for the state to adopt measures “to put an end to the violation found by the Court and to redress so far as possible the effects.”197 It directed Turkey to “introduce a remedy. . . which secures genuinely effective redress for the Convention violations” for that case and for “all similar applications pending before the Court.”198 In a later decision in the same case, the court discussed the new statute adopted by the authorities of the “Turkish Republic of Northern Cyprus” in response to its decision. The law provided for the restitution of property to its owner, unless (a) it had already been transferred to a third person, (b) restitution would endanger national security, (c) the property had been expropriated in the public interest, or (d) the property was within a military area or installation.199 Where restitution was not possible, the law provided for “other forms of redress such as exchange or compensation.”200 The court concluded that this new law had, in principle, complied with its earlier ruling.201

(3) Pinheiro Principles In 1998, the UN Commission on Human Rights adopted the Guiding Principles on Internal Displacement,202 the first major effort to address the problem of mass internal displacement. Although the principles devoted little attention to property issues, they did establish two basic themes. The home state is obligated to: (a) assist internally displaced persons to recover the property that they left behind; and (b) “provide or assist in obtaining appropriate compensation or another form of just reparation” if recovery is not possible.203 These themes were developed in detail in the Principles on Housing and Property Restitution for Refugees and Displaced Persons,204 commonly called the “Pinheiro Principles,” which were adopted in 2005 by the UN Sub-Commission on the Protection and Promotion of Human Rights. The Pinheiro Principles util ize a “forward-looking and holistic approach” to restitution of housing, land, and other property.205 In part, they restate and clarify the existing international law in the area. But they also go beyond this point by adopting useful provisions from prior national restitution programs, such as those developed for Bosnia and Herzegovina, Cambodia, Kosovo, and South Africa. As the African Commission has noted, while the principles do not have the force of law, they “reflect the emerging principles in international human rights jurisprudence” and have “great Xenides-Arestis para 39. Xenides-Arestis para 40. 199 Xenides-Arestis II (2007) 44 EHRR SE13 para 22. 200 Xenides-Arestis II para 22. 201 Xenides-Arestis II para 37. 202 UN Commission on Human Rights, Guiding Principles on Internal Displacement, UN Doc E/ CN.4/1998/53/Add.2 (February 11, 1998). 203 Guiding Principles principle 29(2). 204 UN Sub-Commission on the Protection and Promotion of Human Rights, Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc E/CN.4/ Sub.2/2005/17 (June 28, 2005). 205 Pinheiro Principles intro para 8. 197 198

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persuasive value . . . as a guide to interpret the right to property” in a regional human rights convention.206 The heart of the Pinheiro Principles is Section 2.1, which provides: All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be com pensated for any housing, land and/or property that is factually impossible to restore, as determined by an independent, impartial tribunal.

The persons protected by this section include not only owners holding formal title, but also tenants and other legitimate occupants or land users, such as those using land under customary law.207 In addition, the right of restitution exists even if the refugee or displaced person does not actually return to the property.208 An “arbitrary” or “unlawful” deprivation occurs whenever refugees or displaced persons are forced to flee their homes, land, or other property. Thus, the princi ples will normally apply to involuntary displacement caused by armed conflict, major human rights violations, forced evictions, natural and manmade disasters, and similar events. However, the terms “arbitrary” and “unlawful” also have tech nical meanings in international human rights law. As early as 1948, the UDHR proclaimed that no one could be “arbitrarily deprived” of property.209 Since then, an “arbitrary” act has come to mean one that has no lawful basis or justification. The definition of “unlawful” is more precise. In this context, it is a deprivation that violates either domestic law or international law. Section 2.1 seeks to return refugees and other displaced persons to their original pre-loss position to the extent this is possible. The preferred remedy is to restore the housing, land, or other property which they have lost. The alternative remedy of compensation may be used only where: (a) restitution is factually impossible; (b) the person knowingly and voluntarily accepts compensation instead of resti tution; or (c) a negotiated peace agreement so provides.210 In this setting, factual impossibility exists under only narrow circumstances, such as where the property has been physically destroyed due to an armed conflict or a natural disaster.211 This exception does not apply to the common scenario where the state has transferred title to the land or other property to a third party. The rights of third parties who are occupying the housing, land, or other prop erty pose a difficult problem. One possibility is that the occupant received rights directly from the displaced owner through a business transaction; a state may not recognize such a transaction if it was coerced or forced, or carried out in a manner inconsistent with international law.212 Another scenario arises when “secondary 206 Sudan Human Rights Organisation v Sudan Comm no 279/03-296/05 (ACmHPR, May 27, 2009) para 204. 207 Pinheiro Principles principle 16.1. 208 Pinheiro Principles principle 2.2. 209 UDHR art 17(2). 210 Pinheiro Principles principle 21.1. 211 Pinheiro Principles principle 21.2. 212 Pinheiro Principles principle 15.8.

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occupants” take possession of housing or land without any right to do so, after the legitimate owners have fled; these secondary occupants are often displaced persons themselves. In this situation, the principles permit the forced eviction of secondary occupants where this is “justifiable and unavoidable” for the purpose of restitu tion, but provide safeguards to ensure that their rights are protected to the extent possible.213 For example, secondary occupants must receive adequate notice, the opportunity for consultation, and other due process protections and, if necessary to avoid homelessness, adequate alternative housing or land.214 A final challenge arises when a secondary occupant sells the housing, land, or other property to a third person acting in good faith. Here, the principles provide that a state should consider providing compensation to the buyer unless the nature of the underly ing displacement “may arguably give rise to constructive notice of the illegality of purchasing abandoned property.”215 The duration of the restitution right is an open and controversial issue. In some instances, refugees and displaced persons have been unable to return to their homes and lands for decades, while others have been occupying and improving the property. On their face, the principles appear to create a perpetual right because they fail to specify any time limit. However, Section 10.2 provides that the right of return to “former homes, lands or places of habitual residence” cannot be sub ject to “arbitrary or unlawful time limitations.” Arguably, this standard might also apply to the right of restitution. After all, the right to return to a specific home, for example, is meaningless unless the displaced person also retains the right to reclaim that home. But even if this standard applies, it affords little practical guidance. In recent decades, the property restitution programs that have been adopted in differ ent states have imposed time limits of three years (Bosnia), ten years (Kosovo and Rwanda), and 25 years (Iraq).

H. Transboundary Injury A core concept of international law is that no state has the right to permit its ter ritory to be used in a manner that harms people or property in other states. As the International Court of Justice noted in its advisory opinion in Legality of the Threat or Use of Nuclear Weapons, “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relat ing to the environment.”216 Under the principle of state responsibility, each state is obligated to adopt legislation or other measures to ensure that its nationals do not use their property in a manner that produces transnational harm. The doctrine is essentially an international version of domestic nuisance law: a property owner

Pinheiro Principles principle 17.1. Pinheiro Principles principle 17.4.

Pinheiro Principles principles 17.1–17.3. (1996) ICJ Rep 226 para 29.

213

214

215

216

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does not have the right to use the land so as to injure persons or property in other states. The classic illustration of the doctrine is the 1941 Trail Smelter Arbitration.217 The dispute arose from the operation of a privately owned lead and zinc smelter located in Canada; the smelter routinely generated sulfur dioxide gas, a toxic substance that mixes with water in the atmosphere to produce acid rain. Carried south by winds, it crossed the border of the United States and damaged privately owned farms and timber. In the ensuing arbitration between the United States and Canada, the panel concluded that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein” where the case was of “serious consequence” and the damage was proven by “clear and convincing evidence.”218 Accordingly, it awarded damages to the United States which were eventually dis tributed to owners of the affected properties. The Trail Smelter decision is often cited as an example of early international environmental law, and this characterization makes sense to a point. Toxic fumes certainly have the potential to injure the natural environment. However, the case is more appropriately seen as an international property dispute. The Canadian company that owned the smelter and the American owners of the damaged farms and timber were all private actors, and the panel awarded damages for injury to property, not injury to the environment. In the decades following Trail Smelter, international law has gradually moved toward imposing direct obligations on states to avoid transnational injuries. The precept that a state may not allow its territory to be used to harm persons or property in another state is reflected in other ICJ decisions219 and in a series of international instruments.220 Notably, the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted by the UN International Law Commission in 2001, provide that “[t]‌he State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”221 The most comprehensive approach to the issue is the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, which were adopted by the International Law Commission in 2006.222 The principles require each state to adopt national laws or other measures that (US v Canada) 3 RIAA 1911 (1941). Trail Smelter 1965. 219 eg Corfu Channel Case (UK v Albania), 1949 ICJ Rep 4, 22. 220 eg Stockholm Declaration of the UN Conference on the Human Environment (Stockholm, June 16, 1972, 11 ILM 1416) para 21 (noting the “responsibility [of states] to ensure that activities within their jurisdiction and control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”); Rio Declaration on Environment and Development (Rio de Janeiro, June 13, 1992, 31 ILM 876) para 2. 221 UN International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc A/56/10 (2001). 222 UN International Law Commission, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, UN Doc A/CN.4/L.686 (May 26, 2006). 217 218

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impose liability, regardless of fault, on persons within its territory whose hazardous activities cause significant damage to persons, property, or the environment out side of its territory, jurisdiction, or control.223 In this context, a “hazardous activ ity” is one which “involves a risk of causing significant harm.”224 The principles further require each state to ensure that foreign victims of transboundary injuries have fair access to remedies in its domestic judicial and administrative bodies.225 Taken together, these authorities effectively require each state to regulate the land use activities of private actors to ensure that transboundary harm does not occur. In this sense, they impose a derivative restriction on property rights. Draft Principles principles 2(a), 2(e), 4(1), 4(2). Draft Principles principle 2(c). 225 Draft Principles principle 6. 223 224

7 Rights in Waters and Oceans

A. Introduction Under Roman law, the oceans and certain fresh waters were viewed as common property: “By natural law the following things belong to all men, namely: . . . run ning water [and] the sea.”1 Over time, however, municipal law and international law have eroded the common property regime. This chapter examines the extent to which property rights may exist in fresh water, oceans, and related items. The domestic laws of many states provide that private actors may hold property rights in rivers, lakes, and other sources of fresh water. In particular, the entitlement to take a certain quantity of water from a specific source is often protected. Due to fluctuating weather patterns, infrastructure constraints, and growing demand from the world’s expanding population, however, many people suffer from chronic water shortages. The human right to water may help to alleviate these problems. The oceans have classically been viewed as part of the global commons―a region outside of the sovereign jurisdiction of any state. Modern international law continues to reflect this approach. Although no person can obtain ownership of any portion of the oceans, they are generally open for use by nationals of all states―a right that is akin to a usufruct. However, international law increasingly limits the historic open access regime. For example, access to fisheries and mineral resources is regulated to avoid overexploitation and thereby protect the interests of all states. The legal regime governing the oceans creates, restricts, and prohibits property rights in a variety of contexts.

B. Rights in Fresh Water (1) Generally Water is essential. Yet over a billion people around the world lack sufficient water for drinking, sanitation, agriculture, and other basic needs. It is estimated that 1 Institutes of Justinian 2.1.1, in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973).

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millions die each year from diseases that could be prevented with adequate clean water. Moreover, malnourishment stemming from a lack of water for crop pro duction is widespread. Although property rights in water have traditionally been governed by municipal law, international law is moving toward recognizing an enforceable human right to water that is analogous to a property right. The concept that water resources might be affected by international law is rela tively new. The most comprehensive treaty on the subject is the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses,2 which is not yet in force.3 The convention would regulate the use of international rivers and other watercourses for various purposes, including access to water for drinking and other domestic uses. Yet because its goal is to establish the respective rights and duties of riparian states, it addresses the water needs of private actors only briefly. Article 10(2) provides that “special regard” should be accorded “to the requirements of vital human needs” in resolving disputes among states regarding alternative potential uses for waters covered by the convention.4 The obligation to consider human needs for water in this process, however, falls far short of creating property rights in private actors.

(2) The Human Right to Water A growing body of international law acknowledges that the right to water is a basic human right.5 In 1979, the Convention on the Elimination of All Forms of Discrimination against Women required states to take appropriate measures to ensure that “rural women” would enjoy “adequate living conditions, particularly in relation to . . . water supply.”6 The 1995 Convention on the Rights of the Child mandated that parties provide “clean drinking water” for children as part of the right to health.7 In similar fashion, the 2006 Convention on the Rights of Persons with Disabilities obligated states to ensure equal access to “clean water services” for disabled individuals.8 More broadly, the express rights to health and to an adequate standard of living in the International Covenant on Economic, Social and Cultural Rights (ICESCR)9 have been interpreted as creating a human right to water. In ICESCR

2 Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, May 21, 1997, 36 ILM 703). 3 See Stephen C McCaffrey, The Law of International Watercourses: Non-Navigational Uses (2d edn, OUP 2007). 4 Convention on the Law of the Non-Navigational Uses of International Watercourses art 10(2). 5 Stephen C McCaffrey, “A Human Right to Water: Domestic and International Implications” (1992) 5 Georgetown Intl Environmental L Rev 1. 6 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13) art 14(2)(h). 7 Convention on the Rights of the Child (New York, November 20, 1989, 1577 UNTS 3) art 24(2). 8 Convention on the Rights of Persons with Disabilities (New York, December 13, 2006, 2515 UNTS 3) art 28(2)(a). 9 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3).

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General Comment No 14, the UN Committee on Economic, Social and Cultural Rights reasoned that the right to health in ICESCR Article 12 included the right of “access to safe and potable water.”10 Subsequently, its General Comment No 15 also explained that “[t]‌he right to water clearly falls within the category of guaran tees essential for securing an adequate standard of living,” which is protected under ICESCR Article 11.11 UN General Assembly Resolution 64/292 subsequently rec ognized “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”12 General Comment No 15 analyzed the content of the human right to water. It concluded that: (a) the water supply for each person must be “sufficient and con tinuous for personal and domestic uses”; (b) the water must be “safe”; and (c) water service must be accessible to everyone without discrimination.13 Moreover, it observed that “[t]‌he right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect, and obligations to fulfil.”14 In this context, the comment stated that the obligation to respect requires parties to refrain from interfering with existing rights to water, such as by limiting access to water, arbitrarily interfering with customary arrange ments for water allocation, or unlawfully diminishing or polluting water.15 It fur ther explained that the obligation to protect requires states to “prevent third parties from interfering in any way with the enjoyment of the right to water,” while the obligation to fulfill obligates states to take “the necessary measures directed toward the full realization of the right.”16 The African Commission on Human and Peoples’ Rights has also recognized the human right to water. The principles17 that it has adopted for implementing the African Charter on Human and Peoples’ Rights (ACHPR)18 state that the right to water is “implied” in other express rights, including the “rights to life, dignity, work, food, health, economic, social and cultural development and to a satisfactory environment.”19 The principles further provide that “[t]‌he human right to water entitles everyone to sufficient, safe, acceptable, physically accessible, and affordable water for personal, domestic, and agricultural uses.”20

10 UN Committee on Economic, Social and Cultural Rights, General Comment No 14, UN Doc E/C.12/2000/4 (August 11, 2000) para 11. 11 UN Committee on Economic, Social and Cultural Rights, General Comment No 15, UN Doc E/C.12/2002/11 (January 20, 2003) para 3. 12 UN GAR 64/292, UN Doc A/RES/64/292 (July 28, 2010) para 1. 13 General Comment No 15 para 12. 14 General Comment No 15 para 20. 15 General Comment No 15 para 21. 16 General Comment No 15 paras 23–25. 17 African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (ACHPR Principles) (2011). 18 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 19 ACHPR Principles para 87. 20 ACHPR Principles para 88.

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(3) Justiciability As in the case of other socio-economic rights, the justiciability of the right to water is complicated by the existence of three different layers of state obligations. Human rights tribunals have generally been unwilling to mandate that states fulfill socio-economic rights―eg by providing sufficient food, housing, or medical care to alleviate all national needs―for prudential reasons. Thus, the duty to fulfill the right to water is nonjusticiable at this time. International law provides no effective mechanism to ensure that a state implements the obligation to provide a certain quantity and quality of water to specific persons―despite the symbolic decision of the African Commission in Free Legal Assistance Group v Zaire,21 where the state’s failure to “provide basic services such as safe drinking water” was seen as a violation of the right to health in the ACHPR.22 However, the duty to respect the right to water is nearing justiciability. Human rights tribunals and national courts have indirectly protected this right in the course of enforcing express socio-economic rights. It is unsurprising that litiga tion concerning the right has mainly occurred in Africa, where water is scarce. In Social and Economic Rights Action Center v Nigeria,23 for instance, the African Commission found that the state violated the ACHPR rights to health and to a sat isfactory environment by conducting oil production activities that contaminated local water supplies. A more egregious situation arose in the case of Sudan Human Rights Organisation v Sudan.24 There the commission ruled that Sudan’s failure to prevent state-sponsored militia groups from poisoning wells during the Darfur conflict violated the ACHPR rights to health and to be free from cruel, inhuman, and degrading punishment. Notably, it cited ICESCR General Comment No 14 for the proposition that “access to safe and potable water” was a component of the right to health.25 At the national level, the Botswana case of Mosetlhanyane v Attorney General 26 also illustrates the indirect justiciability of the right. The case arose when the state deactivated a borehole in the Kalahari Desert that had supplied the plaintiffs and others with drinking water for many years, thus failing to respect their historic entitlement. Ruling that the plaintiffs had the right to use the water, the court cited UN General Assembly Resolution 64/292 and ICESCR General Comment No 15 to illustrate the “international consensus on the importance of access to water.”27 Although the Botswana constitution does not contain an express right to water, the court concluded that the state’s action in cutting off the plaintiffs’ 21 Free Legal Assistance Group v Zaire Comm nos 25/89, 47/90, 56/91, 100/93 (ACmHPR, April 4, 1996). 22 Free Legal Assistance Group para 47. 23 Social and Economic Rights Action Center v Nigeria Comm no 155/96 (ACmHPR, October 27, 2001). 24 Sudan Human Rights Organisation v Sudan Comm nos 279/03-296/95 (ACmHPR, May 27, 2009). 25 Sudan Human Rights Organisation para 209. 26 [2011] BLR 1 (Botswana). 27 Mosetlhanyane para 19.

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water supply violated the article that prohibited subjecting a person to “inhuman or degrading . . . treatment.”28 In sum, state action that interferes with a person’s existing entitlement to take water from a particular source may violate the right to health and the right to be free from cruel, inhuman, and degrading punishment. The right to water is not yet justiciable in a direct sense. However, it appears that international law is moving in this direction.

C. Overview of Rights in Oceans All states were traditionally entitled to use the oceans and their resources, sub ject only to minor constraints imposed by customary international law. The de facto beneficiaries of this regime were principally private actors. Under the aegis of a state, business entities, individuals, and others were empowered to utilize the oceans for commerce, navigation, fisheries, and related purposes. In this context, each state essentially served as an intermediary for the transmission of rights from the international level to its nationals. The principal treaty regulating human activities in the oceans―including the nature and scope of property rights―is the 1982 UN Convention on the Law of the Sea (UNCLOS).29 Building on prior treaties and customary law, it established a comprehensive international regime of ocean governance. UNCLOS reflects the view that an international “legal order for the seas and oceans” is necessary, in part because “the problems of ocean space are closely interrelated and need to be con sidered as a whole”.30 In order to accommodate the sovereignty claims of coastal states, UNCLOS divides the oceans into four regions, each subject to a different level of international regulation. The coastal state enjoys a high degree of sovereign control over its ter ritorial sea, essentially the ocean region that is within 12 nautical miles of its shore line, together with any archipelagic waters. In the exclusive economic zone (EEZ), the region outside of the territorial sea but within 200 nautical miles from the coast, a state has “sovereign rights” for the purpose of exploiting, conserving, and managing natural resources;31 this area is also open to other states and their nation als for certain purposes. In addition, a state has rights in the seabed and subsoil on the continental shelf beyond its EEZ. The high seas―the ocean region outside the EEZ of any nation―may generally be used by all states and their nationals. Finally, the “seabed and ocean floor and subsoil thereof ” that are beneath the high seas and not part of the continental shelf are denominated as the “Area”; the exploitation of mineral resources in this region is governed by a special regime.32 Mosetlhanyane paras 19–22. UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). 30 UNCLOS preamble arts 4, 5. 31 UNCLOS art 56. 32 UNCLOS arts 1, 136, 137. 28 29

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UNCLOS and other treaties on ocean-related subjects, together with custom ary law, affect private property rights. As a general rule, no part of the global commons can be subjected to private ownership. Just as a nation cannot assert sovereignty over the high seas or the Area, a private actor may not hold title to any part of these regions―a derivative prohibition on property rights. However, under limited circumstances, UNCLOS and other treaties can be viewed as effectively creating property rights. For example, UNCLOS establishes a system for exploit ing the resources of the Area that expressly confers title to excavated minerals on private actors. The rights of nationals to utilize the high seas and other regions may be viewed as derivative property rights stemming from state entitlements, akin to usufructs. In addition, UNCLOS and other treaties regulate and restrict the prop erty rights that private actors may hold in various ocean-related contexts, ranging from sunken artifacts to vessels.

D. Archaeological and Historical Resources Historically, international law did not address the question of property rights in shipwrecks and other sunken objects on the ocean floor beyond the limits of national jurisdiction. When an ownership dispute arose, it was usually resolved under the domestic law of the forum state based on principles such as abandon ment and the law of finds. The successful salvor might obtain title, particularly if no owner could be found. In contrast, where the objects were still owned, the sal vor merely received a right to payment for its services, often secured by a maritime lien on the objects.33 UNCLOS established basic rules to govern archaeological and historical objects found in international waters. Article 303 provides that states are obli gated to “protect” such objects that are found at sea, without prejudice to “the rights of identifiable owners, the law of salvage” or other rules.34 This implies that ownership rights in these objects continue to be governed by domestic laws. Yet the article further specifies that where the objects are located in the contiguous zone of a coastal state―that is, within 24 nautical miles of the shoreline35―the state may require its consent before they can be removed from the seabed.36 By refusing permission, a state can effectively eviscerate the own er’s property rights. Archaeological and historical objects located in the Area are treated differently. UNCLOS Article 149 explains that they “shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferen tial rights” of the appropriate state of origin.37 This language echoes the “com mon heritage of mankind” approach to the mineral resources of the Area; property

See the discussion of maritime liens in section K(2). UNCLOS art 33(2). 36 UNCLOS art 303(2). 37 UNCLOS art 149. 33 35

UNCLOS art 303(1), (3).

34

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rights in such minerals cannot exist without international authorization.38 Article 149 thus implies that international law would supersede the rights of owners in these objects, vesting title in the international community. Unlike Article 303, this article does not include a proviso that safeguards private ownership. The 2001 Convention on the Protection of the Underwater Cultural Heritage39 creates a more comprehensive regime to regulate submerged archaeological and his torical objects and sites, which seems destined to supplant the UNCLOS approach. The convention requires parties to “preserve underwater cultural heritage for the benefit of humanity in accordance with the provisions of this Convention.”40 In this context, “underwater cultural heritage” is defined as “all traces of human exist ence having a cultural, historical or archaeological character” that have been par tially or totally under water for at least 100 years, such as: (1) sites, structures, artifacts, and human remains; (2) vessels and aircraft, together with their cargo and other contents; and (3) objects of “prehistoric character.”41 The convention provides that preservation of underwater cultural heritage in situ should be considered as the “first option before allowing or engaging in any activities directed at this heritage,” such as recovery attempts.42 When items are recovered, they must be “deposited, conserved and managed” so as to ensure their long-term preservation.43 In most regions, decision-making authority over under water cultural heritage is vested in the coastal state. This state has the exclusive right to authorize “activities directed” at heritage items located in its territorial sea, archipelagic waters, or EEZ, or on its continental shelf.44 When such items are discovered in the Area, all interested states are to consult as to the appropriate course of action.45 The convention potentially impairs private rights in heritage items by impos ing derivative restrictions. Unlike UNCLOS Article 303, the convention lacks a proviso to the effect that its terms will not prejudice the rights of owners. While it is generally accepted that the convention was not intended to supersede private ownership, this may be its practical effect. The primary goal of the convention is to preserve heritage items in place and thereby prevent them from being returned to their owner. This outcome effectively destroys property rights: the owner cannot use or possess these items, or exclude others from possession. Moreover, where the owner is able to recover possession of heritage items, the convention restricts their transferability. It provides that these items “shall not be traded, sold, bought or bartered as commercial goods,” because “commercial

UNCLOS arts 136, 137. Convention on the Protection of the Underwater Cultural Heritage (Underwater Cultural Heritage Convention) (Paris, November 2, 2001, 2562 UNTS 3). 40 Underwater Cultural Heritage Convention art 2(3). 41 Underwater Cultural Heritage Convention art 1(1). 42 Underwater Cultural Heritage Convention art 2(5). 43 Underwater Cultural Heritage Convention art 2(6). 44 Underwater Cultural Heritage Convention arts 7, 10. 45 Underwater Cultural Heritage Convention art 12. 38 39

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exploitation” is incompatible with their protection.46 The “irreversible dispersal” of heritage items is also prohibited.47 However, most underwater cultural heritage items are so old that no current owner can be located. In this situation, the convention harmonizes domestic laws by creating a new international standard that makes it more difficult for a salvor to obtain title. It provides that any “activity relating to” such items―such as a recovery effort by a salvor―is not subject to “the law of finds” under domestic law unless it is: (1) authorized by the competent authority, usually the coastal state; (2) in “full conformity” with the convention; and (3) ensures that “any recovery” of heritage items achieves their “maximum protection.”48 Given its preference for in situ preservation, a decision to allow a potential salvor to recover heritage items may not be in conformity with the convention.

E. Fisheries (1) Generally An ocean fishery is a classic example of a common property resource. No state or private actor owns wild fish in the ocean. Fish have historically been treated as res nullius: ownership arises only when a fisher successfully takes physical possession of particular fish. For centuries, customary international law has recognized that all states―and thus the nationals of all states―are entitled to fish in the ocean waters beyond the jurisdiction of coastal states.49 UNCLOS codifies, clarifies, and expands customary principles governing ocean fisheries. The coastal state has the sovereign right to exploit the fisheries in its territorial sea and, in general, its archipelagic waters.50 It also enjoys broad authority to regulate fisheries in its EEZ. Finally, UNCLOS recognizes the trad itional principle that the high seas are generally open to fishing by all states and their nationals.51 Within this framework, UNCLOS imposes duties on all states to prevent the unsustainable exploitation of ocean fisheries. The creation of property rights―in

Underwater Cultural Heritage Convention annex rule 2. Underwater Cultural Heritage Convention annex rule 2. 48 Underwater Cultural Heritage Convention art 4. 49 Special restrictions apply to fishing in the ocean regions that surround Antarctica, under the Convention on the Conservation of Antarctic Marine Living Resources (Canberra, May 20, 1980, 1329 UNTS 48). 50 UNCLOS arts 2, 49, 51, 193. Under the Convention for the Protection of the World Cultural and Natural Heritage (Paris, November 16, 1972, 1037 UNTS 151) and other instruments, however, some portions of the oceans are designated as marine protected areas where fishing is effectively pro hibited. See the discussion of protected areas in ch 6F. 51 Various treaties prohibit or restrict fishing or other exploitation of certain species. eg Bonn Convention on the Conservation of Migratory Species of Wild Animals (Bonn, June 23, 1979, 1651 UNTS 333); International Convention for the Regulation of Whaling (Washington, December 2, 1946, 161 UNTS 72). 46 47

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effect, usufructs that allow holders to catch fish within defined limits―can be a useful tool in this process. Toward this end, private actors might be given: (a) rights to harvest a specific quantity of fish; (b) rights to harvest fish within a particular ocean region; or (c) less directly, rights to operate fishing vessels. Coastal states and regional fisheries management organizations, in particular, have begun to experi ment with these property-based approaches.

(2) Exclusive Economic Zone UNCLOS provides that each coastal state will determine the “allowable catch” of fish and other living resources within its EEZ, with the goal of ensuring that populations of harvested species provide the “maximum sustainable yield.”52 Some states have assigned individual shares in the total allowable catch to their nationals engaged in fishing. One method for allocating such shares is a usufruct-like prop erty right called an individual transferable quota (ITQ)―in effect, the legal right to catch a certain quantity of fish. An ITQ can typically be sold, leased, mortgaged, or traded to another fisher. The theory underlying ITQs is that they will promote economic efficiency. All things being equal, ITQs will tend to be purchased by fishers who have lower operating costs, because they can afford to pay more for these rights. When a particular state does not have the capacity to harvest its total allowable catch, UNCLOS Article 62 specifies that it shall “through agreements or other arrangements . . . give other States access to the surplus.”53 In practice, many states have interpreted this provision to mean that they can satisfy its terms by granting access directly to foreign fishermen. Indeed, the article provides that, in dealing with “[n]‌ationals from other states” concerning fishing in the EEZ, the coastal state may require “licensing of fisherman, fishing vessels and equipment, including payment of fees and other forms of remuneration.”54 In this context, UNCLOS may be viewed as requiring the coastal state to grant fishing rights―much like usufructs―to states or foreign nationals. However, UNCLOS bars coastal states from transferring fishing rights to for eign nationals in certain situations. In the interest of equity, UNCLOS provides that land-locked states and geographically disadvantaged states shall “have the right to participate . . . in the exploitation of an appropriate part” of surplus fish or other resources in an EEZ.55 However, these rights “shall not be directly or indirectly transferred to third States or their nationals by lease or license, by establishing joint ventures, or in any other manner which has the effect of such transfer” unless all affected states agree.56 These provisions impose derivative restrictions on property rights by making it more difficult for private actors to obtain fishing rights.

UNCLOS art 61(1), (3). 53 UNCLOS art 62(2). UNCLOS arts 69, 70. 56 UNCLOS art 72.

52 55

54

UNCLOS art 62(4).

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(3) High Seas In general, international law permits any person to fish on the high seas. UNCLOS Article 116 provides that “[a]‌ll states shall have the right for their nationals to engage in fishing activities on the high seas,” subject to other provisions of the convention.57 States are required to take such appropriate “measures for their respective nationals” as are necessary for the conservation of fish and other living resources in the region.58 Toward this end, a state must: (a) determine the “allow able catch” its nationals can take from the high seas, considering the harvest level that can produce the “maximum sustainable yield”; and (b) enter into negotiations with other states whose nationals exploit the same fisheries in order to ensure con servation.59 Taken together, these provisions establish derivative rights in nationals of each state to engage in fishing on the high seas, entitlements which are analo gous to a usufruct. Further harmonization of the standards governing high seas fisheries is provided by the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.60 Under the agree ment, each party must take measures to ensure that fishing vessels flying its flag “do not engage in any activity that undermines the effectiveness of international conservation and management measures.”61 When a violation occurs, the party must impose sanctions of “sufficient gravity as to be effective” in securing future compliance and in depriving offenders of the “benefits accruing from their illegal activities.”62 For a serious offense, such sanctions include “refusal, suspension or withdrawal of the authorization to fish on the high seas.”63 Such a sanction ter minates the usufruct-like right that the vessel owner would otherwise hold and constitutes a derivative prohibition. As UNCLOS contemplated, a number of regional fisheries conventions have been adopted to help resolve conflicts among states whose nationals are involved in the same fishery, particularly for highly migratory species and “straddling species,”64 those that regularly utilize both the high seas and adjacent EEZs. The regional fisheries management organizations established to administer these systems typically assign annual fishing quotas to member states. In turn, each state allocates its quota among fishing vessels operating under its flag, which are usually owned by private actors. The entitlement held by each vessel owner is a valuable property right created by a supranational entity. Depending on the UNCLOS art 116. UNCLOS art 117. 59 UNCLOS arts 118, 119. 60 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Rome, November 24, 1993, 2221 UNTS 91). 61 Agreement to Promote Compliance art III(1). 62 Agreement to Promote Compliance art III(8). 63 Agreement to Promote Compliance art III(8). 64 See also the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, August 4, 1995, 2167 UNTS 3). 57 58

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provisions of the appropriate convention, these quotas may be transferable to other vessel owners who are nationals of the same state or potentially to owners from other states.

F. Genetic Material Genetic material from ocean species has significant potential value, especially because many species have developed unique biological characteristics that enable them to survive under extreme conditions. Although international law does not specifically address the question, UNCLOS appears to permit private actors to exploit the genetic resources of the high seas. Under this analysis, these actors would hold a derivative property right, akin to a usufruct, to utilize such resources. The entitlement of private actors to obtain genetic material from ocean species primarily turns on whether the source area is governed by a coastal state. In gen eral, each state has sovereignty over its territorial sea and archipelagic waters, which includes the water column, the seabed, and its subsoil. The state’s rights in the EEZ include “exploiting . . . the natural resources . . . whether living or non-living, of the waters subjacent to the seabed and of the seabed and its subsoil.”65 In add ition, it holds sovereign rights over its continental shelf for the purpose of “exploit ing . . . living organisms belonging to sedentary species” on or under the seabed and its subsoil.66 The coastal state is usually required to consent to “marine scientific research” by other states within the EEZ or on the continental shelf. However, it may withhold consent for research that is “of direct significance for the explora tion and exploitation” of living natural resources,67 such as searching for valuable genetic material. Accordingly, genetic materials from species located within the water column in the territorial sea, archipelagic waters, or the EEZ cannot be obtained without the discretionary consent of the coastal state. The same result follows for sedentary species located on or under the seabed and its subsoil in these regions and on the continental shelf. The status of genetic resources located within the Area is unclear. Article 136 provides that the “Area and its resources are the common heritage of mankind.” Yet “resources” in this context only refers to mineral resources.68 The logical implica tion is that other types of resources―such as genetic resources―are not covered by this provision, even if they are located in the Area. UNCLOS apparently allows any state and its nationals to utilize the genetic material from species located in the water column of the high seas. It provides that all states are entitled to exploit the “living resources” of the high seas, which would include utilizing genetic material from species located in this region.69 The same

UNCLOS art 56(1)(a). 66 UNCLOS art 77(4). UNCLOS art 133. 69 UNCLOS arts 117–19.

65 68

UNCLOS art 246.

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principle would seem to apply to genetic resources from sedentary species located on or under the seabed or its subsoil in the Area. The primary limitation on this entitlement is Article 117, which mandates that states take “such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.”70 But because the quantum of genetic material required for commercial exploitation is minute, the sustainability of a particular species would not be affected by its extraction. It might be argued that Article 241, which provides that scientific research activities shall not “constitute the legal basis for any claim to any part of the marine environment or its resources,”71 constrains bioprospecting activities. But in context this article appears to refer only to claims to resources in place.

G. Icebergs The possibility of harvesting icebergs as a source of fresh water has attracted attention for decades. An iceberg is produced by the interaction between land-based sheet ice and the ocean. Precipitation over land gradually generates a thick layer of ice that moves downhill toward the ocean due to gravity. When the sheet ice reaches the ocean, a portion breaks off or “calves” and becomes free-floating ice―an iceberg. Icebergs arise most commonly in Antarctica or the Arctic, but may also be produced on land that is subject to national sovereignty, such as Greenland or Canada. Although the question of property rights in icebergs has not been definitively resolved, the likely outcome is that an iceberg on the high seas―the most common situation―would be treated as res nullius, an unowned thing that becomes owned by the first person who takes possession. The UNCLOS provisions governing the high seas generally apply to all ocean waters that are not within the EEZ, territorial sea, or archipelagic waters of a state.72 Under the majority view that no territorial sovereignty claims in Antarctica are valid, the coastal waters of Antarctica would be considered part of the high seas. The same rationale applies to much of the Arctic, which is outside the EEZ of any nation. Finally, icebergs that originate on national territory (such as a glacier that calves in Alaska) but then travel outside the state’s EEZ would be subject to the high seas regime.73 Nothing in UNCLOS specifically addresses rights in icebergs. However, Article 87 provides that all states may exercise the freedoms of the high seas. While it sets forth a list of six specific freedoms, the text of the article makes it clear that this list

UNCLOS art 117. UNCLOS art 241. UNCLOS art 86. 73 Any claim that an iceberg remains subject to the sovereign control of the state where it originated seems unlikely to succeed. Just as fish that travel from one state’s EEZ to the high seas are generally governed by the high seas regime, the same rule would logically apply to other mobile resources such as icebergs. 70 71 72

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is illustrative, not exclusive.74 As one authority notes, “the freedoms of the high seas cannot be exhaustively listed,” in part because “users of the seas remain at liberty to do as they please aside from a few restrictive rules.”75 Two rationales support the concept that the freedoms of the high seas should allow states―and therefore private actors acting under the aegis of a state―to obtain property rights in icebergs. First, iceberg harvesting is analogous to fishing, which is expressly permitted. Article 87 recognizes that “freedom of fishing”76 is one of the freedoms of the high seas. Both icebergs and fish are effectively wasted if not devoted to human use; both are resources that will be replenished over time; and in both situations no one has an incentive to capture the resource absent the incentive of ownership. A pri vate actor who takes possession of an iceberg on the high seas should be deemed to be its owner, just as the first person to catch a wild fish obtains title. Second, and more broadly, the freedoms of the high seas should be viewed as permitting any use that is not expressly excluded by international law.77 The only limitation that might apply to iceberg harvesting is the UNCLOS requirement that the freedoms of the high seas be exercised with “due regard” for the interests of other states.78 It is difficult to imagine a situation where the harvesting of an iceberg by a national of one state would harm the interests of another state. A different regime governs property rights in icebergs located within the terri torial sea, archipelagic waters, or the EEZ. UNCLOS recognizes that a coastal state has sovereignty over its territorial sea, which includes the right to appropriate all resources within that area, presumably including icebergs; the same analysis applies to archipelagic waters. Similarly, each coastal state has sovereign rights in its EEZ to exploit the “natural resources, whether living or non-living, of the waters”79 above the seabed, which would include icebergs. Therefore, rights in icebergs in these regions are governed exclusively by domestic law.

H. Minerals Valuable deposits of cobalt, copper, manganese, nickel, and other hard rock min erals, together with oil and gas, are present on and under the seabed. The coastal state has sovereign rights over minerals on and under the seabed of the territorial sea, archipelagic waters, and the EEZ, as well as on its continental shelf.80 But minerals located in the Area, the region beyond national jurisdiction, are subject to international control.

74 UNCLOS Article 87(1) provides that the freedom of the high seas “comprises, inter alia . . . (a) freedom of navigation.” 75 RR Churchill & AV Lowe, Law of the Sea (3d edn, Manchester U Press 1999) 205. 76 UNCLOS art 87(e). 77 eg Churchill & Lowe, Law of the Sea 206. 78 UNCLOS art 87(2). 79 UNCLOS art 56(1)(a). 80 UNCLOS arts 2(2), 49(2), 56(1), 77(4).

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The Area and its resources are the “common heritage of all mankind.”81 In this context, “resources” means “solid, liquid, or gaseous minerals in situ on or beneath the seabed.”82 All rights in the resources of the Area are vested in “mankind as a whole.”83 As such, they cannot be appropriated by any “natural or juridical person” or state, and they “are not subject to alienation.”84 In addition, no such person or state may “claim, acquire or exercise rights with respect to the minerals recovered from the Area” except in accordance with UNCLOS, and no such “claim, acquisi tion or exercise of such rights shall be recognized.”85 As a general rule, then, the Area and its mineral resources are not subject to private ownership. This is a direct prohibition on property rights imposed by international law. As amended by the 1994 Agreement relating to the Implementation of Part XI,86 UNCLOS establishes an international entity (the Authority) to grant and regulate property rights in the minerals that exist in the Area, on the “seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.”87 Through this process private actors may obtain property rights directly from an international entity as a matter of international law, independent of municipal law. “[N]‌atural or juridical persons” who are nationals of a member state or who are “effectively controlled by them or by their nationals”88 may apply to the Authority for the right to exploit the mineral resources of the Area in a region up to 150,000 kilometers in size.89 An applicant must be sponsored by its nation and meet certain financial and technological criteria.90 The Authority may deny an application from a qualified applicant only for three reasons: (1) the proposed mining would pose a risk of serious harm to the marine environment; (2) another applicant has already applied for or received the right to mine in that region; or (3) the applicant’s nation has previously sponsored an inordinate amount of mining.91 A successful applicant then enters into a contract with the Authority. The contract confers upon the operator the “exclusive right to explore for and exploit”92 the applicable region in exchange for the payment of royalties.93 Moreover, the Authority ensures that no other entity will operate in the same region for a different type of minerals in a manner that might interfere with the activities of the operator.94 UNCLOS provides that the operator will receive UNCLOS art 136. UNCLOS art 133(a). 83 UNCLOS art 137(2). 84 UNCLOS art 137(1), (2). 85 UNCLOS art 137(3). 86 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982 (New York, July 28, 1994, 1836 UNTS 3). 87 UNCLOS art 1(1)(1). 88 UNCLOS art 153(2)(b). 89 International Seabed Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area 16 (July 13, 2000). 90 UNCLOS annex III art 4 91 UNCLOS art 162(2)(x), annex III art 6(3) 92 UNCLOS annex III art 3(4)(c). 93 UNCLOS annex III art 16. 94 UNCLOS annex III art 16. 81 82

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security of tenure.95 Its rights may be suspended or terminated only under extreme circumstances: (1) “serious, persistent and wilful violations of the fundamental terms of the contract,” UNCLOS rules, or Authority rules; or (2) failure to comply with a final binding decision of the UNCLOS dispute resolution body.96 The operator may transfer its rights under the contract with the consent of the Authority, which “shall not be unreasonably withheld.”97 This right to explore for and exploit the minerals in a particular region closely resembles a usufruct. When an operator acquires physical possession of seabed minerals, it also acquires internationally recognized property rights in them. As UNCLOS Annex III explains, “[t]‌itle to minerals shall pass upon recovery in accordance with this Convention.”98 Where the operator is a private actor, the transfer of title by the Authority―without any action or other involvement by the sponsoring state―directly creates property rights in the actor as a matter of international law. It is significant that UNCLOS also provides a method for enforcing the prop erty rights that are created in this process. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) has jurisdiction over dis putes, inter alia, between the Authority and operators, including “natural and juridical persons,” that relate to interpretation of a contract or the acts or omissions of any party to a contract.99 The level of seabed mining under this regime has been minimal to date. Only ten operators have entered into contracts with the Authority. The principal reason is the slow pace of developing cost-effective technology for deep sea mining. In most situations, it is still less expensive to extract minerals from land sources. The UNCLOS framework will be utilized more frequently in the future as techno logical advances facilitate such mining.

I. Navigation (1) Generally UNCLOS safeguards the rights of states and their nationals to navigate on ocean waters. Article 90 provides that “[e]‌very state . . . has the right to sail ships flying its flag on the high seas,”100 and Article 58 extends this right to the exclusive economic zone.101 In other contexts, however, the right to navigate is expressly conferred on “ships”―and thus directly on their owners―rather than on states. Article 17 provides that “ships of all States . . . enjoy the right of innocent passage through the territorial sea,”102 while Article 52 uses identical phrasing in the context of 95 UNCLOS art 153(6). 96 UNCLOS annex III art 18. 97 UNCLOS annex III art 20. 98 UNCLOS annex III art 1. 99 UNCLOS art 187. 100 UNCLOS art 90. 101 UNCLOS art 58. 102 UNCLOS art 17.

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passage through archipelagic waters.103 In the same manner, Article 38 specifies that “all ships . . . enjoy the right of transit passage” in straits used for international navigation.104 As this inconsistent phrasing implies, the intended beneficiaries of these provi sions are vessel owners, whether they are states or private actors. In this light, the right to navigate might be viewed as akin to a servitude when it is held by private actors. At a minimum, it may be said that international law permits the owners of private vessels to utilize the high seas.

(2) Occupancy The possibility that a private actor might seek to occupy part of the surface of the high seas with a vessel or other flotation platform raises unresolved issues. When UNCLOS was adopted more than 30 years ago, the delegates assumed that “navigation” connoted the temporary use of the ocean surface for the pur pose of traveling from one location to another. However, the concept of moving a shore-based activity such as a private business to a quasi-permanent ocean loca tion has attracted interest. Google, for example, has filed a patent application for a “floating platform-mounted computer data center” that uses seawater to generate electricity and cool computer units. International efforts to confront ocean-based pirate radio stations in the 1960s provide a somewhat analogous precedent. Using flags of convenience, these sta tions circumvented national restrictions on radio broadcasts in European states by operating from vessels located beyond national jurisdiction. European nations entered into a treaty that declared such broadcasts to be unlawful,105 and UNCLOS Article 109 subsequently provided that “unauthorized broadcasting from the high seas” was illegal.106 In light of this history, the narrow scope of this article is not able. UNCLOS failed to either: (a) restrict the navigation right to transitory pas sage, as opposed to quasi-permanent presence; or (b) limit the ability to operate land-oriented businesses on the ocean surface. The concept that the high seas are open to use by all states and their nationals― absent contrary international law―suggests that ocean surface occupancy would be permitted. UNCLOS Article 87 proclaims that “[f ]‌reedom of the high seas” comprises “inter alia . . . freedom of navigation . . . freedom of overflight” and four other activities.107 This listing is clearly illustrative, not exclusive. Accordingly, states and their nationals may presumably utilize the high seas for other, unlisted purposes―such as the operation of private businesses―as long as they act with

UNCLOS art 52. UNCLOS art 38. 105 European Agreement for the Prevention of Broadcasts transmitted from Stations outside National Territories (Strasbourg, January 22, 1965, 634 UNTS 239). 106 UNCLOS art 109. 107 UNCLOS art 87(1). 103 104

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“due regard” for the interests of other states.108 A variety of businesses might con ceivably be operated on the ocean surface, including energy-generation operations, resorts, and research and development facilities. One question that flows from this analysis is whether such a business would need to be located on a vessel or other platform that is actually engaged in navi gation, that is, moving on the ocean surface. Although navigation is one of the historic ocean uses, it would not appear to be a requirement. A private actor who utilizes the surface of the high seas to operate a business―for example, a wind farm to generate electricity―would presumably be able to occupy a particular portion of the surface on a quasi-permanent basis. Such occupancy would give the actor the functional equivalent of a property right, akin to a de facto servitude, to utilize that area.

J. Submarine Cables and Pipelines Undersea cables owned by private companies carry global communications, including phone calls, email, and other internet traffic. Private undersea pipelines transport large quantities of oil and gas. As the ICJ acknowledged in the North Sea Continental Shelf Cases, customary law has long recognized the right to lay and maintain submarine cables and pipelines.109 UNCLOS codifies and limits this historic right. By authorizing states to lay and maintain such cables and pipelines, international law creates derivative rights in private actors―akin to usufructs―to do so as well.110 UNCLOS Article 79 provides that “[a]‌ll States are entitled to lay submarine cables and pipelines on the continental shelf,” while Article 112 establishes the same right “on the bed of the high seas beyond the continental shelf.”111 When lay ing cables or pipelines, “due regard” must be given to the location of existing cables and pipelines, particularly to ensure that access for repair purposes is preserved.112 The coastal state generally may not impede the laying or maintenance of such cables or pipelines on the continental shelf, but it must consent to the locations where pipelines will be laid.113 However, it may exclude cables and pipelines from entering its territory and its territorial sea.114

UNCLOS art 87(2). North Sea Continental Shelf Cases, 1969 ICJ Rep 39 para 65. 110 The same analysis applies to the construction of artificial islands and other installations located on the high seas. UNCLOS art 87(1). However, the coastal state has the exclusive power to authorize such installations on its continental shelf in high seas regions. UNCLOS arts 60, 80. Thus, the right applies only to the deepest regions of the oceans where such installations are usually impracticable. 111 UNCLOS arts 79(1), 112(1). 112 UNCLOS arts 79(5), 112(2). 113 UNCLOS art 79(2), (3). 114 UNCLOS art 79(4). 108 109

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K. Vessels (1) Generally A global title registry for vessels does not exist. Although international law man dates that every vessel using the high seas be registered, the process is mainly governed by municipal laws. UNCLOS provides that each state “shall fix the con ditions for the grant of nationality to its ships, for the registration of its ships in its territory, and for the right to fly its flag.”115 It requires that every state maintain a register “containing the names and particulars of ships flying its flag.”116 The prin cipal international restriction―ineffectively enforced―is that “[t]‌here must exist a genuine link between the State and the ship.”117 However, large ocean-going cargo and passenger ships must obtain identification numbers from the International Maritime Organization, which serves a registry function.118 Moreover, a de facto international registration system for certain fishing vessels was created by the 1995 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. Under the agreement, each party must maintain a record of fishing vessels that are entitled to fly its flag and “authorized to be used for fishing on the high seas.”119 Detailed information about each such vessel must be provided to the UN Food and Agriculture Organization (FAO) and regularly updated.120 The FAO is required to circulate this information―in effect, an international registry of authorized fish ing vessels―to all parties.121 The registry is significant because if a listed vessel violates international fishing regulations, the flag state must impose sanctions that may include “withdrawal of the authorization to fish on the high seas.”122 When this occurs, the agreement restricts the ability of the owner of the offending vessel to obtain fishing authorization from another state.123 In this manner, the registry process regulates the rights of vessel owners to obtain access to high seas fisheries.

(2) Security Interests The 1993 International Convention on Maritime Liens and Mortgages (Lien Convention)124 establishes the first global regime for the recognition and enforce ment of security interests in vessels. Historically, domestic laws governing mari time liens and ship mortgages varied widely. For example, a court in State A might UNCLOS art 91(1). UNCLOS art 94(2)(a). UNCLOS art 91(1). 118 International Maritime Organization Resolution A.600(15) (1987). 119 Agreement to Promote Compliance art IV. 120 Agreement to Promote Compliance art VI. 121 Agreement to Promote Compliance art VI. 122 Agreement to Promote Compliance art III(8). 123 Agreement to Promote Compliance art III(5). 124 International Convention on Maritime Liens and Mortgages (Lien Convention) (Geneva, May 6, 1993, 33 ILM 353). 115 116 117

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refuse to enforce a mortgage against a vessel temporarily under its jurisdiction based on domestic law, even though the mortgage was validly created under the law of State B. In addition, the types of maritime liens that were recognized and their respective priority differed from state to state. The preamble to the conven tion emphasizes the “necessity for an international legal instrument” that will pro vide “international uniformity in the field of maritime liens and mortgages.”125 The convention is an example of the harmonization modality, in that it requires each member state to adopt the uniform convention standards into its domestic law. Ship mortgages, hypothèques, and similar charges are typically used to secure loans for the purpose of building or purchasing vessels. The convention provides that security interests which encumber “seagoing vessels” shall be “recognized and enforceable” in all member states if: (a) they have been created and registered in accordance with the laws of the state where the vessel is registered; (b) the registry and any deposited instruments are open to public inspection and copies of relevant instruments can be obtained from the registrar; and (c) the registry contains infor mation about the security interest such as the name of the holder, the amount, and other particulars.126 The relative priority among these interests is determined by the law of the state of registration.127 Significantly, the state of registration may not permit the owner to voluntarily deregister the vessel, unless the holders of security interests have either been paid or consented; this provision avoids the risk that an owner might reflag the vessel to avoid payment.128 Maritime liens, in contrast, secure the repayment of debts arising from the operation of vessels. The convention provides that five categories of claims “shall be secured by a maritime lien on the vessel”: (a) claims for wages due to the crew; (b) claims arising from loss of life or personal injury connected to vessel operation; (c) claims for “reward for the salvage of the vessel;”129 (d) claims for port, canal, pilotage, and related dues; and (e) claims based on torts arising out of physical loss or damage from operation of the vessel, other than damage to cargo or passengers’ property.130 In this manner, the convention standardizes the types of maritime liens that will be enforced under international law. It further clarifies the in rem nature of these liens by providing that they “follow the vessel, notwithstanding any change of ownership or of registration or flag.”131 Under the convention, maritime liens take priority over registered mortgages, hypothèques, and charges.132 The respective priority of a maritime lien is determined Lien Convention preamble arts 2, 3. Lien Convention art 1. 127 Lien Convention art 2. 128 Lien Convention art 3(1). 129 The International Convention on Salvage (London, April 28, 1989, 1953 UNTS 194) addresses the nature and scope of salvors’ rights. 130 Lien Convention art 4(1). Any party may grant other maritime liens under certain circum stances, but these take priority after all internationally recognized maritime liens and all registered mortgages, hypothèques, and charges. Lien Convention art 6. A party may also grant a right of reten tion to shipbuilders and ship repairers. Lien Convention art 7. 131 Lien Convention art 8. 132 Lien Convention art 5(1). 125 126

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by the order of categories listed above. Crew wages take first priority, claims arising from loss of life or personal injury take second priority, and so forth, except that salvage claims have priority over all maritime liens that attached before the salvage operation.133 When the forced sale of a vessel occurs within the territory of a party, all regis tered mortgages, hypothèques, and charges―except those assumed by the purchaser with the consent of the holders―and all maritime liens and other encumbrances cease to attach to the vessel.134 The sales proceeds are distributed according to the respective priorities established by the convention, but expenses arising from the arrest or seizure and sale of the vessel are paid first.135 The purchaser at such a sale is entitled to receive a certificate establishing that the vessel was sold free of all liens and other encumbrances, except for those that it has assumed.136

(3) Seizure International law protects the ownership of vessels in a number of situations. If a state has detained a vessel flying the flag of another state, the detaining state must release the vessel upon the posting of a “reasonable bond or other security” on the owner’s behalf.137 Protection against seizure is also accorded by limitations on hot pursuit of a foreign ship that is believed to have violated laws of a coastal state. If a ship has been “stopped or arrested” by that state outside of the territorial sea under circumstances that do not justify hot pursuit, the ship owner has a direct right against the state for compensation. UNCLOS provides that “it”―that is, the ship―“shall be compensated for any loss or damage that may have been thereby sustained.”138 To date, most of the cases heard by ITLOS have concerned the legal ity of seizures of foreign ships by coastal states.139 International law also protects rights in vessels through the prohibition of piracy. UNCLOS defines “piracy” to include any illegal act of “detention” com mitted for private gain by the crew of a private ship that is directed against a “ship” or “property on board such ship” either on the high seas or any other place outside the jurisdiction of any state.140 In this situation, any state may seize a pirate ship or a ship taken by pirates; this allows owners to recover their stolen property.141 Conversely, the property rights of ship owners are limited by international stand ards that permit the seizure of ships under certain circumstances, and thus con stitute derivative restrictions. One example is the 1999 International Convention

Lien Convention art 5(2). Lien Convention art 12(1). 135 Lien Convention art 12(2). 136 Lien Convention art 12(5). 137 UNCLOS arts 73(2), 292. 138 UNCLOS art 111(8). 139 eg The “Camouco” Case (Panama v France) ITLOS Case No 5 (February 7, 2000). 140 UNCLOS art 101(a). 141 UNCLOS art 105. 133 134

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on Arrest of Ships,142 which supplements the Lien Convention by establishing uniform standards for the “arrest” or seizure of ships that are subject to mari time claims.143 Under this convention, “maritime claims” include ship mortgages, hypothèques, similar charges, maritime liens covered by the Lien Convention, other monetary claims not protected under the Lien Convention, and disputes arising out of the ownership or possession of a ship.144 The convention establishes the conditions under which a ship may be seized,145 and further provides that it must be released, in most instances, when sufficient security has been provided to cover the relevant debts.146 The law of war also regulates the seizure of privately owned vessels. A belliger ent is permitted to capture enemy merchant ships as prizes in enemy waters or on the high seas, thus supplanting the owners’ property rights.147 Further, where clear necessity exists, the doctrine of angary allows a belligerent to take possession of foreign merchant ships―including ships from neutral states―that are located in the territorial waters of an enemy state, and use them for its own purposes during the conflict. The belligerent must return such a vessel to its owner when the neces sity ends and is obligated to pay compensation for its use.148 142 International Convention on Arrest of Ships (Arrest Convention) (Geneva, March 12, 1999, UN Doc No A/CONF.88.6). 143 Arrest Convention art 2(2). 144 Arrest Convention art 1(1). 145 Arrest Convention arts 2, 3. 146 Arrest Convention art 4. 147 Ingrid Detter, The Law of War (2d edn, CUP 2000) 351–58. 148 Detter, The Law of War 360–61.

8 Rights in Airspace and Outer Space

A. Introduction The boundary between national airspace and outer space has a profound effect on international property law. It is well settled that the airspace beneath this line is the sovereign territory of the underlying state. The domestic law of that state regu lates property rights in the airspace just as it does on the land surface. In contrast, because outer space is beyond the jurisdiction of any state, the potential existence of property rights in celestial bodies, objects transported into space from Earth, or outer space itself is determined by international law. Remarkably, there is no agreement as to the location of the boundary between airspace and outer space. A growing consensus supports the view that it should be placed at 100 kilometers above the Earth’s surface. Although various approaches have been advanced, the most promising analysis is based on the way in which the density of the Earth’s atmosphere affects aircraft flight and space flight. The International Civil Aviation Organization defines an “aircraft” as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.”1 At an altitude of approximately 100 kilometers, the atmosphere is so thin that an aircraft cannot support itself in flight unless it travels faster than orbital velocity. This point, known as the Von Karman Line, is generally viewed as the highest altitude that an aircraft could theoretically travel―a logical demarcation line between airspace and outer space. An alternative approach is to determine the lowest altitude that an orbiting satellite can travel through the atmosphere without falling out of orbit. Scientists believe that a satellite might be able to utilize an orbit as low as 90 to 120 kilom eters on a temporary basis, though this work remains theoretical. Nonetheless, it suggests that establishing the boundary at 100 kilometers is a reasonable approach to the issue.

1 International Civil Aviation Organization, Revised Annex VII, Doc no 9294 (November 6, 1967).

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B. Rights in Airspace (1) Generally Under customary international law and conventional law, each state has sover eignty over its territorial airspace. For example, the Convention on International Civil Aviation (CICA) acknowledges that a state has “complete and exclusive sov ereignty over the airspace above its territory.”2 As a result, virtually all situations potentially involving property rights in airspace―such as the right to construct a tall building or to emit loud noises―are governed exclusively by municipal law.3 Yet international property rights may arise in two situations. First, CICA and other treaties that allow private aircraft to fly over the territory of a particular state or the oceans may be viewed as indirectly creating a type of avigation servi tude. Second, the tradable emissions allowances and credits authorized under the Kyoto Protocol to the UN Framework Convention on Climate Change (Kyoto Protocol)4 and related instruments effectively create an international right to emit greenhouse gases into domestic airspace.

(2) Overflights The domestic law of many states recognizes the avigation servitude as a property right: an entitlement that allows the holder to fly an aircraft through privately owned airspace. An avigation servitude is typically created by an express grant of permission from the airspace owner. International conventions that permit nation als of one state to fly aircraft through the domestic airspace of other states have much the same effect―essentially creating property rights in private actors. CICA Article 6 provides that “all aircraft of the other contracting States . . . shall have the right . . . to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior per mission.”5 This right permits travel through airspace that is held in either (a) state ownership or (b) private ownership where such ownership is authorized under domestic law. Only state-owned aircraft and aircraft engaged in “scheduled inter national air services” are exempt from this blanket grant of permission. During the era when CICA was adopted, states were the only recognized sub jects of international law. Yet treaties sometimes conferred international rights on private actors. Notably, CICA Article 6 grants the transit “right” to private “air craft” of member states―and, by logical extension, to their owners―and not to states. This language can be viewed as conferring direct rights on private owners 2 Convention on International Civil Aviation (CICA) (Chicago, December 7, 1944, 15 UNTS 295) art 1. 3 A notable exception to this principle is that the emission of noxious gases which cause trans boundary harm is addressed by international law, as discussed in ch 6H. 4 Kyoto Protocol to the UN Framework Convention on Climate Change (Kyoto, December 11, 1997, 2303 UNTS 162). 5 CICA art 6.

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which are analogous to avigation servitudes. It is significant that private actors are the only beneficiaries of this provision, since it does not extend to state aircraft. Alternatively, CICA may be interpreted as creating derivative property rights in aircraft owners. Because CICA would permit A, a national of State B, to fly a pri vate aircraft through the airspace of State C, A has obtained an avigation right in a derivative sense, through the intermediary of State B. Additional entitlements arise from the International Air Transport Agreement (IATA).6 It addresses the issue of territorial overflights by commercial airlines, which was not covered by CICA. Under IATA, each party “grants to the other contracting States” certain “freedoms of the air” for “scheduled international air services,” including the privilege to fly across its territory without landing, to land for non-traffic purposes, and other freedoms.7 Taken together, IATA and CICA entitle all types of private aircraft to travel through the territorial airspace of mem ber states. International law recognizes similar avigation rights over the global commons. The UN Convention on the Law of the Sea (UNCLOS)8 provides that all states― and, by extension, their nationals―may enjoy the freedom of the high seas, which includes the right to fly aircraft over the high seas and the exclusive economic zones.9 Private aircraft are also permitted to fly over Antarctica, subject to restric tions in certain regions to protect animal species.

