Abstract
The concept of private property and its evolution in the municipal private law of different States have been the subject of a considerable amount of study.3 A certain amount of similar research, although less extensive, has also been carried out within municipal public law. In public international law, on the other hand, there have only been a few brief studies on the concept of property in general (and this today is still oriented towards the possession of State territory), while studies of the concept of property as such, whether private or public, are inadequate or even completely lacking.4 This lack of research in public international law is particularly noticeable as regards the distinction between private property and public or State property. And yet this distinction in municipal law is beginning to play an ever increasing role in public international law as well.
“The rules of public international law often depend on the interests of those States which are the most powerful at the time of the birth of these rules... These interests may vary from time to time with great wars and other events which change the international situation. Public law, in as much as it is based on such factors, is therefore necessarily somewhat variable and sometimes difficult to determine.”
A. Bagge, Annuaire de l’Institut de Droit international, Bath Session, 1950, p. 73.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
La Pradelle, op. cit., Les Effets internationaux, p. 42: “... the examination of the problem of nationalisation in international life... indeed, no subject is more important, more complex and more serious.”
Annuaire de l’Institut de Droit international, Bath Session, 1950, pp. 42–132; Sienna Session, 1952, pp. 251–323.
See above, pp. 102–130 and references there given.
Most treatises on public international law discuss private property incidentally in connection with articles 23, 46 and 52 of the Rules of 1907 concerning war on land and in connection with Prize Law: Hyde, International Law, Boston, 1947; Oppenheim, International Law, ed. Lauterpacht, London, Vol. I (8th ed.) 1955, Vol. II (7th ed.) 1952; Rousseau, Principes généraux du Droit international public, Paris, 1944; Durdenevskey-Kriloff, International Law (Bulgarian translation), Sofia, 1949; Cavaré, Le Droit international public positif, Paris, 1951; Guggenheim, Lehrbuch des Völkerrechts, Basel, 1948; Sibert, Traité de Droit international public, Paris, 1951, etc. Alternatively, in private international law, private property is treated simply as a matter of conflict of laws without any new analysis being made of the content of the concept of property itself: Batiffol, Traité élémentaire de Droit international privé, Paris, 1949; Niboyet, Cours de Droit international privé français, Paris, 1949; Frankenstein, Internationales Privatrecht, Berlin, 1926–1935; Walker, Internationales Privatrecht, Vienna, 1934; Wolff, Internationales Privatrecht, Berlin, 1933; Schnitzer, Handbuch des internationalen Privatrechts, Basel, 1950; Dicey, Conflict of Laws, 7th ed., London, 1958; Cheshire, Private International Law, 6th ed., Oxford, 1961, etc.
Stoedter, Deutsche Vermögenswerte im neutralen Ausland, Bremen, 1950, p. 12: “... so that the term, ‘property’, is understood in international law in its widest connotation exactly as, for example, in the municipal law of Germany and the USA.”
Kuhn, Nationalisation of Foreign-owned Property in its Impact on International Law, Americal Journal of International Law, vol. 45 (1951), p. 710: “The principle of the extent of protection to be accorded to foreign-owned property has never had any precise definition on which all nations are agreed. What is called the international standard of justice is at best a variable measure.”
Schwarzenberger, 1951, The Protection of British Property abroad, pp. 296–297.
Green,1951, The Protection of British Property abroad, p. 5. Permanent court of arbitration, Norwegian claims case, 1922, No. XVIII.
See the official Protocols of the Hague Conference of 1899, The Hague, Martinus Nijhoff, 1907, p. 43: the four following articles (44, 45, 46 and 47 — article 46/2: “Private property cannot be confiscated”) reproduce with very slight variations articles 36, 37, 38 and 39 of the Declaration of Brussels.
An amendment to article 46 had been proposed by the Austro-Hungarian delegation: “The honour and the rights of the family, the lives of individuals, religious beliefs and freedom of worship, and also in principle private property, should be respected...” op. cit., official Protocols, p. 244. This proposition was later withdrawn by the Austro-Hungarian delegation, op. cit., p. 14.
