Hidden Expropriation in Globalization and Soft Law Protection of Communal Property Rights

Abstract

In the context of globalization, expropriation is no longer an issue that may only be considered at the domestic level, as more non-state actors not only increasingly become the victims of expropriation, but also are exercising the power to expropriate property. The rise of ‘hidden expropriation’ involves different interests, tensions and conflicts whether at the local, regional or global levels. The lack of a level playing field between competing claimants calls for strengthening the role of the international community and involving non-state actors in setting out global standards and rules to redress those imbalances, taking into account marginalized groups such as minorities and indigenous peoples. However, how can expropriation law be transformed from national laws to global standards that transcend national and regional differences? Employing the human rights approach has been such an endeavour. Yet in contrast to the recognition of individual property rights in international human rights instruments, treating communal property rights as an actual fundamental human right is highly contentious. This chapter examines the nature of hidden expropriation in globalization and the possibility, desirability, and limits of using soft law standards to protect the right to communal property, probing this power relationship in the global age. The emerging soft law protection of communal property rights gives rise to debates over the content and scope of property rights, powers regarding expropriation, the legitimacy of expropriation, compensation standards, and so on. These debates revive and recast old issues such as those surrounding legality and power regarding rule-making, and they challenge the distinction between ‘binding’ and ‘non-binding’ norms in the international legal system.

Keywords: hidden expropriation; globalization; soft law; communal property rights

JEL Classification: Q15,Q24,O1,K11