(3) Emissions Allowances and Credits Emissions trading is a method of controlling atmospheric pollution by utilizing market incentives. In effect, it allows the purchase and sale of rights to pollute ter ritorial airspace. The foremost example of this technique at the international level is its use in combatting climate change pursuant to the Kyoto Protocol. It is gener ally accepted that emissions of carbon dioxide and other greenhouse gases (GHGs) produced by human activities are gradually warming our planet. GHGs emitted into the airspace of any one state are eventually dispersed throughout the world. Given the global scale of this problem, action taken in any state to either reduce such emissions or create carbon “sinks”―such as forests that convert carbon diox ide into oxygen―benefits all states. The Kyoto Protocol and subsequent instruments create a global regime that allows each member state to permit the trading of emissions allowances and credits by its nationals. The protocol initially required each Annex I party― which includes most developed states―to reduce its GHG emissions by a cer tain percentage, as compared to 1990 levels, by 2012. For example, Austria, Italy, and Sweden were obligated to attain an 8% reduction within that period. However, the protocol provided that Annex I parties could “participate in International Air Transport Agreement (Chicago, December 7, 1944, 171 UNTS 387). IATA art I(1). 8 UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). 9 UNCLOS arts 58, 87(1). 6 7

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emissions trading for the purposes of fulfilling their commitments.”10 The Doha Amendment, which was adopted in 2012 but is not yet in force, would extend the protocol regime through 2020 and increase the required reductions to 20% for most states.11 This global trading system authorizes developed states to sell or otherwise issue time-limited rights to its nationals that permit the emission of GHGs into the atmosphere, but at a level that will reduce the state’s overall volume of emissions. The standard allowance, an “assigned amount unit” (AAU), is equivalent to one metric ton of carbon dioxide emissions. Owners of these allowances may sell or trade them on the international market to other private parties. The theory under lying the system is economic efficiency: a polluter that can reduce its GHG emis sions at a low cost has an incentive to do so, thus enabling it to sell its allowances to other polluters whose reduction costs would be higher. Three principal types of emission credits may also be traded under this regime: (a) the “emission reduction unit” (ERU); (b) the “certified emission reduc tion” (CER); and (c) the “removal unit” (RMU). Each ERU, CER, and RMU is an entitlement to emit the equivalent of one metric ton of carbon dioxide into the atmosphere. In general, these credits can be purchased, sold, and otherwise transferred by private actors through international markets. Unlike AAUs, they are not allocated by a state but rather are generated through voluntary activities undertaken most commonly by private actors. ERUs stem from “joint implementation” measures undertaken pursuant to Article 6 of the Kyoto Protocol.12 Nationals of Annex I states who voluntarily implement projects to reduce GHG emissions or to enhance the removal of such gases from the atmosphere by the addition of sinks can receive ERUs in return for the net carbon dioxide emissions that are thereby prevented. CERs arise from the “clean development mechanism” in Article 12 of the protocol. The purpose of the mechanism is to assist non-Annex I states in achieving sustainable development and minimizing GHG emissions.13 Nationals from Annex I states who invest in or otherwise facilitate projects within non-Annex I states that reduce GHG emissions or provide additional sink capacity can receive CERs in exchange for the resulting emissions reductions. Finally, RMUs are generated by certain land use and forestry activities that increase sink capacity. Emissions allowances and credits fit comfortably into the traditional concep tion of property: entitlements to a thing that are effective against all other persons. The owner of an allowance or credit may utilize it, transfer it, and exclude others from using it. Moreover, it cannot be arbitrarily cancelled by the state. By analogy to domestic law, an allowance or credit is like a servitude in that it authorizes the

Kyoto Protocol art 17. Doha Amendment to the Kyoto Protocol to the UN Framework Convention on Climate Change (Doha, December 8, 2012) art 1. 12 Kyoto Protocol art 6(1). 13 Kyoto Protocol art 12(2). 10 11

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owner to use domestic airspace for the limited purpose of emitting carbon dioxide or other GHGs. Although the Kyoto Protocol regime empowers states to have their nationals trade allowances and credits, it does not require states to do so. The direct author ity to engage in such trading, together with the precise manner in which allow ances and credits are characterized in a particular state, stems from domestic law. It has accordingly been suggested that an allowance or credit “represents a hybrid between a purely public and a purely private right,”14 rather than a traditional property right. Under the framework utilized in this book, these allowances and credits may be viewed as derivative property rights.

C. Overview of Rights in Outer Space (1) Global Commons Since its birth almost 50 years ago, space law has regulated the conduct of states, particularly nations with spacefaring capability such as Russia and the United States. Yet today private entities are increasingly active in space. Privately owned spacecraft have made deliveries to the International Space Station, while various companies have begun to offer tourist trips in low Earth orbit. In the near future, it may be technologically feasible for private businesses to exploit valuable mineral resources on the moon, asteroids, and other celestial bodies. Entrepreneurs have expressed potential interest in locating tourist facilities, specialized manufacturing operations, and entire cities in space or on celestial bodies. These developments all raise the same question: to what extent may private property rights exist in outer space? Outer space is part of the global commons―a region that is open for use by all states, but cannot become the sovereign territory of any state. The legal status of outer space is most commonly analogized to the international regime governing the high seas. All states are entitled to free use of the high seas for purposes such as navigation, commerce, and fisheries, but no state may subject any part of this region to its sovereignty.15 At this point, the law governing property rights in outer space is both unclear and incomplete. It appears that municipal law primarily governs the ownership of objects launched into space, although international law is beginning to affect this subject. The most difficult issues are: (a) whether a state may acquire de facto control over portions of outer space and thereafter create property rights in its nationals; and (b) whether private actors may exploit minerals and other outer space resources.

14 David Freestone & Charlotte Streck (eds), Legal Aspects of Carbon Trading: Kyoto, Copenhagen, and Beyond (OUP 2009) 44. 15 See the discussion in ch 7C.

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(2) Outer Space Treaty The most important source of space law is the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST).16 Ratified by most nations―including all spacefaring nations―it establishes the broad principles that govern outer space. Indeed, it has been dubbed the “Magna Carta of Space.” The OST is a product of the Cold War era when the United States and the Soviet Union―the only states with spacefaring capability―were bitter rivals, each fundamentally distrustful of the other. In this environment, the OST was primar ily intended to prevent either one from (a) conducting military activities in space or (b) obtaining national sovereignty over space. As a result, the OST provisions on these questions are relatively clear. Article II sets forth the principle of non appropriation: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Although the OST does not prohibit military activities in space, Article IV substantially restricts their location and scope. Given the climate in which it was negotiated, it is unsurprising that many other OST articles, such as those that might affect property rights, are either aspirational or vague. The OST was intended by the parties to serve as a framework conven tion: a general statement of principles that would later be concretized in more specific treaties. Moreover, because states were the only entities conducting space operations at the time, the OST only regulates state activities. Still, it contemplates that “non-governmental entities” might engage in space activities in the future. Article VI imposes restrictions on “national activities in outer space . . . whether such activities are carried on by governmental agencies or by non-governmental entities.”17 It requires that each state (a) authorize and supervise “the activities of its non-governmental entities in outer space” and (b) bear “international responsibil ity” for those activities.18 However, the OST largely ignores the question of prop erty rights held by private actors, except for rights in objects launched into space.

(3) Subsequent Developments Four treaties were subsequently adopted to convert the OST principles into specific rules: (a) the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement);19 (b) the 1972 Convention on the International Liability for Damage Caused by Space Objects (Liability Convention);20 (c) the 1975 Convention on 16 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Washington, January 27, 1967, 610 UNTS 205). 17 OST art VI. 18 OST art VI. 19 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Washington, April 22, 1968, 672 UNTS 119). 20 Convention on the International Liability for Damage Caused by Space Objects (Washington, March 29, 1972, 961 UNTS 187).

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Registration of Objects Launched into Outer Space (Registration Convention);21 and (d) the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement).22 Portions of the Rescue Agreement, Liability Convention, and Registration Convention affect property rights to a limited extent. In contrast, the Moon Agreement squarely addresses the subject. It (a) expressly prohibits private property rights in the moon and other celestial bodies and (b) contemplates an international regime to govern exploitation of space resources. But the Moon Agreement is widely seen as a failure. It has been ratified by only 13 states, none of which have engaged in space activities. As a result, its provisions affecting property rights do not bind any spacefaring nations and must be viewed as func tionally inoperative. Over the past three decades, space law has further developed through soft law instruments: (a) a series of UN General Assembly Resolutions; (b) various agree ments dealing with technical issues such as space debris; and (c) efforts to craft a nonbinding international code of conduct for outer space activities. None of these instruments addresses property rights in more than an incidental manner. However, they do reflect the increasing role of private actors in space activities. For example, the 1996 UN Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit of and in the Interest of All States provides that international cooperation in the use of space should be con ducted “in the modes that are considered most effective and appropriate for the countries concerned, including, inter alia, governmental and non-governmental; commercial and non-commercial.”23

D. Celestial Bodies: Ownership (1) Land Surface and Subsurface (a) Ownership A surprising amount of attention has been devoted to the question of whether the moon and other celestial bodies may be owned by private parties. The issue arises because the OST―unlike the Moon Agreement24―does not expressly prohibit private ownership. Since only a handful of states have ratified the Moon Agreement, some scholars argue that ownership is implicitly permitted. But the better interpre tation of the OST, supported by the overwhelming weight of scholarly opinion, 21 Convention on Registration of Objects Launched into Outer Space (New York, November 12, 1974, 1023 UNTS 15). 22 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York, December 5, 1979, 1363 UNTS 3). 23 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit of and in the Interest of All States, UN GAR 51/122, UN Doc A/RES/51/122 (December 13, 1996) para 4. 24 Moon Agreement art 11(3).

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is that the moon and other celestial bodies are not subject to private ownership.25 This rule constitutes a derivative prohibition on ownership. The dispute centers on the meaning of the nonappropriation principle in OST Article II. On its face, the principle only applies to states because it bars “national appropriation,” which connotes the acquisition of territorial sovereignty by a state. Nothing in the article expressly refers to “appropriation” by private actors or to “property.” In contrast, Article 11(3) of the Moon Agreement prohibits private ownership: “Neither the surface nor the subsurface of the Moon, nor any part thereof . . . shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”26 The agreement further states that its provisions relating to the moon also apply to “other celestial bodies within the solar system, other than the Earth.”27 It is undisputed that the text of the Moon Agreement bars private actors from obtaining property rights in any celestial body. The conventional argument against private ownership is based on the theory that property rights can only arise from a sovereign state. Under this approach, since OST Article II prohibits sovereignty over the moon and celestial bodies, no state is empowered to create property rights in these regions. As the International Institute of Space Law summarizes: “Since there is no territorial jurisdiction in outer space or on celestial bodies, there can be no private ownership of parts thereof, as this would presuppose the existence of a territorial sovereign competent to confer such titles of ownership.”28 Scholars arguing that private ownership of celestial bodies is permitted princi pally rely on the contrast between OST Article II and Moon Agreement Article 11(3). Because the Moon Agreement expressly bars private ownership while the OST does not, they utilize the expressio unius maxim to claim that the OST per mits such ownership by implication.29 Such scholars typically suggest that private actors may obtain ownership pursuant to natural law, independent of any state, using the principle of first occupancy.30 Under this approach, for example, the first person to seize control of part of the moon surface would acquire ownership rights in that land. It must be admitted that property and national sovereignty are not necessarily inseparable. Almost always, the property rights held by a private actor stem from the domestic law of a particular state. In limited circumstances, property rights may be created under international law, as exemplified by the UNCLOS regime

25 eg Francis Lyall & Paul B Larsen, Space Law: A Treatise (Ashgate 2009) 184–85; Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and Other Celestial Bodies: A Proposal for a Legal Regime (Martinus Nijhoff Publishers 2009) 198–201. 26 Moon Agreement art 11(3). 27 Moon Agreement art 1(1). 28 Statement of the Board of Directors of the International Institute of Space Law (March 22, 2009). 29 eg Alan Wasser & Douglas Jobes, “Space Settlements, Property Rights and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?” (2008) 73 J Air L & Commerce 37. 30 See the discussion of occupancy as a method of obtaining property rights in ch 10D(3).

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for vesting title to minerals in private actors.31 But there is no treaty, custom, gen eral principle, or other source of international law that recognizes natural law as a basis for creating property rights in celestial bodies. International law is inherently positivistic. From this standpoint, the assertion that property “rights” in celestial bodies may be premised on natural law is not a “legal” argument, but merely a philosophical assertion. Beyond this point, three specific arguments have been advanced to rebut the claim that private ownership of celestial bodies is permitted: (i) the OST implicitly bars such ownership; (ii) the object and purpose of the OST are inconsistent with ownership; and (iii) under the principle of pacta sunt servanda, each OST party is obligated to prohibit ownership. The argument that the OST implicitly bars private ownership rests on Articles I and II. Article I establishes the core principle upon which the treaty is based: “The exploration and use of outer space, including the moon and other celestial bod ies, shall be carried out for the benefit and in the interests of all countries . . . and shall be the province of all mankind.”32 Article II further provides that outer space “shall be free for exploration and use” by all states, and that “there shall be free access to all areas of celestial bodies.”33 While scholars continue to debate the exact meaning of this language, at a minimum there is widespread agreement that it is inconsistent with recognizing private property rights in celestial bodies. The moon or another celestial body can hardly be open for use by all mankind if it has been subdivided into privately owned lots. A second argument against recognizing private ownership is based on the ordinary meaning of the language in the OST in light of its object and pur pose, the standard approach used in treaty interpretation pursuant to the Vienna Convention on the Law of Treaties.34 The phrasing of the nonappropriation prin ciple stems from a 1961 UN General Assembly Resolution, which provided that “[o]‌uter space and celestial bodies . . . are not subject to national appropriation.”35 At that time and through the negotiation of the OST in 1967, there appeared to be an imminent risk that the military activities of the United States and the Soviet Union would eventually extend into space. A major objective of the OST was to prevent the militarization of outer space and celestial bodies. Thus, the preamble to the OST stresses the common interest of all mankind in ensuring the explora tion and use of space “for peaceful purposes.” Articles III,36 IV, and XII37 each help to implement this objective in different ways. In particular, Article IV prohibits military bases, maneuvers, and weapons testing on the moon and other celestial See the discussion in ch 7H. OST art I. 33 OST art I. 34 Vienna Convention on the Law of Treaties (Vienna, May 23, 1969, 1155 UNTS 331) art 31. 35 UN GAR 1721(XVI), UN Doc A/RES/1721(XVI) (December 20, 1961). 36 Article III states that the use and exploration of space will be governed by principles of inter national law, including the UN Charter, “in the interest of maintaining international peace and security.” 37 Article XII provides that all stations, installations, equipment and space vehicles on the moon or other celestial bodies shall be open to representatives of other nations on the basis of reciprocity, presumably to ensure that the prohibitions on military uses specified in Article IV can be enforced. 31 32

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bodies; it also provides that these regions shall be used by states “exclusively for peaceful purposes.” The goal of avoiding military confrontations between the United States and the Soviet Union would have been impaired if private citizens of either state were per mitted to claim private ownership of celestial land. This process would inevitably produce conflicting title claims, leading to increased tension and the risk of armed conflict. Related to this point and more fundamentally, the Soviet Union and its allies would never have ratified the OST if any conceivable argument could have been made that they were thereby authorizing the creation of private ownership of celestial bodies, given their ideological hostility to private property.38 Finally, OST Article VI provides that the activities of non-governmental enti ties in outer space require the “authorization and continuing supervision” by the appropriate party to the treaty. Thus, a national of State A cannot obtain private property rights in a celestial body without the authorization of that state. If the OST were construed to permit such a national to obtain property rights from State A, it would allow the state to circumvent the nonappropriation principle. Under that approach, State A could indirectly obtain control over outer space territory through the conduct of its national, even though the principle bars it from obtain ing direct sovereign control.39 Another portion of OST Article VI buttresses this interpretation. It provides that states are responsible for assuring that their national activities in space, includ ing activities of non-governmental entities, are carried out in conformity with the provisions of the treaty. State A is thus obligated to ensure that its nationals avoid circumventing the nonappropriation principle through claims of private owner ship. Under the principle of pacta sunt servanda, State A must perform its treaty obligations in good faith, without subterfuge.40 It is important to note that the nonappropriation principle prohibits national appropriation in any manner―“by claim of sovereignty, by means of use or occupation, or by any other means.”41 The phrase “by any other means” is broad enough to include indirect attempts to appropriate territory through claims of private property rights. The limited jurisprudence on the question supports the interpretation that celestial bodies are not subject to private ownership. The case of Beijing Moon Village v Beijing Municipal Administration42 arose when the plaintiff corporation challenged an administrative penalty that had been imposed on it for purporting to sell land on the moon to Chinese citizens. The court upheld the penalty on the basis that the OST prohibited ownership of such land, and the plaintiff therefore See the discussion in ch 1C(1). As one commentator notes, by analogy, “[i]‌t cannot be seriously argued that the absence of a mention of private entities in article IV of the Outer Space Treaty, prohibiting the placement of nuclear weapons or other weapons of mass destruction in space, would permit states to license their nationals to place such weapons in space.” Leslie I Tennen, “Toward A New Regime for Exploitation of Outer Space Mineral Resources” (2010) 88 Nebraska L Rev 794. 40 Vienna Convention on the Law of Treaties art 26. 41 OST art II. 42 Haidian District People’s Court, ILDC 846 (China 2006). 38 39

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had no title to convey. A similar claim surfaced in Nemitz v United States,43 where the plaintiff alleged that the state had infringed his property rights in an asteroid by landing a spacecraft upon it. The court found no legal basis for the plaintiff’s ownership claim and rejected the assertion that the OST “created any rights in Nemitz to appropriate private property rights on asteroids.”44

(b) Usufructs The OST prohibition of private ownership does not, however, necessarily bar lesser types of property rights. There is an uneasy tension between the nonappropriation principle and other portions of the OST which acknowledge that a state may maintain a station, installation, or facility on the moon or another celestial body.45 Despite the prohibition on formal sovereignty, a state could obtain de facto control over part of a celestial body and could seemingly create derivative property rights akin to usufructs or leases within that zone.46 OST Article I recognizes that states may both explore and “use” a celestial body. In this context, the term “use” connotes employing the celestial body as a means of achieving a particular purpose―a more intense level of activity than mere explora tion. But the OST does not establish clear parameters for which uses are allowed and which are not, except in limited circumstances. For instance, Article IV speci fies that a celestial body may be used only for “peaceful purposes” and proscribes a variety of military uses. More broadly, Article XII contemplates that a state may physically occupy por tions of a celestial body.47 It provides: “All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representa tives of other State Parties to the Treaty on the basis of reciprocity.”48 Terms such as “stations” and “installations” imply some form of physical state presence on or under the surface of a celestial body that continues to exist for a substantial period of time. It is significant that the 1959 Antarctic Treaty, upon which the OST was partially based, also permits states to establish and operate “stations” and

2004 WL 3167042 (D Nev, April 26, 2004). Nemitz 2. 45 Interestingly, the Moon Agreement does address this tension. Its Article 11 provides that the placement of “equipment, facilities, stations and installations on or below the surface” of a celes tial body shall not create a right of ownership. However, Article 9 authorizes states to “establish manned and unmanned stations” on celestial bodies; and Article 8 makes it clear that states may “[p]‌lace their . . . equipment, facilities, stations and installations anywhere on or below the surface” of a celestial body. 46 A similar argument supports the recognition of limited property rights in Antarctica as discussed in ch 6B(2). 47 The same theme appears elsewhere in the OST, if less clearly. Article II specifies that “occupa tion” will not give rise to national appropriation, which implies that occupation may occur. Similarly, Article VIII recognizes that objects may be “constructed on a celestial body” by a state. In contrast, the Moon Agreement expressly provides that states may establish manned stations on celestial bodies. Moon Agreement arts 8(2(b), 9(1). 48 See also Moon Agreement art 15(1), which establishes a similar inspection system. 43 44

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“installations” in Antarctica, but not to claim territorial sovereignty.49 When the OST was adopted in 1967 there were more than 20 stations in Antarctica, and most were open on a permanent basis. Many of these stations are still in existence today without any claim that they violate the nonappropriation provision of the Antarctic Treaty. The inspection provisions in OST Article XII support the view that quasi-permanent stations are permitted. The article states that a “station” oper ated by one state must be open to inspection by other states, assuming reciprocity. However, it also requires reasonable advance notice of any projected visit, in part “to avoid interference with normal operations in the facility to be visited.” The implication is that a state is entitled to exclude others from its station or other facilities absent both (i) proper notice and (ii) reciprocity. This regime contrasts with the principle established in OST Article I that “there shall be free access to all areas of celestial bodies.” In the special case of a region that is already occupied by a state, other states do not enjoy unfettered access. Indeed, without reciprocity, they are seemingly not entitled to enter at all. Although other OST provisions impose minor restrictions, none would pre clude a state from physically occupying portions of celestial bodies. While Article I vaguely proclaims that the use of celestial bodies is to be “carried out for the benefit and in the interests of all countries . . . and shall be the province of all man kind,” this general language cannot bar the occupancy that Article XII specifically authorizes. Similarly, although Article XI requires each state to inform the UN Secretary-General, the public, and the scientific community about the “nature, conduct, locations, and results” of its space activities, nothing in the article requires international consent before such activities may occur. The most substantive provision in this regard is Article IX, which imposes a general obligation on states to conduct their activities with “due regard” for the corresponding interests of other states. While this restriction might constrain the manner in which a state operates a station, it does not prevent the existence of a station. The article imposes two other duties that bear on the question of occu pancy. A state must: (i) avoid “harmful contamination” of celestial bodies in the course of exploration; and (ii) undertake appropriate international consultations if a planned activity might cause “potentially harmful interference” with the activi ties of other states. Presumably a state could ensure that its station did not create harmful contamination, and it seems unlikely that one state’s station would be a harmful interference with another state’s activity, absent unusual circumstances.50 In sum, under the OST a state could establish and maintain a quasi-permanent station on a celestial body. While a state cannot obtain national sovereignty, it is seemingly allowed to develop a residential, scientific, or other facility that would occupy part of a celestial body for decades or perhaps indefinitely, much like See the discussion in ch 6B(2). The Moon Agreement imposes similar, but somewhat stronger, limitations. Most importantly, its Article 9(1) provides that a state establishing a station “shall use only that area which is required for the needs of the station.” 49 50

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stations in Antarctica. In this situation, a state would have de facto control over the region which it occupies, with the general power to exclude other states, sub ject to temporary and prearranged inspections. As Ian Brownlie acknowledges, this type of conduct “may create some sort of possessory title” to the occupied region.51 A state that has de facto control over part of a celestial body would presum ably be able to create property rights in private parties which allow them to use portions of that area. This result naturally follows from the structure of the OST, which imposes obligations on states. If a state is permitted to undertake a certain activity under the OST―such as establishing a station―nothing in the treaty precludes that state from allowing its nationals to participate in the same activity. Indeed, Article VI contemplates that this will occur by requiring state supervision of private activities. Moreover, the provision in OST Article VIII that the registry state retains “juris diction and control” of space objects and personnel logically implies that its domes tic law―including its property law―would govern buildings and other facilities in such a station, unless preempted by OST provisions or other international law. The most likely approach would be for a state to confer a property right whose scope and duration are within the outer limits of the state’s own rights under inter national law. For example, if a station developed by a state occupies 100 hectares on the surface of the moon, presumably it could grant the right to use part of that area to a private corporation, in the form of a usufruct or similar entitlement. Such a use right might endure only for a fixed period―perhaps 20–50 years―in order to avoid any argument that it constitutes a form of permanent ownership. This right could presumably be sold or otherwise transferred like any other property interest to the extent allowed by domestic law. In this situation, the general restrictions on activities undertaken by a state in outer space would apply equally to the conduct of a private entity. For example, if a state authorizes a corporate entity to operate a station on the moon, the size and location of the station would be necessarily restricted by the due regard principle. It seems likely that the corporation would not be allowed to occupy an area larger than is justified by the needs of its station.52 Similarly, if the corporation utilized the station for mining activities, it could not preclude other states or their nation als from exploiting the same mineral resource.

(2) Buildings and Equipment The law governing property rights in buildings and other equipment placed on the moon or another celestial object is more straightforward. Any tangible material launched from Earth into outer space is classified as an “object” under OST Article Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 257. The Moon Agreement expressly provides that a state establishing a station “shall use only that area which is required for the needs of the Station.” Moon Agreement art 9(1). Although the Moon Agreement does not bind spacefaring states, such a provision might legitimately be used to help inter pret the scope of the due regard principle in the OST. 51 52

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VIII. Under that article, the registry state retains “jurisdiction and control” over such an object. The domestic law of that state would accordingly govern property rights in the object despite its location in space. If a private corporation established a station on the moon, ownership of all the materials brought from Earth to con struct the station (eg prefabricated housing units, life support equipment, com munications gear) would be determined by the law of the launching state. Article VIII clearly states that “ownership of objects launched into outer space . . . is not affected by their presence in outer space or on a celestial body.” Because virtually all states permit rights in such objects to be freely transferred,53 it would seem that they could be bought, sold, leased, and otherwise alienated by private owners while located in space or on a celestial body. In the long run, how ever, the fragmentation risk posed by inconsistent domestic laws may ultimately lead to the use of uniform international principles. The recent adoption of the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets (Space Protocol),54 which establishes an interna tional regime to govern security interests in spacecraft and related objects, is a first step in that direction. A more difficult situation would arise if buildings or other installations were constructed from metals or other materials that naturally exist on a celestial body, a scenario that the OST framers did not envision. These materials would not be classified as “objects” under the OST because they did not originate on Earth. However, Article VIII provides that the registry state retains “jurisdiction and con trol” over the “personnel” of a space object. This would presumably extend to their activities involving the exploitation of extraterrestrial materials. As a result, the most likely outcome is that the law of the launching state would also govern the ownership of buildings or other facilities constructed with such materials.

E. Celestial Bodies: Resources (1) Generally Exploration has revealed the presence of valuable minerals and other resources on the moon, asteroids, and other celestial bodies. Over the past two decades in particular, scholars have struggled with the question of whether a state may exploit these resources, either directly or through its nationals, consistent with the prin ciples governing outer space. Although the issue is far from clear, most scholars conclude that such exploitation is permissible. At the most basic level, there is universal agreement that a sovereign state has the inherent right to act as it wishes―and thus to allow its nationals to do so―unless constrained by international law. It necessarily follows that a state is entitled to See the discussion of transferability in ch 14. Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets (Berlin, March 9, 2012). See the discussion below in section H(6). 53 54

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exploit minerals and other resources in outer space absent international law to the contrary. A state may accordingly authorize its nationals to do so as well, creating derivative property rights. The Moon Agreement expressly restricts the exploitation of natural resources on the moon and other celestial bodies. It provides that “natural resources in place” on such bodies shall not become the property of any state, entity, or “any natural person.”55 Rather, these resources are deemed to be the “common heritage of man kind,”56 which may be exploited only pursuant to an “international regime” that will be established in the future.57 Among other features, this regime would pro vide for an “equitable sharing by all States Parties in the benefits derived from those resources.”58 But because the Moon Agreement is functionally inoperative, it can not resolve the issue. The other three post-OST treaties dealing with outer space issues―the Rescue Agreement, the Liability Convention, and the Registration Convention―all address specialized topics that have no relationship to natural resources. Because these treaties are inapplicable, debate about the right to exploit space resources has centered on the OST.59 No customary norm of international law exists on the point, in part due to the absence of consistent state practice. The United States and Russia have successfully transported moon rocks and similar materials to Earth on occasion for scientific study, without protest by other states. Yet the quantities were quite small, the occa sions were infrequent, and only two states were involved. It cannot be seriously argued that such limited activities have matured into a customary norm that would permit large-scale exploitation of space resources. Moreover, despite its lack of ratification, the Moon Agreement was adopted by the UN General Assembly as a nonbinding resolution.60 The approval of its provisions governing natural resources suggests, at a minimum, the lack of opinio juris for a contrary norm.

(2) Resource Exploitation as a Use OST Article I sets forth the core principle that “[o]‌uter space, including the Moon and other celestial bodies, shall be free for exploration and use by all States.”61 The concept that states may engage in the “exploration and use” of celestial bodies is reiterated three times in the preamble and eight more times in the text of the OST,62 which attests to its importance. It is generally accepted that mining and Moon Agreement art 11(3). Moon Agreement art 11(1). 57 Moon Agreement art 11(5). 58 Moon Agreement art 7(d). 59 An asteroid may not be a “celestial body,” and thus not subject to the OST. Under this inter pretation, any state―and its nationals―could freely exploit the mineral and other resources found on asteroids. The OST does not define the term. But Article XII, which concerns the inspection of “stations” and other facilities on “celestial bodies,” may imply that such a body must be large enough to accommodate a “station.” If so, then smaller asteroids would not be “celestial bodies.” 60 UN GAR 34/68, UN Doc A/RES/34/68 (December 5, 1979). 61 OST art I. 62 OST arts I, III, IX, X, XI, XIII. 55 56

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other forms of resource exploitation are “uses” of land. Because the OST does not provide a special definition of “use,” it is appropriate to utilize the “ordinary meaning” of the term pursuant to the interpretive principle set forth in the Vienna Convention.63 Accordingly, the OST appears to permit resource exploitation by a state or its nationals as a general matter, unless another provision precludes this interpretation. Other provisions of the OST assume that the term “use” will be given an expansive interpretation. Article XII, for example, contemplates that a state may have “stations, installations, equipment and space vehicles” on celestial bodies, which is consistent with the type of infrastructure that could be used in min ing. Further, Article IX assumes that a “use” might be of such a magnitude as to cause “potentially harmful interference” with activities of other states. This implies that a “use” can involve conduct on a large scale that creates a significant external effect. The only inquiry about the scope of “use” during the OST negotiations arose when the delegate from France asked whether the term meant “use for exploration purposes, such as the launching of satellites, or . . . use in the sense of exploitation, which would involve more complex issues.”64 He commented that “in the case of celestial bodies it was hard at present to conceive of utilizing the moon, say, for the extraction of minerals.”65 No delegate directly responded to these remarks. But they illustrate that the negotiators were aware of the possibility that it might someday be possible to mine celestial bodies. The OST does not expressly prohibit the exploitation of minerals and other resources. In contrast, it does specifically proscribe certain other activities on celestial bodies. The member states “undertake not to . . . install” nuclear weap ons or other kinds of weapons of mass destruction on celestial bodies.66 In addition, establishing military bases and similar installations, testing any type of weapon, and conducting military maneuvers on celestial bodies are all “for bidden.”67 Another limitation is that in the exploration of celestial bodies, states “shall . . . avoid their harmful contamination.”68 The omission of resource exploitation from this list suggests that the parties did not intend the OST to prohibit it. This conclusion is buttressed by examination of the Protocol on Environmental Protection to the Antarctic Treaty, where the contracting states expressed their intent to prohibit mineral exploitation in straightforward lan guage: “Any activity relating to mineral resources, other than scientific research, shall be prohibited.”69 Vienna Convention on the Law of Treaties art 31(1). UN Committee on the Peaceful Uses of Outer Space, Legal Subcommittee, Summary Record of the 63rd Session 9, UN Doc. A/AC.105/C.2/SR.63 (July 20, 1966). 65 Legal Subcommittee Record 9. 66 OST art IV. 67 OST art IV. 68 OST art IX. 69 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol) (Madrid, October 4, 1991, 30 ILM 1461) art 7. 63 64

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(3) Limits on Use The interpretation that the OST restricts resource exploitation is partly based on the language of Article I. The article provides that the “exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”70 This provi sion, often called the “benefit clause,” was based on draft language proposed by the Soviet Union. The Soviet formulation was adapted from the 1963 UN Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which provided that “[t]‌he exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind.”71 An argument can be made that the designation of outer space in the benefit clause as the “province of all mankind” implies that it is the common property of all nations. This interpretation is consistent with the nonappropriation principle and the requirement that “there shall be free access to all areas of celestial bod ies.”72 Under this view, the benefit clause requires that any exploration or use of outer space be conducted for the direct benefit of all states. As applied to resource exploitation, this might mean that the net proceeds from exploitation by any state must be shared with all other states. One difficulty with this interpretation is that the language of the benefit clause is vague. It proclaims broad aspirations rather than imposing specific duties. In con trast, Article 11 of the Moon Agreement, which seeks to establish an international regime to regulate resource exploitation, had to be both lengthy and specific in order to gain approval. Framework treaties and similar international instruments frequently include sweeping provisions that are intended more as aspirational state ments than law, most typically in the first few articles. The OST benefits clause is best viewed in that light. The contrary interpretation would require that all states receive direct benefits from any “exploration” or “use” of space, which would be an impossible standard. In a general sense, all states receive indirect benefits from the exploration and use of space―such as new knowledge about the solar system― and this seems to be the intent of the clause. This interpretation is supported by the circumstances surrounding the execution of the treaty. During the treaty negotiations, the benefits clause was noncontrover sial, and therefore was not discussed in any depth. If the parties had intended the clause to impose major restrictions on the rights of individual states to use outer space, it would have been controversial―as the subsequent rejection of the Moon Agreement reflects. The other principal basis for the view that the OST restricts mineral exploita tion is the nonappropriation clause in Article II. The extraction of minerals might

OST art I. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UN GAR 1962 (XVIII), UN Doc A/RES/1962(XVIII) (December 13, 1963) para 1. 72 OST art I. 70 71

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be seen as a “national expropriation” of a celestial body by “other means.” There is limited support for this interpretation in the negotiating history of the OST; the Soviet delegate responded to what he called the “very interesting point raised by the delegate from France,” as noted above, about whether the term “use” would include mineral exploitation.73 He asserted that “adequate clarification” of the issue could be found in the draft nonappropriation clause, which he interpreted to mean that “no human activity on the moon or other celestial body could be taken as justification for national appropriation.”74 The flaw in this argument is that it confuses territorial sovereignty with resource exploitation. It is well settled in international law that a state and its nationals may be entitled to utilize resources in a region where the state does not enjoy sovereign power. The classic example is the high seas. Although the designation of the oceans as res communis means that no state can acquire sovereignty, it does not preclude a state and its nationals from exploiting ocean resources. Customary international law has long recognized that each state is entitled to enjoy the freedoms of the high seas, such as fishing. The 1958 Convention on the High Seas also supports this interpretation. It provides that “[t]‌he high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.”75 Even so, the convention acknowledges that states are entitled to exercise the freedoms of the high seas, including the “[f ]reedom of fishing.” Thus, during the era when the OST was negotiated, it was accepted that a nonappropriation clause did not necessarily bar resource exploitation. As one authority explains in a related context, if the ore from mining an asteroid were transferred to Earth “there would seem to be little problem in recognising a title in much the same way as title is recognised to fish, ownerless when in the high seas, but readily sold by fishermen on shore.”76 Finally, a weak argument against mineral exploitation arises from OST Article IX, which requires all states to conduct their activities “with due regard to the corresponding interests” of other states. It further requires consultation where an activity planned by a state or its nationals “would cause potentially harmful inter ference with the activities of other States Parties.” Unlike fish and other living resources which can be replenished over time, the quantity of valuable minerals in outer space is finite. It might be argued that the exploitation of minerals by any state will reduce the volume of minerals available for future exploitation by other states, thus violating the due regard clause. However, the due regard principle has not been interpreted in this manner in other contexts. For example, the Convention on the High Seas requires states to exercise their freedom to fish “with reasonable regard to the interests of other states”77―language parallel to the OST due regard clause. Yet even where states have impaired the long-run sustainability of a particular fishery by overfishing―which Legal Subcommittee Record 10. Legal Subcommittee Record 10. 75 Convention on the High Seas (Geneva, April 29, 1958, 450 UNTS 11) art 2. 76 Lyall & Larsen, Space Law 197. 77 Convention on the High Seas art 2. 73 74

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is analogous to depleting a finite resource―this conduct has not traditionally been viewed as a violation of the due regard clause.78 More importantly, the mineral and other resources of the universe are virtually infinite. Astronomers estimate that there may be 50 sextillion (50²²) planets.

(4) Usufructs It appears that a state may exploit minerals and other resources found on celestial bodies. Although the OST effectively prohibits states from allowing its nationals to obtain ownership of celestial objects, lesser forms of property rights seem to be permissible. A state would presumably be able to grant the right to exploit a par ticular celestial resource to one of its nationals, in the form of a usufruct or similar use right, which constitutes a derivative property right. The exercise of this right would, of course, be subject to the derivative restrictions on the use of outer space resources discussed above. But the uncertainty surrounding the issue may dissuade private actors from undertaking the extensive investment that would be required. As scholars have suggested, a supplemental treaty on the topic would be helpful in resolving the issue. The more likely scenario is that one or more states will begin space mining projects, either as a state venture or in partnership with private actors, before such a treaty is adopted. Absent a strongly adverse reaction from the international com munity, other states and an increasing number of private actors will follow suit, perhaps leading to the evolution of a customary norm that legitimizes exploitation.

F. Intellectual Property The increasing privatization of space activities has generated concern about the legal status of intellectual property created in outer space because no treaty directly addresses this subject. The law applicable to copyrights is fairly clear, since this protection is based on the nationality of the author, not the place where the work is created. The Berne Convention for the Protection of Literary and Artistic Works79 provides that its terms apply to “authors who are nationals of one of the countries in the Union.”80 The convention would accordingly cover, for example, a scientific report written in outer space as long as the author is a national of a member state. The international regime governing patents, trademarks, and other forms of intellectual property, however, is premised on territoriality. For example, the Paris Convention for the Protection of Industrial Property extends only to inventions

78 In contrast, it would violate a standard established by UNCLOS as conventional law. UNCLOS art 117. 79 Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) (Berne, September 9, 1886, 828 UNTS 221). 80 Berne Convention art 3(1)(a).

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and other items that are created within the territory of member states.81 Because outer space is outside the territory of all states, the Paris Convention and similar instruments do not directly apply to intellectual property created there. But OST Article VIII provides that the launching state retains “jurisdiction and control” over both a spacecraft or other object launched into outer space and “any person nel thereof, while in outer space or on a celestial body.” This language suggests that a spacecraft could be viewed as an extension of the territory of the launching state, somewhat like a vessel on the high seas. Under this approach, the laws of the launching state―which probably comply with the Paris Convention and related treaties―would apply to intellectual property developed in such a spacecraft.

G. Ownership of Outer Space (1) Basic Principle The principle that celestial bodies may not be subject to private ownership applies equally to outer space itself. The OST provides that “[o]‌uter space” is not subject to national appropriation82 and “shall be free for . . . use by all States.”83 Accordingly, international law bars private actors from obtaining ownership of outer space regions. This article affirms that outer space is a commons, available for explora tion and use by all states―and, by implication, their nationals. Although a state may not claim national sovereignty over a portion of outer space, the OST provisions that allow it to “use” space certainly contemplate that a state―and thus its nationals―may locate satellites and other equipment in space on a long-term basis. A satellite in a standard orbit, for example, travels the same path through space on every rotation, much as a car on Earth might utilize an access easement. The right of a state or its nationals to occupy a particular location in space, such as an orbital slot, is therefore much like a servitude―an example of a derivative property right. The general provisions of the OST concerning the free use of space have been supplemented by a comprehensive international regime for allocating orbits, as discussed below. The right of a state to occupy a region of space other than an orbital slot is still primarily governed by the OST. Its provisions would seem to allow a state―and its nationals―to maintain a space station or similar platform in a particular region of space, perhaps on a quasi-permanent basis. The principal constraint on such occupancy is OST Article IX, which requires that “due regard” be accorded to the interests of other states. At this point in the development of space, it seems unlikely that physical occupancy of a non-orbital area by a state or private actors would interfere with the rights of other states.

81 Paris Convention for the Protection of Industrial Property (Paris, March 20, 1883, 828 UNTS 107) arts 4–5quater. 82 OST art II. 83 OST art I.

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(2) Orbits The international system for allocating orbits―particularly geostationary orbits― and their accompanying radio frequencies can be viewed as creating a form of property rights akin to servitudes. A geostationary satellite is one whose circular orbit lies in the plane of the Earth’s equator and thus remains in a fixed position above a particular location on the planet. The right to use a geostationary orbit is valuable for communications, navigation, and weather satellites because trans missions from a satellite in this location can reach about one-third of the Earth. Although governmental entities pioneered the use of geostationary satellites, today most satellites are owned by private companies. For example, SES, a corporation based in Luxembourg, owns 54 geostationary satellites that can collectively send television signals to 99% of the Earth’s population. Radio communication is vital for the effective use of satellites because this is the method by which they receive and transmit information. Telephone signals relayed by a communications satellite are typically (a) transmitted by radio from a ground station to the satellite, and then (b) retransmitted by radio from the satellite to another ground station. Similarly, all command and control instructions to satel lites are sent by radio. Because radio frequencies are finite, there is a risk that two or more satellites might use the same frequency, and thus interfere with each other’s communications. When satellites were first developed, the task of assigning their radio frequencies was given to the International Telecommunication Union (ITU), a specialized UN agency that regulates radio communications. This responsibility also included the allocation of orbits because a satellite’s orbital location affects the likelihood that radio interference may occur. Initially, the ITU allocated orbits and frequencies solely through a first-in-time system. This led to concern that developed countries would secure all of the avail able slots before developing countries had the technological capacity to use them. Although some orbits and frequencies are still allocated on a first-in-time basis, each state is now guaranteed a certain number of future orbits and frequencies, regard less of its current technological capacity. The ITU Constitution acknowledges that “radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be used rationally, efficiently and economically . . . so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries.”84 The current first-in-time allocation system works in the following manner. Suppose Corporation C wants to place a new satellite in a particular geostationary orbit. It first obtains the assistance of a state which is an ITU member; that state then notifies the ITU’s Radiocommunications Service of its intent to assign the orbit and its accompanying radio frequency. The ITU Radio Regulations require that any new assignment planned by a member state must avoid causing harm ful interference with frequencies that have already been entered in the Master Constitution of the International Telecommunication Union art 44(2).

84

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International Frequency Register.85 In this context, “harmful interference” means interference that seriously degrades, obstructs, or repeatedly interferes with radio communications. The service will determine the probability that the proposed assignment will cause such harmful interference.86 When this process leads to a favorable finding, the new assignment will be recorded in the register.87 This procedure gives the registrant the exclusive right to use the frequency and orbit. The service will not register a subsequent notice for the same orbit and frequency from a different applicant, because this would cause harmful interfer ence with the first assignment. Although the OST provides that outer space― including orbits and the radio spectrum―is “free for . . . use by all States,”88 ITU members have agreed to restrict that freedom through its Constitution and Radio Regulations. In particular, the regulations effectively provide that a member nation cannot assign a frequency that may cause harmful interference with previously registered frequencies.89 The duration of a registered assignment is unclear. Initially, an assignment remained in effect until either (a) the life expectancy of the satellite ended―a period of up to 50 years―or (b) the state notified the service that the orbit and frequency were no longer being used. Reflecting the principle that all states should have equitable access to these finite resources, the ITU has taken the position that frequency assignments should not be viewed as “perpetual.”90 It continues to con sider limiting the duration of assignments, while recognizing the importance of ensuring an adequate period of time for owners to amortize the investments that are required to launch and operate satellites. As a practical matter, the ITU system directly creates property rights and allo cates them to nationals of member states. An entity such as Corporation C holds a valuable entitlement from an international agency that gives it the right to use an orbit and frequency for an extended period of time and to exclude others from that use. In addition, these rights are freely transferable, as long as this is permit ted under national law. Satellites are often purchased and sold, together with their assigned orbits and frequencies.

H. Space Objects (1) Generally The principles governing property rights in “objects” in space primarily stem from the OST. Under the OST, an “object” is defined as any tangible thing launched International Telecommunication Union, Radio Regulations (2012) art 4.3. Radio Regulations art 11.30–11.33. Radio Regulations art 11.36. 88 OST art I. 89 Radio Regulations art 4.2. 90 ITU Resolution 2 (WRC 2003), noting that “registration . . . does not provide any permanent priority for any individual country or groups of countries.” 85 86 87

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into outer space, including things landed or constructed on a celestial body, and the component parts of such things.91 Under this standard, objects would include all launch vehicles and satellites, including large structures such as the International Space Station. The definition also covers any equipment launched from Earth that is later placed on a celestial body, such as housing units, scientific equipment, and surface vehicles.

(2) Ownership OST Article VIII specifies that “[o]‌wnership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their compo nent parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.”92 It further specifies that all “objects” launched into space must be listed on a registry maintained by the launching state.93 The state of registry shall retain “jurisdiction and control” over each such object while it is in outer space or on a celestial body.94 Under this provision, municipal law governs ownership of space objects. Suppose that A, a national of State B, obtains title to an object pursuant to the laws of that state; the object is then launched into space from State B. In this situation, A’s ownership is “not affected” by the fact that the object is in space, and A’s rights are still defined by the laws of State B. Alternatively, suppose C, a national of State D, obtains title to an object pur suant to the laws of that state; the object is then launched into space from State E. Here the meaning of Article VIII is less clear. If C’s ownership is not affected by the object’s presence in space, then seemingly C’s rights are still determined by the law of State D. But if State E has “jurisdiction and control” over the object, then perhaps its laws would apply. The legal framework governing the International Space Station (ISS) is the fore most example of the extension of domestic property law into outer space. The Agreement Concerning Cooperation on the Civil International Space Station (ISS Agreement)95 provides that each of the four participating entities―Canada, the European Space Agency, Russia, and the United States―“shall own the elements [used to construct the station] that they respectively provide, except as otherwise provided for in this Agreement.”96 In addition, each party “shall retain jurisdiction 91 OST art VIII. In context, it appears that this provision was intended to apply only to objects launched from Earth into outer space, because Article VIII provides that ownership of objects is not affected by “their return to Earth.” Under this interpretation, a tangible thing that is constructed on a celestial body from materials that did not originate on Earth and then launched into space would not be a covered “object.” 92 Presumably the parties intended that the term “ownership” would have a broad meaning, includ ing both state ownership and private ownership. 93 OST art VIII. 94 OST art VIII. 95 Agreement Concerning Cooperation on the Civil International Space Station (Washington, January 29, 1998). 96 ISS Agreement art 6(1).

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and control over the elements it registers.”97 Because the agreement contemplates that ownership of ISS elements may be transferred from one of the contracting states to a “private entity,”98 presumably the domestic law of the transferor state would govern the rights of such a transferee. Ultimately, the use of municipal law in this context will probably be unwork able. This approach was adopted from the customary norm that the flag state retained jurisdiction and control over a vessel on the high seas. But the assump tions inherent in the high seas model are less applicable to outer space. First, the model assumed that a vessel would make a round trip; it would depart from the flag state, travel through waters both within and beyond the territorial sovereignty of other states, and return to the flag state. Because the vessel’s absence from the territory of the flag state was temporary, it was logical that the law of the flag state should apply throughout its journey. When the OST was adopted, the par ties assumed that most space objects would return to Earth. The municipal law approach made sense because it applied consistently to the object throughout its journey, including its temporary presence in space. However, it is apparent today that an increasing number of space objects will never return to the registry state, either because they are situated in a permanent location in outer space or because they occupy the surface of a celestial body. The rationale for applying the law of the flag state to objects that will never return to Earth is thin, at best. Second, the flag state model was premised on the concept that only one state at a time would have jurisdiction over the vessel. This approach worked well in the simple situation where a vessel departed its flag state for a journey on the high seas; by definition, no other state could claim jurisdiction. However, it is inevitable that space objects launched from one state will be combined with objects from other states to create permanent stations and other platforms in outer space. Under the domestic law approach, a space station constructed by private parties with compo nents launched from five states would potentially be subject to conflicting bodies of property law, each governing a different set of components. It would be difficult to resolve ownership disputes in this situation, particularly where individual com ponents have been combined into an inseparable whole. The risk of such fragmen tation would discourage private investment in space activities. The limitations of the domestic law model are reflected in the ISS Agreement, which provides that the law of different states governs different portions of the ISS. The ISS Agreement minimizes the likelihood of legal fragmentation because: (a) each party provided only large-scale components that are separable from the rest of the ISS; and (b) the parties are all state actors with a strong mutual interest in future cooperation. It is notable, however, that the ISS Agreement prevents any member from transferring ownership of its components “to any non-Partner or private entity under the jurisdiction of a non-Partner without the prior concurrence of the other Partners.”99 This provision ensures that the parties

97

ISS Agreement art 5(2).

ISS Agreement art 6(1).

98

ISS Agreement art 6(4).

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can avoid any claim that the domestic law of a non-party state governs ownership of part of the ISS. The domestic law approach may soon be superseded in the special context of security interests in space objects. The Space Protocol, which is not yet in force, would establish uniform international principles that govern security interests in satellites, spacecraft, and other space objects.

(3) Possession International law protects the owner’s right to possession of a space object. Satellites, spacecraft, and other objects returning to Earth may land in unantici pated locations. When such objects are found outside the territory of the registry state, OST Article VIII requires that they be returned to the registry state, regard less of whether they are owned by states or private actors. This allows the registry state to deliver possession of the object to a private owner. The Rescue Agreement imposes more detailed obligations to protect the right to possession. If a state learns that a space object or its components have returned to Earth in territory under its jurisdiction or in any other place not under the juris diction of any state, such as the high seas, it must: (a) notify the state responsible for the original launch of the object100 and the UN Secretary-General; (b) upon request of the launching state, take practicable steps to recover the object or its components; and (c) return the object or components to that state.101

(4) Registration The registry of space objects contemplated by the OST was implemented through the Registration Convention, which establishes procedures to govern the registra tion process. The convention provides that the “launching State” must register the object “in an appropriate registry which it shall maintain.”102 It must also provide this information to the UN Secretary-General,103 whose office keeps a public reg istry of all space objects.104 Under the convention, a “launching state” is defined as one that “launches or procures” the launching of a space object or from whose territory or facility such an object is launched.105 Where there are two or more launching states, they “jointly determine” which one will register the object.106 The primary purposes of this registry system are to (a) facilitate future launches by avoiding collisions and (b) allocate liability if the object causes harm to another

100 The Rescue Agreement provides that a “launching authority” includes the state or international intergovernmental organization responsible for the launch. Rescue Agreement art 6. 101 Rescue Agreement art 5. 102 Registration Convention art II(1). 103 Registration Convention art II(1). 104 Registration Convention art III. 105 Registration Convention art I(b). 106 Registration Convention art II(2).

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state or its nationals.107 Yet the preamble to the convention suggests that the parties envisioned a broader goal. It states that “a mandatory system of registering objects launched into outer space would, in particular, assist in their identification and would contribute to the application and development of international law govern ing the exploration and use of outer space.”108 In this sense, the UN registry may be viewed as the forerunner to an international title system for space objects, similar to the land title registration systems in most states.

(5) Sales Title to a satellite or other space object is sometimes transferred to a new owner. One example occurred in 1993 when Sotheby’s auctioned off the former Soviet Lunokhod-1 lunar rover―then resting on the surface of the Moon―for $60,000 USD. In 2004, the UN General Assembly adopted a resolution recommending that member states consider harmonizing their practices “regarding on-orbit trans fer of ownership of space objects” with the goal of “increasing the consistency of national space legislation with international law.”109 But progress toward this goal has been slow. The 2012 Space Protocol is an important step toward a comprehensive inter national regime to govern sales and other transfers of space objects. When the protocol enters into force, it will provide uniform standards for security interests in space objects, which will also affect many sales transactions. The protocol author izes the registration of a contract of sale for a “space asset” in the same international registry established for security interests, as discussed below.110 In order to qualify for such registration, the contract must (a) be in writing, (b) relate “to a space asset of which the seller has the power to dispose,” and (c) enable “the space asset to be identified in conformity with this Protocol.”111 Such a contract “transfers the inter est of the seller to the buyer in accordance with its terms.”112 The protocol further provides that the buyer of a space asset “under a registered sale” acquires its interest free from either (a) an unregistered interest even if the buyer has actual knowledge of that interest or (b) a subsequently registered interest.113 Given the advantages that the protocol affords, it seems likely that parties will comply with its provisions, thus creating standards that will partially supplant the municipal laws governing sales of space assets. Beyond this point, the impact of current international law on the transfer of title to a space object is minor at best. The ISS Agreement, for example, requires 107 The launching state is liable for damage to another state or its nationals that is caused by a registered object or its component parts, whether the injury occurs on Earth, in outer space, or on a celestial body. OST art VII. The Liability Convention establishes a comprehensive liability regime. 108 Registration Convention preamble para 8. 109 UN GAR 59/115, UN Doc A/RES/59/115 (December 20, 2004) para 3. 110 Space Protocol art IV. 111 Space Protocol art V(1). 112 Space Protocol art V(2). 113 Space Protocol art XXIII.

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the consent of all four member states before ownership of ISS elements may be transferred to either a non-member state or a private entity under its jurisdic tion.114 The agreement also provides that each member has “the right to barter or sell” any portion of its authorized “utilization rights” in the ISS―akin to a usu fruct or lease―but unanimous consent of all parties is required before such rights may be transferred to a non-member state or a private entity under its jurisdic tion.115 In contrast, a member state may transfer title to ISS components it owns to a private entity under its jurisdiction with notice to other members,116 and may freely transfer utilization rights to such an entity with no preconditions.117 The transfer of title to a space object would logically require that the Registry Convention registries be updated to reflect the identity of the new owner, but this is not currently mandated. In 2007, the UN General Assembly adopted a resolu tion recommending that “following the change in supervision of a space object in orbit” the state of registry should provide the identification of the new owner or operator to the Secretary-General.118 This change would help to shift the current UN registry toward a true title registry system. A more controversial question is whether the state of registry should be changed when title to a space object is transferred to a new owner who is a national of a different state. The Registration Convention does not provide for such re-registration, though it has occurred on occasion.

(6) Security Interests The 2012 Space Protocol seeks to develop a “uniform and predictable regime gov erning interests in space assets.”119 Once in force, it would extend the interna tional regime for security interests in mobile equipment under the Cape Town Convention120 to spacecraft and virtually all other equipment used in space. Thus, it would (a) create an “international interest” in space assets for creditors, (b) estab lish a global system for registering such interests, and (c) provide creditors with a series of remedies if default occurs. A “space asset” is defined as a “man-made uniquely identifiable asset” in outer space, or one designed to be launched there, which is: (a) a spacecraft (eg a satel lite or space vehicle); or (b) a part of a spacecraft or payload that may be separ ately registered under regulations to be adopted.121 In this context, “outer space” includes the moon and other celestial bodies.122 This definition of a “space asset” is ISS Agreement art 6(4). ISS Agreement art 9(2). ISS Agreement art 6(4). 117 ISS Agreement art 9(2). 118 UN GAR 62/101, UN Doc A/RES/62/101 (December 17, 2007) para 4(a)(ii). 119 Space Protocol preamble. 120 See the discussion in ch 4E(1). 121 Space Protocol art I(2)(j), (k). The protocol does not apply to “aircraft objects” under the Aircraft Protocol, except where such objects are primarily designed for use in space. Space Protocol art II(3), (4) 122 Space Protocol art I(1)(j). 114 115 116

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narrower than the concept of a “space object” under the OST and the Registration Convention. It is notable that an international interest in a space asset is not affected by “the installation of the space asset on or the removal of the space asset from another space asset.”123 In theory, the creditor with an international interest in equipment that is incorporated into a space station continues to hold that interest. Similarly, equipment that is installed on or under the surface of the moon or another celestial body will still be subject to such an interest. In the event of default, it is impossible for a creditor to retake physical posses sion of a space asset in outer space. However, control of satellites and similar assets can be obtained by acquiring possession of the command codes used to direct their functions. Accordingly, the protocol provides that the parties may agree to place command codes and related material “with another person”―in effect, in escrow―so that the creditor may use them to take control of such an asset if a default occurs.124 The protocol also contains a number of special limitations on creditors’ rights due to the important functions performed by satellites and other space assets. It includes a public service provision that a contracting state may elect to utilize, similar to a provision in the Railway Protocol.125 If a space asset is used in con nection with “the provision of a public service in a Contracting State,” such as a telecommunications satellite, the state may record a “public service notice” in the registry.126 If a default subsequently occurs, the debtor, creditor, and state “shall co-operate in good faith” to find a commercially reasonable solution to the dispute; during this period, the creditor may not exercise default remedies that would make the public service unavailable.127 Other restrictions on creditors’ rights are found in Article XXVI, which was the subject of intense negotiations. If the laws of the relevant state prohibit the trans fer of a license or other authorization for the launch or operation of space assets, the protocol will not supersede these laws.128 Nor does it limit the right of such a state to authorize the use of orbital positions and frequencies for space assets.129 Even a creditor who obtains the command codes to a satellite upon default may not be able to continue the use of its orbit and frequency. Finally, the protocol does not require a state to recognize or enforce an international interest that would violate its domestic laws on (a) the export of goods, technology, data, or services or (b) national security.

(7) Use Restrictions The OST imposes three principal requirements on national activities in outer space that may affect private actors. Only peaceful activities are permitted on Space Protocol art III(b). 124 Space Protocol art XIX. See the discussion in ch 4E(1). 126 Space Protocol art XXVII(1). 127 Space Protocol art XXVII(3)–(6). 128 Space Protocol art XXVI(2). 129 Space Protocol art XXVI(2). 123 125

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the moon and other celestial bodies; where an activity “would cause potentially harmful interference” with the activities of other states, appropriate international consultations must be conducted in advance; and all “stations, installations, equip ment and space vehicles on the Moon and other celestial objects” must be open to representatives of other member states “on the basis of reciprocity.”130 Because each state is required to ensure that private actors under its jurisdiction conform to these provisions,131 they restrict how a space object may be used by a private owner. Another potential restriction arises from the Liability Convention, which pro vides that the launching state is strictly liable for damage that a space object on its registry causes either on the surface of the Earth or to aircraft in flight.132 However, if a space object causes damage in space to another space object or to persons or property on such an object, the launching state is liable only “if the damage is due to its fault or the fault of persons for whom it is responsible.”133 As a practical matter, the convention creates an incentive for the launching state to regulate the use of space objects on its registry by private actors in order to minimize the risk of such liability. Finally, space debris poses a growing problem. The main sources of such debris are (a) intentional releases during spacecraft launches and (b) accidental or inten tional destruction of satellites and other space objects. A piece of space debris would be considered a “space object” under the Liability Convention, and thus its liability standards would apply where such debris causes damage. Yet it is impossible to track all debris with sufficient precision to establish ownership, and hence respon sibility. The UN General Assembly has adopted voluntary guidelines to minimize the amount of space debris produced by both states and private actors.134 The guidelines state, for example, that space systems “should be designed not to release debris during normal operations.”135 Another provision is that “the intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages . . . that gen erate long-term debris should be avoided.”136 Although these guidelines are only soft law, they may be the forerunners of binding restrictions. OST arts IV, IX, XII. OST art VI. 132 Liability Convention art II. 133 Liability Convention art III. 134 UN GAR 62/217, UN Doc A/RES/62/217 (Space Debris Guidelines) (December 22, 2007). 135 Space Debris Guidelines guideline 2. 136 Space Debris Guidelines guideline 5. 130 131

PA RT I I I THE GLOBAL RIGHT

9 Toward the Global Right to Property

A. Introduction The vision of a global right to property collapsed in 1966, when the International Covenant on Economic, Social and Cultural Rights1 was adopted without a property clause.2 Yet today, almost five decades later, the evolution of interna tional law has reached the point where a universal right to property should be recognized, not merely as a moral precept but rather as an entitlement that all states must honor. This chapter explores the extent to which a global right to property can be jus tified under the three traditional sources of international law set forth in Article 38(1) of the Statute of the International Court of Justice (ICJ): conventions; “general principles of law recognized by civilised nations”; and international custom. The widespread ratification of regional human rights conventions that contain an express right to property, augmented by the near-universal ratifica tion of anti-discrimination treaties that arguably reflect the right, may provide a basis for justifying the right under conventional law. Moreover, because virtu ally all states recognize a general right to property under domestic law, it may be appropriate to view the global right as a general principle of law. Finally, given this high level of acceptance in state practice―and because there is evi dence of opinio juris―it may also be possible to justify the right as customary international law. Taken together, these three lines of analysis strongly suggest that the global right to property does exist. Indeed, this conclusion should be uncontroversial in an era when private property is the foundation of almost every economy in the world. The more difficult task is to define the scope and extent of the right.3

1 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 2 See the discussion in ch 1C(1)(b). 3 See the discussion in chs 10–14.

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B. Conventional Law (1) Generally Most states are parties to treaties that recognize the right to property. While the level of acceptance is not universal, it is well settled that a norm of international law may exist without unanimous agreement. Only a small number of interna tional doctrines are accepted by all states. The right to property is clearly expressed in regional human rights conventions that bind a majority of states. In addition, the right may be implicit in anti-discrimination treaties that have been ratified by virtually all states.

(2) Human Rights Conventions A total of 132 states―over two-thirds of the entire UN membership―are par ties to binding human rights conventions that expressly recognize the right to property: the African Charter on Human and Peoples’ Rights (ACHPR)4 (53 states); the American Convention on Human Rights (ACHR)5 (23 states); the Arab Charter on Human Rights (Arab Charter)6 (11 states); and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)7 (45 states). Notably, these states include Russia and most Eastern European nations. The right to property was so controversial that it was omitted from the ECHR when the convention was adopted in 1950. Western European states were reluc tant to antagonize the Soviet Union by challenging the ideological cornerstone of its system―the rejection of private property―particularly in light of the 1948 takeover of Czechoslovakia. In addition, some states worried that recognizing the right would hamper their plans to nationalize key industries. After conten tious discussions, the right was eventually added in 1952 as Article 1 of ECHR Protocol 1:8 Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Although Article 1 uses the term “possessions,” the European Court of Human Rights has interpreted it as “in substance guaranteeing the right to property.”9 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 6 Arab Charter on Human Rights (May 22, 2004), reprinted in 24 Boston U Intl LJ 149 (2006). 7 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 8 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262) art 1. 9 Marckx v Belgium (1979) 2 EHRR 330 para 63. 4 5

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Global recognition of the right to property has accelerated in recent decades. Article 21 of the ACHR, which entered into force in 1978, provides: 1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law.10

The ACHPR became effective in 1986, eight years after the ACHR. Its right to property is set forth in Article 14: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”11 The Arab Charter entered into force in 2008. Echoing the parallel provision of the Universal Declaration of Human Rights (UDHR),12 its Article 31 pro vides: “Everyone has a guaranteed right to own private property. No person shall under any circumstances be divested of all or any part of his property in an arbi trary or unlawful manner.”13 Most recently, members of the Association of Southeast Asian Nations adopted the ASEAN Human Rights Declaration in 2012, which also recognizes the right to property. Its Article 17 declares: “Every person has the right to own, use, dispose of and give that person’s lawfully acquired possessions alone or in association with others. No person shall be arbitrarily deprived of such property.”14 Accordingly, the global right to property is a reality in most states based on con ventional law. Yet because this conclusion is rooted in international human rights law, it is appropriate to consider the significance of characterizing the global right as a “human right” rather than merely as a “right.” Classifying the right as a “human right” suggests that it is fundamental in nature, and thus entitled to enhanced protection. As a general matter, “human rights” refer to “freedoms, immunities, and benefits which, according to widely accepted contemporary values, every human being should enjoy in the society in which he or she lives.”15 Human rights hold a superior position among international law norms. This analysis clearly applies to absolute rights that cannot be abridged under any circumstances, such as the right to be free from torture.

