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Cardozo Journal of International and Comparative Law

Abstract

This article charts the relationship between land and international law. Tracing evolutions since the very origins of international legal ordering, the article identifies sovereignty and property as the two key concepts that have traditionally framed claims to land in international law. For centuries, international jurists primarily considered sovereignty and property claims in the context of changes in, and disputes over, territorial control. However, developments in international human rights, investment and environmental law have reconfigured the internal dimensions of the land-property-sovereignty.nexus, redefining space for states lawfully to exercise their sovereign powers vis-d-vis property within their jurisdiction.

Relevant international instruments advance diverse normative values, conceptualizing land as a commercial asset, an ecological good and a resource having socio-economic, cultural and spiritual significance. Depending on the circumstances, international instruments can also protect different claims to land, including those of indigenous peoples and local communities, and natural resource concessions for commercial investments. Growing pressures on land create challenges in reconciling these different normative values, and can bring into contest competing land claims. Sovereign acts to award commercial concessions over ancestral lands, or to support the rights of indigenous peoples and local communities in the face of commercial investments, have exposed states to the risk of competing legal claims that mobilize different international norms relevant to the protection of property.

This situation raises new issues about the cohesive application of international law, and ultimately about how to arbitrate between multiple rights and interests. International law tools, both substantive and procedural, can help to address these issues, and they are increasingly resorted to in the international jurisprudence. However, these tools tend to leave questions unanswered, because they allow considerable scope for discretion and diverging outcomes, or because they have so far displayed limited effectiveness in dispute settlement. The findings call for more effective arrangements to manage the interplay of land, property and sovereignty, and they contribute insights for debates about the emancipatory potential, or imperialistic underpinnings, of international law.

Disciplines

Human Rights Law | International Law | Law | Natural Resources Law

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