October 19, 2011
In his article, “The Emergence of International Property Law,” which appears in Volume 90 of the North Carolina Law Review, Professor John Sprankling argues that international property law should be recognized as a discrete subject. He illuminates the reality that international law affects private property rights of individuals, businesses and other non-governmental organizations.
Sprankling demonstrates that, in some contexts, property rights are directly created by international law, such as rights in deep seabed minerals or the rights of aboriginal people in their ancestral lands. His article illustrates how international law also harmonizes transboundary property rights, such as rights in equipment that travels between nations or rights in intellectual property. In addition, he says international law often restricts nationally-created property rights, such as rights in cultural objects or rights to use land in a manner that causes transboundary harms.
Finally, he explains that the right to property recognized by international human rights law protects the rights of vulnerable groups, such as indigenous peoples and refugees. He says the trajectory of international property law is clear: the field will continue to expand. Recognizing it as a separate subject will help to improve legal doctrine by identifying key organizing principles, and thus bring more consistency and predictability to the area.
But Sprankling notes two potential challenges loom on the horizon. First, the lack of a precise, internationally-recognized definition of “property” may hamper efforts to broaden the field outside of the specialized contexts where it has evolved to date. Second, the enforcement of international property law may be problematic, especially where enforcement conflicts with the self-interest of the affected nation.