ACHR art 21. ACHPR art 14. 12 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 13 Arab Charter art 31. 14 ASEAN Human Rights Declaration (November 18, 2012), reprinted in 32 Human Rights L J 219 (2012). 15 American Law Institute, Restatement of the Foreign Relations Law of the United States (3d edn, American Law Institute 1987) s 701 comment a. 10 11

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It is often said that all human rights occupy an equal status under interna tional law. However, this is not true for socio-economic rights such as the right to property, which are relative in nature. The human right to property is sub ject to a substantial degree of regulation under domestic law, as reflected both by the formulations of the right in regional conventions and case law generated by human rights tribunals. Recognizing an absolute right to property in one owner would inevitably conflict with parallel absolute rights of other owners. Therefore, it must be questioned whether characterizing the right to property as a human right elevates its status in relation to other rights. At the other extreme, characterizing the right to property as a human right may restrict the scope of persons who hold the right. The core of international human rights law is protecting rights held by human beings, not rights held by business entities and other legal persons. The preamble to the UDHR stresses the importance of protecting the “rights of all members of the human family.”16 In this context, the references in the UDHR that recognize rights in “everyone” or provide that “no one” shall be subject to certain conduct are generally understood to apply only to natural persons. Yet because the right to property in its Article 17 includes ownership “in association with others,” an argument can be made that this right extends to legal persons that own property such as partnerships, unincorporated associations, and other entities. The regional human rights conventions support the view that the right to prop erty extends to both natural and legal persons. The ECHR article creating the right to property expressly provides that it extends to every “natural or legal person.”17 Although most ACHPR provisions recognize particular rights in every “individ ual,” the right to property is not limited in this manner; Article 14 simply says that “[t]‌he right to property is guaranteed,” without specifying who is entitled to hold it. The African Commission on Human and Peoples’ Rights resolved the uncer tainty in Mouvement Ivoirien de Droits de l’Homme v Cote d’Ivoire,18 when it found that the seizure of rural land owned by companies violated the right to property in the charter. Although it is well settled that the ACHR does not apply to legal per sons, the Inter-American Court of Human Rights has stated that “in general, the rights and obligations attributed to companies become rights and obligations for the individuals who comprise them.”19 Under some circumstances an individual may rely on the ACHR to enforce protected rights “even when they are encom passed in a legal figure or fiction created by the same system of law.”20 Accordingly, the right to property held by a legal person may be enforced indirectly under this convention.

UDHR preamble para 1. ECHR Protocol 1, art 1. 18 Comm no 262/02 (ACmHPR, May 22, 2008). 19 Cantos v Argentina Series C no 85 (IACtHR, September 7, 2001) para 27. 20 Cantos para 29. 16 17

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(3) Anti-Discrimination Conventions Approximately one third of all nations―including China, India, and the United States―are not parties to human rights conventions that recognize the right to property. However, an argument can be made that the right is contained in various conventions that prohibit discrimination against vulnerable groups. Virtually all states have ratified one or more of these conventions. The relevant provisions are: (a) The 1966 International Convention on the Elimination of All Forms of Racial Discrimination (CERD)21 specifies that parties must “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights . . . [t]‌he right to own property alone as well as in association with others.”22 (b) Article 16 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)23 requires parties “to ensure, on a basis of equality of men and women . . . [t]‌he same rights for both spouses in respect of the ownership, acquisi tion, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.”24 (c) The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CPRMW)25 provides that “[n]‌o migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others. Where, under legislation in force in the State of employment, the assets of a migrant worker or a member of his or her fam ily are expropriated in whole or in part, the person concerned shall have the right to fair and adequate compensation.”26 (d) The 2006 Convention on the Rights of Persons with Disabilities (CRPD)27 directs par ties to “take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property” and “ensure that persons with disabilities are not arbitrarily deprived of their property.”28

CERD, CEDAW, and CRPD contain what might be described as “equal rights” clauses, which require that members of the protected groups must be treated equally with all other persons. These clauses are subject to two inter pretations. Under the implicit recognition approach, each convention assumes that the right to property exists as a background principle of international law,

21 International Convention on the Elimination of All Forms of Racial Discrimination (New York, March 7, 1966, 660 UNTS 195). 22 CERD art 5(d)(v). 23 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13). 24 CEDAW art 16(1)(h). 25 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (New York, December 18, 1990, 2220 UNTS 3). 26 CPRMW art 15. 27 Convention on the Rights of Persons with Disabilities (New York, December 13, 2006, 2515 UNTS 3). 28 CRPD art 12(5).

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but that discrimination at the national level prevents the protected group from enjoying this right on an equal basis with other nationals. By requiring mem ber states to prohibit discrimination, these conventions allow the implicit right to be freely enjoyed by all persons. Alternatively, under the national treatment view, each convention bars discrimination in the exercise of the right to property only if and to the extent that a state recognizes such a right under its domestic law. For example, if a state prohibited all private property, the protected groups would receive the same treatment as other nationals and hence no violation would occur. A pair of UN General Assembly resolutions lends support to the implicit rec ognition approach. In 1986, Resolution 41/132 stated that the right to property in UDHR Article 17 was “reaffirmed” by CEDAW Article 16, which requires “the same rights for both spouses” with respect to property.29 Resolution 45/98 reiter ated this statement four years later.30 These provisions imply that the nonbinding right to property in the UDHR was incorporated into CEDAW, a binding treaty. Under the Vienna Convention on the Law of Treaties, a subsequent agreement among member states regarding the interpretation of a treaty can be considered in determining its meaning.31 These resolutions, which were adopted by an over whelming vote of UN members, may be viewed as subsequent agreements that help to interpret the meaning of CEDAW.32 On balance, however, the implicit recognition argument is weak. No provi sion of CEDAW or CERD expressly recognizes the right to property. Consistent with the precept that a treaty is to be interpreted “in the light of its object and purpose,”33 both treaties seem intended to protect vulnerable groups against dis crimination in the exercise of rights that already exist within a particular state, not to impose new rights that the state does not recognize. Although CEDAW and CERD enjoy almost universal ratification, under this analysis they could not be used to extend the right to property. In contrast, CPRMW and CRPD appear to acknowledge that the protected groups do hold an international right to property. Both provide that these groups may not be “arbitrarily deprived” of their property―language that echoes UDHR Article 17. But these conventions have been ratified by only 46 states and 125 states, respectively, which is far from universal acceptance. Moreover, this express language undercuts the implicit recognition theory for CEDAW and CERD. UN GAR 41/132, UN Doc A/RES/41/132 (December 4, 1986) preamble. UN GAR 45/98, UN Doc A/RES/45/98 (December 14, 1990). 31 Vienna Convention on the Law of Treaties (Vienna Convention) (Vienna, May 23, 1969, 1155 UNTS 331) art 31(3)(a). 32 See also Independent Expert Report, The Right of Everyone to Own Property Alone as Well as in Association with Others, UN Commission on Human Rights, UN Doc E/CN.4/1994/19 (November 25, 1993) (by Luis Valencia Rodríguez) para 97, concluding that the right to property was “incorpor ated into universal instruments” such as CEDAW and CERD. 33 Vienna Convention art 31(1). 29 30

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A second problem with the implicit recognition approach is based on the cir cumstances surrounding the negotiation of CERD and CEDAW.34 These treaties were adopted in 1966 and 1979, respectively, before the demise of the Soviet bloc. During this era, the Soviet Union and its allies fiercely opposed private property for ideological reasons. It is difficult to believe that they would have ratified these treaties if this could have been construed as endorsing a global right to property. However, the adoption of CRPD in 2006, well after the dissolution of the Soviet Union, tends to counterbalance this point and support the implicit rec ognition approach. In addition to its provision on arbitrary deprivation, CRPD contains an “equal rights” provision that closely resembles the CEDAW clause. CRPD was ratified by China (2008), Russia (2012), and 20 former members of the Soviet bloc (2007–12). These ratifications were presumably made with knowledge of the 1986 and 1990 General Assembly resolutions suggesting that the parallel equal rights clause in CEDAW incorporated the global right to prop erty. Because the CRPD language concerning property is similar to the parallel CEDAW provision, it can be argued that these ratifications reflect agreement with that approach.

C. General Principles of Law (1) Generally The general right to property is almost universally protected by municipal law. Ninety-five percent of the 193 UN member states guarantee the right, most com monly by language embedded in the constitution. The most notable exceptions are Cuba, North Korea, Venezuela, and Zimbabwe, which recognize only limited versions of the right. Given the near unanimous utilization of the right to property at the domestic level, it should be recognized as a general principle of law at the international level. This approach would extend the global right to states that are not parties to regional human rights conventions without any need to rely on the implicit recognition theory. However, international tribunals have often been reluctant to utilize general principles as a source of law. As a result, there has been no systematic analysis of the use of this approach to establish a global right to property.

34 Where the meaning of a treaty provision is “ambiguous or obscure,” supplementary means of interpretation such as the “circumstances of its conclusion” may be considered to determine its mean ing. Vienna Convention art 32(a).

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(2) General Principles as a Source of International Law (a) Overview The “general principles of law recognized by civilised nations” are a source of inter national law under Article 38(1)(c) of the Statute of the International Court of Justice. As one authority notes, “[t]‌he legal principles which find a place in all or most of the various national systems of law naturally commend themselves to states for application in the international legal system, as being almost necessarily inherent in any system within the experience of states.”35 The primary method for discerning these principles is comparative law research. The goal is to identify a core principle that is shared by the major legal systems of the world, even if it is not necessarily utilized by every state.36 The inclusion of general principles as a source of law in Article 38 provoked controversy. Reflecting the view of many scholars, Hersch Lauterpacht argued that this was a “revolutionary contribution” which would fill gaps in international law and thereby avoid the problem of non liquet―the refusal of a tribunal to adjudi cate a matter due to the lack of applicable law.37 Lord McNair noted that general principles could provide an “inexhaustible reservoir of legal principle from which tribunals can enrich and develop public international law.”38 But other scholars expressed concern about the use of this approach. In fact, international tribunals have been less willing to employ general principles than the optimistic sentiments of scholars might suggest.

(b) Beyond State Actors International law traditionally governed interactions among states, where prin ciples of municipal law had little application. Yet the scope of international law has expanded to controversies between states and private actors that involve subject areas which were traditionally governed by municipal law, such as contracts and property. In recent decades, arbitral tribunals dealing with disputes between states and private actors have begun to rely more frequently on general principles of law. For example, this was the second most frequently cited source of law by the Iran-United States Claims Tribunal in resolving investment disputes arising out of the Iranian revolution.39 As a leading authority summarizes, general principles

35 Robert Jennings & Arthur Watts (eds), Oppenheim’s International Law (9th edn, Longman Group 1992) vol 1, 36. 36 Wolfgang Friedman, “The Uses of ‘General Principles’ in the Development of Modern International Law” (1963) 57 American J Intl L 279, 284. 37 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green & Co 1927) (reprinted by Archon Books 1970) viii. 38 Lord McNair, “The General Principles of Law Recognized by Civilized Nations” (1957) 33 Brit YB Intl L 1, 6. 39 John R Crook, “Applicable Law in International Arbitration: The Iran-U.S. Claims Tribunal Experience” (1989) American J Intl L 278, 292.

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have “played an important part in the provision of legal rules in those areas of law which . . . do not fall within the traditional scope of international law, such as relations between international organisations and between them and, on the other hand, states or private persons (especially their employees), and certain transac tions of states (particularly their dealings with private corporations) on essentially private law matters.”40 Lord McNair touched upon this issue in an influential article, arguing that dis putes between states and private entities concerning economic development con tracts should be governed by general principles of law.41 Two reasons he offered for this approach have special application here. First, he observed that these contracts “often involve the creation of rights which are not purely contractual but which are more akin to rights of property.”42 Second, he noted the “peculiarity of many of these economic development agreements is that they are governed in part by public, and in part by private, law.”43 The comprehensive body of property law found at the domestic level has no counterpart in international law, despite the development of international prop erty law doctrines in some areas. In a broad sense, there is an analogy―if imper fect―between sovereignty and property. Doctrines from domestic property law such as acquisitive prescription have been utilized in resolving territorial disputes between states. This limited borrowing suggests that it is appropriate to incor porate concepts from domestic property law into international law under some circumstances. Because such borrowing has been mainly restricted to territorial disputes, it has not provided an adequate body of international law to deal with property disputes between states and private actors. Accordingly, it is appropriate to consider whether the right to property should be recognized as a general prin ciple of law.

(c) Consent It has been suggested that the use of general principles is inconsistent with the foundational concept that underlies the international system: the consent of sovereign states. The logical implication of this view is that general prin ciples could never be used as a source of law―a position that Article 38(1) (c) rejects. Moreover, by definition, general principles stem from fundamen tal legal concepts that are shared by the major legal systems of the world. States have already consented by adopting them as domestic law. No surprise or unfairness can arise when they are applied at the international level. This is particularly true for the right to property, which is recognized by the domestic law of virtually all states.

Jennings & Watts, International Law vol 1, 39. 41 McNair, “General Principles” 1. McNair, “General Principles” 3. 43 McNair, “General Principles” 3.

40 42

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(d) Indeterminacy Some scholars express concern that permitting judges to use general principles of law would enable them to exercise subjective judgment, unconstrained by the relatively clear limits of conventional and customary international law―“a mere mask for capricious law-making by judicial fiat.”44 At bottom, the indeterminacy objection raises a question of methodology. Tribunals often appear to assume that a particular concept is a general principle, with little or no analysis of comparative law.45 But as Rudolph Schlesinger pointed out long ago, the solution to this dif ficulty is “comparative research [which] will have established a body of rules and principles shared by a multitude of legal systems.”46 There is considerable debate about how to categorize legal systems for the pur pose of identifying general principles. It was recently suggested that, at a minimum, a general principle should “encompass representative legal systems of the common and civil law,” defined as “German, French, English, and US law.”47 An authorita tive 1985 study by René David and John EC Brierley identified the “three princi pal families of law existing in the contemporary world” as: the Romano-Germanic family; the common law family; and the “family of Socialist law.”48 Given the changes that have occurred since the end of the Cold War, however, the third group no longer qualifies as a separate legal system. In any event, today the vast majority of states in all legal systems recognize the right to property as part of their domestic law.

(e) Specificity Scholars also disagree about how specific a general principle of law may be. Most share the view that general principles connote fundamental concepts that underlie rules, not the rules themselves. Lauterpacht characterized them as “obvious max ims of jurisprudence of a general and fundamental nature,”49 while Bin Cheng described them as “cardinal principles of the legal system.”50 In practice, the gen eral principles that have been recognized by international tribunals have a certain breadth of scope, such as the principle of good faith or the concept that a party may not take advantage of its own wrong. However, other scholars suggest that even a specific rule could be viewed as a general principle of law.

44 Rudolph B Schlesinger, Formation of Contracts: A Study of the Common Core of Legal Systems (Oceana Publications 1968) 11. 45 eg Crook, “International Arbitration” 292, 297. 46 Schlesinger, Formation of Contracts 11. 47 Stephan W Schill (ed), International Investment Law and Comparative Public Law (OUP 2010) 29. 48 René David & John EC Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (3d edn, Stevens & Sons 1985) 22, 27. 49 Elihu Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht vol 1, 69, 74 (CUP 1970). 50 Bin Cheng, “The Meaning and Scope of Article 38(c)(1) of the Statute of the International Court of Justice” in 38 Grotius Society Transactions for the Year 1952 125, 132 (1953).

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The specificity objection has no relevance to the right to property. Far from being a technical rule, the right is broad in scope and fundamental in nature. Like other general principles, it provides guidance rather than dictating a particular outcome. By definition, the right to property may be qualified and limited by state regulation. The precise parameters of the right will therefore vary somewhat from state to state. But the core concept that each person has a general right to property pervades all legal systems.

(3) The Right to Property as a General Principle The municipal law of virtually every state recognizes the right of natural and legal persons to own property as a general matter, although the precise formu lation of the right varies to some extent.51 The right is typically set forth in a section of the national constitution that lists the basic rights of citizens, such as “Fundamental Rights and Duties of Citizens,”52 “Fundamental Rights, Freedoms, and Guarantees,”53 “General Rights of Citizens,”54 or “Basic Rights and Liberties of a Person and Citizen.”55 The inclusion of the right to property in national con stitutions demonstrates its fundamental nature. An illustrative selection of property clauses may be taken from the constitutions of the 11 UN member states whose names begin with the letter “A.” Every con stitution in this group contains a provision that protects private property. Sample clauses excerpted from these constitutions are as follows: Afghanistan: Property shall be safe from violation. No one shall be forbidden from own ing property and acquiring it, unless limited by the provisions of law. No one’s property shall be confiscated without the order of the law and decision of an authoritative court. Acquisition of private property shall be legally permitted only for the sake of public inter ests, and in exchange for prior and just compensation.56 Albania: The right of private property is guaranteed. Property may be acquired by gift, inheritance, purchase, or any other classical means provided by the Civil Code. The law may provide for expropriations or limitations in the exercise of a property right only for public interests. The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation.57 Algeria: Private property is guaranteed. The right of inheritance is guaranteed.58 Andorra: Private property and the rights of inheritance are recognised without any limits other than those derived from the social function of property. No one shall be deprived of

51 The leading text on this subject is AJ van der Walt, Constitutional Property Clauses: A Comparative Analysis (Kluwer Law Intl 1999), which analyzes property clauses from 17 constitutions. 52 Constitution of Afghanistan. 53 Constitution of Angola. 54 Constitution of Austria. 55 Constitution of Azerbaijan. 56 Constitution of Afghanistan art 40. 57 Constitution of Albania art 41. 58 Constitution of Algeria art 52.

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his or her goods or rights, except upon justified consideration of the public interest, with just compensation by or pursuant to a law.59 Angola: Everyone shall be guaranteed the right to private property and to its transmis sion, under the terms of the Constitution and the law. The state shall respect the property and any other rights in rem of private individuals, corporate bodies and local communities, and temporary civil requisition and expropriation for public use shall only be permitted upon prompt payment of just compensation under the terms of the Constitution and the law.60 Antigua and Barbuda: Every person . . . is entitled to the fundamental rights and freedoms of the individual, that is to say, the right . . . to . . . the enjoyment of property . . . and protec tion for . . . the privacy of his home and other property and from deprivation of property without fair compensation.61 Argentina: All inhabitants of the Nation are entitled to the following rights . . . to make, use and dispose of their property . . . Property may not be violated, and no inhab itant of the Nation can be deprived of it except by virtue of a sentence based on law. Expropriation for reasons of public interest must be authorized by law and previously compensated.62 Armenia: Everyone shall have the right to freely own, use, dispose of and bequeath the property belonging to him/her. The right to property shall not be exercised to cause dam age to the environment or infringe on the rights and lawful interests of other persons, the society, and the state. No one shall be deprived of property except for cases prescribed by law in conformity with the judicial procedure. Private property may be acquired for the needs of the society and the state only in cases of prevailing public interests, in the manner prescribed by law and with prior equivalent compensation.63 Australia: The Parliament shall . . . have the power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . [t]‌he acquisition of property on just terms from any State or person for any purpose in respect to which the Parliament has the power to make laws.64 Austria: Property is inviolable. Expropriation against the will of the owner can only take place in the cases and in the manner prescribed by law. Every Federal citizen can acquire real estate of every kind and freely dispose of the same.65 Exceptions can be stipulated by law to safeguard public interests. Azerbaijan: Everyone has the right to own property. No type of property shall be granted superiority. Ownership rights, including the rights for private owners, are protected by law. No one can be deprived of his property without a decision of the court. Absolute confisca tion of property is not allowed. Alienation of the property for state needs is allowed only after the cost of the property is fairly reimbursed.

Constitution of Andorra art 27. Constitution of Angola art 37. 61 Constitution of Antigua and Barbuda art 3. 62 Constitution of Argentina arts 14, 17. 63 Constitution of Armenia art 31. 64 Commonwealth of Australia Constitution Act art 51(xxxi). In Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 221 ALR 448 para 217, Justice Kirby explained that “[t]‌he basic human right to own property and to be immune from arbitrary dispossession of property is one gener ally respected by Australian legislators.” 65 Constitution of Austria art 33. 59 60

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As this sample reflects, constitutional property clauses contain a variety of provi sions. Almost all include a “guarantee clause” which proclaims that each person is entitled to the right to property as a general matter. In addition, some formulations include: (a) a description of the content of the right (eg Albania, Argentina, and Armenia); (b) a limit on the state’s authority to deprive a citizen of property (eg Afghanistan, Albania, Andorra, Antigua and Barbuda, Argentina, Armenia, and Austria); and (c) a limit on the state’s authority to regulate property (eg Andorra and Austria). In sum, the right to property is a core component of virtually every domestic legal system. It should accordingly be recognized as a general principle of law. The acceptance of the right as a general principle of law within the European Union provides a helpful precedent. The European Court of Justice (ECJ) has acknow ledged that the fundamental rights protected by member states under domestic law form part of the general principles of law that it uses in adjudication. It “can not therefore uphold measures which are incompatible with the fundamental rights recognized and protected by the constitutions” of member states or set forth in treaties for the protection of human rights ratified by those states.66 Because the right to property is protected as a fundamental right in the constitutions of European Union states and also reflected in the ECHR, the ECJ has consistently held that the right to property is a general principle of EU law.67 The same logic supports the view that the right should be recognized as a general principle of law at the international level.

D. Customary Law (1) Generally Customary international law provides a third basis for recognizing the global right to property. The principal advantage of this approach is that because customary norms apply to all states, it would extend the right to nations that have not ratified one of the regional human rights treaties. It is well settled that customary international law requires a state to honor the property rights of foreign investors in certain situations.68 In this sense, customary law recognizes a limited version of the global right to property. The discussion in this section examines a broader issue: does customary international law support a general right to property? The investment-related doctrines afford protection only to aliens, while this question concerns the rights of all owners. In addition, the protection that those doctrines afford to foreign owners is quite limited; recogni tion of a general right to property would expand its scope. eg Case 240/37 Nold, Kohlen- und Baustoffgrosshandlung v Commission [1974] ECR 491 para 13. eg Case 265/87 Hermann Schraeder HS Kraftfutter GmbH v Hauptzollampt Gronau [1989] ECR 2237. 68 See the discussion in ch 11D, 11E, 11F. 66 67

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The prevailing view is that customary international law does not recognize a general right to property. For example, the Restatement (Third) of the Foreign Relations Law of the United States (Restatement) explains that disagreement on the issue “weighs against the conclusion that a human right to property has become a principle of customary law.”69 A Restatement drafting committee considered the possibility of recognizing a general right to property as customary law in 1982, but a motion to this effect was defeated by a voice vote. Louis Henkin, who led the opposition to this motion as the Chief Reporter for the Restatement, commented that only “those areas on which socialism and capitalism agree” could be viewed as customary law.70 Given the persistent ideological tensions of the era, the Soviet Union and its allies were unwilling to endorse a broad right to property. However, Henkin reportedly changed his mind on the question 13 years later―after the collapse of the Soviet Union―and concluded that the right should be viewed as customary law.71

(2) Custom as a Source of International Law Article 38(1)(b) of the Statute of the International Court of Justice recognizes that “international custom, as evidence of a general practice accepted as law” is a source of international law. In this context, a “custom” has been defined as “a clear and continuous habit of doing certain actions which has grown up under the aegis of the conviction that these actions are, according to international law, obligatory or right.”72 A norm of customary law arises when two criteria are satisfied: (a) states generally follow a particular practice; and (b) they do so under the belief that this is mandated by international law. The subjective criterion is formally labeled as opinio juris sive necessitatis, commonly abbreviated as opinio juris. The state practice requirement is satisfied if the clear majority of states routinely follow the particular practice, even if it is not universally accepted. This practice may be evidenced by sources such as domestic legislation, judicial decisions, and official government statements. Although scholars disagree on how common the practice must be, it is desirable to show that it is “representative of the ‘main forms of civilization and of the principal legal systems of the world.’ ”73 This standard 69 American Law Institute, Restatement s 702 note k. However, the Restatement notes that all states accept a “limited core of rights to private property” such that interference with these rights by the state “may” be a violation of customary law. Restatement s 702 note k. In context, the reference to a “limited core of rights” reflects lingering ideological tensions. Even the Soviet Union and its allies accepted that an individual had a right to certain property necessary for personal use, such as clothes, furniture, and tools. The Restatement suggests that given the universal agreement on the right to this category of property, it might be seen as customary law. The implication of this argument, however, is that customary law would not include a right that extended to farms, industrial facilities, mines, utilities, and other productive assets. 70 Continuation of Discussion, Tentative Draft No 3, 59 American L Institute Proc 189, 212 (1982). 71 Robert B Lillich, “The Growing Importance of Customary International Human Rights Law” (1995) 25 Georgia J Intl & Comp L 1, 7 note 43. 72 Jennings & Watts, International Law vol 1, 27. 73 John H Currie, Public International Law (2d edn, Irwin Law 2008) 190.

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reflects both methodological and prudential constraints. It may be difficult to determine what the practices of 193 states actually are on an issue. Moreover, if customary international law could be established only if a practice were univer sally accepted, it would have little utility as a source of law. Because unanimous endorsement of any practice is rare, a narrow view of customary law would yield only a handful of norms. The standards that govern opinio juris are more complex. In the North Sea Continental Shelf Cases, the ICJ observed that the element is satisfied when states “feel that they are conforming to what amounts to a legal obligation.”74 Other ICJ decisions also appear to require evidence that states act under a sub jective belief that the practice is obligatory.75 This belief may be deduced from sources such as treaties, UN resolutions, and other conduct by state officials. Yet the subjective intent requirement poses a conundrum: a customary norm seemingly arises only if and when a sufficient number of states mistakenly believe that they are obligated to follow it. A practice that has not yet evolved into a customary norm is not binding on any state. Accordingly, a state that begins to follow such a nonobligatory practice is―by definition―not obli gated to do so. Construed strictly, the opinio juris requirement would rarely be satisfied―and thus only a few customary norms would exist. As a practical matter, international tribunals have rarely insisted on rigorous proof of opinio juris. Many decisions appear to assume that this element is satisfied where widespread state practice is proven.76

(3) The Right to Property as Customary Law The right to property easily satisfies the state practice element. Almost every nation in the world accepts the general right of natural and legal persons to own prop erty. Only a handful of states cling to the belief that a narrow right to property is appropriate. The more difficult question is whether the opinio juris element is satisfied. Given the near universality of state practice, it is possible that a tribunal might utilize the less rigorous approach and assume that this practice reflects opinio juris without proof of subjective intent. However, the analysis below proceeds on the assump tion that a tribunal would follow the more demanding standard. A threshold question arises: if a state initially follows a practice because it is advantageous, but later expresses its belief that the practice is also required by inter national law, does this satisfy the opinio juris element? Most states―indeed, perhaps all states―originally adopted the right to property under domestic law because it was seen as advantageous policy, not because it was required by international law.

(Federal Republic of Germany v Denmark) 1969 ICJ Rep 3, 44. eg Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) 1986 ICJ Rep 14, 108–09. 76 Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 8. 74 75

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In the majority of states, this occurred long before the post-World War II era when the international community first began to consider a global right to property. In addition, China, Russia, and former Soviet bloc members adopted private prop erty systems after the Cold War presumably because of the economic and social benefits that these systems provide, not due to an international mandate. Thus, if opinio juris must be the sole reason for the adoption of a particular practice, this element would not be satisfied. The better view is that regardless of why a state initially adopted a particular practice, the opinio juris element is established when the state expresses its belief that the practice is also required by international law. As the Restatement pro vides, “[a]‌practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it.”77 This issue potentially arises in any instance where a widespread principle of domestic law is slowly being transformed into an international standard. A requirement that opinio juris be the sole reason for following the practice would prevent the birth of a customary norm in this situation, which would hobble the ability of international law to address new subject areas. The recognition of the right to property in treaties provides one source of opinio juris. In the North Sea Continental Shelf Cases, the ICJ observed that “a very wide spread and representative” ratification of a multilateral treaty could help to provide evidence of opinio juris.78 As discussed above, about two-thirds of all states are par ties to regional human rights conventions that recognize a binding right to prop erty. This figure alone should be sufficient evidence of opinio juris. The widespread ratification of CRPD, which expressly recognizes the right to property, provides additional support. Under the implicit recognition approach, the near-universal ratification of CERD and CEDAW provide even greater support. Opinio juris may also be “deduced from . . . the attitudes of . . . States toward certain General Assembly resolutions,” as the ICJ noted in Military and Paramilitary Activities in and against Nicaragua.79 It has been suggested that the entirety of the UDHR―including the right to property in Article 17―has become customary law through its repeated reaffirmation by the UN General Assembly. At a minimum, the consistent endorsement of the UDHR by almost all nations is evidence of opinio juris as to the right to property. As Brian Lepard summarizes, “the Universal Declaration and other evidence point to a belief by states that they have a strong persuasive legal obligation to protect all the rights it proclaims.”80 A final source of opinio juris is found in two General Assembly resolutions that endorse the right to property. In 1986, Resolution 41/132 expressed the American Law Institute, Restatement s 102 comment c. North Sea Continental Shelf Cases 43. 79 Military and Paramilitary Activities in and against Nicaragua 99–100. 80 Brian D Lepard, Customary International Law: A New Theory with Practical Applications (CUP 2010) 327. 77 78

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views of 100 nations―about two-thirds of the UN states represented―that “the right of everyone to own property alone as well as in association with others, as set forth in article 17 of the Universal Declaration of Human Rights . . . is of particular importance in fostering widespread enjoyment of other human rights.”81 Not a single state voted against this resolution, although some abstained. Resolution 45/98, also adopted without opposition four years later, repeated the theme that the right to property in the UDHR was impor tant to ensure the protection of human rights.82 The resolution urged all states “to provide . . . adequate constitutional and legal provisions to protect the right of everyone to own property”83―an international mandate to recognize the right in domestic law.

E. Synthesis Each of the three generally accepted sources of international law potentially provides an independent basis for recognizing the global right to property. Conventional law offers only limited support for the right. Although the right is expressly recog nized in regional human rights conventions, about one third of all states are not bound by them. On balance, the argument that the right is implicit in CERD and CEDAW, and thus acknowledged by virtually all states, is problematic. In contrast, a strong argument can be made that the right to property should be recognized as a general principle of law. The right is reflected in the munic ipal law of virtually every state, and it is widely accepted as a fundamental entitlement. The right to property should also be recognized as a norm of customary inter national law. Because the right is almost universally found in municipal law, the state practice requirement is easily satisfied. It is less clear whether the opinio juris element is met. However, treaties and UN resolutions tend to support the view that most states accept the right as international law, even though they initially recognized it for other reasons.

F. Defining the Global Right Assuming that the global right to property exists, the more difficult question is how to delineate its content and scope. If a person holds a right to property under inter national law, what are the components of that right? The following chapters in this part develop the thesis that the right has five basic components under international

UN GAR 41/132, UN Doc A/RES/41/132 (December 4, 1986). UN GAR 45/98, UN Doc A/RES/45/98 (December 14, 1990). UN GAR 45/98.

81 82 83

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law. These components might variously be described as aspects, powers, or facets of the right to property. However, because international tribunals have tended to characterize them as “rights,” this is the term that will be used. The components are: the right to acquire; the right to use; the right to destroy; the right to exclude; and the right to transfer. The analysis in these chapters is primarily based on three interrelated legal strands: international human rights law; international investment law; and municipal property law. Case law developed by regional human rights courts and investment tribunals concerning the scope of the right to property provides a foundation for delineating the content of each component. Although human rights law and investment law reflect different assumptions and serve different goals, they overlap to some extent in the context of the right to property. Significantly, human rights cases interpret ing the right to property have occasionally relied on investment law decisions and vice versa.84 In addition, the analysis below relies on municipal property law from rep resentative legal systems, integrated with relevant international authorities, to demonstrate that these rights and related doctrines may be recognized as gen eral principles of law. Using a variant on René David’s traditional designation of the major legal system of the world,85 the discussion below utilizes sources from four systems: the Romano-Germanic family (represented by France and Germany); the common law family (represented by England and the United States); the Asian family (represented by China, Japan, and Vietnam); and the Islamic family (represented by Shār’ia law generally). Although acceptance of a doctrine by the Romano-Germanic and common law families may suffice for recognition of a general principle of law, the addition of the Asian and Islamic law families gives the analysis a broader global reach. David’s third major category―Socialist law states―is obsolete today, given the transition of most socialist economies to capitalism. However, this group may be represented by China and Vietnam. It may be suggested that the principles discussed below are so fundamental that detailed analysis is unnecessary. Under this view, the ensuing chapters state obvious truths. Others may assert that the same conclusions are insufficiently supported and thus overly bold. The analysis below takes a middle ground between these extremes. The principles are proposed at a level of abstraction that should garner general support. At a minimum, the analysis can serve as a starting point for the future study that will be needed as the global right to property evolves. 84 eg Technicas Medioambientales Tecmed SA v Mexico, ICSID No ARB(AF)/00/2 (May 29, 2003) para 122 (citing human rights cases); Salvador Chiriboga v Ecuador Series C no 179 (IACtHR, May 6, 2008) paras 96, 98 (citing investment cases). 85 David, Major Legal Systems.

10 The Right to Acquire

A. Introduction The right to acquire is a logical and necessary corollary of the global right to prop erty. The right to property would be meaningless if a state could deny its nationals the ability to obtain property in the first place. Indeed, the UN General Assembly has stressed “the importance of enabling everyone to acquire property” so as to allow the “full enjoyment of the right of everyone to own property,” and thereby promote economic development.1 Yet the extent to which the right to acquire may be viewed as part of the right to property remains unclear. Other facets of the global right, such as the right to transfer and the right to use, are well established.2 In contrast, the right to acquire is often overlooked in international law. Although each state has traditionally enjoyed wide discretion to decide who may obtain property within its territory, today it is unusual for a state to significantly restrict the acquisition of property by its nationals. As a result, there has been little need to delineate the contours of the right to acquire as a matter of international law, except in the context of discrim ination. International law clearly provides that a state may not deny its nationals the right to acquire property for discriminatory reasons. The traditional rule remains largely intact in the case of aliens. As a general mat ter, a state may refuse to allow aliens to acquire property within its borders―in effect, discriminating based on nationality. However, even this rule is beginning to erode due to treaties that require the host state to accord national treatment and most-favored-nation treatment to aliens in the acquisition of investment property. Assuming that the right to acquire is part of the global right to property, the next issue is how this right may be implemented. Municipal laws reflect widespread conceptual agreement on the acceptable methods for acquiring property, illustrat ing the continued influence of Roman law. Major legal systems generally recog nize that property rights may be acquired through gift, occupancy, prescription,

1 UN GAR 43/123, UN Doc A/RES/43/123 (December 8, 1988); UN GAR 45/98, UN Doc A/ RES/43/123 (December 14, 1990). 2 See the discussion in chs 11 and 14.

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purchase, specification, and succession. It may be appropriate to view these meth ods as general principles of law.

B. Recognizing the Right (1) Generally The right to acquire means that a natural or legal person is entitled to obtain property without unjustifiable interference by the state or by third parties. The distinction between an opportunity and a guarantee is inherent in this definition. The right protects a person’s opportunity to acquire property, without guarantee ing that this opportunity will be successful. In human rights parlance, the state is obligated to respect and protect the right, not to fulfill it. By necessity, the right is subject to qualifications and exceptions, reflecting the relative nature of the general right to property. A broader formulation of the right to acquire would impose a difficult, perhaps impossible, burden. If it included the duty to fulfill, then recognition of the right would require the state to ensure that every national in fact acquired property. This approach is reminiscent of the Marxist maxim that property should be distributed “to each according to his needs,”3 an ideology that, however attractive in theory, proved unworkable in practice. The ambiguous scope of the right to acquire is illustrated by the drafting of the new South African Constitution during the post-apartheid era. It was sug gested that the constitution should expressly protect the right to acquire property. However, concern arose that such a provision might be interpreted as mandating that the government seize and redistribute lands held by the minority of white citizens. In this atmosphere, the drafters intentionally omitted any “express refer ence to the right to acquire . . . property.”4 Instead, they adopted a more nuanced provision: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”5 Under this formulation, the redistribution of land is an aspiration, not a guarantee. The state may be obligated to fulfill the right to acquire in limited situations.6 Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)7 acknowledges “the right of everyone to an adequate standard of living for himself and his family, including adequate . . . housing.”8 It further provides Karl Marx, Critique of the Gotha Program (first published 1891, Intl Publishers Co 1938) 10. In re Certification of the Constitution of the Republic of South Africa, CCT 23/96 (September 6, 1996) (South Africa) para 72. 5 Constitution of South Africa art 25(5). 6 See also the discussion in ch 6E(5) on the duty of the state to recover lands formerly held by indigenous and tribal peoples. 7 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 8 ICESCR art 11(1). 3 4

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that “[t]‌he States Parties will take appropriate steps to ensure the realization of this right.”9 The European Social Charter similarly requires parties to adopt measures that will “promote access to housing of an adequate standard,” to reduce homeless ness, and to make housing affordable.10

(2) Sources of the Right (a) Overview The right to acquire property has been recognized since the beginning of civiliza tion. Ancient societies in China, Greece, the Middle East, and elsewhere permitted the purchase, sale, and exchange of property, particularly goods. By definition, these markets could operate only if citizens were authorized to participate in them. As early as the Twelve Tables in approximately 500 BCE, a substantial body of Roman law specified the methods by which property could be acquired. These provisions reflected an underlying assumption that citizens had the right to acquire property, without any need to express it in positive law. The Digest of Justinian explained that ownership of certain property could be obtained under “the Law of Nations, which is everywhere observed among men, according to the dictates of natural reason,” while acquisition of other property stemmed from “the law of our own country.”11 This concept that the right to acquire property arose, in part, under natural law “at the time of the origin of the human race”12 influenced later theorists, but had only minor practical importance in Roman law. The laws of ancient China, the counterpart of the Roman Empire, reflected a similar assumption. The surviving portions of early Chinese treatises and codes demonstrate that the purchase and sale of property―again, principally goods― was regulated by the state, which imposed criminal penalties for improper con duct. These restrictions presupposed an underlying norm that the acquisition of property was permitted. Enlightenment theorists such as Hugo Grotius, Samuel Pufendorf, and John Locke endorsed the view that the right to acquire property was premised, at least in part, on natural law.13 Grotius posited that in the state of nature “each man could at once take whatever he wished for his own needs,” but that ultimately private own ership arose “by a kind of agreement, either expressed, as by a division, or implied, as by occupation”―independent of state action.14 In the same vein, Pufendorf 9 ICESCR art 11(1). The article also obligates member states to take steps to realize the right to food. Because this right is inherently linked to secure land tenure for subsistence farmers, it might be argued that the duty to fulfill this right implicitly requires each state to ensure that such farmers have legally protected rights in farm land. See the discussion of the human right to land in ch 6D. 10 European Social Charter (Strasbourg, May 3, 1996, 2151 UNTS 277) parts I(31), II(31). 11 Digest of Justinian 41.1.1, in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973). 12 Digest of Justinian 41.1.1, in Scott, The Civil Law. 13 See also the discussion in ch 1B(3). 14 Hugo Grotius, De Jure Belli ac Pactis Libri Tres (first published 1625, Clarendon Press 1925) (Francis W Kelsey tr) vol 2, 186, 189.

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reasoned that “natural law clearly advised that men should by convention intro duce the assignment of . . . things to individuals,” which led to a tacit agreement that unowned items “should pass to him who was the first to take possession of them.”15 Locke echoed these conclusions, noting that “of those good things which nature hath provided in common, every one had a right . . . to as much as he could use, and had a property in all that he could effect with his labour.”16 The concept that the right to property arose from natural law, separate and apart from any state, was ultimately reflected in two texts which served as corner stones of the common law and civil law systems. William Blackstone’s 1765 Commentaries on the Laws of England stressed that the right to property was an “absolute” right under English law, a right which arose “in a state of nature.”17 In France, the Declaration of the Rights of Man and of the Citizen in 1789 enshrined the right to property as one of the “natural and imprescriptible rights of man.”18 These provisions were not confined to protecting the rights of those who already owned property. Rather, they sought to proclaim the fundamental rights of both present owners and future owners, which necessarily included the right to acquire property.

(b) International Law The phrasing of the right to property in Article 17 of the Universal Declaration of Human Rights (UDHR)19 helps to clarify the nature of the right to acquire. Subpart 2 provides that “[n]‌o one shall be arbitrarily deprived of his property,” which imposes a restriction on the ability of a state to seize or otherwise take prop erty. But the affirmative statement in subpart 1 that everyone has “the right to own property” demonstrates that this right is not limited to avoidance of arbitrary dep rivation. The right to own property can only be realized by recognizing the right to acquire property. As Jeremy Waldron explains, at a minimum Article 17 creates “a right not to be excluded from the class of potential property-owners” but does “not guarantee that anyone (let alone everyone) will actually get to be an owner.”20 Subsequent UN General Assembly resolutions support the view that Article 17 was intended to include the right to acquire. For example, Resolution 43/123, adopted in 1988, interprets Article 17 as containing two distinct rights: “the right of everyone to own property alone as well as in association with others and the right not to be arbitrarily deprived of one’s property.”21 Stressing “the importance of enabling everyone to acquire property, alone or in association with others, by 15 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (first published 1672, Clarendon Press 1934) (CH Oldfather & WA Oldfather trs) vol 2, 537, 547. 16 John Locke, Two Treatises of Government (first published 1689, A Millar et al 1764) vol 2, 234. 17 1 Bl Comm 119, 134. 18 Declaration of the Rights of Man and of the Citizen (1789) (France) art 2. 19 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 20 Jeremy Waldron, The Right to Private Property (Clarendon Press 1988) 21. 21 UN GAR 43/123, UN Doc A/RES/43/123 (December 8, 1988).

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taking practical actions that assist the economic development of developing coun tries,” it concludes by recommending that states provide “adequate constitutional and legal provisions to protect the right of everyone to own property” and the right not to be arbitrarily deprived of property.22 In context, the right to acquire appears to be inherent in the right to own property.23 The treaties designed to protect vulnerable groups also support the inter pretation that the general right to property includes the right to acquire. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD)24 requires states to guarantee the right of everyone to equality in the enjoyment, inter alia, of the “right to own property alone as well as in association with others” and “the right to inherit.”25 The Convention on the Rights of Persons with Disabilities (CRPD)26 contains parallel language. It ensures the “equal right of persons with disabilities to own and inherit prop erty.”27 These instruments may be interpreted as implicitly assuming that there is an underlying right to acquire property; otherwise, the goal of equality of ownership would be impossible to attain. It is also significant that both conven tions expressly endorse the right to inherit, one particular method of obtain ing property. This was presumably appropriate because succession is viewed in many states as a component of family law rather than of property law. The implication is that other methods of acquiring property are already protected within the right to property itself. The right to acquire property is explicit in other treaties. Both the Convention relating to the Status of Refugees28 and the Convention relating to the Status of Stateless Persons29 require that refugees and other stateless persons be accorded the same protection as other aliens in “the acquisition of movable and immovable property.”30 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)31 similarly mandates the right to acquire property on an equal basis. It provides that both spouses must enjoy the same rights “in respect of the . . . acquisition . . . of property.”32 In a report to the UN Commission on Human Rights concerning the human right to property, UN GAR 43/123. See also UN GAR 45/98 UN Doc A/RES/45/98 (December 14, 1990), which contains the same provisions. 24 International Convention on the Elimination of All Forms of Racial Discrimination (New York, March 7, 1966, 660 UNTS 195). 25 CERD art 5(d)(v), (vi). 26 Convention on the Rights of Persons with Disabilities (New York, December 13, 2006, 2515 UNTS 3). 27 CRPD art 12(5). 28 Convention relating to the Status of Refugees (Geneva, July 28, 1951, 189 UNTS 137). 29 Convention relating to the Status of Stateless Persons (New York, September 28, 1954, 360 UNTS 117). 30 Convention relating to the Status of Refugees art 13; Convention relating to the Status of Stateless Persons art 13. 31 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13). 32 CEDAW art 16(1)(h). 22 23

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Luis Valencia Rodríguez relied on this CEDAW provision to support his assess ment that the right “may be regarded as a number of exclusive powers of owner ship, including ‘acquisition.’ ”33 The regional human rights treaties provide additional support for this approach. Although the African Charter on Human and Peoples’ Rights (ACHPR)34 does not expressly mention the acquisition of property, the charter has been interpreted as including this right. The Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the ACHPR (ACHPR Principles) adopted by the African Commission on Human and Peoples’ Rights provide that the right to property includes “[e]‌quitable and non-discriminatory . . . acquisi tion . . . of land and housing.”35 The principles also state that the right to prop erty “includes the protection of a legitimate expectation of the acquisition of property.”36 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)37 and the American Convention on Human Rights (ACHR)38 provide indirect support for the right to acquire. The European Court of Human Rights (European Court) has acknowledged that “the right to dispose of one’s property constitutes a traditional and fundamental aspect of the right to property” established by the ECHR.39 Similarly, the Inter-American Commission on Human Rights has expressed the view that the term “property” in the ACHR includes “the right to dispose of it in every legal way.”40 The core of the right to dispose is the right to transfer property to others, not simply to destroy or abandon it.41 Yet the right to transfer property would be meaningless if no one had the right to acquire the property.42 In this sense, the right to acquire should be viewed as an implicit part of the right to transfer.

33 Independent Expert Report, The Right of Everyone to Own Property Alone as Well as in Association with Others, UN Commission on Human Rights, UN Doc E/CN.4/1994/19 (November 25, 1993) (Luis Valencia Rodríguez) para 90. 34 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 35 African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (2011) art 55(viii). 36 ACHPR Principles art 53. 37 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221); Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 38 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 39 Marckx v Belgium (1979) 2 EHRR 330 para 63. See also Palamara-Iribarne v Chile Series C no 135 (IACtHR, November 22, 2005) para 103 (recognizing that the right to property includes the right to assign or transfer the item). 40 Inter-American Commission on Human Rights report no 39/96 (October 15, 1996) para 26. 41 See the discussion of destruction in ch 12 and abandonment in ch 14D(1). 42 Significantly, the European Court has stated that the right to property in the ECHR applies only to a person’s “existing possessions” and “does not guarantee the right to acquire possessions” in the future. Marckx para 50. In context, however, this simply disclaims any state responsibility to actually provide property to potential owners. That is, it interprets the state’s obligation as a duty to respect and protect the right to property, not to fulfill it.

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(c) Municipal Law The right to acquire property is a core component of almost every national legal system. In some jurisdictions, the right is expressly set forth in the constitution. For example, the Constitution of Albania provides that “[p]‌roperty may be acquired by gift, inheritance, purchase, or any other classical means provided by the Civil Code.”43 Another illustration is the Constitution of Afghanistan, which states that “[n]o one shall be forbidden from owning property and acquiring it, unless lim ited by the provisions of law.”44 The Constitution of Bangladesh guarantees that “[s]ubject to any restrictions imposed by law, every citizen shall have the right to acquire . . . property.”45 Finally, the Constitution of Chile protects the “[f ]reedom to acquire ownership over all classes of assets.”46 More commonly, however, the right to acquire property is implicit in domes tic laws that regulate the acquisition and transfer of property. Statutes in most civil law nations specify in detail the methods by which property rights may be obtained. For instance, Articles 711 and 712 of the French Civil Code provide that ownership of property may be acquired by succession, inter vivos gift, will, the effect of obligations, accession or incorporation, and prescription.47 German statutes also establish procedures for acquiring property.48 The acquisition of property rights in common law systems is governed by both statutes and case law. In the United Kingdom, for example, the Law of Property Act,49 the Property Registration Act,50 and related statutes establish the procedures for obtaining interests in immovable property. Judicial decisions in the United States have long recognized that each person has a right to acquire property,51 and statutes in many states establish the methods for such acquisition. For example, the California Civil Code provides that property may be acquired by occupancy, accession, transfer, will, or succession.52 The Vietnamese Civil Code sets forth eight methods for acquiring ownership rights to property.53 In China, the Property Rights Law and other statutes specify how property rights may be created.54 The Japanese Civil Code contains detailed procedures for the “acquisition” of property.55 Finally, Sharī’a law recognizes vari ous methods for obtaining property, including sale, work, gift, inheritance, and occupation.56 Constitution of Albania art 41. Constitution of Afghanistan art 40. Constitution of Bangladesh art 42(1). 46 Constitution of Chile art 19(23). 47 eg arts 711, 712 C civ (France). 48 eg §§ 873, 937, 958 BGB (Germany). 49 Law of Property Act 1925 (UK). 50 Property Registration Act 2002 (UK). 51 eg Slaughter-House Cases, 83 US 36, 76 (1873). 52 Civil Code art 1000 (California) (US). 53 Civil Code art 170 (Vietnam). 54 eg Property Rights Law arts 6, 7, 9, 15; Law of Succession art 10; Contract Law arts 130–75 (China). 55 eg Civil Code arts 180–87, 239–48 (Japan). 56 Raj Bhala, Understanding Islamic Law (LexisNexis 2011) 471, 475. 43 44 45

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(3) Status of the Right On balance, the right to acquire probably cannot be categorized as conventional or customary international law. Although the right is recognized to a limited extent by treaties, the level of acceptance is not sufficiently specific or widespread for it to be viewed as conventional law. Moreover, while the general acceptance of the right at the domestic level satisfies the state practice element for a customary norm, there is little evidence of opinio juris. An argument can be made that the right to acquire should be viewed as a gen eral principle of law. It is a fundamental concept embedded in the municipal law of virtually all states and also reflected in international law. The analysis in Chapter 9 for establishing the right to property as a general principle also applies here to some extent. The international public law concept that each state has the right to acquire territory is a parallel doctrine. Since the right to acquire territory is recognized as between states, its extension to situations involving private property―such as a dis pute between a state and a private actor―would not be unreasonable given its wide spread acceptance in municipal law. Yet the right to acquire differs from other aspects of the global right to property in a fundamental sense: by definition, the claimant is seeking to acquire property, and thus does not own it. In contrast, the other aspects of the global right all apply to the situation where the state has already allowed a particular person to acquire property. This distinction has special application to aliens. Given the traditional rule that a state may deny aliens the right to acquire property in its territory, it would be difficult to recognize the right to acquire as a general principle of law that extends to aliens.

C. Scope of the Right (1) Limits on Nationals (a) Natural Persons Each state has traditionally enjoyed complete freedom to determine which of its nationals may acquire property. In recent decades, however, international law has increasingly intervened within this historic sphere of autonomy by providing, at a minimum, that a state cannot refuse to allow a national to acquire property for a discriminatory reason. The right of a natural person to acquire property is protected by the principle of nondiscrimination, which is a cornerstone of international human rights law. UDHR Article 2 provides that all persons are entitled to the rights it contains―including the right to property in Article 17―“without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”57 Article 7 expands the scope of this guarantee by proclaiming UDHR art 2. The ICESCR contains similar language in article 2(2).

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that “[a]‌ll are equal before the law and are entitled without any discrimination to equal protection of the law.”58 As applicable here, the principle means that a state may not refuse to allow a national to acquire property or to enjoy other aspects of the right to property based on prohibited discrimination. Although the UDHR was initially adopted as a nonbinding instrument, over time the principle of nondiscrimination that it contains appears to have become customary international law.59 The principle of nondiscrimination can also be found in the regional human rights conventions that recognize the right to property. ECHR Article 14 provides that “[t]‌he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, associ ation with a national minority, property, birth, or other status.”60 The ACHR and ACHPR also recognize the principle, while phrasing the scope of protection some what differently. Thus, Article 1(1) of the ACHR prohibits discrimination based on “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”61 The parallel clause in the ACHPR is Article 2, which echoes the UDHR; it provides that each person is entitled to enjoy the rights and freedoms in the charter “without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or other any opinion, national and social origin, fortune, birth or other status.”62 In addition, a series of anti-discrimination treaties prohibits discrimination as to the right to property and other rights in specific contexts. CERD Article 5 bars discrimination based on “race, colour, or national or ethnic origin” with respect to “the right to own property alone as well as in association with others.”63 CPRD prohibits discrimination with regard to property based on disability.64 Finally, CEDAW requires member states to “ensure, on a basis of equality of men and women” the same rights in the “acquisition” of property.65 The case of Koowarta v Bjelke-Petersen,66 decided by the High Court of Australia, illustrates the application of the principle of nondiscrimination at the national level. Koowarta, an Aborigine, requested the Aboriginal Land Fund Commission to purchase the lease to a tract of land in Queensland so that he and other Aborigines could use the property for grazing. The Queensland minister for lands refused to consent to this purchase because the state did not favor proposals to acquire large UDHR art 7. In addition, the International Covenant on Civil and Political Rights (ICCPR) (New York, December 16, 1966, 999 UNTS 171) prohibits discrimination against any person “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, prop erty, birth or other status” as a general matter, whether or not such discrimination occurs in connec tion with a specific right contained in that covenant. ICCPR art 26. Accordingly, this provision could extend to the right to property and other socio-economic rights which are not set forth in the ICCPR. 60 ECHR art 14. 61 ACHR art 1(1). 62 ACHPR art 2. 63 CERD art 5(d)(v). 64 CRPD art 12(5). 65 CEDAW art 16(1)(h). 66 153 CLR 168 (1982) (Australia). 58 59

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tracts of leasehold land for development by Aborigines. Koowarta subsequently brought suit against members of the Queensland government under the Racial Discrimination Act,67 which Australia had adopted in order to fulfill its obliga tions under CERD, claiming that this refusal violated his right to own property. The act made it unlawful for any person to discriminate based on “race, colour, descent or national or ethnic origin which has the effect of nullifying or impair ing . . . any human right or fundamental freedom in the . . . economic . . . field.”68 The court concluded that the reference to “any human right or fundamental free dom” included the rights specified in CERD Article 5, which contains the right to own property.69 Ultimately, the court rejected the defendants’ demurrer to the complaint and ruled that the lawsuit could proceed. Two aspects of the Koowarta decision merit attention. First, the justices assumed that the “right to own property” in CERD Article 5 necessarily included the right to acquire property. Indeed, the case proceeded on the basis that the state’s refusal to permit the acquisition of property due to racial discrimination was inconsistent with its obligations under CERD. Second, in deciding that the act was within the legislative power of the national government to deal with “external affairs,” the majority acknowledged that the scope of this concept had broadened over time. As Justice Stephen explained, international conventions increasingly prescribe “standards of conduct for both governments and individuals having wide applica tion domestically in areas of primary regional concern.”70 Thus, “areas of what are purely domestic concern are steadily contracting and those of international con cern are ever expanding,” reflecting the “new global concern for human rights and the international acknowledgement of the need for universally recognized norms of conduct.”71

(b) Legal Persons The extent to which international human rights law―including the principle of nondiscrimination―applies to legal persons such as business entities remains unclear. At a minimum, some regional human rights conventions protect both natural persons and legal persons.72 Even assuming that the principle could apply to an entity, the categories of prohibited discrimination in the UDHR and other instruments are oriented toward individuals and would have little or no applica tion to an entity except in unusual cases. For example, if a state barred a particular domestic corporation from acquiring property because of the race or gender of its officers or because its directors had expressed political opinions, an argument could be made that this was prohibited discrimination.

Racial Discrimination Act 1975 (Australia). Racial Discrimination Act 1975 (Australia) art 9. 69 Koowarta v Bjelke-Petersen 183–84. 70 Koowarta 216–17. 71 Koowarta 218. 72 See the discussion in ch 9B(2). 67 68

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(2) Limits on Aliens (a) Natural Persons Under the traditional view, a state may deny aliens the right to acquire property. Although this doctrine stemmed from the theory that property rights can arise only under municipal law, it also reflected practical concerns. Sovereignty is inher ently intertwined with control over national territory. Allowing foreign nationals to obtain ownership of large tracts of land, in particular, might be viewed as threat ening the integrity of the state. Similar concerns could arise, to a lesser degree, from foreign ownership of business enterprises in sectors such as banking, commu nications, finance, industry, mining, and transportation. These concerns are often particularly pronounced in developing countries due to fears of neo-colonialism. Today the continued validity of this doctrine is in question. There is a discern ible trend in international human rights law toward the position that a state may not discriminate against an alien who is a natural person with respect to property rights and other matters. The rise of multilateral and bilateral investment agree ments that include the principles of national treatment and most-favored-nation (MFN) treatment, while focused on investment entities, also serves to protect indi vidual investors against discrimination. In 1985, the UN General Assembly adopted the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live.73 It proclaims, inter alia, that individual “aliens shall enjoy . . . [t]‌he right to own property alone as well as in association with others.” This provision would logically include the right to acquire property. In an echo of UDHR Article 29, the resolution states that the obligation is subject to limitations that are “prescribed by law and which are necessary in a democratic society” to protect national security, public safety, public order, public health, or the rights and freedoms of others.74 Yet the broad approach envisioned by the declaration has not been incorporated into conventional law. Instead, the principle of nondiscrimination against aliens appears only in specialized situations. For instance, the Convention relating to the Status of Refugees and the Convention relating to Stateless Persons merely require that refugees and stateless persons be afforded the same treatment as other aliens with respect to “the acquisition of movable and immovable property.”75 The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families does expressly protect the property rights of migrant workers who are foreign nationals,76 but this convention has not been widely ratified. 73 Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live, UN GAR 40/144, UN Doc A/RES/40/144 (December 13, 1985). 74 UN GAR 40/144, UN Doc A/RES/40/144 (December 13, 1985) art 5(2)(d). 75 Convention relating to the Status of Refugees art 13; Convention relating to the Status of Stateless Persons art 13. See also the discussion in ch 6G on the property rights of refugees and dis placed persons. 76 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (New York, December 18, 1990, 2220 UNTS 3) arts 14, 15, 32.

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Although the ICCPR does not expressly prohibit discrimination based on nationality, the UN Human Rights Committee has taken the position that the rights it contains apply to all persons. For example, in Ibrahima Gueye v France,77 it concluded that France could not deny pensions to Senegalese nationals who had served in the French army solely by virtue of their nationality. This result reflects the view that the rights protected in the ICCPR “apply to everyone . . . irrespective of his or her nationality.”78 The conclusion was based on ICCPR Article 26, which generally prohibits discrimination “on any ground” and then provides a list of spe cific types of discrimination which include “other status.” In the Ibrahima Gueye case, the committee reasoned that nationality was a type of “other status.”79 The case suggests that the right to acquire certain types of property―in this instance, pension rights―cannot be denied based on nationality. Similarly, the European Court has held that a state may not discriminate against an alien with regard to the acquisition of property. The case of Gaygusuz v Austria80 involved a Turkish national who had made contributions to the national unem ployment insurance fund while working in Austria. After exhausting his entitle ment to unemployment benefits, Gaygusuz applied to the state for emergency financial assistance. Although such assistance was routinely provided to Austrian citizens in the same situation, the state refused assistance to Gaygusuz based on his nationality. The European Court ruled that the right to emergency assistance was a “possession” within the meaning of Article 1 of ECHR Protocol 1, and that the state’s refusal to provide this assistance constituted discrimination based on national origin because it was not based on an “objective and reasonable justification.”81

(b) Legal Persons The traditional rule that a state has a wide margin of discretion in deciding whether to allow a foreign entity or individual to acquire property within its territory has been somewhat eroded. Reflecting this trend, the World Bank Guidelines on the Treatment of Foreign Direct Investment provide that each state is “expected” to admit investments of capital in its territory, other than investments that might harm national security, economic development objectives, or the “strict exigencies of its national interest.”82 While many factors have contributed to this erosion, the most important development is the adoption of trade and investment treaties that contain national treatment and MFN provisions. As embodied in the General Agreement on Tariffs and Trade (GATT), the national treatment principle mandates that imported products “shall be accorded 77 UN Human Rights Committee, Comm no 196/185, UN Doc CCPR/C/35/D/196/1985 (April 3, 1989). 78 UN Human Rights Committee, General Comment No 15, UN Doc HRI/GEN/1/Rev.9 (April 11, 1986) para 1. 79 General Comment No 15 para 9.4. 80 (1997) 23 EHRR 364. 81 Gaygusuz paras 39–51. 82 World Bank Guidelines on the Treatment of Direct Foreign Investment (1992) paras 1, 4.

