Reconciling Human Rights and Sovereignty: A Framework for Global Property Law

In the wake of the massive destruction and notorious human rights abuses of World War II, the nations of the world made a widely supported commitment to protecting human rights. Fundamental to this agreement was the understanding that nation-states, previously viewed as impervious to compulsion by extra-national standards of conduct, could not be trusted to protect the rights of individuals. Also fundamental was the agreement that human rights belong to all human beings, regardless of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.

In the past fifty years, progress has been made in varying degrees in establishing consensus on particular issues, monitoring human rights abuses, enforcing human rights, and developing a body of law to guide this task into the future. While the nations of the world have agreed on some important fundamental human rights, disagreement persists as to the full set of human needs and activities that should be protected as rights. One view holds that civil and political rights, typically understood as negative rights reserved by the individual against state interference, are the primary bulwark against oppression, and that these rights are sufficient for full realization of equality and prosperity. A contrasting view holds that the state’s primary duty is to provide affirmatively for the collective welfare of its citizens. On this view, positive social, economic, and cultural rights are to be promoted before negative civil and political rights.

Parallel to the enhancement of human rights has been the diminution of states’ rights, or sovereignty. From the Peace at Westphalia forward, a sovereign’s control of its territory and its final authority to make law within its borders have been seen as the fundamental building blocks of international law. Recently, however, global forces, including markets, communications, and transportation, have, become more independent of the control of sovereign states, and a growing number of multilateral agreements with provisions for extra-national enforcement has, to some extent, deprived states of the “last word” on a number of issues previously within their domain. While most nations desire the benefits of increasingly integrated “globalized” forces, there remains serious disagreement regarding the role of sovereign nations in a global order. One view, espoused by some “globalists,” holds that sovereigns are becoming less relevant and less necessary to the extent that wealth (and thus welfare) is created and distributed by global forces. Some globalists go so far as to argue that sovereignty impedes the true potential of globalization. Some skeptics, however, argue that globalization is merely a cover for imperialism, and that sovereigns are still necessary—perhaps increasingly so—to protect the welfare of their citizens, and represent their needs against those of disembodied and unaccountable “global” forces. It seems that although sovereign nations retain great practical and ideological import, when the interests of global forces and sovereigns come into conflict, the latter are increasingly made to yield.

A third trend brought to center stage by globalization involves the stature and extent of property rights in the global era. Traditionally seen as the exclusive domain of the sovereign, in which states exercise territorial and legislative autonomy, property disputes have become globalized, and the locus of control, at least in certain areas, has steadily shifted from national to transnational arenas. The unsettled nature of property rights is central to understanding this trend, as well as the seemingly intractable disputes regarding the scope of human rights law and the power of the state. The inability to reconcile these disputes stems, at least in part, from a fundamental disagreement about the meaning of property, as well as who should have the final authority to decide how property is protected and ultimately distributed. Mirroring the divergence in human rights and sovereignty, the global dispute over property comes down to the dispute between the liberal ideology that animates free-market capitalism and the socialist ideology that animates state-planned economies. The former view holds that in order to generate industry and wealth, property must be strictly protected against intrusion by the state and others. The latter view holds that in order to ensure that property is equitably distributed, states must retain unencumbered authority to tailor the levels of protection that property receives. Though there is considerable disagreement in this area, there is a general trend toward increasing the protection of private property as against the state and prioritizing speculative property over other types.

This trend in property, more than any other, is at the root of the prioritization of individual rights over collective welfare, and the ascendance of global market forces over sovereign authority. The results are the decreased stature of and commitment to social, economic, and cultural rights, the diminished capacity of states to protect public welfare within their territories, and a distortion of civil and political rights.

If we hope to reconcile the divergence in these crucial areas, the global community must articulate an answer to this fundamental question: How should we treat property in a global world? In order to do so, we must decide the following: what is the purpose of property, why or when does it deserve legal protection, and how can we enforce those protections? Though these questions are enormous, this note will provide a modest contribution to this dialogue, in the hope that we will begin to come to terms with the importance of property in defining—and defending—human rights in a globalized world.

Part I of this note will explore the effects of parallel global trends in human rights, sovereignty, and property towards individualism, globalization, and liberalism, respectively. Part II will then address some of the impacts that these trends are having on social, economic, and cultural rights; on public welfare protection; and on civil and political rights. Part III will compare and contrast three alternative theories of property that seek to elevate human needs above speculative interests. Part IV will attempt to articulate a vision of property that reconciles civil/political rights with social/economic/cultural rights in the context of a continuing role for sovereign states.