Second Peace Conference, The Hague, 18th October, 1907, Fourth to Ninth Conventions concerning the laws and customs of war on land.
Article 53/1: “The army which occupies a territory can only seize the money, funds and credits belonging to the State itself...”
Article 46/2: “Private property cannot be confiscated.”
Article 56/1: “The goods of local authorities, those of establishments dedicated to religion, to charity and education, to the arts and sciences, even though belonging to the State, will be treated as private property.”
Bindschedler, op. cit., Verstaatlichungsmassnabmen, p. 23 et seq.
Curti, Handelsverbot und Vermögen im Feindesland, Berlin, 1916, p. 14 et seq.; Curti, Der Handelskrieg, Berlin, 1917, p. 7 et seq.; McNair, Legal Effects of War, London, 1948, p. 319 et seq.
Ruegger, Die Staatsangehörigkeit der juristichen Personen, Zürich, 1918, p. 7 et seq.;
Martin-Archard, La Nationalité des Sociétés anonymes, Zürich, 1918, p. 12 et seq.;
Katzarov, The Nationality of Corporations (in Bulgarian), Sofia, 1925, p. 31 et seq.
Katzarov, The Nationality of Corporations, pp. 61–66; McNair, op. cit., p. 215 et seq.
See, for example, article 177 et seq. of the Treaty of Neuilly of 27th November, 1919. Identical clauses are included in the Treaty of Versailles of 28th June, 1919, with Germany (article 296 et seq.), in the Treaty of Saint-Germain of 10th September, 1919, with Austria, and in the Treaty of Trianon of 4th June, 1920, with Hungary.
Article 177 of the Treaty of Neuilly of 27th November, 1919: “(B) Subject to any contrary stipulations which may be provided for in the present Treaty, the Allied and Associated Powers reserve the right to retain and liquidate all property, rights and interests belonging at the date of the coming into force of the present Treaty to Bulgarian nationals, or companies controlled by them, within their territories, colonies, possessions and protectorates, including territories ceded to them by the present Treaty.”
Article 177 of the Treaty of Neuilly of 27th November, 1919: “The liquidation shall be carried out in accordance with the laws of the Allied or Associated State concerned, and the Bulgarian owner shall not be able to dispose of such property, rights or interests nor to subject them to any charge without the consent of that State.”
Article 177 of the Treaty of Neuilly of 27th November, 1919: “(J) Bulgaria undertakes to compensate her nationals in respect of the sale or retention of their property, rights or interests in Allied or Associated States.”
Appendix III, Section I, of the Treaty of Versailles of 28th June, 1919.
Article 296 of the Treaty of Versailles of 28th June, 1919.
McNair, op. cit., p. 395.
The International Law Association, Report of the 34th Conference at Vienna, London, 1927, p. 227 et seq.
There had already been, before the First World War, governmental acts that did not respect the principle of the inviolability of property and acquired rights. For example: the confiscation of ecclesiastical goods in Portugal in 1910; the creation of a monopoly of assurance in Italy in 1911, etc.
I.L.A., Report of the 34th Conference, pp. 246–247.
Ib., pp. 248–249.
Ib., p. 249.
I.L.A., Report of the 36th Conference at New York, London, 1931, p. 301 et seq.
“And it (the Harvard Law School) has refrained from giving a categorical reply to this point... In fact the Report is limited to indicating that ‘the conditions in which such legislation goes beyond the just limits of the power which the State has to modify the rights of property, without violating the rights protected by international law, is a question which it is extremely difficult to resolve’.” Ib., pp. 307–308.
The opinion expressed by Dr. Sieveking is extreme — Ib., p. 307: “Dr. Sieve-king goes even further and considers that a right can only be acquired if it is guaranteed by a treaty or a contract signed by the State against whom it is asserted.”
“Dr. Borchard underlines the reasons why one must be careful in this subject:... ‘It becomes rather dangerous to be too dogmatic and to affirm that a certain right is protected from every restriction, on the basis of a higher principle involving the protection of vested rights’.” Ib., p. 307.