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treatment no less favourable than that accorded to like products of national origin” with respect to regulations, taxes, and other matters.83 The MFN principle ensures that the most favorable terms accorded under domestic law to products imported from any state are automatically extended to like products from other member states.84 Instruments adopted under the aegis of the World Trade Organization have begun to extend these principles to the acquisition of property. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)85 applies both principles to the acquisition of intellectual property rights by aliens.86 For example, each member state must “accord to the nationals of other Members treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property.”87 Because “protection” under the agreement is defined to include the “acquisition . . . of intellectual property rights,”88 a state must recognize the right of a foreign national to acquire these rights, at a minimum, on a basis equal to that of its own nationals. Another illustration is found in the General Agreement on Trade in Services.89 A host state that opens up certain sectors of its economy to service providers must accord national treatment to aliens from member states with “respect to all measures affecting the supply of services.”90 This includes the supply of services “through commercial presence” in the host state.91 As a result, the state may not discriminate against a foreign national to the extent that it seeks to acquire property in order to establish and maintain such a presence. Over time, the national treatment and MFN principles have been incorporated into investment treaties, where they function to protect foreign-owned property from undue interference by the host state. In this context, national treatment has been defined as “a principle whereby a host state extends to foreign investors treat ment which is at least as favourable as the treatment that it accords to national investors in like circumstances.”92 The principle has been characterized as “perhaps the single most important standard of treatment enshrined in international invest ment agreements.”93 MFN treatment, in turn, requires the host state to accord to investors from member states the most favorable terms and conditions that are accorded to investors from any state. Most commonly, these principles apply only to existing investments. They restrict the ability of the host state to regulate how foreign investors may use prop erty that they already own. But a growing number of treaties extend the principles General Agreement on Tariffs and Trade (Geneva, October 30, 1947, 55 UNTS 187) art III(3). GATT art I. 85 Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299). 86 TRIPS arts 3, 4. 87 TRIPS art 3(1). 88 TRIPS art 3(1), note 3. 89 General Agreement on Trade in Services (GATS) (Marrakesh, April 15, 1994, 1869 UNTS 183). 90 GATS art XVII(1). 91 GATS art I(2)(c). 92 UN Conference on Trade and Development, National Treatment (United Nations 1999) 1. 93 UN Conference on Trade and Development, National Treatment 1. 83 84

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to the pre-entry situation by providing that a state may not discriminate against foreign nationals with respect to their ability to acquire property for investment purposes. This approach is consistent with the spirit of the World Bank guideline that each state “will . . . facilitate the admission and establishment of investments by nationals of other States.”94 Subject to various exceptions, these treaties essen tially provide that nationals of member states have the right to acquire investment property in the host state. The North American Free Trade Agreement (NAFTA)95 requires each member state to “accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the . . . acquisi tion . . . of investments.”96 It also mandates MFN treatment of foreign investors in the “acquisition” of investments.97 In this context, an “investment” is defined to include “real estate or other property, tangible or intangible, acquired in the expec tation or used for the purpose of economic benefit or other business purposes.”98 This definition encompasses virtually every form of property other than that used solely for personal or family purposes. The 2009 ASEAN-Australia-New Zealand Free Trade Agreement99 generally follows the NAFTA pattern. It provides that “[e]ach Party shall accord to investors of another Party . . . in relation to the . . . acquisition . . . of investments, treatment no less favourable than that it accords, in like circumstances, to its own investors and their investments.”100 But it does not mandate MFN treatment for acquisitions.101 The term “investment” is defined as “every kind of asset, owned or controlled” by a natural or legal person of a member state, including “movable and immovable property,” shares of stock, and intellectual property.102 These principles also apply to the acquisition of investments under the Energy Charter Treaty.103 The treaty requires each state to “endeavor to accord” to invest ors from other member states treatment “which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or any third state, whichever is the most favourable” regarding “the Making of Investments” within its territory.104 The phrase “Making of Investments” is defined to include “establishing new Investments” and “acquiring all or part of existing investments.”105

94 World Bank Guidelines art II(2)(a). 95 North American Free Trade Agreement (San Antonio, December 17, 1992, 32 ILM 296). 96 NAFTA art 1102(1). 97 NAFTA art 1103(1). 98 NAFTA art 1139. 99 ASEAN-Australia-New Zealand Free Trade Agreement (Cha-am, February 26, 2009). 100 ASEAN-Australia-New Zealand Free Trade Agreement ch 11, art 4. 101 ASEAN-Australia-New Zealand Free Trade Agreement ch 11, art 7. 102 ASEAN-Australia-New Zealand Free Trade Agreement ch 11, art 2(c). 103 Energy Charter Treaty (Lisbon, December 17, 1994, 2080 UNTS 95). 104 Energy Charter Treaty art 10(2), (3). 105 Energy Charter Treaty art 1(8).

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At their present stage of development, it cannot be said that the national treatment or MFN principles have attained the status of customary international law, either as a gen eral matter or as they relate to the right to acquire property. However, given the increasing number of treaties that recognize these principles, they may attain this status in the future.

(3) Other Limits The extent to which a state may permissibly restrict the right to property under inter national human rights law as a general matter is discussed in Chapter 11, in connec tion with the right to use. The same standards may be utilized to evaluate the propriety of limitations on the right to acquire property. For example, a state may clearly impose reasonable restrictions on the right to acquire, such as by prohibiting the acquisition of property by minors, incompetent persons, and defectively formed business entities.

D. Methods of Acquisition (1) Generally Major legal systems recognize many of the same methods for acquiring property rights. Certainly, considerable differences exist among systems―and among states within systems―as to the content of each method and the manner in which it is implemented. But at the abstract level, there are more similarities than differences. In large part, this conceptual uniformity reflects methods for acquiring property rights that were established under Roman law. France, Germany, and other contin ental European nations adopted many of these methods, often with national vari ations. In turn, these were incorporated into the municipal laws of African, Asian, and Latin American states following the civil law approach. The laws of England were indirectly influenced by the Roman approach, especially through the writings of Bracton, Blackstone, and other scholars. The United States and other common law nations generally followed the English model. The right to acquire and the right to transfer are closely related. However, the differences between them justify separate analysis. The methods best viewed from the perspective of the transferee are discussed in this chapter, while the methods that focus on the transferor are addressed in Chapter 14.

(2) Acquisitive Prescription A core principle shared by all legal traditions is that property rights may be obtained by possessing land or other property for a lengthy period of time without the con sent of the rightful owner. As one authority notes, “[e]‌very system of law . . . accepts the possibility of the creation of rights by long-continued exercise or possession.”106 106 Robert Jennings & Arthur Watts (eds), Oppenheim’s International Law (9th edn, Longman 1992) vol 1, 707.

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The concept of prescription in private law dates back at least as far as the ancient Code of Hammurabi. The code provided that when one person leaves “his field, his garden, and his house” and another person takes possession of the property and uses it for three years, it will belong to that person, not the original owner; “he that has taken and worked them shall continue to use them.”107 Under the parallel doctrine of usucapio in Roman law, uninterrupted possession of movable or immovable things for a sufficiently long period of time vested title in the pos sessor. The Twelve Tables required one year of possession to obtain title to movable objects and two years for land and other immovable things.108 In modern law, acquisitive prescription is a central feature of the civil law system. For instance, the French Civil Code allows the acquisition of title to immovable things based on “continuous and uninterrupted, peaceful, public and unequivocal possession, and in the capacity of an owner”109 for a period of time which varies between ten and 30 years, depending on the circumstances.110 Under German law, a person who has good faith possession of a movable object for ten years acquires title by prescription.111 Similarly, one who is officially regis tered as the owner of a tract of land for 30 years without actually having acquired ownership will obtain ownership by prescription if he or she has occupied the land for this period.112 The Draft Common Frame of Reference provides that own ership of goods may be obtained by continuous possession for ten years if the possessor acts in good faith and is reasonably justified in that belief or, if not, for 30 years.113 The common law counterpart to prescription is the doctrine of adverse posses sion. Originating in England as a statute of limitations for bringing an action to recover possession of land occupied by another, it eventually spread to other com mon law jurisdictions. In general, under English law the adverse claimant must take actual possession of the land, in an adverse and open manner with the inten tion to possess it, for a period of 12 years. However, special restrictions apply where title to the land is registered. While prescription creates a new title in the possessor, the historic theory in England was that adverse possession only extinguished the prior owner’s title. The modern requirements for adverse possession in the United States are similar to those required in France. In general, a person obtains title to movable or immovable things if the possession is actual, exclusive, open and noto rious, adverse, and continuous for a period of time114 normally ranging between five and 20 years. Today most common law jurisdictions view successful adverse

107 Chilperic Edwards, The Hammurabi Code and the Sinaitic Legislation (first published 1904, Kennikat Press 1971) 32–33. 108 Twelve Tables art VI(IV), in Scott, The Civil Law. 109 Art 2229 C civ (France). 110 Arts 2262, 2265 C civ (France). 111 § 937 BGB (Germany). 112 § 900 BGB (Germany). 113 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Selliers 2009) art VIII.–4:101. 114 Chaplin v Sanders, 676 P2d 431 (Washington 1994) (US).

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possession as extinguishing the title of the prior owner and creating a new title in the adverse claimant―the same effect as acquisitive prescription. Asian legal systems also recognize acquisitive prescription. The Japanese Civil Code provides that a person who has “peaceably and openly held possession of a thing belonging to another with an intention to own it” over a period of 20 years will acquire ownership.115 Under the law of Vietnam, a person who possesses a movable object “without a legal basis but in good faith and in an overt and con tinuous manner” for ten years becomes the owner; ownership of immovable things is obtained by 30 years of such possession.116 Although current Chinese law does not recognize prescription, the draft Civil Code contains 22 articles that address the subject in detail. Under this approach, ownership of movable items may be acquired by holding possession “peacefully, publicly and continuously” with the intent to own for ten years, or five years if the possession is in good faith.117 A per son would obtain ownership of land through 20 years of possession if either (a) the title is not registered or (b) the claimant is officially registered as the owner but does not actually possess the right of ownership.118 Sharī’a law also contains doctrines that are analogous to prescription. A spe cial rule applies to uncultivated land: “Land belongs to God, whoever leaves it uncultivated for three consecutive years will have it taken away and given to someone else.”119 In order to obtain ownership of such land, a person must generally obtain a license from the imam, mark the land with an enclosure, and cultivate it within three years of obtaining the license.120 More broadly, the substantive effect of prescription is realized in Sharī’a law by the statute of limi tations. No claim of ownership may be made against an occupant in possession of land after a certain number of years have elapsed, a period ranging from 30 to 36 years.121 Given its widespread acceptance in domestic legal systems, acquisitive prescrip tion should be recognized as a general principle of law. This argument is buttressed by its use in public international law in territorial disputes among nations. Hersch Lauterpacht observed that prescription “as a mode of original acquisition of terri torial rights . . . has become a well-recognized rule of international law.”122 Where a core doctrine of municipal law has long been adopted as a general principle of law at the international level for resolving disputes between states, it is appropriate to utilize the same doctrine in analogous situations such as property disputes between states and non-state actors. Civil Code art 162 (Japan). Civil Code art 247(1) (Vietnam). Liang Huixing (ed), The Draft Civil Code of the People’s Republic of China (Martinus Nijhoff Publishers 2010) art 275. 118 Liang Huixing, Draft Civil Code arts 276, 277. 119 Siraj Sait & Hilary Lim, Land, Law and Islam: Property and Human Rights in the Muslim World (Zed Books 2006) 62. 120 Joseph Schacht, An Introduction to Islamic Law (Clarendon Press 1964) 141. 121 Schacht, Islamic Law 138. 122 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (Longmans, Green & Co 1927) (reprinted by Archon Books 1970) 116. 115 116 117

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Despite the near universal acceptance of acquisitive prescription, its use might violate the human right to property. By definition, the doctrine transfers title to property from one owner to another without the first owner’s consent—a substan tial interference with the right to property. This question arose in JA Pye (Oxford) Ltd v United Kingdom,123 where adverse claimants occupied grazing land for 15 years without any objection by the owner. The trial court reasoned that the claimants had acquired title by adverse posses sion under a statute that required 12 years of occupancy. The dispute eventually reached the European Court of Human Rights, which upheld the statute by a vote of ten to seven, based on its property jurisprudence. The majority viewed the law as a control of the use of land rather than a deprivation of title. It reasoned that because statutes of limitations served important purposes, such as ensuring “cer tainty and finality” and protecting potential defendants against stale claims, the law did pursue “a legitimate aim in the general interest.”124 The court also found that the statute struck a fair balance between the general interest and the interest of the original owner. In contrast, the dissent viewed the statute as depriving the owner of property, not merely controlling its use. It stressed that the usual public interest underlying statutes of limitations had little application to the case because the land was regis tered. Any uncertainty about title could be easily resolved by inspecting the Land Registry records. It found the impact of the law to be exceptionally serious because it deprived the owner of title with no compensation. The dissent concluded that the law did not strike the fair balance that the ECHR required.

(3) Occupancy In most legal systems, a person who takes possession or “occupancy” of an unowned movable object acquires title. This method of acquisition traditionally applies to tangible items that have never been owned, such as wild animals. But it may also be used to obtain title to previously owned objects where ownership has ended, such as by abandonment. Although the precise scope of the doctrine varies among states, its core principle is generally accepted. Under the Roman law principle of occupatio, the first person to take possession of res nullius or unowned property became its owner. The Institutes of Justinian acknowledged that “whatever formerly belonged to no one is conceded by natural reason to the first person obtaining possession of the same.”125 The rule also applied to abandoned property: “it seems to be right that anyone who takes possession of property which has been abandoned by its owner immediately acquires the title to it.”126 Grotius endorsed this view, observing that “taking possession of that which belongs to no one” was an accepted method of acquiring property, which was

(2008) 46 EHRR 45. 124 JA Pye (Oxford) Ltd paras 68, 70. Institutes of Justinian 2.1.12, in Scott, The Civil Law. 126 Institutes of Justinian 2.1.47, in Scott, The Civil Law. 123 125

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“without doubt in accord with the law of nature.”127 Blackstone confirmed that the principle had become part of the common law: “Property . . . being thus originally acquired by the first taker . . . it remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it.”128 Modern civil law systems continue to reflect the principle of occupancy. Under the French Civil Code, holding possession of a movable object is equivalent to holding title.129 Thus, the first person who takes possession of an unowned item acquires title, whether or not it was formerly owned by another.130 German law similarly provides that one who “takes proprietary possession of an ownerless mov able thing acquires ownership of the thing.”131 England and other common law systems have long followed the principle that the first person who takes possession of an unowned item obtains ownership. In England the act of taking possession gives the possessor a property right that is valid as against the world, unless it already has a rightful owner.132 The law in the United States recognizes the same principle. For example, the California Civil Code provides that “[o]‌ccupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession.”133 The Japanese Civil Code specifies that the “ownership of a movable belonging to nobody is acquired by taking possession thereof with the intention of holding it as owner.”134 China does not utilize the occupancy doctrine, in part because most things that it would apply to―such as land, water, and wild plants and animals― are owned either by the state or by collectives. However, the draft Chinese Civil Code contains a provision under which title to an ownerless movable object may be acquired by taking possession with the intent to own it.135 In Vietnam a person who takes possession of a movable object under circumstances in which an owner cannot be identified generally acquires ownership after one year.136 Under Sharī’a law, “anyone who first takes possession (Ihraz) of a thing which is not the property of anyone else is considered to be the owner of that thing.”137 One limitation is that the person must have an expectation of obtaining ownership. Thus, a person who “sets up a net in order to catch birds” owns the birds which are caught; but if a person merely “sets up a net in order to dry it,” anyone who removes the birds from the net obtains ownership.138

Grotius, De Jure Belli vol 2, 295–96. 2 Bl Comm 9. 129 Art 2279 C civ (France). 130 John Bell et al, Principles of French Law (2d edn, OUP 2008) 277. 131 § 958 BGB (Germany). 132 eg Amory v Delamirie (1772) 93 ER 664 (England). 133 Civil Code § 1006 (California) (US). 134 Civil Code art 239 (Japan). 135 Liang Huixing, Draft Civil Code art 357(a). 136 Civil Code arts 239, 241 (Vietnam). 137 Yahaya Y Bambale, Acquisition and Transfer of Property in Islamic Law (Malthouse Press 2007) 12. 138 Schacht, Islamic Law 136. 127 128

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The occupancy doctrine should be recognized as a general principle of law. It is broadly accepted by the major legal systems, even if municipal laws vary in detail. Moreover, the doctrine has long been a customary norm of public international law. It allows a state to acquire sovereignty over terra nullius, territory not under the control of another state. Indeed, this public law doctrine was derived from the occupatio doctrine in private Roman law. It is accordingly appropriate to extend the international version of the doctrine to disputes involving the property rights of private actors.

(4) Purchase (a) Overview The most common method of acquiring property rights is through a voluntary purchase and sale transaction. A willing buyer and a willing seller enter into an agreement which provides that the buyer will obtain title in return for payment to the seller. Depending on the system, title passes to the buyer pursuant to the contract, through the delivery of a deed or similar document, by registration with a governmental authority, or through the transfer of possession. One of the earliest sources to acknowledge this acquisition method is the Twelve Tables, which form the historic foundation of Roman law. Table VI provides that “[w]‌hen anyone contracts a legal obligation with reference to his property, or sells it, by making a verbal statement or agreement concerning the same, this shall have the force and effect of law.”139 In contemporary international law, this method is reflected most directly in the Convention on Contracts for the International Sales of Goods, which provides a uniform set of rules to govern such contracts.140 Indeed, the right to acquire property by purchase is such a fundamental part of international law that the convention does not recite it, but rather assumes that it exists. Today the concept that property may be acquired through voluntary trans actions is a foundational principle found in virtually all legal systems. In most nations, the concept is reflected in statutory law. But in other instances, it is so basic that it is assumed to be a cornerstone of municipal law without any express statement. It should therefore be recognized as a general principle of law at the international level. In the civil law system, this concept is usually viewed as part of the law of obligations, rather than the law of property. The French Civil Code specifies that “[o]‌wnership of property” may be “acquired . . . by the effect of obligations.”141 German law similarly provides that ownership of movable and immovable prop erty may be acquired through a contractual transaction.142 Twelve Tables art VI(I), in Scott, The Civil Law. Convention on Contracts for the International Sale of Goods (Vienna, April 11, 1980, 1489 UNTS 3). 141 Art 711 C civ (France). 142 § 873 BGB (immovable property), § 929 BGB (movable property) (Germany). 139 140

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The right to acquire property by purchase is also a basic concept in common law systems. In England, a purchase is governed by both statutory and case law. For example, the Law of Property Act mandates that a contract for the purchase of an interest in land be set forth in a written memorandum signed by the party sought to be charged or an authorized agent.143 A purchase transaction in the United States is also regulated by principles derived from case law and statutes.144 In China, the Property Rights Law provides that a contract for the “transfer . . . of the right in real property shall take effect immediately upon execution thereof unless otherwise provided by law or in the said contract,”145 while its Contract Law regulates sales contracts in detail.146 The Japanese Civil Code contains a parallel provision: “The establishment and transfer of real rights take effect by a mere dec laration of intention by the parties.”147 The Vietnamese Civil Code also provides that “ownership rights to property” may be “transferred under an agreement.”148 Sharī’a law permits contractual acquisition of rights in property. In this system, a sale is defined as “the exchange of property (mal) for property by mutual consent (taradi).”149 It can be accomplished “by offer (ijab) and acceptance (qabul).”150 Despite its fundamental nature, the right to acquire property by contract may be restricted by domestic legislation, consistent with the standards discussed in Chapter 11. It is appropriate to regulate purchase transactions, for example, by requiring that certain types of property may be acquired only through an instru ment in writing or by providing that transactions take effect only when appropri ately registered with the state. Similarly, the right to purchase certain types of assets may be restricted in the national interest for security, economic, and other reasons.

(b) The Global Land Rush The development of a global market in agricultural land in recent years has gener ated particular concern about the right to acquire. Over the last decade, millions of hectares of land in developing countries have been sold or leased to foreign inves tors and governments, almost always without the informed consent of the people who farm the land. Most of these transactions have occurred in Africa, although Latin America and Southeast Asia have also been affected. Investors typically intend to use the land to produce crops and biofuels that will be exported to take advantage of rising global prices. Inevitably, this process means that subsistence farmers will be evicted or otherwise induced to leave these lands, imperiling their livelihoods and their survival. Law of Property Act 1925 s 40(1) (UK). John G Sprankling, Understanding Property Law (3d edn, LexisNexis 2012) 313–92. 145 Property Rights Law art 15 (China). 146 Contract Law arts 130–75 (China). 147 Civil Code art 176 (Japan). 148 Civil Code art 170(2) (Vietnam). 149 John Makdisi, Islamic Property Law: Cases and Materials for Comparative Analysis with the Common Law (Carolina Academic Press 2005) 265. 150 Makdisi, Islamic Property Law 265. 143 144

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Three factors have contributed to this problem. First, the demand for food and other agricultural products has increased sharply in recent years, making agricul tural land a more attractive investment. Second, formal title to the land is typically held by absentee owners or by the state, while the people who use the land for subsistence agriculture hold customary or informal title and thus are vulnerable to eviction. Norms of international human rights law seek to restrict forced evic tions,151 but are difficult to enforce. Finally, the domestic legal system may not effectively regulate these transactions due to resource constraints, government cor ruption, or favoritism of local elites. International efforts to address this problem focus on the human right to food. ICESCR Article 11 acknowledges the “right of everyone to an adequate standard of living for himself and his family, including adequate food.”152 The potential impact of these transactions on the right to food is clear: evicted farmers may be unable to feed their families. Olivier de Schutter, the UN Special Rapporteur on the Right to Food, concluded that this right would be violated “if people depend ing on land for their livelihoods . . . were cut off from access to land, without suit able alternatives.”153 In 2009, de Schutter issued the “Minimum human rights principles applicable to large-scale land transactions or leases,”154 a set of recommendations address ing the challenges posed by these transactions. Among other measures, he sug gested that: (i) negotiations for such an agreement should be conducted in “a fully transparent manner and with the participation of the local communities;”155 (ii) changes in land use should require the “free, prior and informed consent of the local communities”;156 (iii) the local population “should benefit from the revenues” generated by the agreement;157 and (iv) the agreement should include a clause requiring that “a certain minimum percentage of the crops produced shall be sold on local markets” in order to avoid food insecurity.158 The most recent effort to constrain this global market is found in the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, issued by the UN Food and Agriculture Organization in 2012.159 Acknowledging that responsible investments can improve food security, the guidelines offer standards for international land transactions to protect the rights of subsistence farmers. These include conduct ing transparent negotiations, protecting land users from eviction, and conducting See the discussion in ch 6C. ICESCR art 11(1). See the discussion in ch 6D. 153 UN Human Rights Council, Report of the Special Rapporteur on the Right to Food, UN Doc A/HRC/13/33/Add.2 (December 23, 2009) para 4. 154 Report of the Special Rapporteur annex. 155 Report of the Special Rapporteur annex, principle 1. 156 Report of the Special Rapporteur annex, principle 2. 157 Report of the Special Rapporteur annex, principle 4. 158 Report of the Special Rapporteur annex, principle 8. 159 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Voluntary Guidelines), UN Food and Agriculture Organization (2012). 151 152

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prior assessments of the impacts that an investment would have on food secur ity.160 In particular, the guidelines recommend that states implement safeguards to protect “legitimate tenure rights” from the risks posed by these transactions, such as (i) limiting the size of parcels that can be obtained, (ii) requiring special governmental approval for transactions exceeding a certain size, and (iii) requiring investors to enter into partnerships with local tenure holders rather than acquiring tenure rights.161

(5) Specification Roman law recognized the concept of specificatio: a person who used materials owned by another to create a new object acquired ownership of the object. One who made wine from another person’s grapes, built a chair out of another’s wood, or created a sculpture from another’s marble was viewed as the owner of the final product. Today all legal traditions recognize this principle of specification, either directly or indirectly, as a method by which ownership may be acquired.162 Accordingly, it can be viewed as a general principle of law. German law provides that one who “creates a new movable thing” by process ing one or more substances acquires ownership of the thing, unless the value of the processing is “substantially less” than the value of the substance.163 French law reaches the same result by a slightly different route: a person who uses material owned by another “to make a thing of a new kind” has the right to keep the object if the value of the labor “greatly exceeds” the value of the material used.164 In both instances, the original owner of the materials is entitled to receive payment for their value.165 In the common law tradition, Blackstone recognized the same doctrine, which he called accession, noting that it had been “implicitly copied and adopted” from Roman law by Bracton and had “since been confirmed by many resolutions of the courts.”166 Modern English law follows the view that a person who in good faith uses his labor to transform another person’s materials into a new product is the owner of that product, subject to the obligation to compensate the original owner for the value of the materials. In the case of Borden (UK) Ltd v Scottish Timber

Voluntary Guidelines paras 12.1–12.15. Voluntary Guidelines para 12.6. 162 Two related Roman law doctrines dealing with personal property―accessio and confusio―are also shared by most legal traditions and might be viewed as general principles of law. 163 § 950(1) BGB (Germany). 164 Arts 570, 571 C civ (France). Von Bar, Draft Common Frame of Reference provides a default rule on the issue that somewhat blends the French and German approaches. Its Section VIII.-5:201 states that “[w]‌here one person . . . produces new goods out of material owned by another person, the producer becomes the owner of the new goods.” But this rule does not apply if either (a) the labor contributed is of “minor importance” or (b) the producer knows the material is owned by another and that the owner does not consent, “unless the value of the labor is much higher than the value of the material.” Section VIII.-5:201. 165 § 951 BGB (Germany); art 571 C civ (France). 166 2 Bl Comm 404–05. 160 161

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Products Ltd,167 plaintiffs supplied resin to a chipboard manufacturing company under a contract by which they reserved title to the resin until they were paid. In a subsequent payment dispute, the Court of Appeal held that the plaintiff’s title to the resin ended when the defendants utilized it to manufacture chipboard, and therefore that the chipboard belonged to the defendants. The United States also follows the doctrine, as evidenced by the landmark case of Wetherbee v Green,168 where the defendant alleged that he had acted in good faith in transforming the plaintiff’s timber into barrel hoops that were worth much more than the timber. Citing Blackstone for the rule that “[i]‌f a thing is changed into a different species, the product belongs to the new operator,” the court held that the defendant was entitled to introduce evidence at trial about the extent of transformation.169 In some states, the doctrine is found in statutory law. For instance, the California Civil Code provides that “[i]f one makes a thing from materials belonging to another, the latter may claim the thing . . . unless the value of the workmanship exceeds the value of the materials.”170 Japan follows the French approach: the processor acquires ownership of the new thing “if the value arising out of such workmanship considerably exceeds that of the material.”171 In contrast, the law of Vietnam focuses on good faith rather than the value of the processing. Its civil code states that “a bona fide user of materials . . . owned by another person” that are processed to create a new object is the owner of the object.172 The Property Rights Law in China does not recognize the specification doctrine. However, the draft Civil Code of China would do so: a person who contributes work to movable property owned by another would become the owner of the new thing if the “value added by the processing obviously exceeds the value of the materials” and the processor’s pos session is not “malicious.”173 Under all three approaches, the original owner of the materials is entitled to compensation.174 Sharī’a law recognizes the same con cept through the doctrine of usurpation. Joseph Schacht explains that “speci fication creates property in a usurped object if its name and its main uses are changed thereby.”175

(6) Succession (a) Overview The right to inherit property is recognized in virtually all states. The right is so fundamental that it is specifically included in many national constitutions, in addition to the general right to property. For example, the Constitution of

[1981] Ch 25 (CA) (UK). 168 22 Mich 311 (1871) (US). Wetherbee 315. 170 Civil Code § 1028 (California) (US). 171 Civil Code art 246(1) (Japan). 172 Civil Code art 238(1) (Vietnam). 173 Liang Huixing, Draft Civil Code art 380. 174 Civil Code art 248 (Japan); Civil Code 238(2) (Vietnam). 175 Schacht, Islamic Law 137. 167 169

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Algeria states that “[t]‌he right of inheritance is guaranteed”;176 the Constitution of Azerbaijan provides that “[t]he state ensures the right of inheritance”;177 and the Constitution of Georgia proclaims that “the right to inherit shall be recog nized and guaranteed.”178 More commonly, the right to inherit is established by domestic statutes. International instruments also recognize the right to inherit, mainly in the con text of prohibiting discrimination. International law does not guarantee that any family member will actually obtain property through succession over the objec tions of the decedent; that is, it does not impose a duty to fulfill the right. But it obligates the state to respect the right by avoiding discriminatory restrictions on its exercise. For instance, CERD requires states to guarantee equality before the law with respect to “[t]‌he right to inherit.”179 CRPD similarly mandates that states take appropriate measures to ensure the equal right of persons with disabilities to inherit property.180 More broadly, the ACHPR Principles obligate each member state to “ensure equitable and nondiscriminatory . . . inheritance . . . of land and housing.”181 The European Court has held that the ECHR does not require “that a child should be entitled to some share in the estates of his parents or even of other near rela tives” who die with a will,182 because this subject is addressed by national law. However, a state violates the ECHR if its succession law is applied in a discrimina tory manner.183 The next section examines intestate succession. Chapter 14 examines the related subject of testamentary succession, by which a decedent transmits property to the heirs designated in a will, subject to forced heirship statutes in most states.

(b) Intestate Succession All legal traditions recognize the principle of intestate succession: the property of a person who dies without an effective will or other testamentary disposition will be acquired by legally designated successors. Given the widespread acceptance of this principle at the national level, it should be deemed a general principle of law at the international level. In the case of Aloeboetoe v Suriname,184 one of the few international decisions to explore the subject, the Inter-American Court of Human Rights implicitly rec ognized intestate succession as a general principle of law. The issue arose in the context of determining who should receive reparations for the deaths of people Constitution of Algeria art 52. Constitution of Azerbaijan art 29(IV). 178 Constitution of Georgia art 21(1). 179 CERD art 5(d)(vi). 180 CRPD art 12(5). 181 ACHPR Principles para 55(viii). 182 Marckx v Belgium (1979) 2 EHRR 330 para 53. 183 Marckx para 59. 184 Series C no 15 (IACtHR, September 10, 1993). 176 177

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murdered in violation of international human rights law. The court acknowledged that “national jurisprudence generally accepts that the right to apply for compen sation for the death of a person passes to the survivors affected by that death.”185 However, it noted that “under international law there is no conventional or cus tomary rule that would indicate who the successors of a person are.”186 Accordingly, citing Article 38(1)(c) of the Statute of the International Court of Justice, the court stated that it had “no alternative but to apply general principles of law.”187 In this context, the court identified three standards: It is a norm common to most legal systems that a person’s successors are his or her children. It is also generally accepted that the spouse has a share in the assets acquired during a mar riage; some legal systems also grant the spouse inheritance rights along with the children. If there is no spouse or children, private common law recognizes the ascendants as heirs. It is the Court’s opinion that these rules, generally accepted by the community of nations, should be applied in the instant case.188

Notably, the court assumed that the principle of intestate succession is so broadly accepted that it should be recognized as a general principle of law, with out any analysis. The difficult issue from the court’s perspective was to define the method for implementing this principle. The standards that the court identified as general principles of law provide a helpful foundation for further study of the issue. The municipal laws governing intestate succession follow the same basic struc ture, though they vary in detail. The typical statute establishes separate classes of heirs, each with a different priority to share in the distribution of the estate―the same approach used in the Aloeboetoe case. Typically the most favored class includes the surviving children of the decedent, their descendants, and the surviving spouse, if any. If the decedent is not survived by any relatives in the first class of heirs, the property is distributed to those in the second class (eg the decedent’s parents) and, if none are still living, to those in the third class (eg the decedent’s siblings), and so forth. Broadly speaking, the disparity among domestic laws increases as classes of heirs become more distant from the first class. The rationale for preferring children and their descendants over other classes is twofold. First, they may have depended on the decedent for support and accord ingly have greater need for the property than other relatives. Second, this outcome best reflects the presumed intent of the decedent parent; in all cultures, parents are generally devoted to ensuring the success of their children. Although the same rea soning would logically apply as well to a surviving spouse, domestic laws vary on the issue. The modern trend is to allow the surviving spouse to share in the estate together with other heirs in the first class. Civil law systems―as represented by France and Germany―largely follow the basic structure outlined above. If the decedent does not leave a surviving spouse in France, the property is distributed to the surviving descendants and, if none exist, Aloeboetoe para 54. Aloeboetoe para 62.

185 188

Aloeboetoe para 61.

186

Aloeboetoe para 61.

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then to the surviving parents, brothers and sisters, and their descendants.189 A sur viving spouse receives a share in the estate that ranges in size depending on which other heirs survive.190 Under German law the property is first distributed to the descendants of the decedent, if any,191 except that the surviving spouse is entitled to one-quarter of the property.192 If no direct descendants survive, the property is shared among the living parents of the decedent, if any, and their descendants,193 except that the surviving spouse receives a one-half share.194 The situation in the United States is fragmented because it is a federal system. While intestate succession is utilized in all fifty states, distributional rules vary. Under the Uniform Probate Code—the most common approach—if the decedent does not leave a surviving spouse, the property is distributed first to the decedent’s living descendants, if none then to the decedent’s living parents, and if none to the decedent’s living siblings and their descendants. A surviving spouse receives all or part of the estate, depending on the classes of other heirs who survive. The rules utilized in England reflect the same approach. If the decedent has no surviving spouse, the property is held in a statutory trust for the living issue of the decedent, if none then for the decedent’s living parents, if none then for the decedent’s liv ing siblings, and so forth.195 But the spouse who survives receives all or part of the estate, depending on which other heirs survive.196 The Japanese system largely follows the French and German models. If the decedent’s spouse does not survive, the property goes to the surviving children and the descendants of any deceased children and, if none, then to the decedent’s parents or other lineal ascendants.197 A surviving spouse receives a share of the property that varies based on which other heirs survive.198 In contrast, in China and Vietnam the surviving spouse, children, and parents receive equal shares of the decedent’s property.199 Sharī’a inheritance law is more complex, in part because of variations among different schools of jurisprudence. It accepts the basic principle that property may be acquired by intestate succession. In addition, like the other systems dis cussed above, it (i) recognizes different classes of heirs with different levels of priority and (ii) prefers close relatives over distant relatives. The Koran assigns designated shares in the estate to heirs with priority claims, including the dece dent’s surviving spouse, parents, grandparents, sisters, and daughters.200 If there are no such heirs or part of the estate remains after distributing their shares, Art 734 C civ (France). Arts C civ 757, 757–1, 757–2 (France). 191 § 1924 BGB (Germany). 192 § 1931 BGB (Germany). 193 § 1925 BGB (Germany). 194 § 1931 BGB (Germany). 195 Administration of Estates Act 1925 s 46 (UK). 196 Administration of Estates Act 1925 s 46 (UK). 197 Civil Code arts 887, 889 (Japan). 198 Civil Code arts 890, 900 (Japan). 199 Law of Succession art 10 (China); Civil Code art 676 (Vietnam). 200 Bhala, Islamic Law 1130–32. 189 190

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the residue of the estate is distributed first to the decedent’s sons and their male descendants and, if none, then to the decedent’s father and his male ascendants, and so forth.201

(c) Succession and Gender Discrimination Gender discrimination still pervades the laws governing intestate succession in some regions, particularly Asia, Africa, and the Middle East. The cultural preju dice against allowing women to inherit was evidenced during the negotiations for CEDAW: a provision that would have given women and men equal inheritance rights was omitted due to strong opposition. The Sharī’a principles governing succession are widely criticized as discrim inating against women. As a general rule, the husband who survives his wife receives one quarter of her estate, while the wife receives only one eighth if the husband dies.202 Yet in other situations no distinction is made based on gender. For example, the mother and father of a decedent each receive one sixth of the estate.203 International attention has also focused on statutory and customary laws in many African nations that reflect the rule of male primogeniture: widows, daugh ters, and other female relatives cannot inherit at all. Although statutes in some states do allow widows to inherit, the efficacy of these laws is limited. Many mar riages are based on customary law and hence not legally registered; these widows do not qualify for protection. In addition, the statutes do not adequately protect the rights of widows who were in polygamous marriages. Yet there is a discernable trend in Africa toward respecting the equal inheritance rights of women. In the case of Bhe v Magistrate Khayelitsha,204 for example, the South African Constitutional Court held that the customary law that prevented the decedent’s two daughters from inheriting his property violated the national constitution. The majority reasoned that “the primogeniture rule as applied to the customary law of succession cannot be reconciled with the current notions of equality and human dignity contained in the Bill of Rights.”205 A similar result occurred in Rono v Rono,206 where the Kenya Court of Appeal overturned a trial court decision that awarded 30 acres of the decedent’s land to each son, but only five acres to each daughter. Citing CEDAW and other international human rights instruments that prohibited gender discrimination, the court held that each child would receive an equal share.207 The same trend is reflected in African human rights instruments. Most states ratified the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which provides that a “widow shall have the

Bhala, Islamic Law 1137–38. 202 Bhala, Islamic Law 1141. Bhala, Islamic Law 1161. 204 2005 (1) BCLR 1 (CC) (S Africa). 205 Bhe para 95. 206 (2008) 1 KLR (G&F) 803 (Kenya). 207 Rono 812, 816. 201 203

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right to an equitable share in the inheritance of the property of her husband.”208 It further specifies that men and women shall have “the right to inherit, in equit able shares, their parents’ properties.”209 More recently, the ACHPR Principles have interpreted the right to property as requiring each state to “ensure equit able and non-discriminatory . . . inheritance . . . of land and housing, especially by women.”210 208 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo, July 11, 2003) art 21(1). 209 Protocol on the Rights of Women in Africa art 21(2). 210 ACHPR Principles art 55(viii).

11 The Right to Use

A. Introduction The most fundamental attribute of the global right to property is the right to use. Scholars suggest that the historic transition from common ownership to private ownership began with the acceptance of a use right somewhat akin to the mod ern usufruct―the concept that a particular person was entitled to utilize certain resources. Under this approach, the other traditional attributes of the right to property such as exclusivity and alienability are viewed as later additions. The right to use evolved over time into an exclusive right that could be transferred to others. Today international law and municipal law uniformly recognize that the right to use is inherent in ownership. Indeed, the centrality of the right is so obvious that its existence is often assumed rather than specified. Thus, broad formula tions such as the acknowledgement of “the right to own property” in the Universal Declaration of Human Rights1 (UDHR) are routinely interpreted as including the right to use as a necessary component of ownership. Like other attributes of ownership, the right to use may be limited by munici pal law. Of course, the authority of a state to control the use of land or other assets is not absolute. For example, international law bars a state from elim inating the right to use by seizing or destroying foreign-owned assets without compensation. Other doctrines from international human rights law and inter national investment law also constrain regulation. Yet the extent to which inter national law curtails domestic restrictions on the right to use is poorly defined. As a result, while the existence of the right is undisputed, its parameters remain somewhat hazy.

1 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948).

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B. Recognizing the Right (1) Generally As a general matter, the right to use entitles a natural or legal person to enjoy and utilize movable and immovable things in the manner that he or she deems appropriate. In his classic exposition of the incidents of ownership, AM Honoré observed that “[t]‌he right (liberty) to use at one’s discretion has rightly been rec ognized as a cardinal feature of ownership.”2 He explained that the right has three aspects: (a) the personal right to use and enjoy a thing; (b) the right to “decide how and by whom the thing owned shall be used”; and (c) the right to receive the fruits, rents, profits, and other income that it generates.3 The primary justification for the right to use is grounded in utilitarian theory. If private property exists to maximize the overall happiness or “utility” of all citi zens, as the theory posits, then allowing each owner to determine the manner in which land or other things will be used is vital. An economically rational owner will maximize the productivity of assets by using them in the most appropriate manner, given factors such as their nature, character, and location and relevant economic, social, and technological conditions. If the highest and best use for a particular parcel of land is growing wheat, for instance, an owner will presumably select this use. The sum total of these individual decisions by different owners, the theory suggests, produces the optimum yield from all resources, thereby benefiting all of society. In international law, the right to use primarily functions as a shield against certain forms of undue state interference. The state must respect an owner’s right to use land or other things as a general matter, even though it has the authority to restrict the right to some degree. In narrow situations, the state must also take affirmative steps to prevent private actors from interfering with the right to use. In contrast, the law does not require the state to fulfill this right.

(2) Sources of the Right (a) Overview The concept that the right to use is a core component of ownership is ancient. Aristotle explained that “[w]‌ealth as a whole consists of using things rather than in owning them; it is really the activity―that is, the use―of property that constitutes wealth.”4 The Roman law of property was more concerned with defining how ownership could be acquired or terminated than with analyzing its content. It is widely agreed 2 AM Honoré, “Ownership,” in Anthony G Guest (ed), Oxford Essays in Jurisprudence (OUP 1961) 116. 3 AM Honoré, “Ownership” 116–18. 4 Aristotle, Rhetoric 1.5.20, Robert Maynard Hutchins (ed), The Works of Aristotle (Encyclopaedia Britannica 1952) (WR Roberts tr).

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that this law reflected the twin concepts of jus utendi and jus fruendi: one holding ownership or dominium was entitled to use the thing and to obtain its fruits and profits. Although no Roman text contains a complete definition of ownership, medieval scholars were able to reconstruct the meaning of the term from other references. The Digest of Justinian defines a usufruct to include “the right to use and enjoy the property of others.”5 Because ownership is broader than a mere usu fruct, scholars rightly concluded that ownership in Roman law logically included the right to use. Enlightenment theorists stressed the importance of the right to use, positing that the concept of property arose from private use of common resources. Hugo Grotius explained that in the state of nature each person had a “universal right” to “take whatever he wished for his own needs,” which “served the purpose of pri vate ownership” because “whatever each had thus taken for his own needs another could not take from him.”6 Thus, “the right to use the goods in question was originally acquired through a physical act of attachment, the very source . . . of the institution of private property.”7 For Grotius, the heart of ownership was the right to use. In much the same manner, Samuel Pufendorf reasoned that “God allowed man to turn the earth, its products, and its creatures, to his own use and conveni ence, that is, He gave men an indefinite right to them.”8 This dominion consisted of “using things at one’s own pleasure.”9 John Locke similarly declared that God gave the world “to the use of the industrious and rational (and labour was to be his title to it).”10 As a result, “every one had a right . . . to as much as he could use” of the things God had provided.11 The concept that the right to use is an inherent part of the general right to prop erty was firmly embedded in Western theory by the eighteenth century. William Blackstone explained that the right to property under English law included “the free use [and] enjoyment . . . of all acquisitions, without any control or diminution, save by the laws of the land.”12 In France, the Declaration of the Rights of Man and Citizen proclaimed that “[t]‌he right of property is that which belongs to every citizen to enjoy . . . his goods, income, and . . . the fruits of his labor and his skill.”13 Robert Joseph Pothier expanded on this theme, observing that the right to prop erty included both the “right to reap all the fruits born by the thing” and the “right

5 Digest of Justinian 7.1.1, in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973). 6 Hugo Grotius, De Jure Belli ac Pactis Libri Tres (first published 1625, Clarendon Press 1925) (Francis W Kelsey tr) vol 2, 186. 7 Hugo Grotius, De Jure Praedae Commentarius (first published 1868, Clarendon Press 1950) (Gwladys L Williams & Walter H Zeydel trs) 229. 8 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (first published 1672, Clarendon Press 1934) (CH Oldfather & WA Oldfather trs) vol 2, 536. 9 Pufendorf, De Jure Naturae vol 2, 536. 10 John Locke, Two Treatises of Government (first published 1689, A Millar et al 1764) vol 2, ch V, para 33. 11 Locke, Two Treatises vol 2, ch V, para 46. 12 1 Bl Comm 134. 13 Declaration of the Rights of Man and Citizen (1793) (France) art 16.

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to use the thing, not only for the purposes for which it is naturally intended, but also for whatever purpose” the owner wished.14

(b) International Law International law sources support the proposition that the right to use is an inte gral part of the general right to property, as evidenced by human rights law, invest ment law, and various UN instruments. Regional human rights conventions guarantee the right to use property, as illus trated by Protocol 115 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).16 Article 1 provides that each person is entitled to the “peaceful enjoyment of his possessions.”17 The right to use is inherent in this provision, as evidenced by a later clause in the article that permits a state to “control the use of property” under certain conditions. Decisions by the European Court of Human Rights (European Court) have consistently interpreted Article 1 as including the right to use. In the case of Loizidou v Turkey, for example, the court found that a Turkish decree which prevented the owner from accessing her land in northern Cyprus was an interference with peaceful enjoyment because “she has effectively lost all control as well as all possibilities to use and enjoy her property.”18 The American Convention on Human Rights (ACHR)19 defines the right to property as including the right to use: “Everyone has the right to the use and enjoyment of his property.”20 The same principle is inherent in the African Charter on Human and Peoples’ Rights (ACHPR).21 In Centre for Minority Rights v Kenya, the African Commission on Human and Peoples’ Rights explained that the right to property in the ACHPR encompassed “the right to undisturbed possession, use and control of such property however the owner(s) deem fit.”22 The ASEAN Human Rights Declaration is also clear on the issue; it specifies that every person has the “right to . . . use” his possessions.23

Robert Joseph Pothier, Traité du Droit de Domaine de Propriété (Chez Debure 1772) 6–7. Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 16 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 17 ECHR protocol 1, art 1. 18 (1997) 23 EHRR 513 para 63. See also Radanovic v Croatia App no 9056/02 (ECtHR, December 21, 2006) para 42 (violation because the applicant was “unable to use” her flat for a long period); Gauci v Malta (2011) 52 EHRR 25 para 61 (violation because “the applicant could not exer cise his right of use in terms of physical possession”); Jarnea v Romania App no 36268/02 (ECtHR, May 31, 2012) para 15 (violation due to restrictions on the applicants’ “right to use of property”). 19 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 20 ACHR art 21(1). 21 African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 22 Comm no 276/03 (ACmHPR, November 25, 2009) para 186. 23 ASEAN Human Rights Declaration (November 18, 2012) (reprinted in 32 Human Rights LJ 219 (2012)) art 17. 14 15

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International investment law also protects the right to use. It is generally accepted that the expropriation of foreign-owned property without compensa tion is a violation of international law. Arbitral tribunals have held that sub stantial interference by the state with the right to use property constitutes an indirect expropriation. As one tribunal explained, “a common theme [in such cases] is that an effect of the measures is that the claimant is deprived substan tially of the use and benefits of the investment.”24 In Tippetts, Abbett, McCarthy, Stratton v TAMS-AFFA Consulting Engineers, the tribunal observed that an expro priation may occur “through interference by a state in the use of . . . property or with the enjoyment of its benefits, even where legal title to the property is not affected.”25 Another illustration is Metalclad Corp v Mexico, where the panel concluded that “interference with the use of property which has the effect of depriving the owner . . . of the use or reasonably-to-be-expected economic benefit of property” was an expropriation.26 Although these formulations differ slightly, they acknowledge that the right to use property is a core component of ownership under international law. Finally, many UN instruments acknowledge that the right to use is inher ent in ownership. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)27 guarantees the same rights for both spouses with respect to the “management, administration [and] enjoy ment . . . of property.”28 The Declaration on the Rights of Indigenous Peoples approved by the UN General Assembly provides that such peoples have the “right to . . . use, develop and control” their traditional lands.29 The Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) adopted by the UN Sub-Commission on the Protection and Promotion of Human Rights acknowledge that everyone “has the right to the peaceful enjoyment of his or her possessions.”30 Most recently, the 2012 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security issued by the UN Food and Agriculture Organization stress the importance of tenure gov ernance in determining how people are able to “acquire rights . . . to use and control land, fisheries and forests.”31

Railroad Development Corp v Guatemala, ICSID no ARB/07/23 (June 29, 2012) para 151. Iran-US Claims Tribunal no 141-7-2 (June 22, 1984) para III(1). 26 ICSID no ARB(AF)/97/1 (August 30, 2000) para 103. 27 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13). 28 CEDAW art 16(1)(h). 29 UN GAR 61/295, UN Doc A/RES/61/295 (September 13, 2007) art 26(2). 30 UN Sub-Commission on the Protection and Promotion of Human Rights, Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc E/CN.4/Sub.2/2005/17 (June 28, 2005) principle 7.1. 31 UN Food and Agriculture Organization, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012) v. 24 25

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(c) Municipal Law The right to use is recognized as a fundamental attribute of property under munici pal law. In some states, the constitution expressly guarantees the right to use. The Constitution of Argentina, for example, provides that all inhabitants are entitled “to make use . . . of their property.”32 The Constitution of Ethiopia defines the right to property as including “the right . . . to use . . . property.”33 Another illustration is the Constitution of Russia, which declares that everyone has the right “to possess [and] use” property.34 More commonly, the national constitution establishes the right to property as a general matter, leaving its components to be defined by stat utes and other non-constitutional sources. The major legal traditions of the world uniformly recognize that the right to use is an integral part of the right to property. In the civil law tradition, the French Civil Code famously defines “ownership” as “the right to enjoy . . . things in the most absolute manner.”35 The statutory definition of ownership in Germany explains that an owner may “deal with the thing at his discretion” or, in other words, use it as he wishes.36 The Draft Common Frame of Reference formulation of ownership similarly includes “the exclusive right . . . to use [and] enjoy . . . the property.”37 The right to use is a foundational concept in common law systems as well. In England, owners traditionally had the absolute right to use their things as they wished, subject only to the restriction that they not harm the rights of others. This theme was expressed in the maxim sic utere tuo ut alienum non laedas. The same approach is still generally followed today, subject to specialized restrictions such as land use constraints. The law in the United States reflects the same view, presuming that owners have unfettered freedom to use, absent injury to others or statutory limitations. The right to property in Asian systems also includes the right to use. The Property Rights Law of China characterizes the right to property as “the exclusive right enjoyed by the obligee to directly control specific properties.”38 As a result, the owner “shall have the right to possess, utilize . . . and obtain profits from its real or movable property in accordance with the laws.”39 In Japan, “an owner has the right . . . freely to use and take the profits of . . . the thing owned.”40 The Vietnamese Civil Code establishes three types of “ownership rights,” including the owner’s “right . . . to use . . . his/her property.”41 Constitution of Argentina art 14. Constitution of Ethiopia art 40(1). Constitution of the Russian Federation art 35(2). 35 Article 544 C civ (France). 36 § 903 BGB (Germany). 37 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Selliers 2009) art VIII-1:202. 38 Property Rights Law art 2 (China). 39 Property Rights Law art 39 (China). 40 Civil Code art 206 (Japan). 41 Civil Code art 164 (Vietnam). 32 33 34

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An owner has the right to use under Sharī’a law. One scholar explained that ownership (milk) “enables a person to control . . . [a thing] in any manner he wishes provided that there is no legal impediment against it.”42 A private owner “has exclusive control and rights of use . . . over his or her property.”43

(3) Status of the Right It may be possible to view the right to use as customary international law. Given its general acceptance in municipal law, the state practice element is easily satis fied. But the opinio juris requirement poses a challenge. The widespread ratifica tion of human rights treaties that include this right within the right to property is evidence of opinio juris, as are the UN declarations and other soft law instruments that recognize the right. In addition, the customary international law governing expropriation that accepts this right as a core component of ownership provides support for opinio juris. The most straightforward approach is to acknowledge the right to use as a gen eral principle of law. The analysis set forth in Chapter 9 for establishing the right to property as a general principle applies equally in this context. As discussed above, in addition to its acceptance at the international level, the right to use is recognized by the major legal systems of the world as a core component of ownership. Scholarly concerns about the use of general principles as a source of interna tional law do not apply in this context.44 Given the universal recognition of the right to use, there is no risk that its adoption at the international level would sur prise and thus prejudice either states or private actors. The same level of acceptance safeguards against any risk that such a principle merely reflects the subjective judg ment of decision-makers. Much like a maxim of jurisprudence, the right to use would serve the traditional purpose of a general principle―to provide persuasive guidance, not to compel a particular result.

C. Overview of State Interference with the Right It is axiomatic that a state has broad authority to regulate the use of movable and immovable things within its territory. This authority has been circumscribed, par ticularly in recent decades, by two evolving bodies of law: international human rights law and international investment law. Taken together, the legal principles governing the human right to property and the property rights of foreign investors help to define the scope of the right to use. Although the right to property in regional human rights treaties is expressed in general language, the European Court and other tribunals have created a body of case law that interprets its scope, particularly with respect to the right to use. Raj Bhala, Understanding Islamic Law (LexisNexis 2011) 451. Bhala, Islamic Law 451. See the discussion in ch 9C(2).

42 43 44

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Most of these decisions examine the limits that the ECHR places on the author ity of a state to deprive the owner of property or control the use of property. The Inter-American Court and the African Commission have also generated a number of opinions in this area, sometimes relying on cases decided by the European Court. The field of international investment law has expanded rapidly. A plethora of multilateral and bilateral investment treaties defines the scope of a foreign investor’s property rights with greater precision than in the past. This has fueled an ongoing debate as to whether such treaties essentially codify the international minimum standard or, alternatively, mandate greater protection. These treaties are interpreted by a growing body of case law from arbitral tribunals. Most cases involve state conduct that restricts an investor’s right to use the investment property, triggering claims of direct expropriation, indirect expropriation, failure to provide fair and equitable treatment (FET), or failure to provide full protection and security (FPS). The formal subject of protection in investment treaties is typically “investments” rather than “property.” To avoid potential ambiguity, “investments” are broadly defined to include movable and immovable things, together with other assets that might not traditionally be viewed as “property” under the laws of a particular state, such as contract rights.45 At bottom, however, the right of a foreign investor in any particular asset is a property right.

D. Direct Expropriation or Seizure (1) Generally The most intrusive interference with the right to use occurs when the state com pletely deprives the owner of property, either by physically seizing possession or by forcing the transfer of title. Human rights law and investment law use somewhat similar standards for assessing the legality of such conduct. Under both regimes, the state is generally required to provide adequate compensation to the owner, absent unusual circumstances.

(2) Human Rights Law (a) Introduction The jurisprudence of the European Court of Human Rights has created a compre hensive regime governing the extent to which a state may interfere with the right to property. Because the African Commission, the Inter-American Court, and the European Court of Justice have endorsed this approach to some extent, it appears to be emerging as the international standard. Echoes of this standard can also be found in UN instruments.

See the discussion in ch 2E(2).

45

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Under this regime, the authority of a state to deprive the owner of property is limited by three concepts: the principle of legality; the principle of public interest; and the principle of proportionality. The principle of legality provides that any measure adopted by a state must be authorized by law. The principle of public interest means that the measure must be enacted for a legitimate purpose. The principle of proportionality is satisfied when the reasons for the measure are pro portional to its impact on the right to property, taking into account any compensa tion paid to the owner.

(b) Universal Declaration of Human Rights The right to property established by UDHR Article 17 is the cornerstone of inter national property law. Although the UDHR was initially adopted as a nonbinding instrument, many of its provisions are now accepted as customary international law―arguably including the right to property. Thus, the limitations that the UDHR imposes on this right are particularly important. Article 17 is remarkably brief, particularly when compared to other formula tions of the right to property. It contains only two clauses, one which recognizes the right as a general matter, and a second which deals with the deprivation of property: “No one shall be arbitrarily deprived of his property.” Although the article specifies that a deprivation of property cannot be arbitrary―and thus by implication must be based on a legitimate public policy―it provides little guid ance as to when such a deprivation is permitted. However, the provisions of Article 17 are supplemented by Article 29(2), which applies to all rights arising under the UDHR, including the right to property: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

The phrase “determined by law” echoes the principle of legality; only a limita tion authorized by law is permitted. The reference to “morality, public order and the general welfare in a democratic society” is similar to the principle of the public interest. It is not clear whether this article incorporates the principle of proportionality.

(c) European Instruments The ECHR establishes the right to property in Article 1 of Protocol 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

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The European Court has interpreted the article as creating three distinct rules. The rule set forth in the first sentence of the first paragraph generally lays down the principle of peaceful enjoyment of property.46 The second sentence of the first paragraph establishes a second rule, covering deprivation of possessions. Finally, the second paragraph contains the third rule, dealing with laws necessary to con trol the use of property. The second and third rules are “concerned with particular instances of interference with the right to peaceful enjoyment of property.”47 These rules are interpreted “in the light of the general principle” set forth in the first rule.48 The ECHR protects the right to use against two main forms of state action: dep rivation and interference with “control.” Deprivation is discussed in this section, while measures that interfere with the control of property are addressed in section F(2) of this chapter. The European Court relied on the principle of legality in Bimer SA v Moldova,49 where a company owned by foreign investors established a duty free shop at the national border. At the time, domestic law provided that such investments would not be adversely affected by new legislation for ten years. However, five years later the state adopted a law that restricted duty free businesses to international airports, and officials ordered the closure of the shop. The court held that the second enact ment was contrary to the existing law governing foreign investments, and hence unlawful. The principle of public interest means that a measure interfering with the right to property must be justified by a legitimate public goal. As the court has observed, “the notion of the ‘public interest’ is necessarily extensive,”50 given the broad lati tude that must be afforded to a state in implementing economic, social, and other policies. Cases have held that the public interest requirement is satisfied by state actions to protect the environment,51 regulate hunting,52 protect fish stocks,53 con trol rents,54 protect morals,55 and preserve agriculture.56 At the opposite extreme, a deprivation of property undertaken “for no reason other than to confer a private benefit on a private party” would not satisfy this standard.57 In applying the principle of proportionality, the court must determine “whether a fair balance was struck between the demands of the general interest of the com munity and the requirements of the protection of the individual’s fundamental rights.”58 There must be a “reasonable relationship of proportionality between the Fredin v Sweden (1991) 13 EHRR 784 para 41. Fredin para 41. 48 Fredin para 41. 49 App no 15084/03 (ECtHR, July 10, 2007). 50 Former King of Greece v Greece (2000) 33 EHRR 21 para 87. 51 Fredin para 48. 52 Chassagnou v France (2000) 29 EHRR 615. 53 Alatulkkila v Finland (2006) 43 EHRR 34. 54 Hutten-Czapska v Poland (2007) 45 EHRR 4. 55 Handyside v UK (1976) 1 EHRR 737. 56 Hakansson v Sweden (1991) 13 EHRR 1. 57 James v UK (1986) 8 EHRR 123 para 40. 58 Sporrong v Sweden (1983) 5 EHRR 35 para 69. 46 47

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means employed and the aims sought to be realised.”59 In applying this test, the court “recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the con sequences of enforcement are justified.”60 A deprivation of property without compensation usually violates the right to property. The court has consistently held that “[a]‌total lack of compensation can be considered justifiable under Article 1 . . . only in exceptional circumstances.”61 Moreover, a taking of property “without payment of an amount reasonably related to its value” will normally violate the right as well.62 But the article does not guar antee complete compensation in all cases because “[l]egitimate objectives of ‘public interest’ . . . may call for less than reimbursement of the full fair market value.”63 In particular, expropriations that are carried out as part of a process of economic, social, or political reform may not require full compensation.64 Deprivation claims often arise when the state takes title to private property with out paying compensation. For example, Former King of Greece v Greece involved a law that transferred ownership of movable and immovable assets owned by the for mer king and his family to the state, with no compensation.65 Although the court found that the measure was legal and in the public interest, it ruled that “the lack of any compensation for the deprivation of the applicants’ property upsets . . . the fair balance between the protection of property and the requirements of public interest.”66 The court has also found a deprivation in two other common situ ations: (i) where the state seizes and sells an asset before the owner can obtain a judgment nullifying the seizure;67 and (ii) where the state sells a privatized asset and later invalidates the buyer’s title.68 In addition, a compensable deprivation may occur when the state occupies land, homes, or other assets for a lengthy period without formally taking title.69 In Zubani v Italy70 the state took possession of the applicants’ farm in order to con struct a housing project and subsequently issued an expropriation order. Although the order was annulled, the state remained in possession of the land without pay ment of compensation for 12 more years, until the court rendered its decision. The applicants’ deprivation claim was based on “the authorities’ unlawful occupation of their land.”71 The court found that the occupation served the public interest aim of providing needed housing, but that it violated the right to property by imposing James para 50. Fredin para 51. 61 Holy Monasteries v Greece (1995) 20 EHRR 1 para 78. 62 Former King of Greece para 101. 63 James para 54. 64 Scordino v Italy (2007) 45 EHRR 7 paras 95–102. eg James (leasehold-reform legislation); Jahn v Germany (2006) 42 EHRR 49 (German reunification). 65 (2001) 33 EHRR 21. 66 Former King of Greece para 99. 67 eg Dragomir v Romania App no 31181/03 (ECtHR, October 21, 2008). 68 eg Dacia SRL v Moldova (2009) 48 EHRR SE17. 69 eg Papamichalopoulos v Greece (1993) 16 EHRR 440. 70 (2001) 32 EHRR 14. 71 Zubani para 44. 59 60

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a disproportionate burden on the applicants. In contrast, the confiscation of mov able and immovable things by the state incident to criminal proceedings is gener ally treated as a control of the use of property, not a deprivation of property72 and thus accorded greater deference.73 Decisions of the European Court of Human Rights have also influenced the jurisprudence of the European Court of Justice (ECJ) in interpreting European Union law. Because the right to property is recognized by both the constitutions of member states and the ECHR, the ECJ has concluded that it is a fundamental right and therefore a general principle of law within the European Union.74 The court’s test for analyzing the propriety of EU measures that affect the right parallels the ECHR approach: “[T]‌he exercise of the right to property may be restricted, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.”75 For example, in Booker Aquaculture Ltd v Scottish Ministers,76 the petitioners claimed that an EU directive violated their right to property by requiring them to destroy all fish at a particular farm facility if any showed signs of certain diseases, without payment of compensation. The court reasoned that the measure served the general interest by avoiding the spread of contagious disease. Stressing the need to quickly destroy infected fish, the fact that fish farmers are always subject to the risk that disease may cause loss, and the reality that fish from infected farms may have no market value, the court found that the directive was not a disproportion ate inference. The entry into force of the Charter of Fundamental Rights in 2009 codified the right to property in the European Union.77 Its article 17(1) provides: Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

The scope of the right to property is qualified by Article 52(1) of the charter: Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genu inely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. Nowakowski v Poland App no 55167/11 (ECtHR, July 24, 2012) para 46. See the discussion in section F below. Case 347/03 ERSA v Ministero delle Politiche Agricole e Forestali [2005] ECR 3785 para 119; Case 240/37 Nold, Kohlen- und Baustoffgrosshandlung v Commission [1994] ECR 491 paras 12–14. 75 ERSA para 119. 76 Case 20/00 [2003] ECR 7411. 77 Charter of Fundamental Rights of the European Union (December 7, 2000, 40 ILM 266). 72 73 74

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Taken together, these provisions appear to reflect the principles utilized by the European Court of Human Rights in interpreting the ECHR.

