Novogrodsky & Fox: Of Looting, Land and Loss: The New International Law of Takings

Noah Benjamin Novogrodsky (Univ. of Wyoming - Law) & Gregory H. Fox (Wayne State Univ. - Law) have posted Of Looting, Land and Loss: The New International Law of Takings (Harvard International Law Journal, forthcoming). Here's the abstract:

International law has traditionally protected aliens against unlawful expropriations by host states. After World War II, citizens gained protection against property being taken by their own governments. In Federal Republic of Germany v. Philipp (2021), the U.S. Supreme Court held that the Takings Exception to the Foreign Sovereign Immunities Act (28 U.S.C. §1605(a)(3)) incorporated international law’s protections against alien property deprivation but not protections for citizens. The Court did so, in part, because international law’s traditional absence in citizen takings, in its view, “survived the advent of modern human rights law.”

The U.S. Supreme Court was simply wrong. Even at the time the U.S. Congress enacted the Takings Exception in 1976, many human rights instruments addressed citizen takings. Later, similar norms would enter a variety of other areas of international law, forming a mutually reinforcing network of property protections. But Philipp not only missed an opportunity to describe property norms accurately—its more significant omission was failing to distinguish the types of property covered by the alien and citizen regimes. Using a typology developed by Margaret Jane Radin, we identify alien property as “fungible,” meaning a dispossessed owner can be made whole by acquiring equivalent property in the market or its monetary equivalent. We identify citizen property as “property constitutive of personhood” or “personal property,” meaning the owner can only be made whole through restitution.

This Article explores how these very different conceptions of property have become manifest in two paradigmatic types of takings. For alien property, we examine the practice of expropriated foreign direct investment. For citizen property, we examine property taken during forced evictions in civil wars and persecution, including ethnic cleansing. In each case, the way in which the right to property conceives of the protected interest and the remedy available to owners reflect the different nature of the property involved. While the remedy of compensation is available for both alien and citizen of property under the law of state responsibility, investors have chosen compensation in almost every reported case. By contrast, citizens with a deep connection to homes, family businesses, art, and land demand restitution. Focusing on that choice is consistent with Radin’s definition of personal property as largely a subjective concept, built on how individual owners understand specific pieces of property to constitute an essential aspect of their character.

Three consequences flow from conceiving alien and citizen property as fungible and personal, respectively. First, the distinction introduces a human-centered conception of property that has been missing from international law debates focused on identifying legally cognizable “takings” and appropriate measures of compensation. Second, the idea of personal property clarifies the ways in which international law views certain takings, such as the seizure of homes attendant to massive human rights abuses and the taking of cultural property. Third, the land of Indigenous peoples, often described as occupying its own legal category, is presented here as an extreme example of personal property. In turn, that conception may help clarify and bolster claims for restitution of other types of personal property.