Ib., pp. 322–331.
Ib., pp. 331–338.
Final Resolutions — Ib., pp. 361–362.
I.L.A., Report of 37th Conference at Oxford, London, 1933, pp. 58–64.
Article 3 of a Draft Convention relating to the Legal Status in the Territory of the Contracting States of the Property of their Respective Nations — Ib., p. 59.
Article 4 of the Draft.
Article 5 of the Draft (pleine et entière indemnisation).
Green, op. cit. (1951 ed.) p. 28.
House of Lords — R. v. International Trustee for Protection of Bondholders A.G. [1937] A.C. 500; Green, op. cit. (1951 ed.) pp. 27–28.
“... The Court will confine itself to observing that... there is nothing to prevent the creditor claiming in France, in the present case, the gold value stipulated for...” — Green, op. cit., p. 21.
See also the objections formulated by the President of Mexico, Cardenas, on the occasion of the petrol dispute — Dictionnaire diplomatique de l’Académie Diplomatique Internationale, Vol. IV, p. 735.
Mann, German Property in Switzerland, British Year Book of International Law, 1946, p. 357;
Schindler, Besitzen konfiskatorische Gesetze ausserterritoriale Wirkung ? Schweizerisches jahrbuch für internationales Recht, Vol. III, 1946, p. 84.
Mann, op. cit., pp. 357–358.
Article I/1 of the Washington Agreement.
Article II/1 of the Washington Agreement.
Article 1/2 and 3 of the Washington Agreement.
Article IV/1 and 2 of the Washington Agreement.
Article II/2 of the Washington Agreement.
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. XIV, No. 1/2, p. 205.
Stoedter, op. cit., p. 81: “What is happening to the private property of German nationals in Sweden is nothing else but the imposition oi a collective liability on private property for obligations of the State.”
See article 1/A, article 2 and article 11/1 of the Washington Agreement of 18th June, 1946, with Sweden.
Schindler, op. cit., pp. 92–94.
Mann, German external Assets, British Year Book of International Law, 1947, p. 257.
Schindler, Schafft das Washingtoner Abkommen neues Recht ? in Neue Zürcher Zeitung, No. 1246 of 14th July, 1946: “If the agreement to the Convention was given with such lack of enthusiasm, it was because of its infraction of the law and not because of the amounts we had to pay.”
Schindler, op. cit., Besitzen konfiskatorische etc., pp. 65–94.
Mann, op. cit., German Property in Switzerland, p. 358: “The international lawyer should remember that hard cases make bad law. The value of the Agreement as a precedent may still have to stand the test.”
Archiv des öffentlichen Rechts, Vol. 75, No. 1: “Die deutschen Vermögenswerte in der Schweiz”, p. 109.
Concerning the most recent practice, see The International Quarterly, Vol. 1, No. 3, p. 373.
Chapter IV, 1, 3, 4 et seq. of the Declaration of Potsdam, 2nd August, 1945.
Article 25, paragraph 4 of the Treaty of Paris concluded on 10th February, 1947 with Bulgaria. Identical clauses are to be found in the other Treaties of Paris of 1947.
R. R. Wilson, Property-Protection in U.S. Commercial Treaties, American Journal of International Law, Vol. XLV, pp. 83–107.
Report of the Ninth International Conference of American States, U.S. Department of State Publication 3263, American Public Series, No. 3, pp. 66, 67.
Article 23 of the Economic Agreement.
Wilson, op. cit., p. 106.
R. Brunet, La Garantie internationale des Droits de l’Homme, Geneva, 1947, p. 17 et seq.
J. L. Brierly, Die Zukunft des Völkerrechts, Zürich, 1947, p. 153.
Brunet, Die Zukunft des Völkerrechts, Zürich, 1947, p. 133.
H. Lauterpacht, International Law and Human Rights, London, 1950, p. 428 et seq.
Oppenheim, op. cit., Vol. I, p. 352: “The rule is clearly established that a State is bound to respect the property of aliens. This rule is qualified, but not abolished, by two factors...”
Brunet, op. cit., p. 236.