(d) American Convention on Human Rights The standards for evaluating restrictions on property rights under the ACHR are similar to those used under the ECHR. ACHR article 21 provides: 1. Everyone has the right to the use and enjoyment of his property. The law may subordin ate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

This provision is supplemented by Article 30, which applies to all rights arising under the convention. It states that “restrictions” on these rights are only per mitted “in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.” Article 32(2) notes that all rights are “limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society.” The terms “law” in Article 21 and “laws” in Article 30 reflect the principle of legality. The references to “the interest of society” in Article 21(1), to “reasons of public utility or social interest” in Article 21(2), to “reasons of general interest” in Article 30, and to “the general welfare” in Article 32 all echo the principle of public interest. Although Article 21 is silent on the question of proportional ity, the requirement in Article 30 that rights may only be limited “in accordance with the purpose” for the restriction may imply that a certain degree of balancing is required, as does the Article 32(2) provision that rights are limited by “just” demands of the public welfare. The Inter-American Court of Human Rights has interpreted these provisions in a manner that mirrors the European Court’s criteria, as illustrated by Salvador Chiriboga v Ecuador.78 The case arose when a city expropriated the applicants’ land for use as a public park, but failed to pay any compensation. The court reasoned that the “public utility or social interest” standard was satisfied because the park would provide a “recreational and ecological protected area” for the benefit of city residents.79 However, citing the jurisprudence of the European Court on the prin ciple of legality, the court observed that it was essential that the “law and its appli cation respect the essential content of the right to property.”80 It found a violation of the principle due to the city’s failure to comply with the expropriation proced ures required under domestic law.81 The court also observed that a restriction on the right to property “must be proportionate to the legitimate interest that justifies

Series C no 179 (IACtHR, May 6, 2008). 79 Salvador Chiriboga para 76. Salvador Chiriboga para 65. 81 Salvador Chiriboga paras 113, 116.

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it,”82 which required a “fair balance” between the respective interests of society and the owner.83 Again citing decisions of the European Court, the court held that the failure to pay compensation violated the ACHR.84 The Inter-American Court has applied these principles in finding that state action constituted an improper deprivation of property in a number of other deci sions, most frequently involving the seizure of tangible objects.85

(e) African Charter on Human and Peoples’ Rights The right to property is set forth in Article 14 of the ACHPR: “The right to prop erty shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provi sions of appropriate laws.” The text of Article 14, together with its interpretation by the African Commission on Human and Peoples’ Rights, reflects the same principles used by the European Court. The principle of legality is embodied in the criterion that any encroach ment must be “in accordance with the provisions of applicable laws.” The principle of public interest is contained in the phrase “the interest of public need or in the general interest of the community.” Moreover, the commission has concluded that the principle of proportionality also applies to rights arising under the charter. In the case of Constitutional Rights Project v Nigeria, it interpreted ACHPR Article 27(2) to require that any “justification for limitations must be strictly proportion ate with and absolutely necessary for the advantages which follow.”86 The decision in Centre for Minority Rights illustrates the commission’s approach to the right to property. The case arose when Kenya forcibly removed the Endorois people from their traditional lands in order to create a game reserve. In arguing that the principle of proportionality had been violated, the complainants relied on the Constitutional Rights Project opinion, together with decisions from the European Court and the Inter-American Court.87 Ultimately, the commission ruled that the state’s conduct “is not proportionate to any public need and is not in accordance with national and international law,”88 and therefore constituted an illegal expropriation. The commission has also adjudicated a number of cases where officials seized tangible objects. In Institute for Human Rights v Angola,89 government employees confiscated personal belongings and travel documents from aliens before forcibly deporting them. Finding no evidence that these actions were necessitated by public Salvador Chiriboga para 62. Salvador Chiriboga para 63. 84 Salvador Chiriboga paras 96–97, 114. 85 eg Tibi v Ecuador Series C no 114 (IACtHR, September 7, 2004) (automobile and personal belongings); Ituango Massacres v Colombia Series C no 148 (IACtHR, July 1, 2006) (livestock). 86 Comm nos 140/94, 141/94, 145/95 (November 5, 2009) para 42. 87 Centre for Minority Rights para 100. 88 Centre for Minority Rights para 238. 89 Comm no 292/04 (ACmHPR, May 22, 2008). 82 83

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good or that compensation was paid, the commission held that they violated the right to property. Another example is Institute for Human Rights v Mauritania, where the state confiscated movable assets owned by a political party but failed to establish that this measure was in the “public interest or in accordance with any established law.”90

(f ) Other Human Rights Instruments The extent to which the Arab Charter on Human Rights constrains the ability of a state to restrict the use of property is unclear. Its Article 31 provides, inter alia, “[n]‌o person shall under any circumstances be divested of all or any part of his property in an arbitrary or unlawful manner.”91 Because the Arab Human Rights Committee that was established to monitor compliance with the charter has begun work only recently, it is too early to know how the article will be interpreted. At a minimum, the text of the article suggests that principles of legality and public interest would apply. The prohibition on deprivation in an “unlawful manner” reflects the principle of legality; and the ban on “arbitrary” deprivation implies that a reasonable basis for state action is required, consistent with the principle of public interest. Article 17 of the ASEAN Human Rights Declaration provides, inter alia, that “[n]‌o person shall be arbitrarily deprived of . . . property.” Article 8, which applies to all rights arising under the declaration, provides additional guidance: The human rights and fundamental freedoms of every person . . . shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just require ments of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.

Article 8 indicates that a restriction on the use of property must comply with the principle of legality, as indicated by the phrase “limitations . . . determined by law.” The prohibition of “arbitrary” deprivation in Article 17, together with the list of permitted governmental objectives in Article 8, echoes the principle of public interest. Finally, although Article 8 does not expressly set forth the principle of proportionality, its references to “due” recognition and “just” requirements may suggest that a balancing test is appropriate.

(g) United Nations Standards Two instruments adopted by UN entities―the Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) and the Voluntary Guidelines on the Responsible Governance of Tenure of Comm no 373/09 (ACmHPR, March 3, 2010) para 45. Arab Charter on Human Rights (May 22, 2004) (reprinted in 24 Boston U Intl LJ 149 (2006)) art 31. 90 91

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Land, Fisheries and Forests in the Context of National Food Security (Voluntary Guidelines)―reflect the same principles. Although these instruments are nonbinding, they evidence increasing acceptance of these principles at the international level. The Pinheiro Principles provide guidance to states and international agencies on the legal issues concerning housing and property restitution for refugees and dis placed persons. Principle 7.1 recognizes the right to property in a formulation that resembles the ECHR approach: “Everyone has the right to the peaceful enjoyment of his or her possessions.”92 Principle 7.2 then addresses the scope of permissible state limitations on this right: States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of inter national law. Whenever possible, the “interest of society” should be read restrictively, so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions.93

The reference to “conditions provided for by law” acknowledges the principle of legality, while the requirement that limits on the use of possessions must be in “the public interest” restates the principle of public interest. Although the principle of proportionality is not expressly included, the principles indicate the need for strik ing a balance between the public interest and the right to property, as evidenced by the requirement that the “interest of society” should be read narrowly “[w]‌henever possible.” The Voluntary Guidelines were developed by the UN Food and Agriculture Organization for a different purpose: to provide guidance to states, international agencies, and others to help realize the human right to adequate food by improv ing land tenure standards. The guidelines provide that states should respect “legit imate tenure right holders and their rights”94 and “promote . . . access to land, fisheries and forests, for all.”95 Principle 4.3 acknowledges that no tenure right is absolute: All tenure rights are limited by the rights of others and by the measures taken by States necessary for public purposes. Such measures should be determined by law, solely for the purpose of promoting general welfare, including environmental protection and consistent with States’ human right obligations.

The principles of legality and public interest are reflected by the provisions that measures must be “determined by law” and imposed to promote the “general wel fare,” respectively. The principle of proportionality is not expressly stated. The concept that measures which limit tenure rights must be “necessary” for public purposes, however, suggests that that a high degree of justification is required before such rights may be infringed.

Pinheiro Principles principle 7.1. 93 Pinheiro Principles principle 7.2. Voluntary Guidelines guideline 3A.1.1. 95 Voluntary Guidelines guideline 3B.3.

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(3) Investment Law Direct expropriation occurs when a state permanently seizes the assets of a foreign investor or forces the investor to convey title. As the tribunal explained in the Metalclad Corp decision, it is the “open, deliberate and acknowledged taking . . . of property, such as outright seizure or formal or obligatory transfer of title in favour of the host State.”96 A recent example is Burlington Resources, Inc v Ecuador97 where the tribunal held that the state expropriated an investment in petroleum produc tion by taking permanent possession of the oil wells and processing facilities. Direct expropriation is now comparatively rare, in large part because developing states are reluctant to discourage foreign investment. In general, each state has the sovereign right to expropriate alien property located within its territory. The global standards governing this process have generated controversy, particularly in the 1970s when many developing states insisted that international law did not obligate them to provide full compensation.98 Today it is generally accepted that international law places four limitations on a state’s author ity to expropriate. An expropriation must: (a) serve a public purpose; (b) not be arbitrary or discriminatory; (c) comply with due process; and (d) be accompanied by prompt, adequate, and effective compensation.99 These standards are widely viewed as customary international law and commonly set forth in multilateral and bilateral investment treaties. Compensation for direct expropriation is usually measured by the fair market value of the property as of the date it is taken. Fair market value in this context is the amount “at which property would change hands between a hypothetical will ing and able buyer and a hypothetical willing and able seller, acting at arm’s length in an open and unrestricted market, when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts.”100 However, a few tribunals have endorsed a different measure of damages where the expropriation violates international law.101 An example is ADC Affiliate Ltd v Hungary,102 where the tribunal reasoned that the fair market value standard in the treaty was inapplicable due to the state’s wrongful conduct. Instead it applied the “customary international law standard for the assessment of damages resulting from an unlawful act”103 as set forth in the Case concerning German Interests in Upper Silesia (Chorzów Factory case).104 Under that standard, the “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been 96 Metalclad Corp para 103. 97 ICSID no ARB/08/5 (December 14, 2012). 98 See the discussion in ch 1C(2). 99 Unglaube v Costa Rica, ICSID no ARB/08/01 (May 16, 2012) para 203, citing Rudolph Dolzer & Christoph Schreuer, Principles of International Investment Law (OUP 2008) 90–91. 100 National Grid PLC v Argentina, UNCITRAL Arb (November 3, 2008) para 263 note 99. 101 eg Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID no ARB/05/22 (July 24, 2008). 102 ICSID no ARB/03/16 (October 2, 2006). 103 ADC Affiliate Ltd para 484. 104 (Germany v Poland) 1928 PCIJ Series A no 17, 47.

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committed.”105 Because the value of the investment had increased after the expro priation date, the tribunal held that the claimants were entitled to receive its fair market value as of the date of the award.

(4) Comparing the Standards The international principles that limit the expropriation of alien assets do not apply when a state takes assets held by its own nationals. As the European Court explained in James v United Kingdom,106 aliens receive greater protection for two reasons. First, they are “more vulnerable to domestic legislation” because they are unable to participate in the domestic political process on a level of equality with nationals.107 Second, “there may well be legitimate reasons for requiring nationals to bear a greater burden in the public interest than non-nationals.”108 Yet when the state completely deprives an owner of property rights, the relevant standards under human rights law and investment law are somewhat parallel― suggesting a degree of convergence. The principle of legality in human rights law is reflected, in part, by the requirements in investment law that an expropriation cannot be arbitrary or discriminatory and must comply with due process. The sec ond element in human rights law―the principle of public interest―parallels the “public purpose” requirement in investment law. Finally, the human rights concept that the principle of proportionality generally requires compensation for a direct expropriation is an attenuated version of the investment law norm that compensa tion is always required.

(5) Special Exceptions (a) State as Intestate Successor The standards discussed above have no application when a national dies intestate without legally recognized heirs. In this situation, all major legal systems view the state as the ultimate heir. The state may accordingly take title to the decedent’s assets without violating human rights law or investment law. Vesting title in the state avoids the risk that valuable resources will be wasted and indirectly allows all citizens to benefit from them. This rule is so widely recognized that it should be viewed as a general principle of law. The civil and common law systems follow this approach. German law pro vides that where the decedent has no living relative, spouse, or civil partner, then either the land of residence or the federal government is considered to be the heir, 105 Case concerning German Interests in Upper Silesia 47. See also Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Rep 136 para 153 (finding that Israel was required “to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall”). 106 (1986) 8 EHRR 123. 107 James para 63. 108 James para 63.

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depending on the circumstances.109 Under French law the state acquires the dece dent’s property where there are no known heirs or the known heirs have renounced their interest.110 Under modern English law, the Crown has a statutory right in most instances to the property of an intestate decedent with no heirs.111 In the United States, such property escheats to the state.112 Where there is no heir or the heir is not qualified to inherit or disclaims his interest, the Vietnamese Civil Code specifies that the balance of the estate after satisfying the decedent’s debts belongs to the state.113 In China, the property of an intestate decedent without heirs who was not a member of a collective goes to the state.114 Under Japanese law, the state is entitled to the property of a decedent who has no heirs or other legal successors.115 Sharī’a law follows the same rule. If the intestate decedent is not survived by any legal heirs―which include most relatives and certain non-relatives―then the property goes to the public treasury.116

(b) Land and Resources Owned by Indigenous and Tribal Peoples International human rights law recognizes that states have a special responsibil ity to protect the cultural integrity of indigenous and tribal peoples.117 The UN Declaration on the Rights of Indigenous Peoples provides that such peoples may not be removed from their lands without their “free, prior, and informed con sent,” in addition to appropriate compensation.118 The Convention concerning Indigenous and Tribal Peoples in Independent Countries uses a similar standard.119 It provides that forced relocation of an indigenous or tribal people is permitted only when it is “necessary as an exceptional measure,” the people gives “free and informed consent,” and appropriate compensation is paid.120

E. Damage or Destruction (1) Generally The obligation of each state to refrain from causing physical damage to alien assets has long been a cornerstone of international law. It has been expanded in recent § 1936 BGB (Germany). Arts 811–14 C civ (France). 111 Administration of Estates Act 1925 s 46(1) (UK). 112 eg Probate Code § 6800 (California) (US). 113 Civil Code art 644 (Vietnam). 114 Law of Succession art 32 (China). 115 Civil Code art 959 (Japan). 116 Joseph Schacht, An Introduction to Islamic Law (Clarendon Press 1964) 170. 117 See the discussion in ch 6E. 118 Declaration on the Rights of Indigenous Peoples art 10. 119 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ITP Convention) (Geneva, June 27, 1989, 1650 UNTS 383). 120 ITP Convention art 16. 109 110

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years by treaties that affirmatively require the host state to provide full protection and security (FPS) for foreign investments. In parallel fashion, human rights treat ies have been interpreted as prohibiting the state from damaging or destroying tangible assets, whether owned by nationals or by aliens. These restrictions protect the owner’s right to use such assets. The distinction between purely private conduct and state action in this context is not always clear. In particular, homes, businesses, and other assets are sometimes damaged or destroyed in the course of security or anti-terrorist operations, where the responsible parties may be private actors linked to the state. The Draft Articles on Responsibility of States for Intentionally Wrongful Acts121 offer guidance in this situation. Article 5 provides that the conduct of a private actor who is empowered by the state to “exercise elements of the government authority” is considered an act of the state. In addition, Article 8 confirms that a state is responsible for the conduct of a private actor if he “is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.”

(2) Human Rights Law State conduct that destroys or substantially damages tangible assets is viewed as a deprivation of property under the regional human rights standards discussed above. Despite the variations among these standards, intentional destruction or damage by the state normally violates the right to property, absent unusual circumstances. The European Court applied the principle of legality in Khamidov v Russia, where Russian forces caused extensive damage to a home and industrial facilities in Chechnya that they occupied for many months.122 The court rejected the state’s assertion that this conduct was permitted under a domestic statute and presidential decree, on the basis that these “vague and general” provisions did not adequately define the permissible scope of state action and did not “afford an individual adequate protection against arbitrariness.”123 Accordingly, the court ruled that Russia had violated the applicant’s right to property. Another example is Amato v Turkey,124 where the government demolished a house in a rockslide area in order to protect public safety, without compensating the owner. The court concluded that the destruction was both lawful and in the public interest, but that the lack of compensation imposed a disproportionate burden.125 In contrast, the court found no violation in Handyside v United Kingdom.126 The case arose when the state seized and destroyed copies of a book that offered advice to adolescents on moral and sexual issues. The court observed that the aim of the domestic law permitting this action was to protect the morals of youth, 121 UN International Law Commission, Draft Articles on Responsibility of States for Intentionally Wrongful Acts, UN GAR 56/83 annex, UN Doc A/RES/56/83/Annex (December 12, 2001). 122 App no 72118/01 (ECtHR, October 16, 2007). 123 Khamidov para 143. 124 App no 58771/00 (ECtHR, May 3, 2007). 125 Amato paras 21–23. 126 (1976) 1 EHRR 737.

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which it found was a legitimate purpose. Further, given the margin of appreciation accorded to national governments, it reasoned that the principle of proportional ity was satisfied, in part because there was no mechanism short of destruction to ensure that the books would not be circulated to the public. The European Court, the Inter-American Court, and the African Commission have heard a number of cases involving the alleged destruction of homes and other assets by government agents. Where state responsibility was established, these tri bunals have uniformly found a violation of the right to property. Most cases before the European Court have concerned the conduct of Russian or Turkish security forces during anti-terrorist campaigns. Although EHCR Article 15 permits a state to derogate from the right to property in the event of war or other public emergency, neither state has utilized this option. Rather, they have typically denied that the damage was caused by state agents. In one Russian case the applicant claimed that government forces intentionally burned her home and cars with a flamethrower,127 while in another the claimants alleged that a shell from a tank destroyed their photo laboratory.128 The court found a violation of the right to property in both cases based on evidence that state forces were involved. The same pattern is evident in cases involving the alleged destruction of homes, house hold possessions, and business assets by security forces in Turkey.129 In Ituango Massacres v Colombia,130 homes were deliberately burned by a para military group supported by the national army. The Inter-American Court cited ECHR decisions to demonstrate “the progress made on this issue in international human rights law” and held that these actions breached the right to property. Another illustrative case is Sudan Human Rights Organisation v Sudan,131 where the African Commission found a violation of the right to property based on evidence that government forces and related militias had destroyed homes and other assets during the Darfur conflict.

(3) Investment Law Modern investment treaties typically mandate that the host state provides FPS for foreign investments. Authorities disagree as to whether these clauses merely restate the international minimum standard or impose a greater obligation. It has been suggested that the relationship between the two is symbiotic: custom influences the meaning of the treaty clause, while the clause contributes to the evolution of the custom. In any event, because most modern disputes concerning the duty to protect alien assets arise in investment disputes between states and foreign invest ors, the law has primarily evolved under the FPS rubric.

Ayubov v Russia App no 7654/02 (ECtHR, February 12, 2009). Miltayev v Russia App no 8455/06 (ECtHR, January 15, 2013). 129 eg Akdivar v Turkey (1997) 23 EHRR 143 (homes); Bilgin v Turkey (2003) 36 EHRR 50 (crops, home, and household goods); Selguk v Turkey (1998) 26 EHRR 477 (homes and mill). 130 Series C no 148 (IACtHR, July 1, 2006). 131 Comm nos 279/03-296/05 (ACmHPR, May 27, 2009). 127 128

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The FPS principle requires that a state exercise due diligence to safeguard the physical security of foreign-owned assets. As one tribunal explained, “the stand ard obligates the host State to adopt all reasonable measures to protect assets and property from threats or attacks which may particularly target foreigners or certain groups of foreigners.”132 Accordingly, the state must both (a) abstain from damag ing or physically interfering with foreign-owned assets and (b) take affirmative measures to protect these assets from damage or physical interference by private actors. A number of decisions have analyzed the scope of liability for physical damage caused by state actors. In Asian Agricultural Products Ltd v Sri Lanka133 a shrimp farm was destroyed during a counter-insurgency operation. The panel rejected the claimant’s assertion that the state was strictly liable for the destruction; it con cluded instead that the state was only obligated to exercise due diligence. Although it found insufficient evidence that government forces caused the destruction, the panel imposed liability because the state could have taken precautionary measures to reduce the risk of violence. It observed that “the Respondent through said inac tion and omission violated its due diligence obligation which requires undertaking all possible measures that could be reasonably expected to prevent the eventual occurrence of . . . property destructions.”134 In contrast, it was undisputed that government soldiers looted and destroyed property in the case of American Manufacturing & Trading, Inc v Zaire.135 The panel held that the state was liable, rejecting its claim that it was only obligated to accord national treatment to foreign investments. Rather, the panel explained that the state has “an obligation of vigilance, in the sense that Zaire . . . shall take all measures necessary to ensure the full enjoyment of protection and security” of the investment.136 A third example is Wena Hotels Ltd v Egypt,137 where the claimant entered into long-term agreements to lease two hotels from a state-owned entity. When a dis pute arose, the entity seized the hotels, remained in possession for nearly a year, and then returned them to the claimant “stripped of much of their furniture and fixtures.”138 Because state officials were aware of the plan to seize the hotels, yet took no action to prevent the seizure and failed to promptly return control to the claimant, the panel found the state violated its FPS obligation.139

Saluka Investments BV v Czech Republic, UNCITRAL Arb (March 17, 2006) para 484. ICSID no ARB/87/3 (June 27, 1990), 30 ILM 577 (1991). 134 Asian Agricultural Products Ltd, 30 ILM 577, 616. 135 ICSID no ARB/93/1 (February 21, 1997), 36 ILM 1531 (1997). 136 American Manufacturing & Trading, Inc, 36 ILM 1531, 1548. 137 ICSID no ARB/98/4 (December 8, 2000), 41 ILM 896 (2002). 138 Wena Hotels Ltd, 41 ILM 896, 915. 139 Seizure of foreign-owned property by the state may also violate the obligation to provide full protection and security. eg Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID no ARB/05/22 (July 24, 2008) para 731. 132 133

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(4) Comparing the Standards The general concept that a state may not intentionally destroy or substantially damage tangible assets―whether owned by nationals or aliens―is an emerging norm of international law.140 This principle is well established in the context of alien assets, particularly as supplemented by the FPS clauses in modern investment treaties. Its recognition in human rights law is more tentative, in part because destruction or damage may be justified under unusual circumstances. Although this norm is not yet customary international law, it may already qualify as a general principle of law.

F. Regulation (1) Generally A state is entitled to regulate the use of movable and immovable things located within its territory. Traditionally, each state had absolute authority to limit the property rights of its own nationals, while aliens who chose to enter the state were seen as voluntarily consenting to domestic restrictions, limited only by the interna tional minimum standard. However, modern international human rights law and international investment law increasingly constrain the state’s authority to regulate the use of property. The human right to property necessarily limits the scope of regulation as to both nationals and aliens. If the state’s authority were absolute, it could eviscerate the right to property through regulation that did not impair an owner’s formal title. The right to own a home, for example, is meaningless if the state can prohibit the owner from using it. The principles of legality, public interest, and proportionality that are discussed above in connection with the deprivation of property are equally applicable to the permissible scope of regulation. Two investment law doctrines are particularly important in defining the scope of regulation. Expropriation law has expanded to encompass indirect expropri ation stemming from governmental action, even where the alien owner retains possession of the asset and continues to hold formal title. In addition, a regu latory measure may violate the evolving norm that a state must accord FET to alien investments. Nonetheless, as the tribunal observed in Saluka Investments BV v Czech Republic, “[i]‌t is now established in international law that States are not liable to pay compensation to a foreign investor when, in the normal exercise of their regulatory powers, they adopt in a non-discriminatory manner bona fide regulations that are aimed at the general welfare.”141 Other investment law doctrines may also constrain regulation of alien assets under some circumstances, but will not be discussed in depth. The obligations to See also the discussion in ch 4J on the law of war. UNCITRAL Arb (March 17, 2006) para 255.

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accord national treatment and MFN treatment to foreign investments apply to restrictions on the right to use.142 In addition, although the FPS doctrine generally relates only to the physical security of foreign investments, some arbitral decisions have expanded its reach to the legal security of investments as well. Human rights law and investment law converge somewhat when a state restricts the use of assets held by alien owners. The indirect expropriation and FET doc trines, by definition, only safeguard the rights of aliens. Yet the human right to property may shield both nationals and aliens from certain forms of regulation. In context, these doctrines are best viewed as conceptually separate. A particular regu lation might infringe the human right to property, for example, but not constitute an indirect expropriation or violate the FET doctrine. Yet a certain amount of overlap between these two bodies of law is inevitable. The principles that delineate the contours of the human right to property, though admittedly vague, have evolved in a series of decisions by the European Court, pro ducing a comprehensive body of jurisprudence that has influenced other human rights tribunals―and certain investment arbitration tribunals as well. The invest ment law doctrines are more amorphous, which has led to widespread confusion and arguably inconsistent arbitral decisions. Indeed, some scholars suggest that these doctrines are so indeterminate as to be incoherent. This may well be true at the margins. But at a certain level of abstraction, the doctrines can be defined and analyzed.

(2) Human Rights Law (a) European Law The European Court utilizes the principles of legality, public interest, and propor tionality to determine whether a particular control on the use of property violates the ECHR. This analysis is governed by the first sentence of the first paragraph of Article 1 and by its second paragraph: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Although the deprivation provision set forth in the second sentence of the first paragraph of Article 1 mandates that state action be in the “public interest,” while the control provision in the second paragraph refers to the “general interest,” the European Court has equated the two terms. The application of these principles is illustrated by Fredin v Sweden,143 where the court upheld the state’s refusal to extend the duration of a permit for gravel 142

See the discussion in ch 10C(2).

(1991) 13 EHRR 784.

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mining on the applicants’ land. The court explained that the measure was designed to “control the applicants’ use of their possessions and left unaffected their powers to take formal decisions . . . concerning the fate of their property.”144 It found that the refusal was lawful because it was authorized by a statute that sufficiently delin eated the extent of the discretion granted to the authorities. The public interest principle was not at issue because the applicants conceded that the statute had the legitimate aim of protecting the environment from the impacts of mining. Finally, the court concluded that the refusal struck the required fair balance, particularly given the wide margin of appreciation afforded to the state. It acknowledged that the decision caused the applicants to suffer “substantial losses” by preventing them from extracting valuable gravel.145 However, it also noted that the applicants had invested in the land only after the law was changed to provide for the potential revocation of mining permits in the future. As a result, they could not “reasonably have founded any legitimate expectations on their part of being able to continue exploitation for a long period of time.”146 One commonly litigated question is whether a restriction on the owner’s ability to build violates the right to property. The court has generally found that such restrictions are lawful and serve the public interest of rational land use planning. In analyzing proportionality, the most important factor is whether the applicant knew or should have known about the restriction before acquiring title to the land. In Jacobsson v Sweden147 the applicant complained that local law prohib ited him from building an additional house and garage on his land. Reasoning that he “cannot reasonably have been unaware of the state of the law when he bought the property,” the court found that the prohibition could not be consid ered disproportionate to the municipality’s legitimate aim of rational planning.148 Similarly, in Pine Valley Developments Ltd v Ireland149 the court emphasized that the applicants, who planned to develop a warehouse and office project, were aware before they purchased the land that the zoning plan limited the permissible use to agriculture. Conversely, the court found a violation in Housing Association of War Disabled and Victims of War v Greece.150 The state approved a housing develop ment on forest land and issued licenses for the project to proceed. However, after a new statute mandated the preservation of forest regions, the state pro hibited further construction and refused to compensate the owners. Noting that the decision would “weigh heavily on the property rights of a large num ber of people,” the court concluded that the “legitimate concern to protect the forests . . . should not absolve . . . the State of its responsibility to provide adequate protection to people such as the applicants who bona fide possess or own property.”151

Fredin para 43. 145 Fredin para 53. 146 Fredin para 54. (1990) 12 EHRR 56. 148 Jacobsson paras 61, 63. 149 (1992) 14 EHRR 319. 150 App no 35859/02 (ECtHR, July 13, 2006). 151 Housing Association of War Disabled para 38. 144 147

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Another cluster of cases involves the situation in which a government authority begins the expropriation process but fails to complete it for many years, leaving the status of the land uncertain. In Sporrong v Sweden,152 for example, the city initiated proceedings to take the applicants’ land to construct a highway and other facilities, and prohibited further construction on the land in the interim. But no further steps were taken in the process, and it was ultimately cancelled more than 20 years later. The court found that while these actions “left intact in law the owners’ right to use and dispose of their possessions, they nevertheless in practice significantly reduced the possibility of its exercise.”153 Because there was no procedure for the applicants to obtain a periodic reevaluation of the need for the expropriation or to obtain compensation, the court concluded that they had borne an excessive burden. In a few instances, owners have successfully asserted that a rent control law infringed the right to property.154 In the leading case of Hutten-Czapska v Poland,155 the law allowed the owner to charge only 60% of the amount needed to maintain the building; it provided no alternative method for her to mitigate the resulting losses. In addition, it restricted her ability to end a tenancy―notably by requiring that she provide a replacement unit for an evicted tenant, which made termination impossible as a practical matter. Although the court acknowledged the “exception ally difficult and socially sensitive issues involved in reconciling the conflicting interests of landlords and tenants” given the acute shortage of affordable rental units in the region, it concluded that the restrictions imposed an unfair burden on the owner.156 The right to property recognized under the case law of the ECJ―and more recently as codified in the EU Charter of Fundamental Rights―is subject to simi lar limitations. For example, the legality of a prohibition on planting new vine yards was at issue in the case of Hauer v Land Rheinland-Pfalz.157 The court found that the regulation served the general interest by restricting the amount of wine produced in the community in order to both stabilize wine prices and improve wine quality. It rejected the claim that the restriction was a disproportionate inter ference because the prohibition was temporary in nature and the owner was free to use the land for other purposes in the interim.

(b) American Convention on Human Rights The Inter-American Court has also employed the principles of legality, public inter est, and proportionality to evaluate measures that control the use of property. In Chaparro Álvarez v Ecuador,158 the state seized possession of a factory that allegedly produced ice chests used to smuggle illegal drugs. Although experts demonstrated (1983) 5 EHRR 35. 153 Sporrong para 60. eg Gauci v Malta (2011) 52 EHRR 25. 155 (2007) 45 EHRR 4. 156 Hutten-Czapska para 225. 157 Case no 44/79 [1979] ECR 3727. 158 Series C no 170 (IACtHR, November 21, 2007). 152 154

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that the chests were manufactured elsewhere, the national court refused to con sider this evidence; as a result, the state retained possession of the factory for almost five years until its owner was proven innocent of criminal charges. The Inter-American Court found that the seizure of evidence in criminal cases was authorized by national law and that there was due justification for adopting this law, thus satisfying the principles of legality and public interest. However, it found that the principle of proportionality was violated. The court reasoned that the state had not met its burden of establishing “sufficient probabilities and evidence that the property was really involved in the offense” once the expert evidence was pre sented.159 It concluded that the seizure “became arbitrary and, therefore, the State disproportionately affected the right of Mr. Chaparro to the use and enjoyment of his property” in violation of the right to property in ACHR Article 21(1). Another illustration is the case of Ivcher-Bronstein v Peru, where a judge sus pended the applicant’s rights as the majority shareholder of a television station.160 This decision temporarily deprived the applicant of his rights to sell the shares, to vote at shareholders’ meetings, and to receive dividends, which the court described as “fundamental attributes of the right to property.”161 The Inter-American Court found no evidence that the decision was adopted according to the law, that it served the public utility or the social interest, or that the applicant had received compensation. Accordingly, it held that the loss of “the use and enjoyment of Mr. Ivcher’s rights relating to his shares in the Company” was arbitrary, and hence a violation of his right to property.162

(c) African Charter on Human and Peoples’ Rights The African Commission has utilized standards that are similar to the principles of legality, public interest, and proportionality to determine whether a measure that controls the use of property violates the ACHRP. The question has particularly arisen in cases where a state has temporarily sealed premises where newspapers or magazines are published,163 thereby precluding their normal use. For example, in the Constitutional Rights Project case, the African Commission stressed that the right to property “necessarily includes a right to have access to one’s property and the right not to have one’s property invaded or encroached upon.”164 It concluded that the official decrees mandating the closure of media facilities violated the right because they were neither authorized by law nor “in the interest of the public or the community in general.”165

Chaparro Álvarez para 197. Series C no 74 (IACtHR, February 6, 2001). 161 Ivcher-Bronstein para 117. 162 Ivcher-Bronstein para 130. 163 eg Media Rights Agenda v Nigeria Comm no 105/93 (ACmHPR, October 31, 1998); Zimbabwe Lawyers for Human Rights v Zimbabwe Comm no 284/03 (ACmHPR, April 3, 2009). 164 Constitutional Rights Project para 54. 165 Constitutional Rights Project para 54. 159 160

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(d) Other Human Rights Instruments The extent to which the Arab Charter, the ASEAN Human Rights Declaration, and UN instruments may curtail the state’s authority to regulate the use of mov able or immovable assets remains unclear. Presumably, the same principles of legal ity, public interest, and proportionality that restrict deprivation would also apply, with lesser force, to regulation.

(3) Indirect Expropriation (a) Generally It is well settled customary international law that a state may be liable for indirect expropriation. As one tribunal summarized, measures taken by a state “can inter fere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner.”166 The boundary between permissible regulation and indirect expropriation is elu sive. There is no accepted test for determining when such an expropriation occurs. Instead, this issue is decided on a case-by-case basis, taking into account the unique circumstances of the dispute and the text of any relevant treaty. An expropriation may be effected by a single measure or by a series of incremental actions over time. Accordingly, it is often difficult to predict how a particular dispute will be resolved. The principal reason for this uncertainty is that almost all expropriation claims are heard by ad hoc arbitral tribunals, most commonly under the aegis of the ICSID or the UNCITRAL. Because these tribunals are relatively unconstrained by decisions of prior panels, the standards that they utilize vary widely. Indeed, the resulting decisions sometimes appear to be inconsistent. In contrast, the Iran-United States Claims Tribunal has developed a reasonably cohesive body of case law on the issue. But because its decisions are based on a treaty that contains a broad liability standard―covering not only expropriation but also “other measures affecting property rights”167―its decisions have been treated with caution by other tribunals. The law governing indirect expropriation is clear only in extreme situations. A regulation that targets a particular asset owned by a foreign investor, eliminates its value, and divests the investor from control constitutes an expropriation. On the other hand, a regulation adopted in the general interest that applies equally to all property, has a minor impact on an asset owned by a foreign investor, and does

166 Starrett Housing Corp v Iran, Iran-US Claims Tribunal no ITL 32-24-1 (December 19, 1983), 23 ILM 1090 (1984) part IV(b). 167 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Algiers, January 19, 1981, 20 ILM 230) art V.

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not divest the investor from control is not an expropriation. The vast majority of disputes, however, fall somewhere between these two extremes. As a general matter, however, most decisions evaluating whether a particular state measure constitutes an indirect expropriation are based on one or more of the following factors: (i) the economic impact on the investment; (ii) the loss of control over the investment; (iii) the legitimate expectations of the investor; and (iv) the nature and purpose of the measure.168

(b) Economic Impact Most decisions consider the economic impact of the state action on the invest ment. Of course, a measure that reduces the value of an investment does not neces sarily constitute an expropriation. New regulations often have a negative impact on value, and governance would be impossible if a state were required to compen sate all affected investors. However, when the magnitude of the impact reaches a certain level, this factor weighs heavily toward finding an expropriation. The logic is straightforward: a regulation that eliminates virtually all value has substantially the same effect as a confiscation. Some tribunals utilize economic impact as the sole test for indirect expro priation, while others view it simply as an important factor. In Telnor Mobile Communications v Hungary, for instance, the panel stated that “the interference with the investor’s rights must be such as substantially to deprive the investor of the economic value, use or enjoyment of its investment.”169 It stressed that the determinative factors were “the intensity and duration of the economic depriva tion suffered by the investor.”170 The tribunal in Burlington Resources, Inc similarly emphasized “the loss of the economic value or economic viability of the invest ment” in assessing whether an expropriation occurred.171 It observed that if invest ors lose the possibility to earn a “commercial return” due to state action, “then they have lost the economic use of their investment.”172 This factor was the principal basis for liability in Inmaris Perestroika Sailing Maritime Services v Ukraine.173 The claimants had a contract to use a state-owned vessel for international sailing tours, but this became impossible when the state prohibited the vessel from leaving its territorial waters. The tribunal concluded that “the travel ban amounted to an indirect expropriation in that it destroyed the value of Claimants’ contractual rights and such diminution in value (due to the lasting damage to Claimants’ business) was, for all intents and purposes, permanent.”174 168 Depending on how broadly they are construed, the indirect expropriation, FET, and FPS doc trines may overlap in some instances. In ADC Affiliate Ltd, for example, the tribunal concluded that the same state actions violated all three doctrines. 169 ICSID no ARB/04/15 (September 13, 2006) para 65. 170 Telnor Mobile Communications para 70. 171 Burlington Resources, Inc para 397. 172 Burlington Resources, Inc para 397. 173 ICSID no ARB/08/8 (March 1, 2012). 174 Inmaris Perestroika Sailing Maritime Services para 301.

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Other tribunals analyzing economic impact have used different phrases to describe the factor, such as state action that: (i) causes the assets involved to lose “their value or economic use”;175 (ii) results in the “virtual annihilation, effect ive neutralisation or factual destruction of [the] investment, its value or enjoy ment”;176 (iii) “effectively neutralize[s]‌the benefit of the property to the foreign owner”;177 and (iv) deprives the investor “of a ‘substantial’ part of the value of the investment.”178 The difficult question is deciding when the magnitude of the impact is so severe that it constitutes an expropriation. The tribunal in Tokeles v Ukraine aptly sum marized the problem: Although neither the relevant text nor existing jurisprudence have clarified the precise degree of deprivation that will qualify as “substantial,” one can reasonably infer that a dim inution of 5% of the investment’s value will not be enough for a finding of expropriation, while a diminution of 95% would likely be sufficient. The determination in any particular case of where along that continuum an expropriation has occurred will turn on the particu lar facts before the tribunal.179

(c) Loss of Control A second factor is whether the measure causes the investor to lose control over the investment. Although phrased somewhat differently by tribunals, this fac tor focuses on the extent to which the measure affects the property rights of the investor, as opposed to the economic value of the investment. The tribunal in the Tippetts, Abbett, McCarthy, Stratton case emphasized this factor, stating that while “assumption of control over property by a government” might not necessarily justify the conclusion that an expropriation had occurred, “such a conclusion is warranted whenever events demonstrate that the owner was deprived of fundamental rights of ownership and it appears that this deprivation is not merely ephemeral.”180 Similarly, in Biwater Gauff (Tanzania) Ltd v Tanzania the panel observed that a “substantial interference with rights” may constitute an expropriation, even if this does not cause “any economic damage which can be quantified.”181 Other formulations of this factor include: (i) “where a party no longer is in control of the investment, or where it cannot direct the day-to-day operations”;182 (ii) measures that “substantially impair . . . the investor’s economic rights, i.e. ownership, use, enjoyment or management of the business, by rendering

175 Technicas Medioambientales Tecmed SA v Mexico, ICSID no ARB(AF)/00/2 (May 29, 2003) para 115. 176 Electrabel SA v Hungary, ICSID no ARB/07/19 (November 30, 2012) para 6.62. 177 CME Czech Republic BV v Czech Republic, UNCITRAL Arb (September 13, 2001) para 604. 178 Tokeles v Ukraine, ICSID no ARB/02/18 (July 26, 2007) para 120. 179 Tokeles para 120. 180 Tippetts, Abbett, McCarthy, Stratton part III(1). 181 ICSID no ARB/05/22 (July 24, 2008) para 464. 182 LG&E Energy Corp v Argentina, ICSID no ARB/02/1 (October 3, 2006) para 188.

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them useless”;183 and (iii) “a lasting removal of the ability of an owner to make use of its economic rights.”184 Unglaube v Costa Rica185 illustrates the application of this factor. The state announced its intention to expropriate ocean-front land owned by the claimant for inclusion in a new national park, but delayed the commencement of formal proceedings. After more than nine years, it had still not paid any compensa tion. Citing the Tippetts standard, the tribunal found that the state’s conduct had deprived the owner of “her normal rights of ownership”186 because the land was “obviously impacted in terms of saleability and use,” even though she remained in possession.187 In contrast, it concluded that a judicial decision which suspended development on adjacent parcels owned by the claimant and others was not an expropriation. The court observed that the suspension lasted for only nine months, after which the owners “were free to own, develop, or sell their properties very much as they had been” before the decision.188 On the other hand, tribunals tend to reject expropriation claims where the investor retained control. An example is Azurix Corp v Argentina, where the tribu nal found no expropriation despite state action that impaired the financial viability of an investor-owned company.189 It stressed that the investor “did not lose the attributes of ownership, at all times continued to control [the company], and its ownership of 90% of the shares was unaffected.”190 Similarly, in LG&E Energy Corp v Argentina the investor’s continued control was an important factor in denial of the expropriation claim.191 The tribunal concluded that “it cannot be said that Claimants lost control over their shares in the licensees . . . or that they were unable to direct the day-to-day operations of the licensees in a manner different than before the measures were implemented.”192 The loss of control factor substantially overlaps with the economic impact fac tor. In most instances, a deprivation of property rights that causes the investor to lose all control will greatly reduce or eliminate the value of the investment. But the converse is not necessarily true. A measure might render the investment worthless, yet leave the investor in full control. For this reason, the decision in El Paso Energy International Co v Argentina seems misguided.193 The tribunal adopted the position that “the decisive element in an indirect expropriation is the ‘loss of control’ of a foreign investment, in the absence of any physical taking.”194 It concluded that “at least one of the essential components of the property rights must have disappeared Glamis Gold, Ltd v US, UNCITRAL Arb (June 8, 2009) para 357. SD Myers, Inc v Canada, UNCITRAL Arb (November 13, 2000) para 283. 185 ICSID no ARB/08/1 (May 16, 2012). 186 Unglaube para 223. 187 Unglaube para 211. 188 Unglaube para 234. 189 ICSID no ARB/01/12 (July 14, 2006). 190 Azurix Corp para 322. 191 ICSID no ARB/02/1 (October 3, 2006). 192 LG&E Energy Corp para 199. 193 ICSID no ARB/03/15 (October 31, 2011). 194 El Paso Energy International Co para 245. 183 184

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for an expropriation to have occurred.”195 Under this approach, “a mere loss in value of the investment, even if important, is not an indirect expropriation.”196 Finally, a number of tribunals declare that indirect expropriation will be found when the state action either has a substantial impact on the value of the investment or deprives the owner of control. In Sempra Energy International v Argentina, the panel explained that indirect expropriation required either that “the investor no longer be in control of its business operation, or that the value of the business has been virtually annihilated.”197 The tribunal in Total SA v Argentina struck the same theme, observing that either “total deprivation of the investment’s value or total loss of control by the investor of its investment” was necessary.198 A third formulation is found in the Biwater Gauff (Tanzania) Ltd decision, where the tri bunal stated that “the effective loss of management, use or control, or a significant depreciation of the value, of the assets of a foreign investor”199 would constitute an expropriation.

(d) Legitimate Expectations of Investor A third factor is the extent to which the state measure interferes with the legitimate expectations of the investor. This factor is particularly important where the state makes representations to induce the investment, but later fails to abide by them.200 In International Thunderbird Gaming Corp v Mexico the tribunal explained that the legitimate expectations factor relates “to a situation where a Contracting Party’s conduct creates reasonable and justifiable expectations on the part of an investor . . . such that a failure . . . to honour those expectations could cause the investor . . . to suffer damage.”201 This factor has featured prominently in cases where an investor has relied on representations by the state that the permits needed for an investment project would be provided. In Biloune and Marine Drive Complex Ltd v Ghana Investments Centre, the investor began renovation work at a resort without a building permit based on state representations that this “formality” would be dealt with later.202 But the permit was never issued, and the investor was ultimately detained without charge and deported. Noting that the investor “was entitled to rely on the indica tions” by the government entity “and to proceed with the work despite the absence of a permit,” the tribunal found that an expropriation had occurred.203 Another illustrative case is Metalclad Corp,204 where an investor purchased land and other assets to develop a hazardous waste landfill in reliance on official representations El Paso Energy International Co para 245. El Paso Energy International Co para 249. 197 ICSID no ARB/02/16 (September 28, 2007) para 285. 198 ICSID no ARB/04/01 (December 27, 2010) para 196. 199 Biwater Gauff (Tanzania) Ltd para 452. 200 Azurix Corp para 316. 201 UNCITRAL Arb (January 26, 2006) para 147. 202 95 ILR 184, 208 (1990). 203 Biloune and Marine Drive Complex Ltd, 95 ILR 184, 208. 204 ICSID no ARB(AF)/97/1 (August 30, 2000) para 107. 195 196

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that the project was fully approved; the tribunal held that the later denial of a construction permit, combined with other state conduct, constituted an expro priation. Similarly, in Technicas Medioambientales Tecmed SA v Mexico,205 the tri bunal found an expropriation, inter alia, because the state denied the renewal of an operating permit for a landfill. It observed that “upon making its investment, the Claimant had legitimate reasons to believe that the operation of the Landfill would extend over the long term.”206 Conversely, the absence of legitimate expectations may weigh against finding an expropriation. In Grand River Enterprises Six Nations, Ltd v United States207 the investor was a member of an indigenous tribal group in Canada who imported cig arettes into the United States for sale on Indian reservations; regulations imposed by individual American states later reduced the profitability of this business. The investor based his expropriation argument, in part, on his expectation that federal law would bar states from interfering with commerce among Native Americans. In rejecting this claim, the tribunal noted that legitimate expectations normally arise “through targeted representations or assurances made explicitly or implicitly by a state party,”208 rather than from background concepts of domestic law. In any event, it found that given the unsettled nature of the law on the issue, the investor “could not reasonably have developed and relied on an expectation . . . that he could carry on a large-scale tobacco distribution business . . . without encounter ing state regulation.”209

(e) Nature and Purpose of Measure A fourth factor is the nature and purpose of the state measure. As a general matter, international law recognizes the sovereign right of each state to adopt regulatory measures in the national interest. As the tribunal explained in Feldman v Mexico: [G]‌overnments must be free to act in the broader public interest through protection of the environment, new or modified tax regimes, the granting or withdrawal of government sub sidies, reductions or increases in tariff levels, imposition of zoning restrictions and the like. Reasonable governmental regulation of this type cannot be achieved if any business that is adversely affected may seek compensation, and it is safe to say that customary international law recognizes this.210

However, as another panel observed, “a blanket exception for regulatory meas ures would create a gaping loophole in international protections against expropriation.”211

ICSID no ARB(AF)/00/2 (May 29, 2003). Technicas Medioambientales Tecmed SA para 149. UNCITRAL Arb (January 12, 2011). 208 Grand River Enterprises Six Nations, Ltd para 141. 209 Grand River Enterprises Six Nations, Ltd para 145. 210 ICSID no ARB(AF)/99/1 (December 16, 2002) para 103. 211 Pope & Talbot, Inc v Canada, UNCITRAL Arb (June 26, 2000) para 99. 205 206 207

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Many tribunals have attempted to develop a standard that defines the scope of permissible regulation. These formulations typically contain two criteria. First, the regulation must fall within the scope of a state’s generally accepted power to regu late in the public interest. Second, the regulation must be applicable to all similarly situated investments, rather than singling out one investment or a small group of investments for negative treatment. A measure that complies with these criteria is less likely to constitute an expropriation, even if it has a substantial adverse impact on the investment or the investor. For example, in Methanex Corp v United States, the tribunal acknowledged that “as a matter of general international law, a non-discriminatory regulation for a pub lic purpose, which is enacted in accordance with due process, and which affects, inter alios, a foreign investor or investment is not deemed expropriatory and com pensable.”212 Another illustration is found in the El Paso Energy International Co decision, where the panel concluded that “in principle, general non-discriminatory regulatory measures, adopted in accordance with the rules of good faith and due process, do not entail a duty of compensation.”213 While these statements provide helpful guidance, they may be overbroad. A law ful direct expropriation, inter alia, must serve a public purpose and not be arbi trary or discriminatory; even where these conditions are satisfied, compensation must be paid. Accordingly, these criteria arguably have little relevance to whether a regulation constitutes an indirect expropriation for which compensation is due. Adopting this approach, the tribunal in the Azurix Corp case criticized the view that a treaty “would require that investments not be expropriated except for a pub lic purpose and that there be compensation if such expropriation takes place and, at the same time, regulatory measures that may be tantamount to expropriation would not give rise to a claim for compensation if taken for a public purpose.”214

(f ) Toward a Balancing Approach Any legal standard based on multiple factors necessarily requires that the tribunal strike an appropriate balance among them. Arbitral panels weighing the indirect expropriation factors have usually attempted to do this without the benefit of a consistent analytical framework. The most promising approach for increasing the coherence of this process is to utilize the principle of proportionality in the balanc ing process, as a number of tribunals have done. The leading decision is Technicas Medioambientales Tecmed SA, where the state refused to renew the operating license for a landfill and thereby rendered the investment worthless. In analyzing the investor’s indirect expropriation claim, the tribunal adopted the principle of proportionality from the property jurisprudence of the European Court. It explained that “[t]‌here must be a reasonable relationship of proportionality between the charge or weight imposed to the foreign investor UNCITRAL Arb (August 3, 2005) part IVD(7). El Paso Energy International Co para 240. Azurix Corp para 311.

212 213 214

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and the aim sought to be realized by any expropriatory measure.”215 Finding that the denial was based on political opposition to the landfill rather than legitimate public health or environmental concerns, it concluded that the state’s conduct imposed a disproportionate burden on the investor: [I]‌t would be excessively formalistic . . . to understand that the Resolution is proportional to such violations where such infringements do not pose a present or imminent threat to the ecological balance or to people’s health, and the Resolution . . . leads to the neutralization of the investment’s economic and business value.216

Several tribunals have followed this approach. In the Azurix Corp case, the panel noted that the principle provided “useful guidance” for determining when an expropriation occurred.217 Ultimately, it concluded that the impact on the invest ment “was not to the extent required to find that, in the aggregate, these actions amounted to an expropriation.”218 Another example is the Total SA decision, where the tribunal concluded that the challenged state action was “a bona fide regulatory measure of general application, which was reasonable in light of Argentina’s eco nomic and monetary emergency and proportionate to the aim of facing such an emergency.”219 A number of other tribunals have endorsed the principle of proportionality in theory, with different phrasings. One panel noted that a measure serving the gen eral welfare would not be an expropriation, “except in cases where the State’s action is obviously disproportionate to the need being addressed.”220 Another explained that “a disproportionate regulation, meaning a regulation in which the interference with the private rights of the investors is disproportionate as to the public interest,” would require compensation.221 A third tribunal stated that “the proportionality between the means employed and the aim sought to be achieved” is one factor used to distinguish between “a compensable expropriation and a non-compensable regulation.” 222 Despite its potential value, a tribunal utilizing the principle in an expropri ation dispute must adjust the appropriate balance to provide somewhat greater protection to a foreign investor than a national would receive under ECHR juris prudence, as the Technicas Medioambientales Tecmed SA tribunal noted.223 The European Court acknowledged this issue in the James decision when it observed that “there may well be legitimate reason for nationals to bear a greater burden in the public interest than non-nationals.”224

Technicas Medioambientales Tecmed SA para 122. Technicas Medioambientales Tecmed SA para 149. 217 Azurix Corp para 312. 218 Azurix Corp para 322. 219 Total SA para 197. 220 LG&E Energy Corp v Argentina para 195. 221 El Paso Energy International Co para 243. 222 Fireman’s Fund Insurance Co v Mexico, ICSID no ARB(AF)/02/01 (July 17, 2006) para 176. 223 Technicas Medioambientales Tecmed SA para 122. 224 James para 63. 215 216

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(4) Fair and Equitable Treatment (a) Nature of the Principle Most investment treaties require the host state to accord fair and equitable treat ment (FET) to foreign investments. For example, the Energy Charter Treaty obli gates each party to provide “fair and equitable treatment” to investments made by persons from other member states.225 The North American Free Trade Agreement similarly mandates “fair and equitable treatment” for such investments.226 Yet there is widespread uncertainty about the nature of the standard. Some authorities sug gest that it is merely a restatement of customary international law and, accordingly, that the host state must accord FET even absent a treaty. Others maintain that it is an independent and higher standard which only arises from a treaty. Where it is applicable, the FET standard constrains the ability of a host state to regulate the use of land and other assets owned by foreign nationals. The standard has gained prominence in recent years because it provides a flex ible, case-by-case technique for safeguarding foreign investments under circum stances where other doctrines may not apply. The scope of the standard, however, is rather amorphous. One tribunal noted that “it is sometimes not as precise as would be desirable,”227 while another conceded that it was “none too clear and precise.”228 As a result, it is difficult to predict how the standard will affect the outcome of a particular dispute. The most frequently cited explanation of FET is found in the Technicas Medioambientales Tecmed SA case: The Arbitral Tribunal considers that this provision . . . requires the Contracting Parties to provide to international investments treatment that does not affect the basic expectations that were taken into account by the foreign investor to make the investment. The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations.. . . The foreign investor also expects the host State to act consistently, i.e. without arbitrarily revoking any preexisting decisions or permits issued by the State that were relied upon by the investor to assume its commitments as well as to plan and launch its commercial and business activities.229

Subsequent decisions have formulated more concise explanations. In the Saluka Investments case, the tribunal explained: “A foreign investor whose interests are protected under the Treaty is entitled to expect that the [host state] will not act in a way that is manifestly inconsistent, non-transparent, unreasonable (i.e. unrelated to some rational policy), or discriminatory (i.e. based on unjustifiable Energy Charter Treaty (Lisbon, December 17, 1994, 2080 UNTS 95) art 10(1). North American Free Trade Agreement (San Antonio, December 17, 1992, 32 ILM 296). 227 PSEG Global, Inc v Turkey, ICSID no ARB/02/5 (January 19, 2007) para 239. 228 Sempra Energy International para 296. 229 Technicas Medioambientales Technicas SA para 154. 225 226

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distinctions).”230 More recently the tribunal in Swisslion DOO Skopje v Macedonia observed that the standard “basically ensures that the foreign investor is not unjustly treated, with due regard to all surrounding circumstances.”231

(b) Relevant Factors Despite the amorphous nature of the FET standard, most decisions finding a vio lation involve one or more of the following factors: interference with the investor’s legitimate expectations, lack of transparency, lack of a stable business environment, unfair procedures, and bad faith. A number of decisions have imposed liability where the state conduct vio lated legitimate expectations upon which the investment was premised. In MTD Equity v Chile,232 the state’s foreign investment commission encouraged an inves tor to acquire land for a housing development and approved the project. After the investor bought the land, however, the housing ministry blocked the project because it violated the state’s urban planning policy. The tribunal concluded that “approval of an investment by the [commission] for a project that is against the urban policy of the Government is a breach of the obligation to treat an investor fairly and equitably.”233 Another example is the Technicas Medioambientales Tecmed SA case, where the investor purchased a landfill which had an operating license of infinite duration. The licensing agency replaced this with a one-year license and later refused to renew it for political reasons. Under these circumstances, the tribu nal concluded that the agency’s behavior “frustrated [the] fair expectations . . . upon the basis of which the Claimant’s investment was made”234 and thus violated the duty to accord FET.235 The transparency requirement means that the legal framework governing the acquisition and operation of the investment should be expressed with reasonable clarity. In the Metalclad Corp case, where the investor purchased property for use as a landfill, part of the basis for the tribunal’s conclusion that the FET standard had been breached was that the state had “failed to ensure a transparent and predictable framework for Metalclad’s business planning and investment.”236 Transparency was also an issue in Maffezini v Spain.237 The investor was the majority shareholder in a corporation formed to build and operate a chemical plant. When it encountered financial difficulties during the construction process, a government agency with drew funds from the investor’s personal account without his consent, as a supposed loan to the corporation. The tribunal found that “the lack of transparency with which this loan transaction was conducted” violated the standard.238

Saluka Investments BV para 309. 231 ICSID no ARB/09/16 (July 6, 2012) para 273. ICSID no ARB/10/7 (May 25, 2004). 233 MTD Equity para 166. 234 Technicas Medioambientales Tecmed SA para 173. 235 Technicas Medioambientales Tecmed SA para 174. 236 Metalclad Corp para 99. 237 ICSID no ARB/97/7 (November 13, 2000). 238 Maffezini para 83. 230 232

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The FET standard also requires the host state to provide a stable and pre dictable business environment for the investment. The tribunal in the Sempra Energy International case found that the state violated this requirement in con nection with the claimant’s investment in gas distribution companies by adopting a series of new measures: “Where there was business certainty and stability, there is now the opposite. . . . A long-term business outlook has been transformed into a day-to-day discussion about what is next to come.”239 The same theme is evident in PSEG Global Inc v Turkey,240 involving the planned construction and operation of a power plant. The tribunal concluded that the standard was breached by the “roller-coaster effect” of continual legislative changes that affected the project.241 It stressed the need to “ensure a stable and predictable business environment for investors to operate in,”242 noting that “[s]‌tability cannot exist in a situation where the law kept changing continuously and endlessly, as did its implementa tion and interpretation.”243 Unfair procedures may also violate the FET standard, such as where the state fails to notify an investor about a proceeding that adversely affects its property rights. For instance, in Middle East Cement Shipping & Handling Co SA v Egypt,244 the state seized and sold the investor’s ship without providing any advance notice. Reasoning that “a matter as important as the seizure and auctioning of a ship” required “a direct communication” to the investor, the tribunal held that the state violated the standard.245 In a similar context, the Metalclad Corp panel concluded that the state failed to provide FET where, among other things, the investor’s application for a construction permit was denied by the local municipality at a meeting “of which [the investor] received no notice, to which it received no invita tion, and at which it was given no opportunity to appear.”246 Finally, the state’s obligation to act in good faith is a cornerstone of FET. In Waste Management, Inc v Mexico, the tribunal observed that “a deliberate conspir acy―that is to say, a conscious combination of various agencies of government without justification to defeat the purposes of an investment agreement―would constitute a breach” of the standard.247 The same theme is evident in OKO Pankki Oyj v Estonia, where the investors made a loan for the construction of a fish-processing factory that was secured by mortgages on fishing vessels.248 The debtor, a state-owned company, later filed suit to have the loan and mortgage agreements declared invalid. The tribunal found that this conduct “was an act of gross bad faith . . . which was not remotely justified,” and accordingly held that it violated the standard.249

Sempra Energy International para 303. ICSID no ARB/02/5 (January 19, 2007). 241 PSEG Global Inc para 250. 242 PSEG Global Inc para 253. 243 PSEG Global Inc para 254. 244 ICSID no ARB/99/6 (April 12, 2002). 245 Middle East Cement Shipping & Handling Co SA para 143. 246 Metalclad Corp para 91. 247 ICSID no ARB(AF)/00/3 (April 30, 2004) para 138. 248 ICSID no ARB/04/6 (November 19, 2007). 249 OKO Pankki Oyj para 282. 239 240

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(5) Comparing the Standards The human right to property, the indirect expropriation standard, and the FET standard all restrict the state’s authority to regulate the use of land, buildings, and other assets. Despite overlap between the human rights and indirect expropriation approaches, they are different standards. The principles governing the human right to property and indirect expropri ation are somewhat parallel. The principle of legality from human rights law is partially reflected in the requirements that an expropriation measure, whether direct or indirect, must comply with due process and not be arbitrary or discrimi natory. The principle of public interest is mirrored by the indirect expropriation factor that considers the nature and purpose of the measure. A regulation that does not comply with this principle would violate the right to property; in a similar manner, a regulation that is not adopted for a public purpose is more likely to constitute an expropriation. Finally, the principle of proportionality is somewhat akin to the indirect expropriation factor that considers the economic impact of the measure on the investment. A regulation that imposes a disproportionate bur den on the investor under human rights law may also substantially reduce the value of the investment and hence support an expropriation claim. The use of the principle of proportionality in investment arbitrations, as evidenced by Technicas Medioambientales Tecmed SA and other decisions, may ultimately produce more linkage between these approaches. In contrast, the FET standard has no connection to human rights law. It reflects the general concept that foreign investors are entitled to somewhat greater protec tion from regulatory measures than nationals receive, a disparity that is inherent in the international minimum standard of protection for foreign-owned assets.

G. Prohibition of Misuse One reason that the right to property is relative in nature, rather than absolute, is quite practical: absolute rights would conflict. An absolute right would allow an owner to use land or other assets in a manner that interfered with uses by other owners, thus infringing their absolute rights. Accordingly, despite recognition of the right to use as a general matter, it is universally accepted that an owner may not use land or other things in an unreasonable manner that injures the rights of others. This concept is called the prohibition of misuse. International law provides that all human rights―including the right to prop erty―may not be abused in a manner that causes harm to others. UDHR Article 30 states that none of the rights established by the declaration may be interpreted as authorizing anyone “to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”250 Virtually the same language is set forth in Article 5(1) of both the International Covenant on UDHR art 30.

