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University of Miami Law Review

Abstract

Despite the absence of a comprehensive global pact on the subject, the human right to property protection—a right of property but only rarely to specific property—exists and is recognized in 21 human rights instruments, including some of the most widely ratified multilateral treaties ever adopted. The Cold War’s omission of property rights in the two principal treaties on human rights, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has been overtaken by events. But that reality continues to be resisted by legal scholars, including human rights advocates, as well as by many across the political spectrum from many on the left (who associate property rights with misguided “Western” models for economic development) to some on the right (who see it as yet another intrusion on sovereign discretion sought by global elites). It is also resisted by U.S. courts which continue to assert that international law regulates the treatment of foreign property but not of “domestic takings” involving actions directed at a state’s own citizens.

This Article surveys the reality of internationalized property rights protections outside the usual context in which it is addressed, namely to protect the property of foreign investors in the host states in which they operate. It canvasses the policy and jurisprudential objections to the idea of a treaty-based human right of property, addresses how the U.S. has contributed to the internationalization of this human right, and contrasts the property caselaw of the Inter-American Court of Human Rights with the ways U.S. courts have largely resisted the idea that the international human right of property exists. It addresses how human rights treaties respond to objections to property rights writ large and uses, inter alia, the property rulings of the Inter-American Court of Human Rights to advance a non-instrumentalist defense of the human right to property protection based on “moral intuitions” of what human dignity requires. Finally, the Article defends the fragmented nature of the distinct international regimes that protect property from those who would seek to harmonize its contours either through a global agreement or by recognizing its status as customary law.

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