Brunet, op. cit., p. 237: “One can expect that the international declaration of human rights will omit the right of property...”
Quoted in Lauterpacht, op. cit., p. 431.
Held in Bogota from March 30 to May 2, 1948.
See American Journal of International Law, Vol. 43, No. 3/1949, p. 133.
Lauterpacht, op. cit., pp. 342–343.
Lauterpacht, op. cit., p. 343.
Wilson, op. cit., p. 83.
Article 1 of the annexed Protocol: “Every individual and corporation has a right to have his property respected. No one shall be deprived of his property unless this is in the public interest and only on conditions laid down by the law and the general principles of international law.”
Brunet, op. cit., pp. 236–237; Lauterpacht, op. cit., pp. 342–343.
Scelle, Précis de Droit des Gens, Paris, 1932–1934, Vol. II, p. 13: “The uncertain and changing attitude of the Powers makes it difficult to affirm that the very principle of the right of property is henceforth to be regarded by them as really being part of the universal law of mankind.”
Wittenberg J. C., De Grocius à Nuremberg, Revue générale de Droit international public, 1947, pp. 95–96;
Röpke W., Economic Order and International Law, Recueil des Cours de l’Académie de Droit international de la Haye, 86/1954, II, pp. 230–231;
Kunz J., La Crise et les Transformations du Droit des Gens, Recueil des Cours de l’Académie de Droit international de La Haye, 88/1955, II, p. 15.
The provisions already cited of the Agreement of Potsdam of 2nd August, 1945, the Control Council Law, No. 5, of 30th October, 1945, on the Vesting and Marshalling of German External Assets, and the Agreements of Washington of 25th May and 18th June, 1946.
McNair A. D., Legal Effects of War, London, 1948, p. 391: “It appears that international law treats a State as being invested for international purposes with complete power to affect by treaty the private rights of its nationals, whether by disposing of their property, surrendering their claims, changing their nationality or otherwise.”
McNair A. D., Legal Effects of War, London, 1948, p. 393.
McNair A. D., Legal Effects of War, London, 1948, p. 200.
Verdross A., Völkerrecht, Vienna, 1950, p. 276.
Schindler,Völkerrecht, Vienna, 1950, p. 84.
Sauer E., Grundlehre des Völkerrechts, Cologne, 1948, pp. 322–338.
See Schindler, op. cit., p. 84 et seq.
Jessup Ph., Modernes Völkerrecht, Vienna-Stuttgart, 1950, p. 29.
Oppenheim, Modernes Völkerrecht, Vienna-Stuttgart, 1950, p. 352.
Smith H.A., The Crisis in the Law of Nations, London, 1947, p. 10: “We must now face the fact that we have broken with the past, that we live in a changed and changing world and that the law if it hopes to maintain its authority must take account of these changes.”
Scelle, The Crisis in the Law of Nations, London, 1947, Vol. II, p. 131.
Loewenstein K., Ten Theses on Sovereignty and International Cooperation, I.L.A., Lucerne, 1952, p. 1; Hyde, op. cit., Vol. I, pp. VIII–IX; Wolgast E., Grundriss des Völkerrechts, Hanover, 1950, p. 71.
“XIX. Declaration relating to the prohibition of throwing projectiles and explosives from balloons.” — 2nd Peace Conference, The Hague, 18th October, 1907: “The contracting Powers agree for a period extending to the end of the Third Peace Conference to the prohibition of the throwing of projectiles and explosives from balloons or by any other similar new methods.”
Oppenheim, op. cit., Vol. I., p. 352.
Ripert G., Aspects juridiques du Capitalisme moderne, p. 6; Wittenberg, op. cit., pp. 95–96.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1964 Springer Science + Business Media B.V.
About this chapter
Cite this chapter
Katzarov, K. (1964). Private Property in Public International Law. In: The Theory of Nationalisation. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-1055-4_14
Download citation
DOI: https://doi.org/10.1007/978-94-015-1055-4_14
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-015-0425-6
Online ISBN: 978-94-015-1055-4
eBook Packages: Springer Book Archive