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Economic, Social and Cultural Rights251 and the International Covenant on Civil and Political Rights,252 which underscores the importance of the prohibition. Regional human rights conventions contain provisions to the same effect. ECHR Article 17 is almost identical to the UDHR formulation; it declares that nothing in the convention may be construed as allowing anyone “to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” ACHR Article 29(a) is similar to the UDHR provi sion, stating that nothing in the convention shall be interpreted as permitting anyone “to suppress the enjoyment or exercise of any of the rights and freedoms” it recognizes. The same theme is expressed in different language by ACHPR Article 27(1): “The rights and freedoms of each individual shall be exercised with due regard to the rights of others.”253 The duty to avoid causing transboundary injury is a somewhat analogous doc trine.254 It is generally accepted that no state has the authority to allow its territory to be used in a manner that injures property in another state, as evidenced by the classic Trail Smelter decision.255 More recently, the advisory opinion rendered by the ICJ on the Legality of the Threat or Use of Nuclear Weapons recognized the prin ciple.256 The court observed that “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law.”257 At the domestic level, the prohibition of misuse is recognized by major legal sys tems. For example, the doctrine of troubles de voisinage in French law bars an owner from using land in a manner that “exceeds the normal measure of inconvenience as between neighbours.”258 Under German law, if an owner’s right to use and enjoy land is interfered with “by means other than removal or retention of possession”― such as by excessive noise or smoke emanating from neighboring land―the owner may “require the disturber to remove the interference.”259 In common law states, the leading example of the concept is the nuisance doc trine. In England, an owner may not use land in a manner that unduly interferes with another person’s use or enjoyment of land, such as by emitting dust, fumes, 251 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 252 International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171). 253 The Arab Charter on Human Rights does not contain a general provision to this effect. It authorizes “restrictions necessary for the respect of the rights . . . of others” only in specific situations, such as the right to free speech and the right to engage in trade union activity. Arab Charter on Human Rights arts 32(2), 35(2). The ASEAN Human Rights Declaration provides that the “human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others.” ASEAN Human Rights Declaration art 8. 254 See the discussion in ch 6H. 255 (US v Canada) 3 RIAA 1911 (1941). 256 (1996) ICJ Rep 226. 257 Legality of the Threat or Use of Nuclear Weapons para 29. 258 John Bell et al, Principles of French Law (2d edn, OUP 2008). 259 § 1004(1) BGB (Germany).

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or smoke that regularly enters adjacent parcels.260 The law in the United States contains the same doctrine.261 Asian systems also recognize the prohibition of misuse. In China, the Property Rights Law directs that “social ethics shall be respected in exercising the property right . . . and the lawful rights and interests of another person shall not be jeopard ized.”262 The Vietnamese Civil Code strikes the same theme by providing that an owner’s discretion to use land or other assets does not extend to “causing damage to or affecting . . . legitimate rights and interests of other persons.”263 More broadly, the Japanese Civil Code states that “[n]‌o abusing of rights is permissible.”264 Sharī’a law acknowledges that an owner may enjoy the right to use as long as “this does not lead to inflicting harm on others.”265 Where the harm to others is greater than the benefit the owner receives from exercising the right, “the owner’s right of use may be limited to the extent needed to eliminate the harm or . . . reduce it to a tolerable level.”266 Given the widespread acceptance of the prohibition of misuse in both interna tional and municipal law and its fundamental nature, the prohibition should be viewed as a general principle of law. It may also be classified as a norm of custom ary international law given its broad recognition in state practice and the interna tional instruments that reflect opino juris.

H. Duty of State to Protect the Right (1) Generally Most international law principles concerning the right to use seek to restrict con duct by the state that unduly interferes with the right. However, in some circum stances the state may also be obligated to take affirmative measures to protect the right against interference by private actors. A number of human rights cases have examined the scope of the state’s positive duty to protect homes or other assets from damage by third parties, and thereby safeguard the owner’s right to use. In investment law, this obligation is reflected in the FPS doctrine, which requires the host state to take reasonable measures to protect the physical security of alien assets and thus ensure that they are available for use.

eg Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC) para 188 (UK). eg American Law Institute, Restatement of the Law of Torts (2d edn, American Law Institute 1979) § 821D. 262 Property Rights Law art 7 (China). See also Liang Huixing (ed), The Draft Civil Code of the People’s Republic of China (Martinus Nijhoff 2010) art 244, providing that the exercise of property rights “shall not harm another person’s interests.” 263 Civil Code art 165 (Vietnam). 264 Civil Code art 1(3) (Japan). 265 Mohammad Hashim Kamali, The Right to Life, Security, Privacy and Ownership in Islam (Islamic Texts Society 2008) 278. 266 Kamali, The Right to Life 278. 260 261

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(2) Human Rights Law Under the ECHR, the state must take positive measures to protect the right to use, particularly where “there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his posses sions.”267 But the exact parameters of this obligation remain elusive. Most of the case law in this area has focused on the special protection afforded to the home under Article 8. A number of decisions recognize that this article obligates the state to take positive measures to protect an owner’s use of the home from noise, emis sions, smells, and similar interferences caused by state or private actors.268 The African Commission has acknowledged that the right to property estab lished by the ACHPR requires the state to protect homes and other assets from harm by third parties. For example, in the Sudan Human Rights Organisation deci sion, the commission observed that the state had the “primary duty and responsibil ity . . . to establish conditions, as well as provide the means, to ensure the protection of . . . property, during peace time and in times of disturbances and armed con flict.”269 This theme was developed in more detail in Association of Victims of Post Electoral Violence v Cameroon.270 The case arose when property belonging to mem bers of the winning political party and other citizens was destroyed during riots that followed a contested election. There was no evidence that state authorities were involved in these events. However, the commission ruled that the state vio lated the right to property by not taking affirmative precautions to prevent dam age: “the Respondent State has failed in its obligation to protect, considering its lack of diligence, and allowed the destruction of . . . property.”271 Another example of heightened state responsibility to protect the right to property is found in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.272 Its Article 16(1) provides that states shall undertake to prevent “other acts of cruel, inhuman or degrading treat ment . . . which do not amount to torture . . . when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity.” In Dzemajl v Yugoslavia,273 the UN Committee against Torture concluded that the “burning and destruction” of Roma houses by an enraged non-Roma mob constituted acts of cruel, inhuman or degrading treat ment that violated the convention.274 Because police officers were present but did not intervene, the committee found that they had acquiesced in the destruction. Other UN instruments recognize the obligation to protect the right to prop erty in specialized contexts. For example, the Pinheiro Principles acknowledge the Budayeva v Russia App no 15339/02 (ECtHR, March 20, 2008) para 172. See the discussion in ch 6C(3). 269 Sudan Human Rights Organisation para 201. 270 Comm no 272/03 (ACmHPR, November 25, 2009). 271 Association of Victims of Post Electoral Violence para 116. 272 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, December 10, 1984, 1465 UNTS 85). 273 UN Committee against Torture, Comm no 161/2000. 274 Dzemajl para 9.2. 267 268

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responsibility of each state to protect the property rights of refugees and displaced persons. They provide that “[s]‌tates should adopt specific measures to prevent the destruction or looting of contested or abandoned housing, land and property in order to minimize destruction and looting.”275 Similarly, the Draft Articles on the Expulsion of Aliens adopted by the UN International Law Commission specify that “[t]he expelling state shall take appropriate measures to protect the property of an alien subject to expulsion.”276

(3) Investment Law The FPS doctrine obligates the state to take reasonable measures to protect alien assets from destruction or other interference by private actors. Arbitral decisions emphasize that the state is not required to guarantee the physical safety of these assets, but rather must exercise due diligence.277 Disputes involving the obligation to provide FPS have particularly arisen in con nection with demonstrations or other protests that interfere with the use of indus trial facilities. The ICJ addressed this situation in the Case concerning Elettronica Sicula SpA,278 where the foreign owner decided to close its factory and dismiss the workers. The workers then occupied the factory premises for a number of weeks without the owner’s consent. Although the applicable treaty required the state to provide “constant protection and security,” the court reasoned that it could not be interpreted as “the giving of a warranty that property shall never in any circum stances be occupied or disturbed.”279 Observing that (a) the occupation resulted from the investor’s choice to close the factory, (b) the workers did not cause dam age, and (c) production continued on a limited scale, the court held that the state did not breach its obligation. In the case of Technicas Medioabientales Tecmed SA, community members manifested “widespread and aggressive” opposition to the continued operation of the investor’s hazardous waste landfill through protests that included a five-week “blockade” of the facility.280 The investor later asserted that the state failed to take adequate measures to prevent or control these demonstrations, in violation of its treaty obligation to provide “full protection and security.”281 Suggesting that the FPS doctrine necessitated a certain amount of latitude for public protest “in accordance with the parameters inherent in a democratic state,” the panel found insufficient evidence that the authorities acted unreasonably.282 Pinheiro Principles principle 20.4. UN International Law Commission, Draft Articles on the Expulsion of Aliens, UN Doc A/ CN.4/L.797 art 30 (2012). 277 eg Noble Ventures, Inc v Romania, ICSID no ARB/01/11 (October 12, 2005) para 164. 278 (US v Italy) 1989 ICJ Rep 15. 279 Case concerning Elettronica Sicula SpA 65. 280 Technicas Medioambientales Tecmed SA para 108. 281 Technicas Medioambientales Tecmed SA para 175. 282 Technicas Medioambientales Tecmed SA para 177. 275 276

12 The Right to Destroy

A. Introduction The right to destroy is an inherent component of the global right to property. Civil law and common law scholars have traditionally called it the jus abutendi: the right to consume, transform, and abuse. Despite its fundamental nature, the right to destroy is rarely made explicit in municipal law. Yet the right is implicitly recog nized in virtually all legal systems. The scope of the right to destroy varies substantially among states. The broad version of the right would permit senseless destruction. One scholar asserts that “[t]‌he jus abutendi stands as an embarrassment”1 because it allows an owner to destroy valuable resources without any justification, a moral outrage in a world afflicted by poverty. International law has accordingly begun to restrict the scope of the right in special situations, such as the mutilation of artistic works, the destruc tion of cultural heritage property, and the unsustainable use of land.

B. Recognizing the Right (1) Generally In theory, the jus abutendi encompasses three distinct concepts: (a) consuming a thing through its intended use; (b) transforming a thing into another thing with greater value; and (c) abusing or destroying a thing so as to reduce or eliminate its value. Most things that are subject to ownership will be destroyed as part of a con sumptive process that benefits their owners. Food, clothing, computers, and auto mobiles, for example, are destined to be utilized to the point where either they no longer exist in a physical sense (eg an apple is eaten) or their useful life is over (eg a computer is technologically obsolete). Similarly, a variety of things are trans formed from raw materials into more socially valuable items, as where oil is used to 1 Edward J McCaffery, “Must We Have the Right to Waste?” in Steven R Munzer (ed), New Essays in the Legal and Political Theory of Property (CUP 2001) 81.

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generate electricity for homes or a thicket is cleared to build a factory. Because no legal system attempts to prevent such destruction, the right to destroy is implicitly accepted as a general matter in the contexts of consumption and transformation. But the broad formulation of the right is controversial because it permits irrational mutilation and destruction. The owner who burns down a new house, kills a healthy horse, or shreds an ancient manuscript wastes the value of an asset that could have been used to benefit persons in need or society in general. Indeed, an unfettered right to destroy would arguably be inconsistent with many national constitutions which emphasize that private property must serve a social function, particularly in certain European and South American states. The Basic Law of Germany, for example, provides that the use of property by owners “shall also serve the public good.”2 Similarly, the Constitution of Chile specifies that the right to property is subject to “limitations and obligations which derive from its social function.”3 The broad right to destroy rests on three assumptions. First, states presume that owners will almost always make rational decisions about how their things are utilized, engaging in abuse or destruction only when this is offset by actual or presumed benefits. For example, the owner who seeks to destroy a dilapidated structure in order to replace it with a new building has calculated that the benefits of this action outweigh its costs. Accordingly, the situation where an owner makes an intentional but irrational decision to abuse or destroy a valuable item should be rare. Second, the state has the power to prevent destruction from occurring in spe cific situations. It might adopt legislation that requires the preservation of historic structures or other potentially vulnerable items. If abuse or destruction is threat ened because the owner is mentally incompetent, the state may place the owner under guardianship or some other form of legal supervision. Alternatively, the state may acquire title to the thing through its power to take private property. Finally, a general prohibition of irrational destruction would be difficult to administer. In most instances the state is poorly situated to regulate abuse or destruction. The owner is far more capable than the state to assess whether the planned abuse or destruction of a particular item is offset by benefits. Moreover, as a practical matter, a state is unable to monitor abuse or destruction. An effective monitoring regime would consume substantial resources and interfere with tradi tional values such as privacy in the home.

(2) Sources of the Right (a) Overview The jus abutendi is not a Roman concept despite its Latin phrasing. Although Roman law recognized the principle of absolute ownership or dominium, it never

Basic Law of Germany art 14.2.

2

Constitution of Chile art 19(24).

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defined the rights that an owner possessed. Medieval scholars seeking to rediscover the content of dominium focused on the Digest of Justinian, which characterized a usufruct as “the right to use and enjoy the property of others, at the same time preserving intact the substance of the same.”4 Because the usufruct was a lesser property interest, scholars concluded that dominium necessarily included the right to destroy, which they dubbed the jus abutendi. In fact, Roman law did restrict destruction or abuse by an owner in specific situations―such as injury to slaves and destruction of certain buildings―which implied the existence of an underly ing right to destroy. Samuel Pufendorf endorsed the medieval reconstruction of the Roman defini tion of ownership, observing that it included the right to “destroy [a possession] at our pleasure.”5 More grudgingly, Hugo Grotius observed that “there are some things which are consumed by use, either in the sense that they are converted into the very substance of the user . . . or else in the sense that they are rendered less fit for additional service.”6 Subsequently, Robert Joseph Pothier included the jus abutendi in his catalogue of property rights, noting that the right to use “also includes the right of the owner to completely destroy the thing if he sees fit.”7 He explained that “the owner of a beautiful painting has the right to cover the painting with another color to erase it; the owner of a book is entitled to throw it in the fire if he sees fit or tear it apart.”8 In the common law tradition, John Locke proclaimed that “the utmost property man is capable of . . . is to have a right to destroy any thing by using it.”9 Yet the right to property he envisioned did not extend to thoughtless destruction. A per son was only entitled to “[a]‌s much as any one man can make use of to any advan tage of life before it spoils,” and everything more belonged to others.10 Locke stated that a person who bartered away goods that would otherwise rot “destroyed no part of the portion of goods that belonged to others, so long as nothing perished uselessly in his hands,”11 suggesting that the right to property did not encompass intentional waste.

(b) Municipal Law Virtually all states accept that an owner is entitled to consume and transform the things that are subject to property rights. In addition, most states implicitly 4 Digest of Justinian 7.1.1, in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973). 5 Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law (first published 1673, CUP 1991) (James Tully ed, Michael Silverthorne tr) 130. 6 Hugo Grotius, De Jure Praedae Commentarius (first published 1868, Clarendon Press 1950) (Gwladys L Williams & Walter H Zeydel trs) 288. 7 Robert Joseph Pothier, Traité du Droit de Domaine de Propriété (Chez Debure 1772) 7. 8 Pothier, Traité du Droit de Domaine de Propriété 7. 9 John Locke, Two Treatises of Government (first published 1689, A Millar et al 1764) (Thomas Hollis ed) vol 1, ch IV, para 39. 10 Locke, Two Treatises vol 2, ch V, para 31. 11 Locke, Two Treatises vol 2, ch V, para 46.

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recognize that an owner may abuse or destroy such things―even in the extreme situation where this conduct may be viewed as irrational because it does not pro duce any objective benefit. This broad right to destroy is not affirmatively created by domestic law. Rather, it arises de facto from the state’s failure to adopt laws that prohibit destruction. The concept that ownership includes the right to destroy is evidenced by the scope of lesser property rights. A person holding a usufruct in a civil law jurisdic tion has the right to enjoy the benefits from the thing, such as rents or crops, but cannot destroy the thing itself. The point is illustrated by the French Civil Code, which defines a “usufruct” as “the right to enjoy things of which another has the ownership in the same manner as the owner himself, but on condition that their substance is preserved.”12 Thus, the usufructary is entitled to enjoy the apples pro duced by an orchard, but cannot destroy the trees; the trees must be “preserved.” German law recognizes the same concept: a usufructary “is not entitled to trans form the thing or substantially change it.”13 The implication is that a person holding absolute ownership in France or Germany is not bound by the duties of a usufruct and, accordingly, could abuse or destroy the thing. Indeed, this is the traditional interpretation of French Civil Code Article 544, which defines “ownership” as “the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.”14 The Draft Common Frame of Reference similarly defines ownership to include “the exclusive right . . . to . . . modify [and] destroy . . . the property.”15 England and the United States recognize the right to destroy, as evidenced by the scope of the waste doctrine. Waste serves as the principal mechanism for resolv ing land use disputes when property rights are divided among different persons. The doctrine applies, for example, when an owner leases land to a tenant. Absent a superseding agreement, the tenant cannot act in a manner that unreasonably injures the affected land and thus harms the interests of the owner. For example, while the tenant would be entitled to harvest the apples from the orchard, he could not cut down the trees―just as a usufructary could not do so. The logical implica tion is that a person holding absolute ownership, defined as fee simple absolute in the common law tradition, could not be bound by these special limitations and accordingly would have the right to destroy. A number of decisions reflect this view.16 The right to destroy is also implicit in China. An owner is entitled to “use” prop erty generally, which necessarily assumes that it will be consumed, transformed, or otherwise destroyed through use.17 Notably, as in the French and German models, Art 578 C civ (France). § 1037 BGB (Germany). 14 Art 544 C civ (France). 15 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Selliers 2009) art VIII-1:202. 16 eg Carter v Helmsley-Spear, Inc, 71 F3d 77 (2d Cir 1995) (US); Estate of Beck, 676 NYS2d 838 (Sur Ct 1998) (US). 17 Property Rights Law art 39 (China). 12 13

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the statute describing the rights of usufructaries imposes special restrictions on their conduct; “[i]‌n exercising their rights, the usufructaries . . . shall not impair the rights and interests of the owners.”18 This language suggests that owners may impair their own rights and interests. However, Chinese law also provides that the “social ethics shall be respected in . . . exercising the property right” and “public interests . . . shall not be jeopardized,”19 which implies that irrational destruction would be improper. The draft Chinese Civil Code evidences the same concern by adopting an interpretative principle in property disputes that favors “maintaining the economic value of property and making full use of the property.”20 A similar usufructary analysis demonstrates that the right to destroy is implicit in Japanese law. The Civil Code authorizes a special type of usufruct known as an emphyteusis by which the owner permits a farmer to use land for cultivation or grazing use.21 But such a farmer “may not effect any alteration that will cause per manent damage to the land.”22 In contrast, the statutory right of an owner “freely to use . . . the thing owned” is not subject to such a restriction,23 implying that an owner has the right to destroy. Vietnamese law permits the owner to “exploit the utility of, and enjoy the yields and profits from, the property in accordance with his/her will,” but the owner “must not cause damage to or affect State interests [or] public interests.”24 This formulation suggests that the right to destroy is recognized to the extent necessary to permit exploitation, but not irrational destruction. Finally, Sharī’a law permits the abuse or destruction of property only under lim ited circumstances―such as normal consumption―because owners are deemed to be trustees who hold their property on behalf of God. They must be “compe tent stewards” who “manage their property in accordance with the will of God as revealed in the Qur’ān.”25 Accordingly, an owner cannot “waste, destroy, squander, or use property for purposes that are not permitted by Shari’ah.”26

(3) Status of the Right A limited version of the right to destroy should be recognized as a general prin ciple of law. All major legal systems accept the central core of the right: an owner is generally entitled to consume or transform a thing that is the object of prop erty rights. In defining the scope of the right, it is necessary to accord the owner substantial latitude as to the appropriate method to use that property so that, for example, it encompasses good faith conduct which is ultimately unsuccessful or Property Rights Law art 40 (China). Property Rights Law art 7 (China). Liang Huixing (ed), The Draft Civil Code of the People’s Republic of China (Martinus Nijhoff Publishers 2010) art 228(1). 21 Civil Code art 270 (Japan). 22 Civil Code art 271 (Japan). 23 Civil Code art 206 (Japan). 24 Civil Code art 193 (Vietnam). 25 Raj Bhala, Understanding Islamic Law (LexisNexis 2011) 435. 26 Mohamed Ariff & Munawar Iqbal (eds), The Foundations of Islamic Banking: Theory, Practice, and Education (Edward Elgar 2001) 94. 18 19 20

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nonproductive. At the other extreme, however, the right should not extend to destruction that is clearly irrational.

C. Exceptions to the Right (1) Artistic Works International law restricts the owner’s right to destroy artistic works by recog nizing the artist’s right of integrity.27 The principal source of this limitation is the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention),28 which applies to all “literary and artistic works,” including archi tecture, paintings, photographs, and sculpture.29 Article 6bis sets forth the moral rights held by the creator of such a work, including the right of integrity. It pro vides that even after the transfer of all “economic rights” in the work, the creator retains the right “to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work which would be prejudicial to his honor or reputation.”30 For example, if A creates an original painting that is purchased by B, A retains the right to object to any “mutilation” of the painting by B if this would injure A’s honor or reputation. As a result, an owner like B does not enjoy the full power to destroy. The convention requires all member states to enact legislation that provides the “means of redress for safeguarding” the right of integrity.31 Most states have adopted domestic laws to protect this right.32 The right of integrity is also protected under international human rights law. The Universal Declaration of Human Rights (UDHR)33 provides that “[e]‌veryone has the right to the protection of the moral . . . interests resulting from any scien tific, literary or artistic production of which he is the author.”34 The International Covenant on Economic, Social and Cultural Rights (ICESCR)35 similarly acknowledges the right of everyone “[t]o benefit from the protection of the 27 The right of integrity also applies to literary works such as books and other writings. But because literary works are intended to be reproduced, preservation of the condition of the original manuscript is substantially less important than in the case of artistic works. 28 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221). 29 Berne Convention art 2(1). 30 Berne Convention art 6bis(1). Although most of the substantive provisions of the Berne Convention were incorporated into the Agreement on Trade-Related Aspects of Intellectual Property Rights, and thereby extended to states that had not ratified the convention, the moral rights set forth in Article 6bis were excluded. Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299) art 9(1). 31 Berne Convention art 6bis(3). 32 For a list of such statutes, see Elizabeth Adeney, The Moral Rights of Authors and Performers: An International and Comparative Analysis (OUP 2006) 719–97. 33 Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 34 UHDR art 27(2). 35 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3).

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moral . . . interests resulting from any scientific, literary or artistic production of which he is the author.”36 ICESCR General Comment No 17 makes it clear that these protected “moral . . . interests” include “the right of authors . . . to object to any distortion, mutilation or other modification of . . . such productions, which would be prejudicial to their honour and reputation.”37 The comment further provides that, as part of their obligations under the ICESCR, states must “prevent third parties” from violating the right of integrity.38 The right of integrity is not based on society’s interest in safeguarding artis tic property from damage, but rather on protecting the honor and reputation of the creator. As General Comment No 17 observes, moral rights protection was included in the UDHR “to proclaim the intrinsically personal character of every creation of the human mind and the ensuring durable link between creators and their creations.”39 Yet, in many instances, the right of integrity effectively allows the creator to preserve the work in its original condition. The creator may be able to obtain an injunction or similar relief under domestic law to prevent threatened mutilation. Alternatively, the risk of being held liable for damages may deter the owner from mutilating the work. Domestic courts have enforced the right of integrity in a variety of situations. The case of Martin v City of Indianapolis arose in the United States when the city demolished a “large outdoor stainless steel sculpture” in the course of an urban renewal project.40 The artist brought suit under a federal statute which the state had adopted in order to comply with the Berne Convention; finding liability, the court awarded $20,000 USD in damages. Another example is a German case involving a homeowner who had clothing painted on nude figures that appeared on a fresco in the stairwell of his home, which was regularly seen by visitors.41 The court observed that the artist had the right to ensure that the work “is revealed to contemporary public view or left to the world of the future only in its unaltered individual form.”42 It accordingly ruled that the repainting was a mutilation that violated the artist’s right of integrity. The right of integrity clearly restricts an owner’s authority to abuse an artis tic work.43 The history of the Berne Convention has created uncertainty, how ever, about whether this right precludes complete destruction. When Hungary proposed at a 1948 conference of convention states that Article 6bis should be amended by adding the term “destruction,” Italy suggested that the existing phrase “other modification of . . . the said work” was broad enough to include destruction, as long as this was prejudicial to the honor or reputation of the creator.44 None of ICESCR art 15(1)(c). UN Committee on Economic, Social and Cultural Rights, General Comment No 17, UN Doc E/C.12/GC/17 (January 12, 2006) para 13. 38 General Comment No 17 para 31. 39 General Comment No 17 para 12. 40 192 F3d 608, 610 (7th Cir 1999) (US). 41 RGZ 79, 397―Felseneiland mit Sirenen (1912) (Germany). 42 Felseneiland mit Sirenen 399. 43 eg Vaillancourt v Carbone 14 [1999] RJQ 490 (Canada). 44 Adeney, Moral Rights 137. 36 37

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the delegates disagreed with this interpretation. Ultimately, the conference issued a statement providing that while Article 6bis “does not prohibit in express terms the destruction of works,” it recommended that member states should adopt domestic legislation “prohibiting the destruction of literary and artistic works.”45 Even assuming that destruction is a form of “mutilation” or “other modifica tion,” it does not violate the right of integrity unless it also prejudices the “honor or reputation” of the creator. One view is that only the distortion or mutilation of a work that continues to exist can affect honor or reputation. The logic of this approach is that a destroyed work cannot be seen by the public and, accord ingly, cannot affect the esteem in which the creator is held. The better view is that destruction violates the right of integrity because it diminishes public regard for the creator’s entire body of work. In practice, the right of integrity is an unwieldy tool to prevent mutilation or destruction. It is generally accepted that the creator may waive this right under certain conditions. The requirement that mutilation or destruction must harm the creator’s honor or reputation may be difficult to establish in many situations, par ticularly if the creator is not well-known. As a practical matter, in most situations the creator will have no advance knowledge that the owner plans to mutilate the work and thus be unable to utilize the right. Finally, the creator may choose not to assert the right for financial, personal, or professional reasons.

(2) Cultural Heritage Property International law may be moving toward a norm that requires states to prevent the intentional destruction of cultural heritage property by private owners. The destruction of such property by states during wartime has been prohibited for decades under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and related instruments.46 Moreover, the conven tion applies indirectly to individuals in that it requires member states to “prohibit [and] . . . prevent . . . any acts of vandalism” directed against such property.47 The evolving norm would extend the same prohibition to acts of destruction con ducted by owners during peacetime. The principal instrument reflecting this shift is the UNESCO Declaration con cerning the Intentional Destruction of Cultural Heritage.48 It provides that states should take “all appropriate measures to prevent . . . acts of intentional destruction of cultural heritage, wherever such heritage is located.”49 In this context, “inten tional destruction” means an act intended to destroy cultural heritage in a manner that constitutes (a) a violation of international law or (b) “an unjustifiable offence Adeney, Moral Rights 137. Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) (The Hague, May 14, 1954, 249 UNTS 240). 47 1954 Hague Convention art 4(3). 48 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (UNESCO Declaration), UNESCO Doc 32/C/RES/33 (October 17, 2003). 49 UNESCO Declaration art III. 45 46

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to the principles of humanity and dictates of public conscience.”50 Moreover, it provides that states should impose criminal sanctions on persons who intentionally destroy “cultural heritage of great importance for humanity.”51 As UNESCO uses the term, a “declaration” is a statement of universal principles to which states wish to attribute the greatest possible authority. Accordingly, while the declaration is nonbinding, it is intended to reflect a universal principle against such destruction. Several aspects of the declaration merit comment. First, it appears to apply to destruction during peacetime. The preamble refers to the development of “cus tomary international law” for the protection of cultural heritage “in peacetime as well as in the event of armed conflict,”52 suggesting that the declaration applies to destruction at any time. In addition, the impetus for the declaration was the peacetime destruction of the sixth-century Buddhas of Bamiyan in Afghanistan in 2001. Finally, nothing in the text of the declaration limits its scope to times of war. Second, because the declaration applies to cultural heritage property “wherever such heritage is located,” it clearly is intended to apply to such property located within the territory of each UNESCO member state―which covers most of the world.53 Regrettably, the declaration fails to define the “cultural heritage” that it protects, except by noting that it “includ[es] cultural heritage linked to a natural site.”54 Although the definition of cultural heritage under international law is somewhat amorphous, the declaration would presumably encompass (a) movable objects such as artwork,55 antiquities, archaeological relics, and virtually any other tangi ble object of cultural significance and (b) immovable property such as monuments, historic buildings, prehistoric caves, and ceremonial sites.56 It appears that the declaration would apply to the intentional destruction of cultural property by a private owner. Certainly, nothing in the declaration exempts property owners from its scope. Moreover, the international law governing cultural heritage is premised on the belief that all of humanity has an interest in preserv ing such property, a principle that transcends the rights of any particular owner. For example, the preamble to the declaration stresses that “cultural heritage is an important component of the cultural identity of communities, groups, and indi viduals.”57 Similarly, the Convention for the Protection of the World Cultural and Natural Heritage―which has been ratified by virtually all states―proclaims that the “deterioration or disappearance of any item of the cultural . . . heritage consti tutes a harmful impoverishment of the heritage of all the nations of the world.”58 UNESCO Declaration art II(2). UNESCO Declaration art VII. UNESCO Declaration preamble para 8. 53 UNESCO Declaration art III(1). 54 UNESCO Declaration art II(1). 55 This would overlap somewhat with the protection arising from the right of integrity, as discussed in section C1. 56 See the discussion of the definition of cultural property in ch 4B(2). 57 UNESCO Declaration preamble para 5. 58 Convention for the Protection of the World Cultural and Natural Heritage (Cultural Heritage Convention) (Paris, November 16, 1972, 1037 UNTS 151) preamble para 2. 50 51 52

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It further provides that “the existing international conventions, recommendations and resolutions concerning cultural . . . property demonstrate the importance, for all peoples of the world, of safeguarding this unique and irreplaceable property.”59 The assumption underlying the declaration―that banning the destruction of cultural heritage property will benefit the international community―makes sense to some extent. The owner who no longer wishes to possess a particular item, for example, might be inclined to sell or donate it to a museum or other institution where it could be publicly displayed, rather than to destroy it. But this would pre sumably be a rare situation. Virtually any item of cultural heritage property would seemingly have market value, and a rational owner would accordingly attempt to sell it even if no ban on destruction existed. In addition, nothing in the declara tion prevents a private owner from keeping an iconic object concealed from pub lic view for decades, thereby preventing others from enjoying its cultural benefit. Finally, the definitional uncertainty about what property is covered suggests that the declaration may be overbroad, seeking to prevent an owner from destroying items that have no significant cultural value. International law does not currently prohibit a private owner from destroying cultural heritage property. At this juncture, it can only be called an emerging trend, not a customary norm or a general principle of law. However, given the rate at which international cultural heritage law has expanded in recent decades, it seems likely that the momentum toward restricting such destruction will continue.

(3) Land Although land cannot be destroyed, it can be abused. Forests, pastures, and farms are often exploited for short-term gain even though this impairs long-term pro ductivity. Trees may be harvested prematurely; overgrazing can convert marginal grassland into a desert; and excessive irrigation of poor land may increase salinity to the point that crops cannot grow. The emerging principle of sustainable land use would require states to restrict the right of private owners to abuse their land.60 The broad concept of sustainable development is evolving into a core com ponent of international law. The 1972 Stockholm Declaration on the Human Environment proclaimed that the “natural resources of the earth . . . must be safe guarded for the benefit of present and future generations through careful plan ning or management.”61 While development is urgently needed to address poverty and related challenges, it must occur in a manner that is sustainable in the long term, without prejudice to future generations. As the International Court of Justice explained in Case concerning the Gabčíkovo-Nagymaros Project, the “need

Cultural Heritage Convention preamble para 5. eg Liang Huixing, Draft Civil Code art 449, providing that one holding the right to use farm land “shall use the land reasonably, preserve the land’s fertility, and shall not permanently damage the land.” 61 Stockholm Declaration on the Human Environment (Stockholm, June 16, 1972, 11 ILM 1416) principle 2. 59

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to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.”62 The theme of sustainable development has been incorporated into many treaties, UN General Assembly resolutions, and other instruments. Inherent in the sustainable development concept is the principle that land must be used in a sustainable manner, whether title is held by the state or by private owners. This obligation is embodied in a series of instruments―often couched in vague language and subject to limiting conditions―by which states pledge to adopt domestic measures that will restrict the rights of owners in order to ensure the sustainable use of wetlands, agricultural land, forests, and other lands within their territories. For example, development of private wetlands is effectively restricted by the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat,63 which requires the parties to “promote . . . as far as possible the wise use of wetlands in their territory.”64 In turn, the “wise use” standard has been defined as maintaining the ecological character of wetlands “through the implementation of ecosystem approaches, within the context of sustainable devel opment.”65 Guidelines issued under the convention suggest that states should con sider regulating or prohibiting development activities on privately owned wetlands in order to avoid environmental damage.66 The Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa67 also reflects the sustainable use principle. It requires each member state to establish a sustainable development plan, which may include new legislation to promote sustainable land management.68 Annex I, which governs implementation of the convention in Africa, requires each state to take measures to ensure the “sustainable management of natural resources, including . . . agricultural and pastoral land.”69 The African Commission has taken a similar view. The principles it adopted to implement the African Charter on Human and Peoples’ Rights emphasize the importance of the human right to food.70 They accordingly obligate member states to ensure that all persons are able to feed themselves “through environmentally, economically, and socially sustainable methods from productive land or other resources.”71 (Hungary v Slovakia) 1997 ICJ Rep 7 para 140. Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, February 2, 1971, 996 UNTS 245). 64 Ramsar Convention art 3(1). 65 Ramsar Convention, Ninth Meeting of the Contracting Parties, resolution IX.1, annex A (November 15, 2005). 66 Ramsar Convention Secretariat, Ramsar Handbook 3: Institutions and Laws (4th edn, 2010) 37. 67 Convention to Combat Desertification in those Countries Experiencing Serious Drought and/ or Desertification, Particularly in Africa (Convention to Combat Desertification) (Paris, October 14, 1994, 1954 UNTS 3). 68 Convention to Combat Desertification art 5(b), (e). 69 Convention to Combat Desertification annex I, art 8(3)(b). 70 African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (ACHPR Principles) (2011) paras 83–86. 71 ACHPR Principles para 86(vi). 62 63

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International instruments have extended the sustainable use principle to forests. UN General Assembly Resolution 62/98 proclaimed that each state is “responsible for the sustainable management of its forests.”72 It called on all member nations to “[r]‌everse the loss of forest cover worldwide through sustainable forest man agement.”73 Although a global forest treaty does not yet exist, the International Tropical Timber Agreement reflects the principle by requiring states to promote the “sustainable management” of tropical forests.74 The principle of sustainable land use was reaffirmed at the 2012 UN Conference on Sustainable Development. The document resulting from the conference, entitled “The Future We Want,” stressed the need for promoting “more sustain able agriculture, including crops, livestock, forestry, fisheries and aquaculture.”75 Similarly, the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security, adopted by the UN Food and Agriculture Organization in 2012, emphasize the importance of sustainable use. A core principle is the adoption of a “holistic and sustainable approach” to land management, which recognizes that “natural resources and their uses are interconnected.”76 Accordingly, the guidelines stress that “no tenure right, including private ownership, is absolute” and that such rights are also “balanced by duties,” which include “the long-term protection and sustainable use of land, fisheries and forests.”77 Today the principle of sustainable land use is, at most, an emerging trend. However, in future years, as the overarching sustainable development concept is increasingly accepted as an international norm, the principle may well gain recog nition as a form of binding law. UN GAR 62/98, UN Doc A/RES/62/98 (January 31, 2008) para 2(b). UN GAR 62/98 para 5. 74 International Tropical Timber Agreement, UN Doc TD/TIMBER.3/12 (February 1, 2006) art 1. 75 United Nations, The Future We Want (Rio de Janeiro, June 22, 2012) para 111. 76 UN Food and Agriculture Organization, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Voluntary Guidelines) (2012) para 3B(5). 77 Voluntary Guidelines para 4.3. 72 73

13 The Right to Exclude

A. Introduction The right to exclude others is a core attribute of the global right to property. Indeed, it has been suggested that this right is the single most important aspect of the right to property. Yet it is often omitted from international formulations that attempt to describe ownership rights, presumably because it is thought to be implicit in language that safeguards the owner’s right to enjoy or use. Almost by definition, the right to exclude others is necessary for an owner to enjoy and use movable or immovable things. Ownership is often analogized to sovereignty. In this sense, the owner’s right to exclude is the private law counterpart of the state’s power to control its terri tory. The concept that each state has sovereign authority over its territory is an axiom of international law. This authority includes the right to exclude other states and their nationals. A state that cannot control its territory cannot effect ively function as a state. This logic suggests that a person who lacks the right to exclude others from land or other assets cannot be viewed as an owner. Yet the analogy between ownership and sovereignty is imperfect. While a state has virtu ally unlimited discretion to exclude, the owner’s right is subject to limitations imposed by municipal law. The right to exclude is given special emphasis in contexts such as communal property, the home, and intellectual property. Yet even here the right is not abso lute. For example, despite the high level of protection afforded to the home, an owner must allow entry by state or private actors under limited circumstances. The traditional common law adage that “a man’s home is his castle” is literary hyperbole. Moreover, international law authorizes restrictions on the right to exclude in certain situations. Although human rights law and investment law recognize the right, doctrines in both areas permit the state to restrict it to some degree. The necessity doctrine utilized in both municipal and international law is another exception to the right.

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B. Recognizing the Right (1) Generally As a general rule, each natural or legal person has the right to exclude state and private actors from the movable and immovable things that are subject to his or her ownership. As AM Honoré explains, the right “to have exclusive physical control of a thing . . . is the foundation on which the whole superstructure of ownership rests.”1 In a similar vein, other theorists argue that the right is the sine qua non of the right to property; without it, they suggest, the “right to property” cannot exist.2 At a minimum, the state is obligated to respect the owner’s right to exclude by not interfering with its exercise. In addition, the state may have a positive obliga tion to protect the right to exclude private actors, either by taking preemptive action or by providing an adequate remedy that allows the owner to recover exclu sive possession. Richard Posner offers a utilitarian explanation for the right to exclude: it maxi mizes the efficient use of property.3 Imagine that a farmer plants a field of corn and nurtures it until the crop is almost ready to harvest. A stranger then enters the field, harvests the corn, sells it, and pockets the proceeds. Alternatively, suppose that the stranger enters the land and destroys the crop. If the right to exclude is not recognized, the farmer has no recourse in either instance. In such a situation, Posner reasons that a farmer has no incentive to use land productively. By protect ing the farmer and other owners against nonconsensual intrusions, the right to exclude encourages each owner to utilize land or other assets in a socially beneficial manner.4 A second utilitarian rationale is that the right to exclude is necessary to preserve social order and avoid breaches of the peace. In everyday life, people expect that they are entitled to use their land and other assets without interference from state or private actors. Routine commerce would be impossible, for example, if any one could steal goods from merchants. If the right were not recognized, owners might protect their assets through self-help remedies that could involve the use of force. As an American court explained, “one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser . . . who fails to heed no trespass warnings.”5 This could generate a violent confrontation that threatens harm not only to the parties to the dispute, but to innocent bystanders as well. Over time, the widespread use of self-help remedies would undercut the integrity of the domestic legal system. 1 AM Honoré, “Ownership,” in Anthony G Guest (ed), Oxford Essays in Jurisprudence (OUP 1961) 113. 2 eg JE Penner, The Idea of Property in Law (OUP 1997) 71; Thomas W Merrill, “Property and the Right to Exclude” (1998) 77 Nebraska L Rev 730. 3 Richard A Posner, Economic Analysis of Law (8th edn, Aspen Publishers 2011) 40. 4 JE Penner similarly justifies the right on the basis that it is necessary to facilitate the use of prop erty. Penner, The Idea of Property 71. 5 Jacque v Steenberg Homes, Inc, 563 NW2d 154, 161 (Wis 1997) (US).

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Finally, the right to exclude is sometimes justified under liberty-based approaches. Jeremy Waldron, for example, argues that recognition of the right establishes a vital “realm of private freedom” for each person―an area “where he can make decisions about what to do and how to do it, justifying these decisions if at all only to himself.”6 He buttresses this position by focusing on the link between freedom and privacy, noting that people “need a refuge from the general society of mankind . . . a place where they can be assured of being alone . . . or assured of the conditions of intimacy with others.”7

(2) Sources of the Right (a) Overview The ancient laws prohibiting the theft of tangible objects protected the owner’s right to exclusive possession. A provision in the Twelve Tables, for example, stated that anyone caught committing a theft in daytime “shall be scourged, and given up as a slave to the person against whom the theft was committed.”8 The Digest of Justinian recognized that the right extended as well to immovable property, noting that a person “can be prevented from entering upon land belonging to another.”9 Because Roman law never developed a comprehensive definition of ownership, it did not expressly acknowledge the right to exclude. Yet the existence of the right was an implicit assumption, part of the substructure of Roman property law. In the Enlightenment era, civil law scholars revived the right to exclude. Hugo Grotius viewed the right as a fundamental part of ownership; he observed that dominion “connotes possession of something peculiarly one’s own, that is to say, something belonging to a given party in such a way that it cannot be similarly possessed by any other party.”10 Samuel Pufendorf explained that dominion over property allowed the owner “to dispose of things, which belong to us as our own, at our pleasure, and to keep all others from using them.”11 Ultimately, Robert Joseph Pothier identified the right to exclude as one of six core attributes of owner ship: “the right to prevent all others from using [property], except those who have a right under a servitude or under an agreement granting a certain use.”12 In the common law tradition, William Blackstone famously defined property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual

6 Jeremy Waldron, The Right to Private Property (Clarendon Press 1988) 295. 7 Waldron, Right to Private Property 296. 8 Twelve Tables II(V), in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973). 9 Digest of Justinian 47.10.13, in Scott, The Civil Law. 10 Hugo Grotius, De Jure Praedae Commentarius (first published 1868, Clarendon Press 1950) (Gwladys L Williams & Walter H Zeydel trs) 227. 11 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (first published 1672, Clarendon Press 1934) (CH Oldfather & WA Oldfather trs) vol 2, 533. 12 Robert Joseph Pothier, Traité du Droit de Domaine de Propriété (Chez Debure 1772) 7.

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in the universe.”13 Under Blackstone’s approach, the owner’s right to exclude was vir tually absolute, at least in theory.

(b) International Law The international authorities that recognize the right to exclude fall into three categor ies: human rights conventions and case law developed thereunder; treaties governing property rights in specialized situations; and arbitral decisions in investment disputes. The regional human rights conventions evidence widespread acceptance of the right. The right to property established in the African Charter on Human and Peoples’ Rights (ACHPR)14 has been interpreted by case law to include “the right . . . not to have one’s property invaded or encroached on.”15 For example, in Centre for Minority Rights v Kenya, the state displaced an indigenous community from its ancestral lands to create a game preserve.16 The African Commission on Human and Peoples’ Rights explained that “the right to undisturbed possession, use and control” was an inherent part of the right to property,17 and concluded that the community’s property had been “severely encroached upon” in violation of the charter.18 The American Convention on Human Rights (ACHR)19 expressly provides that everyone has the right to the “use and enjoyment of his property,”20 which by impli cation includes the right to exclude. In interpreting this phrase, the Inter-American Commission on Human Rights has explained that the “common legal meaning” of the term “property” includes “the right . . . to exclude everyone else from interfering with it.”21 The Inter-American Court of Human Rights shares this view, as illus trated by the case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua.22 There, the state awarded logging concessions to foreign corporations over lands traditionally occupied by an indigenous community without obtaining the com munity’s approval, thereby ignoring its right to exclude. The court found a viola tion of the right to property in the ACHR, in part because the state “has granted concessions to third parties to utilize the property” owned by the community.23 Finally, Protocol 124 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)25 guarantees the “peaceful enjoyment” of 2 Bl Comm 2. African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). Constitutional Rights Project v Nigeria Comm no 140/94 (ACmHPR, November 5, 1999) para 54. 16 Comm no 276/03 (ACmHPR, November 25, 2009). 17 Centre for Minority Rights para 186. 18 Centre for Minority Rights para 238. 19 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 20 ACHR art 21(1). 21 Report no 39/96 (IACmHR, October 15, 1996) para 26. 22 Series C no 79 (IACtHR, August 31, 2001). 23 Mayagna (Sumo) Awas Tingni Community para 153. 24 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 25 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221). 13 14 15

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possessions. The European Court of Human Rights examined the interrelationship between the right to property and the right to exclude in the case of Chassagnou v France.26 Although French law traditionally acknowledged a landowner’s right to prohibit hunting, a modern statute required owners of small parcels to transfer their hunting rights to municipal hunters’ associations. The applicants claimed the statute interfered with their right to property because “they were obliged to toler ate the presence of hunters on their land.”27 As the court explained, “the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt.”28 It concluded that this “restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants’ enjoyment of their rights as the owners of the property.”29 In so doing, the court acknowledged that the right to exclude is protected as part of the right to property under the ECHR. Second, a number of treaties that create or harmonize property rights implicitly recognize the right to exclude as an attribute of property. One example is found in the Convention on International Interests in Mobile Equipment.30 It provides that a creditor holding a security interest in movable property covered by the conven tion is not entitled to take possession of the object unless the debtor has defaulted on its obligations.31 Until that point, the debtor retains its traditional right to exclude all persons from the property, including the secured creditor. The UN Convention on the Law of the Sea provides another illustration.32 As amended by the 1994 Agreement relating to the Implementation of Part XI, it creates an international regime to allocate property rights in valuable minerals on the deep seabed beyond the limits of national jurisdiction.33 A natural or legal person who files a successful application receives the “exclusive right” to exploit the mineral resources in a particular region; when the applicant obtains physical possession of the minerals, it obtains title to them.34 Treaties designed to protect the property rights of vulnerable groups also reflect the right to exclude. The Convention on the Elimination of All Forms of Discrimination against Women guarantees the same rights for both spouses with respect to the “ownership, acquisition, management, administration, enjoyment and disposition” of property.35 In context, this phrase clearly implies that the spouses have the exclusive right to manage, administer, and enjoy the property, (2000) 29 EHRR 615. Chassagnou para 72. 28 Chassagnou para 74. 29 Chassagnou para 74. 30 Convention on International Interests in Mobile Equipment (Cape Town Convention) (Cape Town, November 16, 2001, 2307 UNTS 285). 31 Cape Town Convention arts 8(1)(a), 13(1)(b). 32 UN Convention on the Law of the Sea (Montego Bay, December 10, 1982, 1833 UNTS 3). 33 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982 (New York, July 28, 1994, 1836 UNTS 3). 34 International Seabed Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (July 13, 2000) 16. 35 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13) art 16(1)(h). 26 27

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and hence the right to exclude others; otherwise, the protection afforded by the convention would be a nullity. Another example is the UN Declaration on the Rights of Indigenous Peoples, which defines communal ownership as “the right to own, use, develop and control” lands and other resources.36 Although the declar ation does not specify that the right to “use” is exclusive in nature, this is implicit in the context; the purpose of the declaration is to safeguard the rights of indigenous peoples from interference by state or private actors. Finally, the right to exclude is recognized as a fundamental attribute of own ership by arbitral tribunals adjudicating investment disputes. It is widely agreed that an indirect expropriation occurs when a state takes control over a foreign investment, thereby barring the owner from exercising its right to exclude. The point is illustrated by Starrett Housing Corp v Iran, where the government of Iran appointed a “temporary manager” of an Iranian company in which the claimants owned a majority of the shares; this action “deprived them of their property rights to manage and control” the company.37 The Iran-United States Claims Tribunal found that this conduct interfered with the claimants’ prop erty rights “to an extent that rendered these rights so useless that they must be deemed to have been taken.”38 Similarly, the tribunal in Tippetts, Abbett, McCarthy, Stratton v TAMS-AFFA Consulting Engineers observed that “assump tion of control over property by a government” over an investment would constitute an expropriation “whenever events demonstrate that the owner was deprived of essential rights of ownership and it appears this deprivation is not merely ephemeral.”39

(c) Municipal Law The right to exclude is inherent in the civil law approach to property. The sweeping definition of “ownership” in Article 544 of the French Civil Code as “the right to enjoy and dispose of things in the most absolute manner”40 reflects the view that the owner is entitled to exclusive possession. An owner cannot enjoy things in an “absolute manner” without the ability to exclude others. The principal German statute defining ownership also recognizes this right by providing that the owner may “deal with the thing at his discretion and exclude others from every influ ence.”41 Finally, the Draft Common Frame of Reference defines ownership as includ ing “the exclusive right . . . to use [and] enjoy . . . the property.”42

36 UN Declaration on the Rights of Indigenous Peoples, UN GAR 61/295, UN Doc A/RES/61/295 (September 13, 2007) art 26(2). 37 Iran-US Claims Tribunal no 32-24-1 (December 19, 1983) part IV(a). 38 Starrett Housing Corp part IV(b). 39 Iran-US Claims Tribunal no 141-7-2 (June 29, 1994) part III(1). 40 Art 544 C civ (France). 41 § 903 BGB (Germany). 42 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Sellier 2009) VIII-1:202.

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As the European Court observed in the case of Appleby v United Kingdom, an owner has a broad right to exclude others from property in the United Kingdom: “A private person’s ability to eject people from his land is generally unfettered and he does not have to justify his conduct or comply with any test of reasonableness.”43 In much the same manner, the United States Supreme Court has acknowledged that an owner’s “right to exclude others” from property is “one of the most essen tial sticks in the bundle of rights that are commonly characterized as property.”44 American law has traditionally recognized that “[e]‌very person has a constitutional right to the exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.”45 Asian systems recognize the right to exclude. In China, the Property Rights Law defines the right to property as “the exclusive right enjoyed by the obligee to directly dominate a given thing according to law.”46 Thus, only the owner of a movable or immovable thing is “entitled to possess” it.47 If anyone takes posses sion without the right to do so, the owner can compel its return and, if necessary, ultimately bring suit to enforce the right to exclude.48 Moreover, the draft Chinese Civil Code specifies that ownership includes “the right . . . to exclude the interfer ence of another person.”49 The Vietnamese Civil Code follows this approach as well, defining “ownership rights” to include the “right . . . to possession.”50 Under the law, an owner’s possession “shall not be restricted or interrupted”;51 if this occurs the owner can obtain judicial relief to prevent the interference.52 The Japanese Civil Code provides that a lawful possessor who is “disturbed in his/her possession” may bring a lawsuit to obtain “discontinuance of the disturbance” and damages.53 Under Sharī’a law, “[i]‌nfringement of the property and rights of another person is not only a trespass against the law; it is also a sin against the religion and its God.”54 The owner’s right to exclude is implicit in this concept. An example is pro vided by a hadith that addresses the situation in which the branches of one owner’s tree extend into the land of a neighbor: “the neighbor has a right to cause his own air to be freed, by cutting those branches.”55

(2003) 37 EHRR 38 para 22. Kaiser Aetna v US, 444 US 164, 176 (1979). 45 Diana Shooting Club v Lamoreux, 89 NW 880, 886 (Wis 1902) (US). 46 Property Rights Law art 2 (China). 47 Property Rights Law art 39 (China). 48 Property Rights Law arts 32, 34 (China). See also General Principles of Civil Law art 106 (China). 49 Liang Huixing (ed), The Draft Civil Code of the People’s Republic of China (Martinus Nijhoff Publishers 2010) arts 221, 270. 50 Civil Code art 164 (Vietnam). 51 Civil Code arts 169(2), 184 (Vietnam). 52 Civil Code art 255 (Vietnam). 53 Civil Code art 198 (Japan). 54 Hossein Askari et al, Globalization and Islamic Finance: Convergence, Prospects and Challenges (J Wiley & Sons 2009) 63. 55 Raj Bhala, Understanding Islamic Law (LexisNexis 2011) 497. 43 44

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(3) Status of the Right Given its broad acceptance in both international law and major legal systems, the right to exclude should be recognized as a general principle of law. The common objections to the establishment of general principles have no application here.56 The use of the principle in a dispute between a state and a private actor could not result in any unfair surprise; and this same level of acceptance avoids the risk that its use would endow judges with unconstrained discretion. Finally, the right is suf ficiently broad in scope to satisfy scholarly concerns that a general principle should not be overly technical. In contrast, the right cannot be viewed as conventional law; its recognition in treaties is either indirect or based on interpretive case law. Similarly, although the right is evidenced by widespread state practice, the evidence of opinio juris is too limited for it to be viewed as a customary norm.

C. Special Applications of the Right (1) Communal Property In the case of communal property owned by indigenous or tribal peoples, the right to exclude is held by the community as a whole, not by its individual mem bers. The community determines whether state or private actors will be allowed to access the land and its resources, as reflected in the Centre for Minority Rights and Mayagna (Sumo) Awas Tingni Community cases discussed above. As a general rule, the right to exclude is largely irrelevant to the relationship between the community and its members. The members of an indigenous community, for example, are entitled to enjoy the same fishing, hunting, and grazing rights on communal lands, absent a rule or custom to the contrary.

(2) Homes (a) Generally Since the end of World War II, international law has increasingly protected the home. Article 12 of the Universal Declaration of Human Rights (UDHR)57 pro vides that “[n]‌o one shall be subject to arbitrary interference with his . . . home.”58 This concept is distinct from the general right to property recognized in UDHR Article 17. Indeed, Article 12 is generally understood not as creating property rights, but as protecting human dignity in the broad sense, reflecting the import ance that the UDHR preamble places on the “dignity and worth of the human See the discussion in ch 9C(2). Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 58 UDHR art 12. 56 57

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person.”59 Yet, to the extent that the article recognizes that the owner or occu pant has a right to be free from arbitrary interference with the home, it effect ively creates a limited right to exclude state and private actors. The principle that the home is safeguarded against arbitrary interference was incorporated into the International Covenant on Civil and Political Rights (ICCPR)60 and also included in the ECHR,61 the ACHR,62 and many national constitutions.63

(b) International Covenant on Civil and Political Rights ICCPR Article 17 protects the right of an owner, tenant, or other occupant to exclude others from the home.64 It provides that “[n]‌o one shall be subjected to arbitrary or unlawful interference with his . . . home,”65 and that “[e]veryone has the right to the protection of the law against such interference.”66 This formulation is broader than the UDHR provision in that it covers interference that is either arbitrary or unlawful, while the UDHR only encompasses arbitrary interference. ICCPR General Comment No 16, issued by the UN Human Rights Committee, interprets this article to require that any interference with the home must be (i) “in accordance with the provisions, aims and objectives” of the ICCPR, (ii) “in any event, reasonable in the particular circumstances,” and (iii) authorized by law.67 The paradigm example of an unlawful entry is the search of a home without a warrant. In the case of Sultanova v Uzbekistan,68 officials broke into an occupied house at midnight to conduct a search. The UN Human Rights Committee con cluded that “the search of the author’s house without warrant . . . amounts to a violation of article 17.”69 The more difficult question is whether a lawful entry is reasonable under the cir cumstances of the particular case. General Comment No 16 stresses that the search of a home by police or other officials should be “restricted to a search for necessary

UDHR preamble para 5. International Covenant on Civil and Political Rights (New York, December 16, 1966, 999 UNTS 171) art 17. 61 ECHR art 8. 62 ACHR art 11. 63 eg Constitution of Algeria art 40; Constitution of Bangladesh art 43(a); Constitution of Costa Rica art 23; Constitution of Côte d’ Ivoire art 4; Constitution of the Russian Federation art 25. 64 The decision to make this provision Article 17 in the ICCPR may be a form of homage to the parallel Article 17 provisions in the UDHR and the 1789 Declaration of the Rights of Man and of the Citizen, both of which recognize the right to property, particularly given the unsuccessful effort to include an express right to property in the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (New York, December 16, 1966, 993 UNTS 3). 65 ICCPR art 17(1). 66 ICCPR art 17(2). 67 UN Human Rights Committee, General Comment No 16, UN Doc HRI/GEN/1/Rev.9 (April 8, 1988) paras 3, 4. See also the discussion in ch 6C on the scope of the right to housing under the ICESCR and other instruments. 68 UN Doc CCPR/C/86/D/915/2000 (April 19, 2006). 69 Sultanova para 7.9. See also Coronel v Colombia, UN Doc CCPR/C/76/D/778/1997 (November 29, 2002) (warrantless searches violated Article 17). 59 60

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evidence and should not be allowed to amount to harassment.”70 The UN Human Rights Committee found that an entry violated Article 17 in the case of Rojas Garcia v Colombia.71 The controversy arose when a group of armed men wearing civilian clothes forcibly entered a home through the roof at 2:00 a.m., search ing the premises, verbally abusing the inhabitants, and firing a gun. It was later revealed that the men were from the public prosecutor’s office and were search ing for a murderer, but had mistakenly entered the wrong home. Regardless of its legality, the committee reasoned that the raid―which it described as “hooded men entering through the roof at 2 a.m.”―was not “reasonable in the particular circumstances.”72 The Rojas Garcia case suggests that an entry into a home by state actors must not only be authorized by domestic law, but must also be done in a reasonable manner with respect to its time, method, and extent.73 Article 17 does not prohibit officials from entering a home. In the routine course of governance, an entry may be appro priate for many reasons, including fiscal, health, safety, and security concerns. But an entry that has no relationship to a legitimate governmental purpose, such as an entry in order to harass a political opponent, would seemingly violate the article. Similarly, a justified entry that is effected at an unusual time or with unnecessary violence would also be improper, as the Rojas Garcia case illustrates. However, officials would be afforded substantially greater latitude under emergency circum stances such as a fire, earthquake, or other disaster. Although Article 17 is most commonly viewed as a limit on the state, General Comment No 16 provides that it applies to all interferences, whether they emanate from state actors or from “natural or legal persons.”74 Thus, it requires each state to prohibit private actors from entering a home without the owner’s consent, unless the entry complies with the article. This provision reflects an international norm that an owner or occupant has the right to exclude third parties from the home absent unusual circumstances. It is difficult to conceive of any situation short of an emergency where a noncon sensual entry into a home by private actors would comply with the standards set forth in General Comment No 16. The comment provides that any interference can only occur “on the basis of law, which itself must comply with the provisions, aims, and methods of the Covenant.”75 The preamble to the ICCPR reaffirms the goal of the UDHR that humans shall enjoy “freedom from fear.”76 A law that allowed private actors to enter a home over the objection of the occupant would

70 General Comment No 16 para 8. For example, the UN Human Rights Committee found a vio lation of Article 17 in Coronel v Colombia, supra, where soldiers randomly determined which homes would be searched, concluding that this method was “arbitrary.” 71 Comm no 687/1996, UN Doc CCPR/C/71/D/687/1996 (May 16, 2001). 72 Rojas Garcia para 10.3. 73 See also Barrios Family v Venezuela Series C no 237 (IACtHR, November 24, 2011) (unlawful entry by police agents violated right to privacy in the home in ACHR). 74 General Comment No 16 para 1. 75 General Comment No 16 para 3. 76 ICCPR preamble para 3.

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be inconsistent with this goal, because such a forcible entry would naturally arouse fear. Moreover, given the broad protection accorded to privacy within the home, almost any nonconsensual entry would also violate the criterion that the entry must be “reasonable in the particular circumstances.”77 One exception would arise when (i) the owner or occupant is incapable of consenting to entry and (ii) the entry is necessary due to an emergency situation. For example, a person might legitimately enter a home to rescue an incapacitated neighbor from a fire or to pro vide the neighbor with needed medical care. Another exception would be found when police or other security forces enter a home in hot pursuit of a criminal suspect.

(c) Convention for the Protection of Human Rights and Fundamental Freedoms ECHR Article 8 also protects the right of owners and occupants to exclude state and private actors from the home. Much like ICCPR Article 17, it provides that “[e]‌veryone has the right to respect for . . . his home.” Article 8 further specifies that the state may interfere with this right only (i) in accordance with the law and (ii) as “is necessary in a democratic society” to provide for national security, public safety, economic well-being, prevention of “disorder or crime,” protection of health or morals, or protection of the rights and freedoms of others.78 These exceptions echo the Article 17 requirements that interference must be both lawful and nonarbitrary. In McLeod v United Kingdom,79 the European Court confronted the same situation as in the Rojas Garcia case: the assertion that a nonconsensual police entry into a home was a human rights violation. The applicant divorced her husband in an acrimonious proceeding, became the sole owner of the family home, and was ordered by the court to deliver certain movable items to her hus band. Accompanied by a group that included two police officers, the husband went to the home to recover the items, only to be told that the applicant was not present. The husband and his party then entered and began removing items; the officers also entered but did not participate in the removal. The applicant subsequently obtained a domestic judgment against the husband and others for trespass. However, the court dismissed the action against the officers on the basis that they had a reasonable basis for believing that a breach of the peace might occur. Before the European Court, the applicant argued that the “power of the police to enter private premises in circumstances other than when there was a risk of physical harm to persons or property was not ‘necessary in a democratic society,’ ” and hence a violation of Article 8.80 The court ruled that, under the circumstances,

General Comment No 16 para 4. McLeod para 49.

77 80

ECHR art 8.

78

(1999) 27 EHRR 493.

