Abstract
AbstractLong at the margins of international law, property is now among the key challenges facing international law- and decision-makers. A ‘shrinking’ planet and a polycentric international law regime provide the backdrop for contestation between different property concepts and claims. While presenting important commonalities in legal concepts and normative content, international investment law and international human rights law protect different and possibly competing rights, reflect different balances of commercial and non-commercial considerations, and embody different standards of legal protection. As the frontiers of natural resource extraction expand, natural resource investments can bring different property concepts and claims directly into tension. In this context, the articulation between investment law and human rights law influences the ways in which international law mediates competition for the world's natural resources, redefining the balance between public and private interests and reshaping spaces for the lawful exercise of state sovereignty.
Highlights
Property has been important in the historical development of international law
Global consumption is reshaping expectations of returns from natural resource investments, and placing the world’s natural resources under unprecedented pressure: petroleum and minerals are being extracted in previously marginal sites, and agribusiness developments are expanding to new terrains
While in the early 1990s a United Nations Independent Expert concluded that international law did not recognise a universal right to property (Valencia Rodríguez, 1993), some academics are arguing for the existence of such a right (Sprankling, 2014)
Summary
Property has been important in the historical development of international law. Early international lawyers used property concepts such as terra nullius to legitimise the colonial appropriation of land and territories. In IIL, this is illustrated by the tensions, in the 1960s and 1970s, between the international recognition of permanent sovereignty over natural resources and the protection of foreign investment, and more recently by the numerous investor– state arbitrations triggered by a wave of resource nationalism.[5] In IHRL, the important place of natural resources in contestation over property is illustrated by cases brought by indigenous peoples to protect or advance their rights to ancestral lands.[6]. The international law affecting the interface between property and sovereignty is highly polycentric and subject to multidirectional shifts over time, with important implications for the ways in which the law regulates encounters between the land and resource rights of indigenous peoples and rural communities, and natural resource concessions granted to foreign investors
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