Does a right to property exist under international law? The traditional answer to this question is “no”―a right to property can arise only under national law. But sweeping economic and political changes in recent decades have laid the foundation for recognizing a global right to property. Ideological opposition to property rights has faded with the end of the Cold War; China, Russia, and other socialist states have transitioned to market economies which are premised on private property; and the globalization of trade has enhanced international support for protecting property rights. Accordingly, it is appropriate to revisit the question.
This article challenges the conventional wisdom that a right to property can arise only under national law. It is the first legal scholarship to demonstrate that a right to property exists under international law, not merely as a moral precept but rather as an entitlement which all nations must honor. The existence of the global right to property is supported by three independent lines of analysis: conventional law; general principles of law; and customary international law.
Recognition of the global right to property has practical implications for the international legal system. It will ensure that the right is respected in proceedings before international judicial and arbitral tribunals. Over time, it will also contribute to building the legal framework for regulating property in the global commons, areas which are outside of the sovereign jurisdiction of any nation such as the high seas, outer space, and Antarctica.
52 Colum. J. Transnat'l L. 464