79

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the police entry did not strike a fair balance between the applicant’s right to respect for her home and the need to prevent disorder or crime. It stressed that once the officers were told that the applicant was absent, they should not have entered the house, because “it should have been clear to them that there was little or no risk of disorder or crime occurring.”81

(3) Intellectual Property International intellectual property law is almost entirely focused on the right to exclude.82 It does not guarantee, for example, that the owner will be permitted to use the work. But it does require that states respect the owner’s right to prevent others from using the work without authorization. Three intertwined strands of international law delineate the right to exclude in this context. First, the International Covenant on Economic, Social and Cultural Rights83 and other human rights instruments recognize the right of creators to benefit from the “material interests” resulting from their artistic, literary, and scientific creations.84 States are required to take positive actions to “achieve the full realization” of this right.85 Second, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention),86 the Paris Convention for the Protection of Industrial Property,87 and related treaties effectively require that member nations adopt global minimum standards governing copyrights, patents, trademarks, and other types of intellectual property. Finally, international trade law as embodied in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) expands the application of the core intellectual property treaties to virtually all states and requires that states adopt adequate measures to enforce intellectual property rights.88 The Berne Convention exemplifies the concept that intellectual property pri marily consists of the right to exclude. Most of its substantive provisions guarantee that the creator of a protected work will have the “exclusive right” of authorizing particular uses by another person or entity, such as reproductions, translations, performances, or adaptations.89 As a general matter, no one else may legally use the particular work without such authorization.90 The creator’s right to refuse

McLeod para 57. See the discussion in ch 5E. 83 International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3). 84 ICESCR art 15(1)(c). 85 ICESCR art 15(2). 86 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221). 87 Paris Convention for the Protection of Industrial Property (Paris, March 20, 1883, 828 UNTS 107). 88 Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994, 1869 UNTS 299). 89 eg Berne Convention arts 8, 9, 11, 11bis, 11ter, 12. 90 The exclusive rights are subject to narrow exceptions. eg Berne Convention arts 9(2), 10, 10bis. 81 82

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permission for use of the work is, in substance, the right to exclude. Notably, the Berne Convention does not provide that the creator may use the work, a subject which is left to municipal law. The same theme is evident in the TRIPS provision that describes the “rights conferred” upon a patent owner. For example, it provides that a patent for a prod uct gives the owner the “exclusive right . . . to prevent third parties . . . from the acts of: making, using, offering for sale, selling, or importing . . . that product.”91 But nothing in TRIPS or any other related treaty guarantees that the patent owner has the right to actually use the product. Similarly, TRIPS describes the “rights con ferred” by a trademark as the “exclusive right . . . to prevent all third parties . . . from using in the course of trade identical or similar signs” that would be likely to result in confusion with the trademarked goods.92

D. Exceptions to the Right (1) Human Rights Law The right to exclude is based in part on international human rights law. The prin ciples used by the European Court to determine the scope of permissible regula tion of the right to use property, as discussed in Chapter 11, apply equally to the right to exclude.93 For example, in a number of cases the court has upheld restrictions on the right to exclude in the context of the landlord’s ability to evict a tenant from rented property,94 using the principles of legality, public interest, and proportionality. Because the African Commission and the Inter-American Court have seemingly endorsed the same principles, they would apply with equal force to limitations on the right under the ACHPR and the ACHR. The European Court analyzed the extent of the right to exclude in a pair of cases involving domestic laws to promote hunting. As noted above, the case of Chassagnou v France involved a French law that required owners of small parcels to transfer their hunting rights to municipal associations. The applicants, who opposed hunting on ethical grounds, asserted that the law violated their right to property because it prohibited them from excluding hunters. The court acknow ledged that the law fulfilled the principle of legality; it also satisfied the principle of public interest by regulating hunting and encouraging the rational management of game stocks. However, the court reasoned that the required fair balance had not been achieved. First, there was no practical method to avoid the transfer, despite the state’s claims to the contrary. Second, the law did not provide fair compensa tion for the impact of the law. The court rejected the state’s argument that affected landowners received compensation because they received the right to hunt on all TRIPS art 28(1)(a). These rights are limited, in turn, by TRIPS articles 30 and 31. TRIPS art 16(1). The scope of this right is limited by TRIPS article 17. 93 See the discussion in ch 11D(2). 94 eg Velosa Barreto v Portugal App no 18072/91 (ECtHR, November 21, 1995); Spadea v Italy (1996) 21 EHRR 482. But see Scollo v Italy (1996) 22 EHRR 514. 91 92

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lands controlled by the local association. It noted that the law “does not contem plate any measure of compensation for landowners opposed to hunting, who, by definition, do not wish to derive any advantage or profit from a right to hunt which they refuse to exercise.”95 Finally, it stressed that the law failed to create a uniform national system, because it applied only to 29 of the 93 departments in France and only to parcels under 20 hectares in size. The court concluded that “[c]‌ompelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden.”96 The European Court reached the opposite result 12 years later in Herrmann v Germany,97 which concerned a German hunting regime similar to the French system. Owners of parcels smaller than 75 hectares were required to transfer their hunting rights to local associations, which then allowed hunters to enter these lands. The applicant, who opposed hunting for ethical reasons, claimed the law violated the right to property protected by the ECHR. The court relied on two differences between the French and German approaches in ruling that the German law did strike the required fair balance. First, because Germany was “one of the most densely populated areas in Central Europe,” it was necessary to allow hunting on all suitable premises in order to regulate the quality of wild game.98 Accordingly, the German law did not exempt any public or private property owners, unlike the piecemeal French system. For this reason, the court concluded that the public interest underlying the German law was stronger than the interest at issue in the Chassagnou case. Second, owners of affected parcels were entitled to a proportion ate share of profits from leases of hunting rights by the local association, again unlike the French system. Therefore, the German law provided somewhat more protection for owners’ rights than the French law, even though the court admitted that the amount the applicant could receive “does not appear to be substantial.”99 Taken together, the Chassagnou and Herrmann decisions indicate that a law which requires owners to allow private actors to enter their lands on a frequent basis―thereby infringing the right to exclude―is an interference with the right to property.100 Although the extent of the public interest in curtailing the right depends on the facts in the particular case, these decisions suggest that a law with uniform, nationwide application is more likely to strike the fair balance required to satisfy the principle of proportionality. The Herrmann case demonstrates, unsur prisingly, that payment for the interference is unnecessary where the public interest is sufficiently strong. Because the amount of compensation potentially available to 95 Chassagnou v France para 82. 96 Chassagnou para 85. See also Schneider v Luxembourg App no 2113/04 (ECtHR, July 10, 2007), reaching the same result in a case involving a similar law in Luxembourg. 97 (2013) 56 EHRR 7. 98 Herrmann para 50. 99 Herrmann para 55. 100 eg Bugajny v Poland App no 22531/05 (ECtHR, November 6, 2007) para 59, noting that a state requirement that applicants allow the public to use privately owned roads “significantly reduced in practice the effective exercise of their ownership.”

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owners under the German law was apparently insubstantial, it seems likely that the court would have upheld the law even without this feature. In light of these cases, it is possible that domestic laws which authorize the pub lic to enter undeveloped lands for reasons other than hunting might well violate the ECHR―and potentially other human rights conventions as well. For instance, German law generally allows members of the public to enter private forests, marsh lands, grasslands, and similar lands for recreation without any compensation to owners. This law would clearly be viewed as an interference with the right to prop erty. Yet it may arguably serve the public interest: facilitating exercise to promote health; allowing better understanding of the relationship between humans and nature; encouraging children to pursue botany, biology, and other sciences; and providing recreational opportunities for residents of densely populated areas. It is unclear whether these benefits, taken together, would be sufficiently compelling for a court to find the required fair balance, especially absent compensation. Moreover, it seems unlikely that the right to property in the ECHR and similar instruments would allow owners of open land to exclude state actors in most cir cumstances. If the general interest in managing wild game was strong enough to allow private actors to enter in Herrmann, then officials could presumably enter for this purpose as well. The same rationale would apply to officials who enter private lands to further other legitimate governmental interests, such as environmental preservation, fire prevention, regional planning, scientific study, and tax collection. However, at some point the frequency or duration of such entries might not be justified by the public interest and, accordingly, might impose a disproportionate burden on the owner.101

(2) Investment Law If a state seriously interferes with the right to exclude held by a foreign investor― such as by seizing or permanently occupying an industrial facility or other assets― this may constitute an indirect expropriation for which compensation must be paid102 or a violation of the obligation to provide full protection and security.103 Conversely, temporary interference with the investor’s right to exclude may be permissible. In a series of cases, the Iran-United States Claims Tribunal dealt with a recurring situation in which the government of Iran appointed a man ager to supervise a domestic entity that was wholly or partially owned by an American corporation. Where the appointment was merely a temporary inter ruption of management control that caused no significant interference with ongoing business, the tribunal found that no expropriation had occurred. In Otis Elevator Company v Iran,104 for example, the tribunal noted that the 101 See also Ayangil v Turkey App no 33294/03 (ECtHR, November 15, 2011), holding that gov ernment authorization for children to use private land as a permanent school yard violated the owner’s right to property under the ECHR. 102 See the discussion in ch 11F(3). 103 See the discussion in ch 11E(3). 104 Iran-US Claims Tribunal no 304-284-2 (April 29, 1987).

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domestic subsidiary was inactive before and during the three-month term of the government-appointed manager; it had no workers and was not engaged in normal commercial transactions. The only evidence of interference was the manager’s announcement that any document creating an obligation for the sub sidiary should be co-signed by him, which the tribunal viewed as insignificant. Similarly, the tribunal held that installation of a manager over a domestic sub sidiary in Eastman Kodak Co v Iran105 was not an expropriation because the man ager’s role during the four-month term was minor and intended to help resolve disputes between workers and local managers.

(3) Necessity In most legal systems, necessity is an exception to the right to exclude. For exam ple, nonconsensual entry by state or private actors is permitted in the event of an emergency. An entry may be made to protect the health or safety of an incapaci tated owner, to fight a fire on adjacent land, to catch a fleeing criminal, or to land a malfunctioning airplane. In such situations, the policy justifications for the right to exclude are outweighed by other considerations. Although there is widespread agreement on the necessity exception as a general matter, states vary in defining the scope of the doctrine. Civil law jurisdictions recognize the necessity doctrine. German law provides that the owner of a thing may not “prohibit the influence of another person on the thing if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered by the owner as a result of the influence.”106 French law also recognizes the doctrine in certain contexts.107 The necessity exception is utilized in common law systems. In England, the law permits a private actor to enter land owned by another in order to avoid imminent danger.108 The United States follows the same rule, as evidenced by the classic case of Ploof v Putnam,109 where the court ruled that an owner was entitled to moor his boat to the defendant’s dock in order to avoid the danger posed by a sudden and violent storm. Vietnam recognizes a necessity exception that is similar to the German approach. In an emergency, the owner of property “must not hinder another person from using his/her own property or hinder another person from causing damage to such property in order to prevent or abate a greater danger.”110 The draft Chinese Civil Code establishes necessity as a general principle applicable to all tort actions. It provides that “[i]‌f the damages are caused because of a danger, the person who

Iran-US Claims Tribunal no 329-227-3 (November 11, 1987). § 904 GBG (Germany). 107 eg Art 682 C civ (France). 108 Southwark London Borough Council v Williams [1971] Ch 734 (UK). 109 71 A 188 (Vt 1908) (US). 110 Civil Code art 262 (Vietnam). 105 106

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avoids the danger shall not be responsible for the civil liability.”111 Japanese law also recognizes the principle of necessity in some situations.112 Sharī’a law acknowledges that necessity is a legitimate basis for deviating from the law.113 Thus, for example, the Civil Code of the United Arab Emirates incorporates the concept that “necessity excuses the doing of a prohibited act.”114 A specific illustration of the necessity doctrine, in attenuated form, arises from the landlocked parcel―a tract of privately owned land without access to a public road. In this situation, most legal systems permit the owner of the landlocked parcel to obtain a servitude for access over neighboring private land. For instance, the French Civil Code provides that the landowner whose property has either no access to a public highway or inadequate access to allow the land to be used is entitled to obtain a servitude over adjacent lands, provided that compensation is paid for resulting damage.115 German law allows the owner of a landlocked parcel to obtain a similar access right.116 England and the United States both recognize the easement by necessity, a type of servitude; when a landowner conveys title to a tract of land such that either the transferred land or the retained land no longer has a right of access to a public highway, the law will impose an easement that allows such access.117Asian systems provide the landlocked owner with essentially the same remedy. The Vietnam Civil Code states that an owner or other land user has the right to use an adjoining owner’s property in a “reasonable manner” to fulfill needs for access, water lines, electric lines, communication lines, and other needs, but must compensate the burdened owner.118 The Property Rights Law in China directs that when a “neighboring obligee has to use for passage . . . the land of an obligee of immovables, the latter shall grant the necessary convenience to the former.”119 The Japanese Civil Code contains similar provisions allowing passage across neighboring lands.120 Finally, under Sharī’a law, an owner must provide “neigh bors and strangers alike certain rights of passage and water flow.”121 The necessity doctrine is also a norm of customary international law. As the ICJ noted in the Case concerning the Gabčíkovo-Nagymaros Project, “the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation.”122 The scope of the doctrine was delineated by the UN International Law Commission in the Articles on Responsibility of States for Intentionally Wrongful Acts.123 Under Liang Huixing, Draft Civil Code art 1556. See Civil Code arts 209–11 (Japan). Joseph Schacht, An Introduction to Islamic Law (Clarendon Press 1964) 199–200. 114 Civil Code art 43 (United Arab Emirates). 115 Art 682 C civ (France). 116 § 917 BGB (Germany). 117 eg Peckham v Ellison (1998) 31 HLR 1031 (England); Berge v Vermont, 915 A2d 189 (Vt 2006) (US). 118 Civil Code art 273 (Vietnam). 119 Property Rights Law art 87 (China). 120 Civil Code arts 210–13 (Japan). 121 Bhala, Islamic Law 509. 122 1997 ICJ 7, 40. 123 UN International Law Commission, Articles on Responsibility of States for Intentionally Wrongful Acts, UN GAR 56/83 annex, UN Doc A/RES/56/83 annex (December 12, 2001). 111 112 113

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Article 25, necessity may not be invoked as a defense unless the act in question is the “only way for the State to safeguard an essential interest against a grave and imminent peril” and does not “seriously impair an essential interest of the State . . . towards which the obligation exists, or of the international community as a whole.”124 Although the customary norm evolved to regulate relations among states, it has been extended by arbitration tribunals to disputes between a state and a private investor. For example, in Total SA v Argentine Republic, the tribunal permitted Argentina to assert the necessity defense against a private company.125 It observed that Article 25 “is generally accepted as having codified the customary law in this matter, as also accepted by both parties in this case.”126 Given its widespread use in municipal law, the necessity exception to the right to exclude should be viewed as a general principle of law. The broad acceptance of the doctrine in customary international law buttresses this proposition. In particular, since the doctrine is increasingly applied in disputes between a state and a private actor concerning investment property, it should be recognized in all property-related disputes at the international level that involve private actors. Its effective codification as Article 25 of the Articles on Responsibility of States for Intentionally Wrongful Acts provides a helpful template to determine the scope of the principle. Articles on Responsibility of States art 25. ICSID no ARB/04/01 (December 23, 2010). The tribunal ultimately concluded, however, that Argentina had not proven the facts necessary to establish the defense. 126 Total SA para 220. 124 125

14 The Right to Transfer

A. Introduction The right to transfer is a necessary component of the global right to property. The earliest known legal codes reflect the existence of the right by regulating the man ner through which things may be sold, exchanged, or otherwise transferred. In the modern era, the right to transfer is the cornerstone of every market economy. By definition, a market can function only if owners are generally free to transfer goods and other assets through mutually beneficial exchanges. As one scholar has com mented, “an economic history of Western civilization is hardly imaginable without a notion of property of which the alienability is an integral part.”1 Recognition of the right to transfer as an inherent part of the global right should be noncontroversial. Most former socialist states have abandoned ideological oppo sition to private property, transitioned to market economies, and greatly expanded the scope of property rights permitted under domestic law. Today the right to transfer is accepted as a fundamental concept in almost every domestic legal sys tem, including China, Russia, and former Soviet bloc nations. At the international level, conventions, UN instruments, case law, and other authorities also evidence general acceptance of the right. Like other components of the global right, the right to transfer is best viewed as a general principle of law that may be subject to various restrictions. Each state retains broad authority to regulate matters such as the legal capacity of owners to transfer and the things that may be transferred. International law may also limit the scope of the right. Assuming that the right to transfer is part of the global right to property, it is appropriate to consider how this right may be implemented. Municipal laws mani fest widespread conceptual agreement on the acceptable methods for transferring property rights, in part due to the legacy of Roman law. Major legal systems gen erally recognize that these rights may be transferred, inter alia, through abandon ment, gift, sale, and succession. 1 EJH Schrage, “Ius in re corporali perfecte disponendi: Property from Bartolus to the New Dutch Civil Code of 1992,” in GE van Maanen & AJ van der Walt (eds), Property Law on the Threshold of the 21st Century (MAKLU 1996) 59.

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B. Recognizing the Right (1) Generally The right to transfer entitles an owner to assign, bequeath, devise, encumber, exchange, give, lease, lend, mortgage, sell, or otherwise transfer rights in mov able and immovable things to others on such terms and conditions as the owner deems appropriate. At the most basic level, the state has a duty to respect the right. Despite its authority to regulate the transfer process, it may not unduly interfere with the exercise of the right. In addition, the state may be obligated to take posi tive measures to protect the right, such as providing an adequate land registration system to safeguard a transferee’s title. The principal justification for the right is based on utilitarianism. Richard Posner explains that the transferability of property rights is a necessary condi tion for the efficient use of resources. He offers the example of the unsuccess ful farmer whose “land would be more productive in someone else’s hands.”2 If the farmer cannot transfer title, he will continue to use the land in a sub optimal manner, which injures society by reducing the available quantity of food and other agricultural products. Conversely, if the farmer can transfer title, the land will probably be acquired by a more successful farmer who will increase production and thereby benefit society. The value that the unsuccessful farmer places on the land is based on a low level of productivity. Because the buyer can use the land more effectively, she values the land more highly than the seller. Accordingly, both parties―and society in general―are better off by allowing a voluntary exchange of the seller’s title for the buyer’s money. As Posner summarizes, “if ownership rights were freely transferable . . . value would be maximized.”3 A second rationale for transferability is grounded in personal liberty. Lockean theory posits that under natural law each owner is entitled to deal with property in any manner, subject only to the proviso that this not harm the rights of others. As a result, the owner who has acquired property rights in movable or immov able things may transfer these rights to others free from interference by the state. A second rights-based justification is derived from Hegelian theory, premised on the concept that recognition of each person’s right to property “is part and parcel of respect for them as free moral agents.”4 Jeremy Waldron suggests that freedom of alienation allows people to “reach accommodations with others on their own terms and on their own initiative to satisfy needs or wants that they cannot satisfy on their own.”5

Richard A Posner, Economic Analysis of Law (8th edn, Aspen Publishers 2011) 41. Posner, Economic Analysis of Law 41. 4 Jeremy Waldron, The Right to Private Property (Clarendon Press 1988) 444. 5 Waldron, Right to Private Property 296. 2 3

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(2) Sources of the Right (a) Overview The right to transfer has been a fundamental legal principle for millennia. The earliest civilizations in China, Greece, and Mesopotamia utilized markets for the purchase, exchange, and sale of tangible goods. These markets were necessarily premised on the concept, express or implied, that each seller was legally entitled to transfer such goods. In describing the nature of property, Aristotle emphasized the right to trans fer: “[Property] is ‘our own’ if it is in our power to dispose of it or keep it. By ‘disposing of it’ I mean giving it away or selling it.”6 Roman law reflected the same orientation. An entry in the Digest of Justinian noted that “nothing is so conform able to natural equity as that the wish of an owner, who intends to transfer his property to another, should be complied with.”7 A substantial body of Roman property law, dating back to the Twelve Tables,8 was devoted to delineating the methods by which an owner could exercise this right. Dominium over land, houses, and livestock, for example, could be voluntarily transferred only through mancipatio or cessio, both highly formal procedures. Later scholars denominated the right to transfer as the jus disponendi. Natural law theorists in the Enlightenment stressed the importance of the right to transfer. Hugo Grotius argued that the right arose independently of the state: “After the introduction of ownership it is of the law of nature that men, who are the owners of property, should have the right to transfer the ownership, either in whole or in part. For this right is present in the nature of ownership, at least of full ownership.”9 In a similar vein, Samuel Pufendorf reasoned that “the power of a man to alienate a thing of his or to transfer it to another, comes from the nature of full dominion.”10 Since dominion “gives the owner the power to dispose of a thing as he pleases . . . the main feature of this power [is] to be able, if he pleases, to transfer it to another.”11 Ultimately, these views coalesced in two major eighteenth-century texts. In 1765, William Blackstone’s Commentaries on the Laws of England identified the right to property as one of three “absolute” rights in English law―meaning rights that would belong to persons “in a state of nature.”12 It explained that this right included “the free . . . disposal of all . . . acquisitions, without any control or

6 Aristotle, Rhetoric 1.5.20, in Robert Maynard Hutchins (ed), The Works of Aristotle (Encyclopedia Britannica 1952) (WR Roberts tr). 7 Digest of Justinian 41.1.9, in Samuel P Scott, The Civil Law (Central Trust Co 1932) (reprinted by AMS Press 1973). 8 eg Twelve Tables VI(1), (3), in Scott, The Civil Law. 9 Hugo Grotius, De Jure Belli ac Pactis Tres Libri (first published 1625, Clarendon Press 1925) (Francis W Kelsey tr) vol 2, 260. 10 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (first published 1672, Clarendon Press 1934) (CH Oldfather & WA Oldfather trs) vol 2, 606. 11 Pufendorf, De Jure Naturae vol 2, 606. 12 1 Bl Comm 119, 134.

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diminution, save by the laws of the land.”13 This approach subsequently influenced other common law jurisdictions. In 1772, Robert Joseph Pothier’s Traité du Droit de Domaine de Propriété helped to revive the Roman law approach to property as a monolithic entity, rather than the medieval system which fractionalized interests among different holders.14 Pothier explained that a core component of ownership was the right to transfer, noting that “the right to dispose includes the right of the owner to alienate his thing.”15 Subsequently, the French Declaration of the Rights of Man and Citizen of 1793 identified “property” as one of four “natural and imprescriptible” rights of man.16 It proclaimed that the right to property allowed every citizen “to dispose at his pleasure of his goods, income, and of the fruits of his labor and his skill.”17 This vision of property, as embedded in the French Civil Code of 1804, was later embraced by states following the civil law tradition.

(b) International Law A broad array of international authorities―including regional human rights con ventions, anti-discrimination treaties, investment treaties, UN instruments, and case law from courts and arbitration tribunals―recognizes the right to transfer as a core component of the global right to property. In Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)18 and the Charter of Fundamental Rights of the European Union19 both protect the right to transfer. In Marckx v Belgium, the European Court of Human Rights observed that “the right to dispose of one’s property con stitutes a traditional and fundamental aspect of the right to property” guaranteed by the ECHR.20 The court struck the same theme in Sporrong v Sweden, explaining that the state’s actions did not constitute a deprivation of property in violation of the ECHR because, in part, the applicants were still entitled “to . . . sell, devise, donate or mortgage their properties.”21 Similarly, Article 17 of the charter defines the right to property as including each person’s right to “dispose of and bequeath his or her lawfully acquired possessions.”22 In Hauer v Land Rheinland-Pfalz, the European Court of Justice found that a regulation did not deprive the owner of the right to property under EU law because “he remains free to dispose of it or to put it to other uses which are not prohibited.”23 1 Bl Comm 134. Robert Joseph Pothier, Traité du Droit de Domaine de Propriété (Chez Debure 1772). 15 Pothier, Traité du Droit 7. 16 Declaration of the Rights of Man and Citizen (1793) (France) arts 1, 2. 17 1793 Declaration art 16. 18 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221), as amended by Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 19 Charter of Fundamental Rights of the European Union (December 7, 2000, 40 ILM 266). 20 (1979) 2 EHRR 330 para 63. 21 (1983) 5 EHRR 35 para 62. 22 Charter of Fundamental Rights art 17. 23 Case no 44/79 [1979] ECR 3727 para 19. 13 14

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The right to property under the American Convention on Human Rights (ACHR),24 the African Charter on Human and Peoples’ Rights (ACHPR),25 and the ASEAN Human Rights Declaration26 also encompasses the right to transfer. The Inter-American Commission on Human Rights has observed that the “com mon legal meaning” of the term “property” as used in the ACHR includes “the right to dispose of something in every legal way.”27 The right to property under the ACHPR was interpreted by the African Commission on Human and Peoples’ Rights as containing the right to “[e]‌quitable and non-discriminatory . . . acquisi tion . . . of land and housing,” which necessarily implies that the right to transfer is also protected.28 Finally, the ASEAN Human Rights Declaration specifies that the right to property includes “the right to . . . dispose of and give that person’s lawfully acquired possessions.”29 The right to transfer is reflected in anti-discrimination treaties as well. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)30 guarantees the same rights for both spouses with respect to the “dis position of property, whether free of charge or for a valuable consideration.”31 This implies that the right to dispose of property is an existing background principle in international law, but that discrimination at the national level interferes with the exercise of this right. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families32 safeguards the right to transfer by providing that these workers “shall have the right to transfer their earnings and savings and, in accordance with the applicable legislation of the States concerned, their personal effects and belongings” when their employment ends.33 The Convention concerning Indigenous and Tribal Peoples in Independent Countries (ITP Convention)34 protects the right in the context of communal property. It mandates that procedures established by indigenous peoples “for the transmission of land rights among members of these peoples shall be respected.”35 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). African Charter on Human and Peoples’ Rights (Nairobi, June 27, 1981, 1520 UNTS 217). 26 ASEAN Human Rights Declaration (November 18, 2012), reprinted in 32 Human Rights LJ 219 (2012). 27 Report no 39/96 (IACmHR, October 15, 1996) para 26. 28 African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (2011) art 55(viii). 29 ASEAN Human Rights Declaration para 17. 30 Convention on the Elimination of All Forms of Discrimination against Women (New York, December 18, 1979, 1249 UNTS 13). 31 CEDAW art 16(1)(h). See also Independent Expert Report, The Right of Everyone to Own Property Alone as Well as in Association with Others, UN Commission on Human Rights, UN Doc E/ CN.4/1994/19 (November 25, 1993) (by Luis Valencia Rodríguez), noting that the “contents of the right to property may be regarded as a number of exclusive powers of ownership, including . . . ‘disposi tion of property.’ ” Independent Expert Report 90. 32 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CPRMW) (New York, December 18, 1990, 2220 UNTS 3). 33 CPRMW art 32. 34 Convention concerning Indigenous and Tribal Peoples in Independent Countries (Geneva, June 27, 1989, 1650 UNTS 383). 35 ITP Convention art 17(1). 24 25

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Various UN human rights instruments also evidence the right. For instance, the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, issued by the UN Food and Agriculture Organization, provide that “[w]‌here appropriate, States should recognize and facilitate fair and transparent sale and lease markets as a means of transfer of rights of use and ownership of land, fisheries and forests.”36 The Draft Articles on the Expulsion of Aliens adopted by the UN International Law Commission acknowledge the right by directing that the expelling state “shall, in accordance with the law, allow the alien to dispose freely of his or her property, even from abroad.”37 In addition, the right to transfer is reflected in principles of international invest ment law. Multilateral and bilateral investment treaties typically mandate that the host state accord both national treatment and most-favored-nation treatment to foreign investors from member states in the sale or other disposition of their assets.38 For example, the North American Free Trade Agreement (NAFTA)39 requires both levels of protection for the “sale or other disposition” of a covered investment.40 The ASEAN-Australia-New Zealand Free Trade Agreement requires only national treatment.41 Finally, the Energy Charter Treaty mandates both levels for the “disposal” of an investment.42 Arbitration tribunals have similarly indicated that the right to transfer is pro tected by the principles governing expropriation of foreign investments. In Continental Casualty Co v Argentina, the tribunal observed that state interference with “one or more key features” of property such as “transferability” would be “tantamount to expropriation.”43 Another noted that state action which caused an “inability to use, enjoy or dispose of the property” would constitute an expropri ation.44 Moreover, in Unglaube v Costa Rica45 the tribunal reasoned that an expro priation had occurred, in part, due to conduct which impaired the investor’s right to transfer. In that case, the state announced a plan to expropriate the investor’s land but took no steps to implement this decision for more than nine years; dur ing this period, the land “was obviously impacted in terms of saleability and use.”46 The tribunal concluded that this conduct effectively deprived the investor of “her normal rights of ownership” and thus constituted an expropriation.47 From the perspective of the tribunal, the right to sell was a “normal right . . . of ownership.” 36 UN Food and Agriculture Organization, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012) guideline 11.1. 37 UN International Law Commission, Draft Articles on Expulsion of Aliens, UN Doc A/ CN.4/L.797 (May 24, 2012) art 30. 38 For a discussion of national treatment and most-favored-nation treatment in investment law see ch 10C(2). 39 North American Free Trade Agreement (San Antonio, December 17, 1992, 32 ILM 296). 40 NAFTA arts 1102(2), 1103(1). 41 ASEAN-Australia-New Zealand Free Trade Agreement (Cha-am, February 26, 2009) art 4. 42 Energy Charter Treaty (Lisbon, December 17, 1994, 2080 UNTS 95) art 10(7). 43 ICSID no ARB/03/9 (September 5, 2008) para 276. 44 National Grid PLC v Argentina, UNCITRAL Arb (November 3, 2008) para 149. 45 ICSID no ARB/08/1 (May 16, 2012). 46 Unglaube para 211. 47 Unglaube para 223.

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The right to transfer is reflected in a variety of other international instruments. The Convention on International Interests in Mobile Equipment establishes a global system that facilitates the sale and leasing of equipment by creating and enforcing security interests.48 Another example is the Convention on Contracts for the International Sale of Goods, which creates uniform standards for inter national sales transactions.49 These conventions are premised on the concept that an owner has the right to transfer goods and other assets in routine commerce. The same concept is contained in the Draft Common Frame of Reference, which seeks to establish a body of European law to govern the sale and purchase of goods; it defines ownership as including “the exclusive right . . . to . . . dispose of . . . the property.”50 In a similar manner, conventions concerning intellectual property rights broadly recognize the right to transfer. For instance, the Berne Convention for the Protection of Literary and Artistic Works states that its copyright protec tions extend not only to the author but also to “his successors in title.”51 The right to transfer is also implicit in the article which specifies that “even after the transfer” of “the author’s economic rights,” the author retains moral rights in the work.52 Moreover, the Agreement on Trade-Related Aspects of Intellectual Property Rights53 expressly guarantees that the owner of a patent shall “have the right to assign, or transfer by succession, the patent.”54 It further provides that “the owner of a registered trademark shall have the right to assign the trademark.”55

(c) Municipal Law The right to transfer is a fundamental principle in virtually all domestic legal sys tems. The right is sometimes established in the national constitution as part of the general right to property. For instance, the Constitution of Argentina guaran tees the rights of all residents to “dispose of their property.”56 The Constitution of Bangladesh provides that “[s]‌ubject to any restrictions imposed by law, every citi zen shall have the right to . . . transfer or otherwise dispose of property.”57 Another

48 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285). 49 Convention on Contracts for the International Sale of Goods (Vienna, April 11, 1980, 1489 UNTS 3). 50 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Sellier 2009) art VIII-1:202. 51 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221) art 2(6). 52 Berne Convention art 6bis(1). 53 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Marrakesh, April 15, 1994, 1869 UNTS 299). 54 TRIPS art 28(2). 55 TRIPS art 21. 56 Constitution of Argentina art 14. 57 Constitution of Bangladesh art 42(1).

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example is the Constitution of Bahrain, which states that “[n]o one shall be pre vented from disposing of his property within the limits of the law.”58 Finally, the Constitution of Russia specifies that the general right to property includes the right “to dispose of it.”59 More commonly, however, the right is reflected in domestic statutes. In France, Civil Code Article 544 defines “ownership” as including “the right to . . . dispose of things in the most absolute manner.”60 Article 537 also provides that “[p]‌rivate individuals have the free disposal of property which belongs to them.”61 German law specifies that “[t]he owner of a thing may . . . deal with the thing at his discre tion.”62 Both codes contain extensive provisions governing the manner in which property rights may be transferred. In the common law system, the right to transfer historically stems from case law. In England, an owner generally has complete power to transfer or otherwise dis pose of property rights. Traditionally, any attempt by another private party to pro hibit the transfer of a fee simple estate through a restriction in a deed, will, or other instrument was deemed void as an absolute restraint on alienation.63 Jurisdictions in the United States follow essentially the same view.64 Statutory provisions in both nations regulate the methods by which transfers may be made. In China, the Property Rights Law states that owners “shall be entitled to . . . dis pose of the immovables or movables according to law.”65 The Japanese Civil Code uses the same approach, providing that an owner “has the right, subject to limi tations by laws and ordinances, freely to . . . dispose of the thing owned.”66 The Vietnamese Civil Code identifies the owner’s right “to disposition of his/her prop erty” as one of three core ownership rights.67 It defines the right to disposition as “the right to sell, exchange, donate, lend, bequeath, abandon or dispose of . . . prop erty in other forms in accordance with the provisions of law.”68 Other statutes in these nations establish specific procedures for transferring property. Under Sharī’a law, an owner has the exclusive right to transfer; “[n]‌o other per son may lawfully sell or otherwise alienate the property.”69 In general, this law favors the alienability of property. It “forbids all conditions which would encroach upon the proprietary rights in the thing sold, such as a clause purporting to pro hibit re-sale.”70

Constitution of Bahrain art 9(c). Constitution of the Russian Federation art 35(1). 60 Art 544 C civ (France). 61 Art 537 C civ (France). 62 § 903 BGB (Germany). 63 eg Rochford v Hackman [1852] 68 ER 597 (England). 64 eg White v Brown, 559 SW2d 938 (Tenn 1977) (US). 65 Property Rights Law art 39 (China). 66 Civil Code art 206 (Japan). 67 Civil Code art 164 (Vietnam). 68 Civil Code art 197 (Vietnam). 69 Raj Bhala, Understanding Islamic Law (LexisNexis 2011) 451–52. 70 John Makdisi, Islamic Property Law: Cases and Materials for Comparative Analysis with the Common Law (Carolina Academic Press 2005) 339. 58 59

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(3) Status of the Right The right to transfer should be recognized as a general principle of law. The analysis in Chapter 9 for establishing the global right to property applies here with equal force.71 The right to transfer is a foundational concept in the major legal systems of the world. The treaties, UN instruments, case law, and other international author ities discussed above support this analysis as well. The concerns of some scholars about the use of general principles as a source of international law do not apply here. Because the right is universally accepted, its adoption as a general principle would not cause surprise or prejudice to any state. For the same reason, there is no risk that the principle would allow decision-makers to substitute their subjec tive judgment for objective analysis. Finally, the principle is sufficiently broad to provide guidance but not dictate a particular outcome. In contrast, the right to transfer probably cannot be viewed as conventional law. The right is recognized most directly by human rights conventions as part of the general right to property. However, given the sizable number of states that are not parties to such conventions, it cannot be recognized as international law on this basis. Although a number of other treaties clearly assume the existence of the right as a background concept or reflect it in specific contexts, this level of indirect recognition is insufficient. A stronger argument can be made that the right to transfer is customary inter national law. The state practice element is easily fulfilled, given its near universal acceptance in domestic law. But the opinio juris element may not be satisfied. The human rights conventions, other treaties, and UN instruments discussed above provide some evidence of opinio juris, which is helpful but far from dispositive. In contrast, decisions of arbitration tribunals in expropriation disputes tend to sup port the view that the right to transfer is part of the right to property protected under customary international law.

C. Scope of the Right (1) Communal Property A substantial body of international human rights law governs the property rights of indigenous and tribal peoples. In general, each people is entitled to the lands and related resources that its members have traditionally owned, occupied, or used.72 The ITP Convention provides that “[t]‌he rights of ownership and pos session of the peoples concerned over the lands which they traditionally occupy shall be recognised.”73 The UN Declaration on the Rights of Indigenous Peoples (IP Declaration) contains a similar provision.74 Title to these lands is vested in the See the discussion in ch 9C(2). See the discussion in ch 6E. 73 ITP Convention art 14(1). 74 UN Declaration on the Rights of Indigenous Peoples, UN GAR 61/295, UN Doc A/RES/61/295 (September 13, 2007) art 26. 71 72

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community as a whole, rather than in individual members. As the Inter-American Court explained, “[a]mong indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.”75 International law recognizes the authority of each indigenous or tribal people to maintain its traditional land tenure system―including restrictions on the right to transfer. The ITP Convention states that “[p]‌rocedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.”76 Similarly, the IP Declaration provides that states should give “due respect to the . . . land tenure systems of the indigenous peoples concerned.”77 This principle supersedes the general international norm that allows an individual owner to transfer property rights. These tenure systems typically do not permit a member to transfer rights in communal lands, because this would threaten the cultural integrity―and hence the survival―of the community. Conversely, the people as a whole are presumably free under international law to transfer title to their lands under some circumstances. The ITP Convention acknowledges this right by imposing a limitation on such transfers: the relevant people “shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own com munity.”78 It further provides that such a people may not be forcibly relocated by the state unless, inter alia, it gives “free and informed consent” and appropriate compensation is paid.79 In a related context, the Inter-American Commission con cluded in Dann v United States that lands owned by an indigenous people could be sold to the state only, inter alia, with the consent of the people “when they have full knowledge and appreciation of the nature or attributes of such property.”80

(2) Human Rights Law Most of the case law examining restrictions on the right to transfer has been gener ated by the European Court of Human Rights. The court has consistently analyzed these cases in light of the three principles discussed in Chapter 11: legality, public interest, and proportionality. The court has found a violation of the right to property where state action severely restricted both the right to transfer and the right to use, on the basis that this imposed a disproportionate burden. For instance, the case of Papamichalopoulos v Greece81 arose after the Greek navy occupied the applicants’ land, constructed a 75 Mayagna (Sumo) Awas Tingni Community v Nicaragua Series C no 79 (IACtHR, August 31, 2001) para 149. 76 ITP Convention art 17(1). 77 IP Declaration art 26(3). 78 ITP Convention art 17(2). 79 ITP Convention art 16. 80 Dann v United States Report no 75/02 (IACmHR, December 27, 2002) para 130. 81 (1993) 16 EHRR 440.

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naval base, and refused to allow them access or to pay compensation. The court found that the applicants were unable “either to make use of their property or to sell, bequeath, mortgage or make a gift of it.”82 It concluded that “the loss of all ability to dispose of the land,” together with the state’s repeated failure to remedy the situation, “entailed sufficiently serious consequences for the [property] de facto to have been expropriated.”83 Another illustration is Hutten-Czapska v Poland,84 where the applicant landlord challenged a statute that (a) required her to accept rents that were insufficient to pay the maintenance costs for the building and (b) imposed conditions that made it almost impossible to terminate a tenancy. The court again found a violation of the right to property, agreeing with the conclusion of the national constitutional court that the “right to derive profit from the prop erty . . . ha[d]‌ been destroyed and . . . the . . . right to dispose of one’s property ha[d] been stripped of its substance.”85 In the case of Palamara-Iribarne v Chile,86 the Inter-American Court of Human Rights adopted a similar analysis. There the state confiscated all physical copies of a book written by the claimant; it also seized or destroyed all the electronic ver sions of the book. The court noted that the “tangible dimension” of the claimant’s intellectual property rights included the “publication, exploitation, assignment, or transfer of the work . . .”87 It reasoned that the state’s conduct interfered with these rights by preventing him from “publishing, disseminating, and market ing his creation,” so that he could not “obtain any economic proceeds from its publication.”88 The determinant factor in these cases was that the state action deprived each owner of virtually all economic benefit, thereby rendering the right to property illusory. They imply that a less draconian measure would be permissible, partic ularly if the right to use were unimpaired. For example, a hypothetical statute could allow owners to fully utilize their assets, but provide that they could transfer title only through succession. Such a statute might well satisfy the proportionality standard if it were justified by an appropriate public interest. In addition, a number of ECHR decisions have analyzed measures that impair the right to transfer by forcing an owner to sell to a particular private party. James v United Kingdom89 involved long-term ground leases whereby tenants built homes on leased land at their own expense. At the end of the lease term, the landlord would receive title to both the home and the underlying ground. After the state adopted reform legislation that allowed tenants to purchase title, affected owners claimed that this compulsory transfer violated their right to property. They argued, in part, that the law “compelled the applicants to sell the properties, against their will, to private individuals for the benefit of those individuals.”90 Though conceding that

Papamichalopoulos para 43. 83 Papamichalopoulos para 45. 84 (2007) 45 EHRR 4. Hutten-Czapska para 202. 86 Series C no 135 (IACtHR, November 22, 2005). 87 Palamara-Iribarne para 103. 88 Palamara-Iribarne para 106. 89 (1986) 8 EHRR 123. 90 James para 34. 82 85

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a deprivation of property merely “to confer a private benefit on a private party” would not be in the public interest, the court reasoned that the transfers in this situation would enhance social justice.91 The court also rejected the applicants’ claim that they were forced to bear a disproportionate burden in that the purchase price was based only on the value of the site, with no consideration of the value of the home. It observed that, in effect, “the tenant and his predecessors are deemed already to have paid for the house.”92 In contrast, the court found violations of the right to property in Urbárska Obec Trenčianske Biskupice v Slovakia93 and Salus v Slovakia,94 where long-term tenants using small garden plots sought to acquire title from the owners pursuant to a statutory procedure. The court held that the statute served the public interest because it protected the rights of people who were actually using the land dur ing the turbulent era in which the state transitioned to a market economy. But it concluded that the compensation provided by the state was so low that it imposed a disproportionate burden: one-third of fair market value in one case, and 3% in the other. In both cases, the court utilized a sliding scale approach, balancing “the scope and degree of importance of the public interest against the nature and amount of compensation provided.”95 As these examples reflect, the European Court has analyzed cases involving com pulsory sales to private parties in essentially the same manner as expropriation cases where the state itself takes title over the owner’s objection. The impact of the state action on the owner’s right to transfer in the compulsory sales cases is subsumed within the deprivation of title, at least as to the question of proportion ality. Yet the strength of the public interest may be somewhat attenuated when the property is sold to a private party, as the sliding scale approach in the Urbárska and Salus cases implies. In sum, human rights law has little impact on the authority of a state to restrict the right to transfer except in extreme cases. It seems likely that a measure which prohibited any transfer of a valuable asset would normally violate the right to property if no compensation were provided. Yet there may be situations where the public interest dictates a contrary result.

(3) Nemo Dat Principle A core principle in major legal systems is that a person cannot transfer greater rights to property than he or she has. As a general rule, the buyer who obtains a movable or immovable thing from a seller without title receives no title. This prin ciple is embodied in the Latin adage nemo dat quod non habet, often translated as “one who has not cannot give.”

James para 40. 92 James para 56. 93 (2009) 48 EHRR 49. App no 28697/03 (ECtHR, November 3, 2009). 95 Urbárska para 126. See also Salus para 54. 91 94

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Under the French Civil Code, “the person who has lost or from whom a thing has been stolen” may recover it from a transferee within three years.96 Similarly, under German law the transferee does not receive title where “the thing was stolen from the owner, is missing or has been lost in any other way.”97 Yet both states recognize an exception based on the nature of the sale. In France, if the object was sold at a fair or market, at a public sale, or by a merchant selling similar items, the owner may recover it only by reimbursing the possessor for the purchase price.98 In Germany, if the object was sold at a public auction, the owner is barred from recovery.99 In the United Kingdom, when goods are sold “by a person who is not their owner” and without the owner’s consent, “the buyer acquires no better title to the goods than the seller had.”100 The same basic rule applies in the United States: “A purchaser of goods acquires all title which his transferor had or had power to trans fer.”101 Both states agree on two exceptions to this rule based on the circumstances surrounding the sale. The good faith buyer receives valid title where: (a) the seller has voidable title to the goods;102 or (b) the owner entrusts goods to a merchant selling items of that kind who then sells them in the ordinary course of business.103 Asian systems also recognize the nemo dat principle. The Chinese Property Rights Law provides that when a person transfers immovable or movable things “which he has no right to dispose of, the owner shall have the right to recover them.”104 The Japanese Civil Code states that the owner of a “stolen or lost art icle” may recover it from the transferee within two years.105 Finally, in Vietnam, “[l]‌awful owners and/or possessors” are entitled to recover a thing from a person who possesses it “without a legal basis.”106 All these states recognize exceptions based on the circumstances of the sale. In China, the owner cannot recover the thing if the transferee acted in good faith, paid a reasonable price, registered the thing as required by law, or took delivery of the thing where no registration was required.107 Japan echoes the French approach: if the possessor purchased the object in good faith at an auction, in a public market, or from a merchant selling things of the same kind, the owner can recover it only 96 Art C civ 2279 (France). 97 § 935(1) BGB (Germany). 98 Art C civ 2280 (France). 99 § 935(2) BGB (Germany). Von Bar, Draft Common Frame of Reference art VIII-3:101(1) adopts the nemo dat principle for the transfer of ownership in goods, but recognizes an exception where the transferee: (a) acquires the goods for value; and (b) “neither knew nor could reasonably be expected to know” that the transferor lacked title or authority. But the exception does not apply to stolen goods unless the transferee acquired them from “a transferor acting in the ordinary course of business.” Von Bar, Draft Common Frame of Reference art VIII-3:101(2). 100 Sales of Goods Act 1979 s 21(1) (UK). 101 Uniform Commercial Code § 2-403(1) (US). 102 Sale of Goods Act 1979 s 23 (UK); Uniform Commercial Code § 2-403(1) (US). 103 Factors Act 1889 s 2 (UK); Uniform Commercial Code § 2-403(2) (US). 104 Property Rights Law art 106 (China). 105 Civil Code art 193 (Japan). 106 Civil Code 256 (Vietnam). 107 Property Rights Law art 106 (China).

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by reimbursing the possessor for the purchase price.108 In Vietnam, the owner can recover a movable or immovable thing except where the possessor has obtained it in good faith at an auction or through a transaction with a party whose ownership is later cancelled by judicial or administrative decisions.109 Sharī’a law also reflects the principle. Where a person who lacks title sells an object, the owner is entitled to recover it from the buyer. The seller then becomes liable to the buyer for the amount of the purchase price.110 International law already recognizes the nemo dat principle in certain con texts. The concept has long been used by tribunals in adjudicating territorial dis putes between states. For example, in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria,111 Cameroon’s claim to sovereignty over the Bakassi peninsula was premised on a 1913 agreement by which Great Britain transferred title to the region to Germany. In response, Nigeria asserted that “Great Britain was . . . unable to pass title to Bakassi because it had no title to pass (nemo dat quod non habet).”112 The International Court of Justice (ICJ) ultimately found that Britain did hold title and accordingly rejected Nigeria’s claim; yet the court’s analysis demonstrates that the nemo dat principle does apply to border disputes.113 As Ian Brownlie summarizes in this context, “the principle which this maxim rep resents is undoubtedly a part of international law.”114 The principle is also reflected in treaties that govern the rights of private actors. The Convention on International Interests in Mobile Equipment, for example, provides that an internationally recognized security interest can only be created in an object which the “chargor, conditional seller or lessor has power to dispose.”115 In other words, the chargor, conditional seller, or lessor cannot transfer greater rights than it has. The same concept is set forth in the protocols that extend the conven tion regime to interests in aircraft,116 railway equipment,117 and space objects.118 It is therefore appropriate to apply the principle to other property disputes with an international character, such as disputes involving a state and a private actor. Given the widespread acceptance of the nemo dat concept in both municipal and international law, it should be recognized as a general principle of law in disputes involving private actors: an international limitation on the power to transfer rights in property. At this time, however, it is not possible to discern an international norm that defines exceptions to the principle. In the abstract, the municipal laws Civil Code art 194 (Japan). Civil Code art 258 (Vietnam). 110 Joseph Schacht, An Introduction to Islamic Law (Clarendon Press 1964) 139. 111 (Cameroon v Nigeria) 2002 ICJ Rep 303. 112 Case concerning the Land and Maritime Boundary between Cameroon and Nigeria 400. 113 Case concerning the Land and Maritime Boundary between Cameroon and Nigeria 407. 114 Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 121. 115 Convention on International Interests in Mobile Equipment art 7(b). 116 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Cape Town, November 16, 2001, 2367 UNTS 517). 117 Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (Luxembourg, February 23, 2007, 46 ILM 662). 118 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (Berlin, March 9, 2012). 108 109

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discussed above generally recognize an exception when a buyer purchases an item in good faith, without any reason to know that the seller’s title is defective. Yet it would be premature to suggest that this exception is a general principle of law given the variation among municipal laws on its scope.

D. Methods of Transfer (1) Abandonment As a general rule, an owner may terminate rights in movable and immovable things by abandonment. An owner abandons a thing by having the intent to relinquish ownership and doing an act that reflects that intent. Roman law recognized that ownership could be ended by abandonment. As stated in the Digest of Justinian, “[w]‌here property is considered to be abandoned, it immediately ceases to be ours, and belongs to the first occupant.”119 In the civil law tradition, Grotius wrote that “a thing which is thrown away is understood by the act to be abandoned,” absent circumstances suggesting an intention to recover it.120 He suggested that natural law established the principle that “every man has the right to abandon his own.”121 Blackstone similarly relied on “principles of uni versal law” in explaining that ownership of a movable or immovable thing ended when the owner performed an “act which shows an intention to abandon it.”122 The reasons for recognizing abandonment are more complex than they may first appear. JE Penner justifies abandonment from the perspective of owner auton omy: “One ought not to be saddled with a relationship to a thing that one does not want, and an unbreakable relation to a thing would condemn the owner to having to deal with it.”123 Lior Jacob Strahilevitz offers an economic rationale, explaining that abandonment permits the owner to avoid the transaction costs that would be inherent in any voluntary transfer.124 A related explanation is based on the social value of ensuring that the thing is placed in productive use, at least where it still has market value. Depending on the jurisdiction, the result of abandonment is that ownership is obtained either by the first person to take possession of the item or by the state.125 In both instances, the new owner is more likely than the former owner to ensure that the thing is used productively. Civil law states permit the abandonment of both movable and immovable things. Under German law the ownership of land is relinquished when the owner declares a waiver of rights and causes the waiver to be registered in the Land Register.126 Digest of Justinian 41.7.1, in Scott, The Civil Law. Grotius, De Jure Belli vol 2, 221. 121 Grotius, De Jure Belli vol 2, 222. 122 2 Bl Comm 9. 123 JE Penner, The Idea of Property in Law (OUP 1997) 79. 124 Lior Jacob Strahilevitz, “The Right to Abandon” (2010) 158 U Pennsylvania L Rev 355. 125 See the discussion of occupancy in ch 10D(3). 126 § 928(1) BGB (Germany). 119 120

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The ownership of a movable thing ends when the owner gives up possession of the thing with the intent to waive ownership.127 It is also accepted that movable and immovable things may be abandoned in France.128 In England, the law recognizes that movable things may be abandoned.129 But this principle traditionally does not apply to a fee simple estate in land. This excep tion is a holdover from the feudal era when it was deemed essential that seisin be vested in a particular person in order to facilitate the collection of services and incidents due to the Crown. However, a fee simple estate can be disclaimed, which has the same practical effect as abandonment. Nonfreehold estates and other lesser rights in land can be abandoned. The United States also follows the rule that a fee simple estate in land cannot be abandoned. The impact of this rule is minimal, however, because if an owner fails to pay annual property taxes, the land will be sold to the state for nonpayment. As a practical matter the nonpayment of taxes that typically accompanies attempted abandonment will result in a loss of title. Beyond this point, the law in the United States allows movable things and rights in immovable things other than a fee simple estate to be abandoned.130 Abandonment is also recognized in Asian nations. The Vietnamese Civil Code provides that the right to dispose of property includes the “right . . . to renounce such ownership rights,”131 a process that is akin to abandonment. In Japan, a pos sessory right is lost when the possessor “abandons the intention to possess.”132 The status of abandonment under Chinese law is less clear. The holder of a mortgage or pledge, for example, is authorized by statute to waive the right,133 so the con cept is recognized to some extent. Characteristically, the draft Chinese Civil Code has more extensive provisions on the subject. For instance, rights in immovable property would be extinguished by abandonment when the owner declares to the land registration office the “intent to abandon” the property and cancels the regis tration.134 Ownership of movable property would end when the owner “gives up possession of the property” with the “intention of waiving ownership.”135 International authorities dealing with the right to property held by private actors have not expressly addressed abandonment. However, the concept is argu ably implicit in treaties, case law, and other sources that acknowledge that the right to dispose of property is a core attribute of ownership, because abandonment is a commonly used method of disposal. Abandonment is recognized as a customary norm of international law in the context of territorial disputes between states. A state may terminate its sovereignty § 959 BGB (Germany). The French Civil Code addresses abandonment in specific contexts. eg Arts 539, 699, 2220 C civ. See also John Bell et al, Principles of French Law (2d edn, OUP 2008) 277. 129 eg Robot Arenas Ltd v Waterfield [2010] EWHC 115 (QB) (England). 130 eg Christofani v Board of Education, 632 A2d 447, 449 (Md Ct Spec App 1993) (US). 131 Civil Code art 195 (Vietnam). 132 Civil Code art 203 (Japan). 133 Property Rights Law arts 177, 194, 218 (China). 134 Liang Huixing (ed), The Draft Civil Code of the People’s Republic of China (Martinus Nijoff Publishers 2010) art 235(1). 135 Liang Huixing, Draft Civil Code art 358. 127 128

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over territory by abandonment, which is sometimes called dereliction or relin quishment. Citing examples dating back to the seventeenth century, one authority explains that dereliction occurs when the “owner-state” abandons territory “with the intention of withdrawing from it for ever, thus relinquishing sovereignty over it.”136 The same norm applies to sunken warships or other government vessels; the state retains ownership unless abandonment occurs. The ICJ has recognized the doctrine in a number of decisions involving territorial disputes, most commonly finding that no abandonment occurred. For example, in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, the court noted that Cameroon had “engaged in activities [in the disputed region] which made clear that it in no way was abandoning its title.”137 Given the widespread acceptance of the principle of abandonment in both municipal law and international law, it is appropriate to classify it as a general principle of law that applies to relationships between state and nonstate actors.

(2) Inter Vivos Gift A second method of transfer recognized by most legal systems is the inter vivos gift. Municipal laws generally allow an owner to transfer ownership of a thing during his or her lifetime without payment or other consideration. However, in some states this right is restricted by the forced heirship doctrine discussed in section (4). Civil law systems recognize the inter vivos gift. The French Civil Code provides that an owner may dispose of a thing through such a gift,138 which it defines as “a transaction by which the donor divests himself now and irrevocably of the thing donated, in favour of the donee who accepts it.”139 German law categorizes gifts as part of the law of obligations, not the law of property. It permits the donation of property―a “disposition by means of which someone enriches another person from his own assets [when] both parties are in agreement that the disposition occurs gratuitously.”140 Common law systems also permit gifts. In England, the law has long recog nized the inter vivos gift as a method by which an owner may transfer things to another.141 The United States also permits items to be transferred in this manner.142 In Asian systems, an inter vivos gift is often governed by contract law. The law of Vietnam provides that the owner’s right to dispose of a thing includes the right to “donate” it.143 It authorizes a contract for such a donation, whereby the donor 136 Robert Jennings & Arthur Watts (eds), Oppenheim’s International Law (9th edn, Longman 1992) vol 1, 717. 137 (Cameroon v Nigeria) 2002 ICJ Reports 303, 416. 138 Art 893 C civ (France). 139 Art 894 C civ (France). 140 § 516 BGB (Germany). 141 eg Berry v Warnett [1980] 3 All ER 798 (England). 142 eg Gruen v Gruen, 496 NE2d 869 (NY 1986) (US). 143 Civil Code art 197 (Vietnam).

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transfers an item to the donee without compensation.144 In China, the Contract Law similarly recognizes a contract under which “the donor conveys his property to the donee without reward and the donee manifests his acceptance of the gift.”145 The Japanese Civil Code follows the same approach.146 Under Sharī’a law, “any owned property may be given as a gift, for free and with no expectation of anything in return, by its rightful owner, thereby conferring ownership on the beneficiary of the gift.”147 International authorities typically define the right to transfer in terms of the disposal of a thing, without distinguishing inter vivos gifts from other forms of disposal. It is logical that the broad term “disposal” would include inter vivos gifts; certainly, there is no reason to exclude gifts from this category. Moreover, the European Court has interpreted the right to property under the ECHR as includ ing the right to “donate.” An example is Brumarescu v Romania, where the court observed that the right to property was violated by a judgment which deprived the applicant of “the rights of ownership”: “In particular, he was no longer able to sell, devise, donate or otherwise dispose of the property.”148 The implication of this language is that a donation is a protected form of disposal.149 Given the widespread recognition of the inter vivos gift by domestic legal sys tems, coupled with some evidence of international acceptance as well, it is appro priate to view the right to transfer by gift as a general principle of law.

(3) Sale A core principle shared by virtually all domestic legal systems is that an owner may sell property rights in a voluntary transaction in return for payment or other consideration. This principle is discussed in Chapter 10 from the perspective of the right to acquire. Because the right to transfer is the counterpart to that right, the prior discussion is equally applicable here. In addition, international authorities interpreting the scope of the right to trans fer acknowledge that the paradigm method is through a sale or other transfer for value, as evidenced by human rights decisions. Cases decided under the ECHR and the ACHR recognize that the right to sell is included within the general right to property. For example, in Paduraru v Romania the European Court noted that an owner was generally entitled to “sell” property,150 while in Ivcher-Bronstein v Peru the Inter-American Court similarly observed that the “right to sell” was a “fundamental attribute . . . of the right to property.”151 Civil Code art 465 (Vietnam). Contract Law art 185 (China). 146 Civil Code art 549 (Japan). 147 Bhala, Islamic Law 475. 148 (2001) 33 ECHR 35 para 77. 149 See also Paduraru v Romania (2012) 54 EHRR 18 para 75; Mellacher v Austria (1990) 12 EHRR CD97 para 188. 150 (2012) 54 EHRR 18 para 75. 151 Series C no 74 (IACtHR, February 6, 2001) para 117. 144 145

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NAFTA,152 the ASEAN-Australia-New Zealand Free Trade Agreement,153 and other investment treaties typically require the host state to protect the investor’s right to sell the investment. Even absent such a provision, investment arbitration decisions such as Unglaube v Costa Rica have recognized the right to sell. In that case, where long-delayed expropriation proceedings impacted the “saleability and use” of the investor’s land, the tribunal found that she had been deprived of “her nor mal rights of ownership.”154 The Convention on International Interests in Mobile Equipment, the Convention on Contracts for the International Sale of Goods, and the Draft Common Frame of Reference, among other instruments, similarly reflect the centrality of the right to sell as a component of the general right to property. The customary norm of international law that allows a state to voluntarily cede territory to another state in return for payment or other consideration also provides a useful precedent. A leading treatise identifies cession as a traditional method of acquiring territory, and notes that “[h]‌istory provides innumerable examples of such transfers of sovereignty.”155 Alternatively, a state may retain sovereignty while conveying a right of exclusive use over territory to another state.156 In light of this analysis, the right to transfer by sale should be viewed as a general principle of law. The right is widely accepted by domestic legal systems and also recognized by international authorities, which attests to its fundamental nature. Moreover, because a parallel right applies to the relationship among states, it logic ally follows that the right may be recognized in similar contexts, such as in a dis pute between a state and a private actor, without impairing the integrity of the international system.

(4) Succession It is generally accepted that an owner may transfer property rights through a will that becomes effective at death. This concept was reflected in the Twelve Tables of ancient Rome, which provided that “[n]‌o matter in what way the head of a house hold may dispose of his estate, and appoint heirs to the same . . . it shall have the force and effect of law.”157 Today many states that recognize the right to transfer by will simultaneously limit its scope through the doctrine of forced heirship: a share of the decedent’s estate ranging from one third to three quarters cannot be transferred by will and instead is reserved by law for certain relatives. The principal rationale for forced heirship is to protect family members from being impoverished by the thoughtless ness or ill will of the decedent. It also preserves family solidarity by ensuring that 152 NAFTA arts 1102, 1103, requiring national treatment and most-favored-nation treatment for the “sale or other disposition of investments.” 153 ASEAN-Australia-New Zealand Free Trade Agreement ch 11, art 4 requires national treatment for the “sale, transfer or other disposition of investments.” 154 ICSID no ARB/08/1 (May 16, 2012) para 211. 155 Jennings & Watts, Oppenheim’s International Law vol 1, 679. 156 Brownlie, International Law 376. 157 Twelve Tables V(I), in Scott, The Civil Law.

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family members receive equitable shares of the estate. In addition, a theme in some states is that the doctrine serves to prevent excessive concentration of wealth by widely distributing the decedent’s assets. Both the right to bequeath and the forced heirship doctrine are generally rec ognized in civil law systems. French law permits an owner to transfer property rights by will.158 However, a share of the estate is reserved for the decedent’s surviv ing children. This varies in size from one half to three quarters depending on the number of children.159 The surviving spouse receives one quarter of the estate if no children survive.160 Under German law, an owner may designate the persons who will inherit by a will or a contract of inheritance.161 The policy favoring testamentary freedom is so pronounced that any contract by which a person agrees to make or not make a will or to cancel or not cancel a particular bequest is void.162 However, the surviving children, spouse, and parents of the decedent are entitled to a statutory share of the estate, regardless of the provisions of the will or inheritance contract. This is gen erally equal to one-half of the value of the share that each would obtain through intestate succession.163 It is a fundamental principle in England, the United States and most other common law jurisdictions that an owner has the right to transfer property through a will. Yet this right is not absolute. In England, a court has the power to grant a “reasonable financial provision” from the decedent’s estate to the surviving spouse, children, and certain others, regardless of the provisions of the will.164 Most juris dictions in the United States allow the surviving spouse to choose between accept ing the bequest under the will or receiving an elective share equal to one third or one half of the estate.165 The Japanese Civil Code provides that an owner may transfer property by will, subject to forced heirship provisions.166 Where lineal ascendants are the sole heirs, they are entitled to one third of the estate; otherwise, the decedent’s children, surviving spouse, and lineal ascendants receive a statutory share equal to half of the estate.167 The law of Vietnam specifies that the owner has the “rights . . . [t]‌o designate his heirs” and to “divide his estate for each of his heirs.”168 However, the owner’s parents, surviving spouse, minor children, and adult children without working capacity are entitled to a statutory share of the estate, equal to two thirds of the amount that each would receive under intestate succession.169 In China, an Bell, French Law 262–63. Art 913 C civ (France). 160 Art 914 C civ (France). 161 §§ 1937, 1941 BGB (Germany). 162 § 2302 BGB (Germany). 163 § 2303 BGB (Germany). 164 Inheritance (Provision for Family and Dependents) Act 1975 s 2 (England). 165 John G Sprankling, Understanding Property Law (3d edn, LexisNexis 2012) 156. 166 Civil Code art 964 (Japan). 167 Civil Code art 1028 (Japan). 168 Civil Code art 648 (Vietnam). 169 Civil Code art 669 (Vietnam). 158 159

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owner may dispose of property through a will,170 except that “a necessary portion” of the estate must be reserved for any family member who qualifies as an intestate successor and “can neither work nor has a source of income.”171 Sharī’a law permits the decedent to transfer up to one third of the estate by will; the balance goes to the legal heirs in fixed shares specified in the Koran.172 International authorities usually define the scope of the right to transfer as the “disposal” of property without specifying particular methods of transfer. This would presumably include the right to transfer property by will. Yet some authorities are more specific. For example, the EU Charter of Fundamental Rights expressly protects the owner’s right to “bequeath his or her lawfully acquired pos sessions.”173 In addition, decisions by the European Court of Human Rights have made it clear that a “devise” is a type of transfer protected by the right to property in the ECHR.174 Disputes involving the right to transfer by will are often focused on its coun terpart, the right to inherit property by will―because only the heir is alive to litigate the matter. For example, in yyCyprus v Turkey the European Court found evidence that “the property of Greek Cypriots in the north cannot be bequeathed by them on death,” but instead “passes to the authorities as ‘abandoned’ prop erty.”175 It concluded that this arrangement violated the right to property in the ECHR because “the inheritance rights of persons living in southern Cyprus” were not recognized.176 Recognition of the right to inherit in such cases is inextricably intertwined with recognition of the right to transfer. International recognition of the right to transfer property by will is also reflected in the Convention providing a Uniform Law on the Form of an International Will.177 It is increasingly common for a person to execute a valid will in one state but eventually die in another state. If the will is invalid under the law of the state of death, the owner’s right to transfer would be obviated. The convention seeks to avoid this problem by establishing standards for an international will that is enforceable in all member states. The basic requirements are: (a) a written will, signed by the decedent in the presence of two witnesses or acknowledged before them; and (b) the decedent’s declaration before two witnesses and an appropriate official that “the document is his will and that he knows the contents thereof.”178 The Convention on the Establishment of a Scheme of Registration of Wills179 also reflects an international norm that recognizes the right to transfer by will. Law of Succession art 16 (China). Law of Succession art 19 (China). 172 Bhala, Islamic Law 1108–12. 173 EU Charter of Fundamental Rights art 17(1). 174 eg Brumarescu v Romania (2001) 33 EHRR 35 para 77; Paduraru v Romania (2012) 54 EHRR 18 para 75. 175 App no 25781/94 (ECtHR, May 10, 2001) para 270. 176 yyCyprus para 270. 177 Convention providing a Uniform Law on the Form of an International Will (Will Convention) (Washington, October 26, 1973, 12 ILM 1298). 178 Will Convention annex art 4(1). 179 Convention on the Establishment of a Scheme of Registration of Wills (Basel, May 16, 1972, 1138 UNTS 243). 170 171

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Given the widespread acceptance of the right to transfer property by will in municipal and international law, it should be viewed as a general principle of law. Defining its scope is more difficult in light of the forced heirship doctrine, which varies in scope from state to state. At a minimum, however, it may be said that the right to transfer property by will is often constrained by a statutory requirement that certain surviving relatives receive a share in the estate regardless of the provi sions of the will.

PA RT I V OUTLOOK

15 Reflections on International Property Law

A. Introduction Over the past 40 years, conventions, customary law, general principles of law, arbi tral and judicial decisions, soft law instruments, and other sources have generated a substantial body of property law at the international level. The development of this law is far from complete. Much like an unfinished jigsaw puzzle, it has blank areas that remain to be filled with future pieces. However, the time has come to recognize international property law as a discrete subject. Modern international law affects the property rights of private actors in a wide array of specific subject areas, ranging from aircraft to wild animals, as discussed in Chapters 3–8. This law is particularly important in settings where municipal laws governing property rights are ineffective or insufficient, such as regulating transnational activities, managing resources in the global commons, and shielding vulnerable groups. In these contexts and others, international law creates, protects, harmonizes, restricts, and prohibits property rights. On a more general scale, the emerging global right to property applies to all subject matter areas. International human rights law and international investment law, moving in somewhat parallel fashion, have begun to develop a framework of uniform standards that govern property rights, as analyzed in Chapters 9–14. Although these regimes approach property law from different starting points, their doctrines overlap to some extent, creating linkages that have grown closer over time. In particular, case law developed by human rights tribunals has influenced arbitration panels adjudicating investment disputes, and vice versa. The law stem ming from these regimes is supplemented by property doctrines that are almost universally recognized by domestic legal systems and may be viewed as general principles of law or customary norms. This chapter demonstrates that recognition of international property law as a discrete field will serve jurisprudential values as a general matter and provide prac tical benefits in specific contexts. The chapter also analyzes the future of inter national property law by tracing the themes that will shape its development and exploring the trajectory of its evolution.

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B. Jurisprudential Values (1) Role of Legal Categories Scholars, lawyers, and judges view law as a series of categories, each of which has its own distinct characteristics. This approach can be traced back to the Institutes of Justinian, which divided Roman law into four separate books: persons, things, contracts and succession, and actions. In turn, William Blackstone adopted a simi lar structure in his Commentaries on the Laws of England, which organized English law into four volumes: persons, things, civil wrongs, and criminal law. This system profoundly shaped the manner in which common law doctrines were categorized. Four decades later, the French Civil Code of 1804―the cornerstone of the modern civil law system―followed the Justinian model by dividing French law into four books: persons, property, acquisition of property, and civil procedure. Notably, property was a core category in each of these taxonomies. Legal categories serve jurisprudential values. At the instrumental level, they help to ensure that similar norms are treated in a similar manner. This allows norms to be formulated with greater precision, administered effectively by tribunals, and adjusted as necessary to deal with new situations.1 Categories also help to safeguard the legitimacy of the law. As Jay Feinman explains, the “law’s claim to authority still rests in part on logic, order, and consistency.”2 Identifying the key rules and principles that comprise a category allows them to be applied, interpreted, and developed in relation to each other, thereby bringing coherence and consistency to the subject. The creation of new categories is particularly important in international law. The UN International Law Commission has supported categorization as a method for minimizing the fragmentation that results from the expansion of international law.3 The commission has stressed: “As a legal system, international law is not a ran dom collection of . . . norms. There are meaningful relationships between them.”4 It has also observed that “sometimes all the rules and principles that regulate a certain problem area are collected together so as to express a ‘special regime,’ ” in areas such as “the law of the sea” and “human rights law.”5 The recognition of such a special regime facilitates the interpretation and application of the law because it allows the relevant rules and principles to be considered in relation to each other. International law was traditionally divided into a small number of categories because it regulated only interactions among states. Over time, however, it grew to encompass subject areas that were once viewed as municipal law categories relat ing to the rights and duties of non-state actors. As a result, these categories were Jay M Feinman, “The Jurisprudence of Classification” (1989) 41 Stanford L Rev 661, 676. Feinman, “The Jurisprudence of Classification” 676. UN International Law Commission, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/61/10 (2006). 4 Study Group on the Fragmentation of International Law para 1. 5 Study Group on the Fragmentation of International Law para 12. 1 2 3

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transplanted into international law, leading to the recognition of new fields such as international criminal law, international environmental law, and international intellectual property law. Despite its fundamental role in municipal law, property law is not yet recognized as a category at the international level. The precise point at which a group of doctrines should be reconceptualized as a new category is unclear. In general, it seems appropriate that a category should be established when there is a sufficiently large body of related doctrines and recognition of the category will further the instrumental and legitimacy goals outlined above.

(2) International Property Law as a Category Property law was historically viewed as a domestic concern, aside from a few lim ited contexts. The conventional wisdom is that international property law does not exist as a category. Yet, as this book demonstrates, a substantial body of inter national property law is already in place―and its growth rate is accelerating. It should accordingly be recognized as a specialized regime within the overall field of international law. The designation of international property law as a category advances instrumen tal values. The subject areas analyzed in this book are generally seen as compon ents of other categories. For example, security interests in vessels are classified as maritime law; security interests in aircraft and railway equipment are encompassed within trade law; security interests in satellites might be viewed as space law; and security interests in intellectual property are a subset of intellectual property law. At bottom, however, a security interest is a property right regardless of the nature of the asset that it encumbers. From an instrumental perspective, all types of secur ity interests should be primarily governed by uniform property law standards, even if asset-specific variations may sometimes be appropriate. The same analysis applies equally to the other doctrines discussed in this book. Classifying these rules and principles as components of a comprehensive international property law regime will help to ensure that similar norms are treated in a similar manner. Recognition of the category also enhances the legitimacy of the international system. It will help to improve legal doctrine by identifying and developing the core principles of international property law, which will bring more order and consistency to the field. One illustration is found in the methods for transferring property rights. It is widely accepted in municipal law―and to some extent by international law as well―that an owner may transfer rights through, inter alia, abandonment, gift, sale, and succession.6 Acceptance of these modes of transfer as general principles of law will clarify the international rules governing prop erty rights and facilitate their further refinement over time. Another example is the increasing overlap between the standards used by human rights tribunals and investment arbitration panels in evaluating state regulation of the right to See the discussion in ch 14D.

6

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use property.7 Classifying these standards as property law principles will accelerate their expansion and development by bridging the conceptual gulf between human rights law and investment law.

C. Practical Applications (1) Generally In addition to serving jurisprudential values, a robust body of international prop erty law offers practical benefits in a number of situations. These include: providing law for use by international tribunals; clarifying the rights of intergovernmen tal organizations; providing law that private actors can utilize in planning and implementing transactions; establishing law to govern the global commons; and harmonizing municipal laws.

(2) International Tribunals The development of international property law can provide legal principles for international tribunals to use when property issues arise, either to supply a rule of decision or to interpret other sources of law. Because international law increasingly encompasses the rights and liabilities of non-state actors, the need for principles that govern property rights will similarly expand. International disputes relating to property issues are most frequently heard by regional human rights tribunals and, to a lesser degree, by investment arbitra tion panels. The European Court of Human Rights, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights would benefit from access to uniform property law principles. Such principles would also assist new human rights organizations such as the Arab Human Rights Committee established to monitor compliance with the Arab Charter on Human Rights,8 the entity that may ultimately be created to implement the ASEAN Human Rights Declaration,9 and future human rights tribunals in other regions. Similarly, the inability of investment arbitration panels to draw upon uni form property law principles contributes to inconsistency among decisions. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States,10 which governs ICSID arbitrations, provides that, absent an agreement between the parties, the tribunal should apply “the law of the Contracting State party to the dispute . . . and such rules of international law as 7 See the discussion in ch 11F(5). 8 Arab Charter on Human Rights (May 22, 2004), reprinted in 24 Boston U Intl LJ 149 (2006). 9 ASEAN Human Rights Declaration (November 18, 2012), reprinted in 32 Human Rights LJ 219 (2012). 10 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (Washington, March 18, 1965, 575 UNTS 159).

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may be applicable.”11 As the convention reflects, the domestic property law of the host state may have an important role in defining the respective rights and duties of the parties. However, there is a need for consistent international principles that, inter alia, (a) determine the global minimum standards of protection that the host state must accord and (b) identify the rights that constitute “property” for this purpose. Outside of these specialized areas, other tribunals have little or no international property law to apply, creating the risk that a tribunal might refuse to decide a dispute under the non liquet doctrine. Many tribunals deal with property law issues on occasion, including the International Court of Justice, specialized UN entities such as the Human Rights Committee and the Committee against Torture, and ad hoc panels such as the Iran-US Claims Tribunal, the Housing and Property Claims Commission established after the Kosovo conflict, and the Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina.12 The development of international property law will help to ensure that property rights are uniformly respected in such tribunals. In addition, principles of international property law can be used to interpret other sources of law. The Vienna Convention on the Law of Treaties provides that “any relevant rules of international law applicable in the relations between the parties” may be used in determining the meaning of a treaty provision.13 The UN International Law Commission has stressed that customary law and general prin ciples of law are “of particular relevance” for this purpose when a treaty provision is “unclear or open-textured,” a term used in the treaty has a specialized meaning, or the treaty is “silent on the applicable law.”14 For example, many treaties contain provisions that affect rights or duties with respect to “property” but fail to define the meaning of the term.15 Recognizing aspects of property such as the rights to use, exclude, destroy, and transfer as general principles of law would aid in inter pretation of these treaties.

(3) Intergovernmental Organizations The rights of intergovernmental organizations (IGOs) will be clarified by the development of international property law principles. Because IGOs, by their very nature, must be exempt from the control or jurisdiction of any single state, the legal standards that govern their property rights are unclear. For example, the 1947

ICSID Convention art 42(1). See the discussion in ch 3B(2). 13 Vienna Convention on the Law of Treaties (Vienna, May 23, 1969, 1155 UNTS 331) art 31(3) (c). 14 Study Group on the Fragmentation of International Law para 20. 15 eg International Covenant on Economic, Social and Cultural Rights (New York, December 16, 1966, 993 UNTS 3) art 2(2); International Convention on the Elimination of All Forms of Racial Discrimination (New York, March 7, 1966, 660 UNTS 195) art 5(d)(v); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (New York, December 18, 1990, 2220 UNTS 3) art 15. 11 12

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Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations provides that such agencies “shall have the capacity . . . to acquire and dispose of immovable and movable property.”16 But, unsurprisingly, the con vention does not specify the methods by which property rights may be acquired or transferred. The growing body of international property law will help to resolve the gaps and ambiguities in these treaties.

(4) Private Transactions International property law will allow businesses, individuals, and other private actors to better structure their participation in activities that have a transnational dimension. A major function of municipal law is to establish a predictable legal framework within which citizens can effectively plan their affairs. In recent dec ades, the development of international contract law has created a similar frame work at the global level. Given the growth of international transactions involving property rights, a comprehensive body of international property law would simi larly provide useful guidance for private actors. The Convention on International Interests in Mobile Equipment17 reflects the momentum toward global property principles by allowing creditors to create internationally recognized security interests in aircraft, rail cars, and other mov able equipment. The expansion of this regime to conditional sales agreements and other sales contracts substantially broadens its scope. Building on this foundation, the regime might be extended to other types of movable objects, and potentially beyond. Principles of international property law can also play a role in contract interpre tation. Where a contract with a transnational character bears on property rights but does not contain a choice of law clause, for example, these principles can serve as a default standard for determining the rights and duties of the parties. Moreover, where the subject matter of the contract is itself wholly or partially governed by international law―such as rights in deep sea minerals or genetic resources―inter national property principles are uniquely useful. Finally, these principles may be helpful in defining specialized property terms that are used in a contract.

(5) Global Commons International property law can help to develop a coherent legal framework for the high seas, outer space, Antarctica, and other portions of the global commons. Efficient utilization of the resources in these regions is possible only through uni form standards that bind nationals of all states, as evidenced by the international principles that govern the exploitation of high seas fisheries, the standards used by 16 Convention on the Privileges and Immunities of the Specialized Agencies (New York, November 21, 1947, 33 UNTS 261) art III(3). 17 Convention on International Interests in Mobile Equipment (Cape Town, November 16, 2001, 2307 UNTS 285).

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the International Telecommunication Union for allocating satellite orbits, and the global system for assigning domain names. Property rights in objects that are brought into the global commons pose another problem. It is axiomatic that a vessel on the high seas, including everything aboard the vessel, is governed by the law of the flag state. Yet the extent to which munici pal law would apply to property rights in objects transported into outer space or Antarctica―much less cyberspace or the interior of the Earth―remains unclear. In the long run, the notion of applying municipal property law in the global com mons will be unworkable. For example, municipal law cannot delineate property rights in an asset that is jointly owned by nationals from multiple states, be it an orbital space station, a hotel in Antarctica, or a business in a virtual world. Absent an overriding choice of law agreement, a patchwork of potentially inconsistent national laws would apply.

(6) Municipal Laws The development of international property law doctrines may also lead to greater standardization in municipal law. Global property principles can serve as models for states that seek to harmonize their municipal laws with international standards, thereby facilitating foreign investment and other transnational activities. Some states have already incorporated principles of international human rights law into their domestic legal systems, which should lead to more uniform interpretation of the right to property in the future. Given the wide differences among states, it is unrealistic to expect that municipal laws will be supplanted by a global property law regime. However, greater harmonization seems inevitable. At a minimum, global property law principles can be used to interpret and supplement municipal law. This is particularly true for newer forms of property such as rights in domain names, space objects, traditional cultural knowledge, and virtual objects―things that necessarily transcend national borders. Where a state has little or no domestic law that applies to such items, international principles may be a helpful resource.

D. Overarching Themes (1) Generally Many factors contributed to the rise of international property law in recent dec ades. The end of the Cold War, the adoption and implementation of human rights law treaties, the development of international law stemming from globalization, and the intensified use of the global commons were particularly influential in this process.18

See the discussion in ch 1D.

18

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Looking toward the future, a number of overarching themes will be import ant as the field evolves. These include: the decreasing relevance of borders; the adoption of global minimum standards; the use of international registries; the challenge of de facto property rights; the impacts of international property law on vulnerable groups; and the need to strike an appropriate regulatory balance.

(2) Decreasing Relevance of Borders Municipal property law is premised on the assumption that each state has the ability to regulate the movable and immovable things that are physically located within its borders. Yet today intangible things such as copyrighted works, trad itional cultural expressions, and virtual objects can be transmitted across borders through the internet in an instant, with no opportunity for state involvement. It is also difficult for states to regulate the movement of valuable tangible objects such as cultural artifacts, fine art, genetic resources, and rare animal parts, given the substantial incentive to sell them in the global marketplace. In addition, transactions by which movable and immovable assets are bought, sold, hypothecated, or otherwise transferred increasingly occur in cyberspace rather than in specific physical locations. Many retail businesses largely exist in cyberspace in the form of websites rather than traditional stores. Consumers, businesses, and other entities routinely buy tangible items over the internet from sellers that have no obvious physical presence. Moreover, digital conveyancing is a reality in some states. England and Wales, for example, utilize an electronic land sale system. In many instances, the entire transaction is digital, including creation of the sales contract, payment of the purchase price, and registration of title. It seems likely that this method of conveyancing will be implemented in other states as well. Another challenge to municipal law is the rise of digital property: rights in things that exist primarily or exclusively in digital form. Books, games, magazines, mov ies, newspapers, songs, and other items are distributed in electronic form over the internet. Business and personal records are now commonly digitized. Moreover, the tangible objects that historically evidenced intangible rights―such as stocks, bonds, deeds, promissory notes, mortgages, and security agreements―are often digitized as well. Indeed, most of the money in the world exists in digital form rather than as currency and coins. Municipal property law is increasingly irrelevant in this new environment. It is difficult for any state to control valuable tangible objects that can easily be transported across its borders. Regulating property transactions that principally occur in cyberspace poses even greater practical problems. Moreover, no state can adequately regulate digital property because it does not exist in tangible form. Effective protection and regulation of property rights in such items can only occur through uniform international standards.

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(3) Global Minimum Standards The adoption of global minimum standards is a useful tool for harmonizing munic ipal laws while also according states a degree of autonomy. Such a standard obli gates each state to ensure the same level of minimum protection for core aspects of property rights. At the same time, any state is free to provide greater protection for these core aspects and to regulate non-core aspects as its national interests dictate. The foremost example of this technique is the “international minimum stand ard” that was developed in investment law―the concept that the host state is obli gated under customary international law to provide certain protections for assets owned by aliens.19 The content of this standard remains somewhat amorphous, in part due to lingering disagreement as to whether modern investment treaties merely reflect the standard or impose greater obligations. Nonetheless, arbitral decisions reflect a growing consensus on the parameters of the standard. The principles governing the human right to property embody this approach. The Universal Declaration of Human Rights,20 the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),21 the American Convention on Human Rights,22 and other international instruments that safe guard the right to property only create minimum standards of protection.23 For instance, the ECHR cautions that none of its articles “shall be construed as limit ing or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.”24 Any state may provide greater protection for the right than the minimum level that these instruments mandate. Another illustration is found in international intellectual property law. The Berne Convention for the Protection of Literary and Artistic Works25 establishes minimum global requirements for various aspects of copyright protection. For example, while the basic term under the convention is the life of the author plus 50 years,26 any party “may grant a term of protection in excess” of this period.27 On a broader scale, the standards that the Agreement on Trade-Related Aspects of Intellectual Property Rights28 mandates for copyrights, geographical indications, See the discussion in chs 1B(4), 11C. Universal Declaration of Human Rights, UN GAR 217(III), UN Doc A/RES/217(III) (December 10, 1948). 21 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, 213 UNTS 221), as amended by Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 213 UNTS 262). 22 American Convention on Human Rights (San José, November 22, 1969, 1144 UNTS 123). 23 eg Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2d rev edn, NP Engel 2005) XX. 24 ECHR art 53. 25 Berne Convention for the Protection of Literary and Artistic Works (Berne, September 9, 1886, 828 UNTS 221). 26 Berne Convention art 7(1). 27 Berne Convention art 7(6). 28 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Marrakesh, April 15, 1994, 1869 UNTS 299). 19 20

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patents, trademarks, trade secrets, and other forms of intellectual property are also minimum requirements. As its Article 1 provides, “[m]‌embers may, but shall not be obliged to, implement in their domestic law more extensive protection than is required by this Agreement.”29

(4) International Registries States have long used public registry systems to protect property rights in valuable items. When the identity of the owner and all other persons claiming rights in a particular movable or immovable thing can easily be ascertained by inspecting a registry, the entire world is deemed to be on notice of these entitlements; this mini mizes the risk of competing title claims. Physical possession of a tangible object serves essentially the same function without formal registration. Registry systems are increasingly used at the international level as well. The frame work created by the Convention on International Interests in Mobile Equipment would establish registries for security interests, certain sales contracts, and other property rights in aircraft, railway equipment, and space assets.30 Similarly, the International Convention on Maritime Liens and Mortgages establishes uniform standards for domestic registries of security interests in ships in order to protect the rights of creditors.31 The Master International Frequency Register maintained by the International Telecommunication Union safeguards private rights in radio fre quencies and orbits.32 Another example is the registry of domain names developed by the Internet Corporation for Assigned Names and Numbers.33 The use of such registries seems destined to expand in the future. In addition, international registries created for other purposes may evolve into systems that affect property rights. For instance, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas has generated a registry of all vessels that are entitled to fish on the high seas.34 The owner of a vessel that has violated inter national fishing restrictions may lose the property right to fish in this region, thus helping to ensure that fish stocks are available to other vessel owners who retain their rights. The registry of space objects maintained by the United Nations also illustrates the point. The primary purpose of the registry is to track these objects in order to assign liability for injury. Yet it also serves to identify the owners of satel lites and other space objects, thereby facilitating sales, leases, and other transfers.35

TRIPS art 1(1). See the discussion in ch 4E(1). 31 International Convention on Maritime Liens and Mortgages (Geneva, May 6, 1993, 33 ILM 353). See the discussion in ch 7K(2). 32 See the discussion in ch 8G(2). 33 See the discussion in ch 5C(2). 34 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Rome, November 24, 1993, 2221 UNTS 91). See the discussion in ch 7K(1). 35 See the discussion in ch 8H(4). 29 30

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In this sense, it may be the forerunner to an international title system for space objects.

(5) De Facto Property Rights Another core issue is the extent to which international law will protect de facto property rights. For example, millions of people do not hold official title to the homes they live in or the lands they farm.36 Squatters build and occupy homes in illegal urban settlements with the hope of eventually gaining ownership. Subsistence farmers in many regions hold informal or customary rights to use their lands, while formal title may be vested in the state or absentee owners. Human rights law is moving toward recognizing that these occupants hold de facto prop erty rights which should be protected by law. At a minimum, international law directs that such occupants cannot be forcibly evicted unless certain conditions are satisfied. The exact scope of protection, however, remains an open question. The question of property rights in the global commons poses a similar issue. As a general rule, international law prohibits any private actor from obtaining owner ship over any part of the high seas, outer space, or similar regions.37 The law also prohibits any state from claiming sovereignty over these areas. Yet, at the same time, it permits states to establish quasi-permanent “stations” in Antarctica and in outer space which take the form of small towns―thus authorizing a form of de facto sovereignty. This implies that states could also create de facto property rights in private actors in portions of the global commons, rights which would be akin to usufructs or long-term leases.

(6) Impacts on Vulnerable Groups The global right to property―and international property law in general―reflects the liberal Western tradition of individualized ownership. This regime assumes the moral legitimacy of property as an institution, though it acknowledges that enhanced domestic regulation may be permissible in a state that emphasizes the social function of property. Unless appropriate precautions are taken, the global ization of property law may threaten the poor in general and communal societies in particular. Billions of people are mired in poverty. As Hernando de Soto has argued, a robust system of property rights may enhance economic development and accord ingly raise living standards for all.38 Conversely, an unduly strict form of inter national property law might threaten efforts to overcome poverty. Most resources are finite. This presents the dilemma of the zero-sum game: for A to win, B must lose. For example, each state has a limited amount of arable land. If private actors See the discussion in ch 6C, D. See the discussion in chs 6B, 7C, and 8C. 38 Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (Basic Books 2000). 36 37

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already own this land, some must lose title in order for the poor to gain title. Efforts to alleviate poverty through land redistribution will inevitably impact the rights of current owners. Some owners may not wish to sell at any price; alterna tively, the state may be unwilling or unable to pay fair market prices to willing sellers. As a result, strong internationally recognized property rights could impair land redistribution and help to perpetuate poverty. Under these circumstances, it seems unlikely that international law should always mandate the payment of full fair market value to affected owners who are nationals of the relevant state, though substantial compensation should undoubtedly be required. As the South African Constitution provides in this context, there is a need for an “equitable balance between the public interest and the interests of those affected.”39 The global focus on individual rights may also imperil forms of communal own ership. Although the Universal Declaration of Human Rights and other instru ments expressly protect the right to communal property, the underlying tensions between individual and communal rights may not be sustainable in the long term. Over time, it is foreseeable that members of communal societies will evolve away from traditional norms and wish to assert individual rights in communal property. Current international property law principles do not appear to accommodate such transitions. Rather, they implicitly assume a static system in which the universes of individual rights and communal rights will forever be separate. If transitions are ultimately permitted, care must be taken to protect communal ownership to the extent that is feasible.

(7) The Regulatory Balance Property rights are necessarily subject to domestic regulation. The historic link age between sovereignty and ownership of land, in particular, requires that a state have the authority to control the use of land within its borders; this power neces sarily extends to movable items as well. More fundamentally, municipal property law embodies the choices that each state makes about how best to allocate scarce resources. Its evolution reflects a combination of cultural, economic, geographic, political, and social factors that are, to some degree, unique to each state. It would be impossible to implement almost any domestic policy through regulation with out affecting the property rights of private actors. A major challenge in international property law is how to strike the appropriate balance between property rights, on the one hand, and permissible state regula tion, on the other. For example, although the human right to property provides an owner with international protection against undue interference by the state, the boundary between legitimate regulation and illegal intrusion is difficult to identify. As Theo van Banning summarizes, the right to property is complex because “virtu ally no other human right is subject to more qualifications and limitations.”40

Constitution of South Africa art 25(3). Theo RG van Banning, The Human Right to Property (Intersentia 2002) 3.

39 40

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This difficulty is compounded by another trend: the property rights of private actors are increasingly regulated by international law as well as municipal law.41 Particularly in the past 20 years, the scope and intensity of international regulation has increased dramatically in many fields, including property law. One scholar comments that “while once international law deferred to states in the elabora tion and implementation of common regulations pertaining to individual duties and their enforcement, it now often . . . dictates with increasing specificity the pro visions to be adopted at the national and sub-national levels.”42 In effect, inter national law simultaneously constrains domestic restrictions on property rights and imposes global restrictions on these rights.

E. The Road Ahead At this point, the broad trajectory of international property law seems relatively clear. The doctrines that currently exist will be refined and expanded over time, while new doctrines will emerge in response to changing conditions. Concepts drawn from international human rights law, international investment law, munici pal law, and other sources will gradually be reshaped and melded together to form new standards. Foundational principles that apply to all types of property rights will be identified and developed, helping to bring coherence and order to the field. The international law generated by this process may ultimately approach a global version of the jus commune―a universal set of principles and rules that governs the property rights of all non-state actors. While the role of municipal law seems destined to diminish, it will not disappear. Delineating the boundary between international property law and municipal property law will pose difficult chal lenges. Ultimately, international law may establish global minimum standards for core principles and rules, while municipal law occupies the remainder of the field. The specific mechanisms that will be utilized to further develop international property law, however, are less apparent. It may be possible to craft treaties in specialized areas, such as a convention governing the international sale of interests in land and other immovables43 or protocols to the Convention on International Interests in Mobile Equipment that extend its regime to additional forms of equip ment. However, it seems likely that the primary impetus in the near term will be case law generated by human rights tribunals, investment arbitration panels, and similar bodies. The property law jurisprudence of the European Court of Human Rights pro vides a helpful model. Hundreds of its decisions have interpreted the scope of the right to property in the Convention for the Protection of Human Rights and See the discussion in chs 4–8. Jacob Katz Cogan, “The Regulatory Turn in International Law” (2011) 52 Harvard Intl LJ 321, 325. 43 eg Christopher K Odinet, “Toward a Convention for the International Sale of Real Property: Challenges, Commonalities, and Possibilities” (2011) 29 Quinnipiac L Rev 841. 41 42

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Fundamental Freedoms,44 creating a reservoir of principles and rules that can be used by other tribunals. Future decisions by the Inter-American Court of Human Rights, the new African Court on Human and Peoples’ Rights, UN entities, and other tribunals will expand this jurisprudence. The property law principles and rules used by arbitration panels should also become more standardized over time. Scholars have already suggested that general principles of investment law are emerging from arbitral decisions, which should also serve to promote consistency in the future. The principles and rules emanating from these decisions, combined with other sources, could be increasingly intertwined over time to form a unified body of law. In the long run, the techniques used to internationalize contract law might be applied to property law as well. Building on a foundation of customary norms, arbitral decisions, and scholarly analysis, the 1980 Convention on Contracts for the International Sale of Goods,45 the 1994 UNIDROIT Principles of International Commercial Contracts,46 and other instruments developed uniform standards to govern international contracts. In Europe, the creation of the Draft Common Frame of Reference47 as one step in the development of a European Civil Code has taken the codification process even further. In like fashion, scholars could utilize international property law jurisprudence and other sources to develop detailed principles and rules that govern property rights in contexts with a transnational dimension, such as rights in movable items that cross national borders, rights of aliens in investment assets, rights in the global commons, and rights of IGOs. In a second phase, this effort might be extended to establish global minimum standards for core aspects of property rights that apply in both transnational and domestic settings. 44 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, March 20, 1952, 231 UNTS 262). 45 Convention on Contracts for the International Sale of Goods (Vienna, April 11, 1980, 1489 UNTS 3). 46 UNIDROIT Principles of International Commercial Contracts (1994). 47 Christian von Bar et al (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Sellier 2009).

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Index abandonment 238, 337–9 aboriginal peoples, see indigenous peoples; tribal peoples acquisition of property, see right to acquire acquisitive prescription 211, 221, 235–8 adverse possession 236–8 African Commission on Human and Peoples’ Rights definition of property 34–5, 38 duty of state to protect property 291 forced eviction 126 future of international property law 350 indigenous peoples 136–7, 139, 308 individual claims 43 legal persons 206 Pinheiro Principles 145–6 Principles and Guidelines 26, 226 regulation of property 257 right to food 303 right to property generally 17, 112, 253, 270, 350 right to water 152–3 transfer of property rights 327 African Court of Human and Peoples’ Rights 360 aircraft overflights 172–3 rights in 3, 19, 46, 60–2 airspace defined 171 greenhouse gas emissions into 172, 173–5 overflights 172–3 aliens property rights when expelled 292 right to acquire property 221, 231–5 see also damage or destruction; direct expropriation; fair and equitable treatment; full protection and security; indirect expropriation; international minimum standard; right to use angary 170 animals, see wild animals Antarctica animals 80–1 buildings 119 environmental restrictions 118 equipment 119 genetic resources 99–100 global commons 19, 116–17, 161 hazardous wastes 65 ice 119–20 land 120–1, 182–3 minerals 121–2, 186

overflights 173 plants 80–1 Arab Human Rights Committee 264, 350 arbitration domestic awards 112 foreign awards 36, 113 archipelagic waters, see oceans Aristotle 251, 325 art 49, 52–3, 57, 298–300; see also copyrights; cultural objects; moral rights; traditional cultural expressions ASEAN Human Rights Declaration 17, 124, 205, 253, 264, 327 assigned amount units 174 asteroids, see celestial bodies avatars 20, 93–4 avigation servitude 172–3 bilateral investment treaties 18, 32 biodiversity 86–7, 97; see also genetic material Blackstone, William absolute nature of right to property 6, 224, 325 legal categories 348 right to acquire 235, 239, 243 right to exclude 307–8 right to transfer 325–6, 337 right to use 352 body parts, sale of 71–2 borders 5, 8, 82–3, 88–9, 354 breeder’s right, see plants cables 31, 166 celestial bodies benefits clause 179, 182, 187 buildings 183–4 equipment 183–4 global commons 175 nonappropriation principle 178, 179, 180, 181, 187, 188 ownership 3, 19, 171–83 resources 19, 184–9 stations 181–2, 186 usufructs 30 see also outer space certified emission reductions 174 cession 341 chemicals 66–7; see also greenhouse gases China expropriation by 12 human rights conventions 207 privatization 15–16, 218 representative of Asian legal family 220

372

Index

China (Cont.) representative of former socialist law states 220 right to acquire 223, 227, 237, 239, 241, 244, 247 right to destroy 296–7 right to exclude 311, 320 right to transfer 323, 325, 330, 338, 340, 342–2 right to use 255, 290 security interests 31 servitudes 30 usufructs 29 civil law tradition necessity doctrine 320 ownership 28 right-thing distinction 22–3 right to acquire 236, 246 right to destroy 296–7 right to transfer 326, 337, 339, 342 right to use 255 state as intestate successor 267 see also France; Germany climate change 173–5 Cold War 3, 14, 15, 202, 218 common law tradition necessity doctrine 320 ownership 28 right-thing distinction 22 right to acquire 235, 236 right to exclude 307–8 right to transfer 326, 339, 342 right to use 255 state as intestate successor 267 see also United Kingdom; United States communal property future of 358 ownership 132, 135, 137, 310 right to exclude 312 right to transfer 331–2 see also indigenous peoples; tribal peoples contraband drugs 50–1, 57, 58 firearms and related items 59 proceeds of crimes 50–1, 57, 58 conventions anti-discrimination conventions generally 24, 207–9, 327 human rights conventions generally 16–17, 204–6 right to property as conventional law 204–9 see also investment law copyrights computer databases 91 harmonization of municipal laws 48–9, 82 intangibles 36 international standards 103–5, 329 outer space 189 security interests 110

traditional cultural expressions 86 virtual property 93–4 see also cyberspace; intellectual property criminal law attack on civilian property during war 75 cybercrime 92–3 pillage 77 unjustified appropriation of property during war 77 unjustified destruction of property during war 75, 76 cruel, inhuman, and degrading treatment 154, 291 cultural heritage destruction of 300–2 indigenous peoples 36, 83–8 laws of war concerning 75–7, 78 tribal peoples 36, 83–8 underwater cultural heritage 155–7 World Heritage Sites 140–2 see also art; cultural objects cultural objects defined 54, 55 good faith purchasers of 55–7 illegal export of 53–6 return of 54–7 theft of 53–6 see also art; cultural heritage customary international law criteria 216–17 opinio juris 14, 185, 203, 216–17, 218, 219, 256, 331 state practice 216, 256, 331 custom as source of international law 203, 215–17 specific doctrines abandonment 338 cession of territory 341 fair and equitable treatment 285 full protection and security 270 international minimum standard 8, 10, 12–14, 18, 20, 257, 270, 272, 355 law of the sea 31, 47, 154, 157, 166, 188 most-favored-nation treatment 235 national treatment 235 necessity 321 nondiscrimination 229 outer space minerals 185 prohibition of misuse 290 right to acquire 228 right to exclude 212 right to property 215–19 right to transfer 331 right to use 256 see also direct expropriation; indirect expropriation customary title 130–1, 242–3, 357 cybercrime 92–3 cyberspace

Index avatars 20, 93–4 copyrights 93–5 digital property 19, 20, 82, 354 global commons 20, 88–9 moral rights 95 trademarks 95 virtual businesses 20, 93–5 virtual property 20, 93–5 virtual worlds 93, 95 see also databases; domain names damage or destruction customary international law 8, 268, 270, 272 human rights law 269–70 investment law damage or destruction caused by state 271 duty of state to protect against third party conduct 271, 292 full protection and security 270–2, 292 international minimum standard 270 relationship between approaches 270, 272 see also right to destroy databases 82, 91–2 de facto property rights 19, 20, 357; see also Antarctica; celestial bodies; customary title; informal title; oceans definition of property generally 21–38, 73, 257 right-thing distinction 22–7 rights in types of things immovable things 24–6, 29, 33–5, 36 intangibles 24–6, 33, 36–8 tangible objects 24–5, 29, 33, 35–6, 52–81 types of rights 27–32 see also housing; intangible things; land; right to property; security interests; servitudes; tangible objects; usufructs deprivation of property, see damage or destruction; direct expropriation; indirect expropriation dereliction 339 derivative prohibitions on property rights chemicals 67 contraband 50, 57–9 fishing rights 159 global commons 155, 177–8 ideas 45–6, 103 slavery 50, 69–71 derivative property rights cables 166 celestial bodies 181 celestial resources 185 copyrights 104 cyberspace 89 emissions trading 47, 175 expropriation 41 fishing rights 47, 154

373

generally 42–3, 45–6 genetic material 47, 160 global commons 89, 154 oceans 154, 160, 166 orbits 190 outer space 190 pipelines 166 traditional cultural expressions 86 traditional knowledge 88 derivative restrictions on property rights archaeological and historical resources 155–7 art 52–3, 57, 298–300 chemicals 66–7 cultural objects 52–3, 300–2 endangered species 45, 79–80 genetically modified organisms 67 hazardous wastes 65–6 land generally 302–4 transboundary injury 50, 147–9 wetlands 50, 142–3 World Heritage Sites 140–42 destruction, see damage or destruction digital property 20, 82, 354 diplomats, property of 5, 41, 59 direct expropriation customary international law amount of compensation 9, 11, 12–14, 18, 21 duty to compensate 8, 12–13, 254 requirements for legal expropriation 12–13 defined physical occupation 26, 34, 36, 257, 266 transfer of title 26, 34, 36–7, 257, 266 exceptions protection for indigenous and tribal peoples 268 state as intestate successor 267–8 human rights law 257–67 African Commission on Human and Peoples’ Rights 262–3 compensation 260 European Court of Human Rights 258–61, 262 European Court of Justice 261 Inter-American Court of Human Rights 262–3 principle of legality 258–60, 262–4 principle of proportionality 258–60, 262–4 principle of public interest 258–60, 262–4 United Nations standards 264–5 Universal Declaration of Human Rights 258 investment law amount of compensation 266–7 requirements for legal expropriation 266 relationship between approaches 267

374

Index

discrimination anti-discrimination conventions generally 207–9, 327 discrimination based on gender 207–9, 248–9 discrimination based on nationality 221, 231–5 principle of nondiscrimination 228–30 displaced persons defined 143–4 Pinheiro Principles 145–7, 264–5, 292 right of return 144 right to recover property 33, 68–9, 116, 144–7 see also refugees domain names allocation of 89–90 disputes concerning 90–1 Internet Corporation for Assigned Names and Numbers 89–90, 356 property rights in 90 Uniform Domain Name Dispute Resolution Policy 90–1 drugs, see contraband Earth, interior of 122–3 easements 30–1, 190 emission reduction units 174 emissions trading 36, 47, 173–5 endangered species 79–81 England, see United Kingdom Enlightenment 6–8, 307, 325 equipment, see aircraft; outer space; railway equipment; security interests European Committee on Social Rights 129 European Court of Human Rights definition of property 25, 35, 37, 111–12 future of international property law 350, 359–60 individual claims 16, 43 right to acquire 232, 238 right to exclude 309, 311, 315–19 right to housing 124, 126–7, 129 right to property generally 16–17, 42, 48, 204, 350 right to transfer 226, 326, 332–4, 340, 343 right to use 253, 256–63, 270, 273–5 European Court of Justice 215, 257, 261, 326 exclusion, see right to exclude exclusive economic zone, see oceans export-import restrictions chemicals 66–7 cultural objects 53–6 endangered species 79–80 genetically-modified organisms 67 hazardous wastes 65–6 expropriation, see direct expropriation; indirect expropriation

fair and equitable treatment customary law 272, 285 defined 285–6 factors good faith 287 legitimate expectations 286 stable and predictable business environment 287 transparency 286 unfair procedures 287 relationship to other doctrines 273, 288 treaty provisions 18, 257, 273 fee simple 28 firearms, see contraband fishing rights, see high seas; oceans forced eviction defined 125 restrictions on 125–8 forced heirship 339, 341–4 foreign investment 3, 8, 18–19, 21; see also investment law France Declaration of the Rights of Man and Citizen 7, 252, 326 Declaration of the Rights of Man and of the Citizen 7, 10, 224 representative of Romano-Germanic legal family 220 revolution 7 right to acquire 227, 235–6, 239–40, 243, 246 right to destroy 296 right to exclude 310, 317–18, 320, 321 right to transfer 330, 335, 338, 339, 342 right to use 255, 289 security interests 31 servitudes 30 usufructs 29 fresh water, see water friendship, commerce, and navigation treaties 21 full protection and security customary law 270 damage caused by private actors 271 damage caused by state 271–2 defined 271, 319 due diligence 271 general principle of law 272 interference with right to exclude 319–20 relationship to other doctrines 272 treaty provisions 18, 257, 269 future of international property law 348–60 general principles of law criteria 210, 220 future of international property law 360 limited use by tribunals 209 scholarly concerns about 210–13 source of international law 203, 210

Index specific doctrines acquisition by acquisitive prescription 221–2, 237 acquisition by occupancy 221–2, 240 acquisition by purchase 221–2, 240 acquisition by specification 221–2, 243 acquisition by succession 221–2, 245–6 destruction of private assets by state 272 necessity 322 nemo dat principle 336 prohibition of misuse 290 right to acquire 228 right to destroy 297 right to exclude 312 right to property 209, 213–15, 261 right to transfer 331 state as intestate successor 267 transfer by abandonment 339 transfer by gift 221–2, 339–40 transfer by sale 341 transfer by succession 344 genetically-modified organisms 67, 96 genetic material Antarctica 99–100 defined 96 human genetic material 96–7 intangibles 82 national territory 97–9 oceans 160–1 see also genetically-modified organisms geographical indications, see intellectual property Germany representative of Romano-Germanic legal family 220 right to acquire 227, 235, 236, 239, 240, 243, 246–7 right to destroy 296 right to exclude 310, 318–19, 320, 321 right to transfer 330, 335, 337, 339, 342 right to use 255, 267–8, 289 security interests 31 servitudes 30 usufructs 29 gift, see inter vivos gift global commons Antarctica 117, 173, 352, 353 center of the Earth 117, 122–3, 353 cyberspace 20, 88–9, 353 defined 3, 19, 88 high seas 117, 150, 173, 352, 353 outer space 117, 175, 353 use of 89 value of international property law 352–3 globalization 14, 18–19 global land rush 241–3 global minimum standards 8, 48–9, 82–3, 101–3, 107, 351, 355–6 greenhouse gases 36, 47, 173–5

375

Grotius, Hugo 5, 6, 223, 238–9, 252, 295, 307, 325, 337 hazardous wastes 65–6 high seas defined 154 fisheries 19–20, 30, 47, 157, 159–60, 162, 188 freedoms of 157, 161–2, 165, 173 genetic material 160 global commons 117, 150 icebergs 161–2 navigation 164–6 overflights 173 see also oceans; vessels Honoré, AM 251, 306 household possessions 68 housing arbitrary interference with 312–16 duty of state to protect against third party action 291–2 duty of state to provide housing 124 forced eviction 116, 125–38 quality of housing 128–9 nonconsensual entries into 313–6 right to housing 116, 123–4 security of tenure 124–5 see also household possessions human rights law conventions 16–17, 204–6 definition of property 25–6, 33–5, 37–8 legal persons 206, 230 principle of nondiscrimination 228–30, 231–2 right to adequate standard of living 14, 130 right to food 116, 132, 242, 303 right to housing 14, 68, 116, 123–30, 132, 312–16 right to intellectual property 14, 101, 298–9, 316 right to land 116, 130–2 right to property failure to include in global treaty 9–11 inclusion in regional human rights conventions 16–17, 47–8, 204–6 right to acquire 224–6, 226, 288–9, 230, 231–2, 245–6 right to exclude 308–10, 317–19 right to transfer 326–7, 332–4, 340, 342 right to use 250, 253, 256–64, 269–70, 272–7, 288–9, 290–1 see also discrimination; Universal Declaration of Human Rights; water humans, see body parts; genetic material; slavery icebergs 161–2 ideas 3, 45–6, 91, 103 immovable things, see housing; land

376

Index

indigenous peoples cultural heritage 36 defined 133–4 land 33, 46, 117, 134–6, 138–40, 308, 312, 327, 331–2 resources 136–8, 331–2 see also tribal peoples; traditional cultural expressions; traditional knowledge indirect expropriation defined 277–8 factors economic impact 278–9 legitimate expectations 281–2 loss of control 279–81, 310, 319–20, 328, 341 nature and purpose of measure 282–3 relationship to human rights law 283–4, 288, 348 informal title 130, 242–3, 357 intangible things 82–115 intellectual property cybercrime 92–3 databases 82, 91–2 designs of integrated circuits 101 development of global standards 8, 48–9, 82–3, 101–2, 355–6 digital property 20, 82, 354 geographical indications 105–6 global commons 19, 189–90 impact on international property law 14 industrial designs 101 harmonization modality 8, 48–9, 100–1 moral rights 86, 88, 95, 105, 298–300, 329 outer space 189–90 right to exclude 316–17 security interests in 110 trade secrets 86, 109–10 virtual property 20, 89, 93–5 see also copyrights; cyberspace; domain names; patents; trademarks; traditional cultural expressions; traditional knowledge Inter-American Commission on Human Rights 16, 135, 226, 308, 327, 332 Inter-American Court of Human Rights definition of property 25, 34, 38 future of international property law 350, 360 indigenous peoples 132–3, 135–9 individual claims 43 right to acquire 245–6 right to exclude 308 right to property generally 17, 132–3, 135–9 right to transfer 333, 340 right to use 257, 262–3, 275–6 intergovernmental organizations 72–3 International Criminal Court 72–4 property rights of agents and employees 74 property rights of organizations 72–3, 351–2

World Bank 73 see also United Nations International Centre for the Settlement of Investment Disputes 18, 44, 277 International Court of Justice abandonment 339 cables 166 customary international law 216–18, 321 full protection and security 292 future of international property law 351 necessity 321 nemo dat principle 336 pipelines 166 transboundary injury 147–8, 289 slavery 69 sustainable development 302 international minimum standard 8, 10, 12–14, 18, 20, 257, 270, 272, 355 International Space Station 193–5 international tribunals 43–4, 350–1; see also African Commission on Human and Peoples’ Rights; European Court of Human Rights; Inter-American Court of Human Rights; International Court of Justice Internet Corporation for Assigned Names and Numbers 89–90 inter vivos gift 221–2, 339–40 intestate succession, see succession investment law definition of property 24–5, 26, 30, 32, 34, 36–7 discrimination 233–5 international minimum standard 8, 10, 12–14, 18, 20, 257, 270, 272, 355 investment treaties generally 18, 24, 30, 32, 34, 36, 37 most-favored-nation treatment 221, 231, 232, 233–5 national treatment 221, 231, 232–5 right to property right to acquire 221, 232–5 right to exclude 310, 319–20 right to transfer 328, 341 right to use 254, 257, 266–7, 270–2, 277–88, 292 see also customary international law; direct expropriation; fair and equitable treatment; full protection and security; indirect expropriation Iran-United States Claims Tribunal 44, 210, 277, 310 Islamic law, see Sharī’a law Japan representative of Asian legal family 220 right to acquire 227, 237, 239, 241, 244, 247 right to destroy 297

Index right to exclude 311, 320, 321 right to transfer 330, 335 right to use 255, 290 security interests 31 servitudes 30 judgments domestic judgments 110–12 foreign judgments 36, 110, 112–13 jurisprudential values 348–50 land civil law 28 common law 28 customary title 130–1, 242–3, 357 desertification 303 entry onto 306–12, 317–19 forced eviction 131 forests 304 global commons 117, 122–3 human right to 130–2 informal title 130–1, 242–3, 357 nature preserves 140 security of tenure 130 sustainable use 50, 302–4 transboundary injury 50, 147–9, 289 Westphalian model and 8, 116 see also Antarctica; celestial bodies; displaced persons; housing; indigenous peoples; refugees; tribal peoples; wetlands; World Heritage Sites leases 29, 30, 61, 121, 197, 357 legal categories 348–50 legality, see principle of legality legal positivism 5, 179 life estate 29 Locke, John 6, 223–4, 252, 295 maritime liens, see vessels market economies 3, 15, 218, 323 migrant workers 207–8, 231, 327, 351 minerals Antarctica 121–2 celestial bodies 19, 184–9 oceans 3, 20, 29–30, 35, 45, 46, 121, 150, 155, 162–4, 209 minimum standard, see international minimum standard; global minimum standards misuse of property 288–90 customary international law 290 defined 288 general principle of law 290 modalities of international property law coordination of rights 3, 19, 41, 48–9, 83, 100, 109, 111, 168, 309 creation of rights 3, 41, 45, 46–7, 63, 159, 163, 164, 192 prohibition of rights 3, 41, 45–6, 50–1 protection of rights 3, 41, 47–8, 74 restrictions on rights 3, 41, 45, 49–50

377

see also derivative prohibitions on property rights; derivative property rights; derivative restrictions on property rights moon, see celestial bodies moral rights 86, 88, 95, 105, 298–300, 329 mortgages 19, 167–70; see also security interests most-favored-nation treatment intellectual property 102, 233 investment law 221, 231, 232, 233–5 products 233 movable property, see tangible objects national treatment intellectual property 102, 103, 106–7, 108, 233 investment law 221, 231, 232–5 products 232 natural law 4–8, 9, 178, 223–4, 324 nature preserves wetlands 142–3 World Heritage Sites 140–2 navigation, see high seas; oceans necessity 320–2 nemo dat principle 334–7 New International Economic Order 13–14 nuisance law 147–8, 289–90 occupancy generally 221, 238–40 ocean surface 164 outer space 178 oceans archaeological and historical resources 155–7 archipelagic waters 156, 160, 161, 162 Area 154, 155, 160, 161, 162, 163, 165 cables 166 continental shelf 154, 156, 160, 162, 166 exclusive economic zone 154, 156, 157, 158, 160, 161, 162, 173 fisheries 150, 154, 157–60, 162, 188 genetic material 160–1 icebergs 161–2 minerals 3, 20, 29–30, 35, 45, 46, 121, 150, 155, 162–4, 309 navigation 154, 164–6 occupancy 165–6 pipelines 166 Roman law and 150 subsoil 122–3, 154, 160 territorial sea 154, 156, 157, 160, 161, 162 see also high seas; global commons; vessels orbits 3, 31, 190–2 outer space benefits clause 179, 182, 187 defined 171 global commons 19, 117, 175 intellectual property 189–90 minerals 175, 177

378

Index

outer space (Cont.) nonappropriation principle 178, 179, 180, 181, 187, 188 occupancy 178 orbits 3, 190–2 ownership 19, 177, 175–84 space objects defined 192–8 International Space Station 193–5 jurisdiction over 183–4, 190, 193 ownership 193 possession 195 registration 176–7, 197, 356 sale 196–7 security interests 184, 195, 197–8 use restrictions 198–9 see also celestial bodies; global commons pacta sunt servanda 180 patents 36, 48, 82, 87, 106–8, 189, 329; see also intellectual property Peace of Westphalia 5, 8, 116 pipelines 30, 31, 166 plants Antarctica 80–1 breeder’s right 114 endangered plants 45, 49–50 genetic material 47, 97–9 plant varieties 113–15 Posner, Richard 306, 324 Pothier, Robert Joseph 252–3, 295, 307, 326 poverty 357–8 prescription, see acquisitive prescription principle of legality 139, 258–60, 262–4, 273–7, 317, 332 principle of proportionality 128, 139, 258–60, 262–4, 273–7, 318, 332, 333 principle of public interest 139, 259–60, 262–4, 273–7, 317–19, 332–4 profits 29 prohibition of misuse, see misuse of property proportionality, see principle of proportionality public interest, see principle of public interest Pufendorf, Samuel 6, 223–4, 252, 295, 307, 325 purchase 222, 240–3 radio frequencies 191–2 railway equipment 19, 46, 60–3 refugees defined 143 Pinheiro Principles 145–7, 264–5, 292 right of return 144 right to acquire 231 right to recover property 33, 68–9, 116, 144–7 see also displaced persons registries aircraft 61, 63–4 domain names 89–90 orbits 191–2

radio frequencies 191–2 space objects 176–7, 195–6, 197 value of 356–7 vessels 167 regulation of property 272–88, 358–9 relinquishment, 339 removal units 174 right to acquire aliens 221, 231–5 basis for right 222–8 component of right to property 27, 220, 221 defined 222 duty of state 222–3 general principle of law 228 methods of acquisition acquisitive prescription 235–8 occupancy 238–40 purchase 240–3 specification 243–4 succession 244–9 nationals 221, 228–30 right to destroy basis for right 294–7 component of right to property 27, 29, 220, 293 defined 293–4 exceptions to right artistic works 298–300 cultural heritage property 300–2 sustainable use of land 302–4 general principle of law 297–8 right to exclude basis for right 306–11 component of right to property 27, 29, 220, 305 defined 306 exceptions human rights law 317–19 investment law 319–20 necessity 320–2 general principle of law 312 special applications communal property 312 homes 312–16 intellectual property 104, 106–7, 109, 316–17 right to property components of right 27, 219–20 conventional law 204–9 customary law 215–19 general principle of law 209–15 see also modalities of international property law; right to acquire; right to destroy; right to exclude; right to transfer; right to use right to transfer basis for right 324–30 component of right to property 27, 29, 220 defined 324 general principle of law 323, 331 limitations on right

Index communal property 331–2 forced heirship 339, 341–4 human rights law 332–4 nemo dat principle 334–7 methods of transfer abandonment 323, 337–9 inter vivos gift 323, 339–40 sale 323, 328, 340–1 succession 323, 341–4 see also wills right to use basis for right 251–6 component of right to property 27, 29, 220 defined 251 duty of state to protect right 290–2 general principle of law 256 prohibition of misuse 288–9 regulation of use 272–87 full protection and security 273 human rights principles 273–7, 332–4 most-favored-nation treatment 272–3 national treatment 272–3 relationship among approaches 283–4, 288 traditional authority of state 272 see also direct expropriation; fair and equitable treatment; indirect expropriation Roman law influence on civil law 6, 235 influence on common law 6, 235 influence on natural law 4–5, 6 oceans 150 organization of 348 right to acquire 221, 223, 235–6, 238, 240, 243 right to destroy 294–5 right to exclude 307 right to transfer 323, 325, 337, 341, 348 right to use 251–2 Russian Federation 15–17, 175, 204, 209, 218, 323, 330; see also Soviet Union sales 61–3, 169, 196–7 satellites orbits 31, 190–2 security interests 184, 195, 197–8 security interests aircraft 3, 19, 32, 46, 60–2, 336 generally 27–8, 31–2 intellectual property 110 mobile equipment 19, 32, 46, 60–4, 309, 329, 336, 352, 356 railroad equipment 19, 32, 46, 60–3, 336 satellites 184, 195, 197–8 vessels 19, 167–9, 356 security of tenure 124–5, 130–2 seizure of property, see direct expropriation servitudes 27, 30–1, 165–6, 172, 173–5, 190 Sharī’a law representative legal system 220

379

right to acquire 227, 237, 239, 241, 244, 247–8 right to destroy 297 right to exclude 311, 321 right to transfer 330, 336, 340, 343 right to use 256, 290 slavery 50, 69–71 social function of property 294 South Africa 145, 222 sovereignty airspace 171, 172 expropriation 12–14 genetic material 97 global commons 150 oceans 154–5, 157, 160, 162 ownership analogized to 305 relationship to property rights 3, 5, 82, 116, 231 territorial disputes 336, 339 World Heritage Sites 141 Soviet Union 10–12, 14–15, 176, 180, 187, 204, 209, 216; see also Russian Federation space objects, see outer space specification 243–4 stateless persons 225 succession 222, 244–9, 323, 341–4; see also wills sustainable use of land 50, 302–4 tangible objects 52–115 territorial sea, see oceans toxic chemicals, see chemicals trademarks 36, 48, 82, 90, 95, 108–9, 110, 189, 329; see also cyberspace; intellectual property traditional cultural expressions 85–6 traditional knowledge 82, 86–8 transboundary injury 50, 116, 147–9, 289 transfer of property rights, see right to transfer treaty interpretation 179, 180, 186–7, 208–9, 351 tribal peoples cultural heritage 36 defined 134 land 116, 134–6, 138–40 resources 136–8 see also indigenous peoples; traditional cultural expressions; traditional knowledge United Kingdom easements 30–1 representative of common law family 220 right to acquire 227, 235–6, 239, 241, 243, 247 right to destroy 296 right to exclude 311, 320, 321 right to transfer 325, 330, 335, 338, 340, 342 right to use 255, 268, 289–90 security interests 31

380

Index

United Nations Commission on International Trade Law 18, 44, 277 Committee against Torture 43, 291, 351 Committee on the Elimination of Racial Discrimination 43 Educational, Social and Cultural Organization 300–2 Food and Agriculture Organization 131, 167, 242, 254, 265, 304, 328 Human Rights Commission 11, 27, 225 Human Rights Committee 43, 125, 132, 137, 145, 232, 313, 314, 351 International Law Commission 148, 269, 292, 321, 348, 351 International Maritime Organization 167 International Telecommunication Union 191–2, 353, 356 World Intellectual Property Organization 85–8, 90–91 United States Declaration of Independence 7 easements 30–1 Hull formula 9, 12 human right conventions 207 outer space activities 175, 176, 180, 193 representative of common law family 220 revolution 6–7 right to acquire 227, 235–6, 239, 241, 243, 247 right to destroy 296 right to exclude 311, 320, 321 right to transfer 330, 335, 338, 340, 342 right to use 255, 268, 290 security interests 31 Virginia Declaration of Rights 7 Universal Declaration of Human Rights adoption 9–10 arbitrary interference with home 312–13 freedom from fear as goal 314 global minimum standards 355 intellectual property 101 legal persons 206, 230 limitations on rights 231, 288, 289 moral rights 101, 298 principle of nondiscrimination 228–9 right to property 10–11, 21, 145, 205, 208, 219, 224, 250, 258, 358 use of property, see right to use usufructs

Antarctica 121, 357 art 57 celestial bodies 183, 189, 357 fisheries 47, 158–60 generally 27, 29–30 genetic material 47 global commons 357 International Space Station 197 minerals 164 oceans 150, 357 utilitarianism 251, 306, 324 Valencia Rodríguez, Luis 27, 226, 327 vessels maritime liens 19, 167–70, 356 mortgages 19, 167–70, 356 navigation 154, 164–6 piracy 169 radio broadcasting 165 registration 167, 356 seizure 169–70 Vietnam representative of Asian legal family 220 representive of former socialist law states 220 right to acquire 237, 241, 244, 247 right to destroy 297 right to exclude 311, 320, 321 right to transfer 336, 338, 340, 342 right to use 255, 290 Waldron, Jeremy 224, 307, 324 war, laws of 8, 41, 74–8 cultural property 75–8 destruction of property 74–6 seizure of property 74, 77–8, 170 waste 296 water human right to 150–4 icebergs as source 161 watercourses 151 wetlands 50, 140, 142–3, 303 wild animals 3, 238 Antarctica 80–1 endangered species 45, 49–50, 52, 79, 80 migratory animals 79 wills 49, 341–4 World Bank 232 World Heritage Sites 140–2 World Trade Organization 5, 101–3, 105, 233