The state's right to property under international law.

• Author: Tzeng, Peter

INTRODUCTION

On December 3, 2013, agents of the Australian Secret Intelligence Service seized privileged documents belonging to Timor-Leste on the premises of one of Timor-Leste's legal advisers in Australia. (1) The documents concerned an ongoing arbitration between the two states over Australian espionage. (2) Two weeks later, Timor-Leste sued Australia before the International Court of Justice (ICJ) for violating its property rights under international law. (3) The claim seemed flawless: there was no dispute that Australia had taken the documents. (4) Nevertheless, Australia had a response: the taking was lawful because states do not have a general right to property under international law. (5)

As absurd as it may sound, Australia is correct. But two points of clarification are in order. First, there is no question that individuals have a general right to property under domestic law. (6) Australia was merely asserting that states do not have such a right under international law. (7) Second, Australia was not arguing that taking another state's property is always lawful under international law; rather, it merely asserted that a taking can be lawful. In particular, Australia claimed that the state has rights to certain types of property, but not all types of property. Yet even with these qualifications, the thesis still sounds absurd. How can states not have a general right to property under international law?

This Comment explains this unintuitive fact. Surprisingly, very little scholarly work discusses the state's right to property under international law, (8) which formed the basis of Timor-Leste's original claim (9) and received significant attention during oral arguments. (10) Most of the secondary literature on Timor-Leste v. Australia has focused on the underlying arbitration rather than the ICJ litigation, (11) and commentary on the ICJ case has for the most part focused on the privileged nature of the documents rather than the state's right to property. (12) And unfortunately, the ICJ will not have the opportunity to address the issue in this particular case, as Timor-Leste withdrew its claim in June 2015. (13)

This Comment makes both a descriptive and a normative argument. Part I argues that as a descriptive matter, states have a general right to territory but an incomplete right to property under international law. Part II makes the normative argument that the international community, which has primarily focused on establishing rights to certain types of property, should now focus on developing the state's general right to all types of property. Part III offers a short discussion on how that right could emerge.

1. THE STATE'S RIGHTS TO TERRITORY AND PROPERTY

   The state has rights to territory and property. The state's territory is the physical space over which the state exercises sovereignty. (14) The state's property is the set of tangible and intangible objects over which the state exercises ownership, (15) such as embassies, buildings, vehicles, and documents.

   For the purposes of this Comment, a right is "general" if any interference with it gives rise to a cause of action, whereas a right is "incomplete" if only certain interferences with it give rise to a cause of action. As explained below, the current state of international law is such that the state has a general right to territory, (16) but an incomplete right to property. (17)

   1. The State's General Right to Territory

      The state has a general right to territory because any interference with a state's territory gives rise to a cause of action under international law, either under the principle of state sovereignty or under the prohibition on territorial conquest.

      Although taken for granted today, the principle of state sovereignty was not always a norm of international law. As late as the seventeenth century, sovereigns coexisted without well-defined boundaries. (18) As a result, they engaged in frequent warfare, culminating in the Peace of Westphalia of 1648, (19) which established, inter alia, the principle of state sovereignty: states were prohibited from interfering with another state's territory. (20)

      Although this prohibition was a significant accomplishment, there was one important exception: states could still lawfully acquire territory from other states through military conquest. (21) Consequently, for centuries following the Peace of Westphalia, states continued to engage in warfare to expand their territory. (22) It was only after the Kellogg-Briand Pact of 192823 and the U.N. Charter of 1945 (24) that the prohibition on territorial conquest became a respected norm of international law. (25) From then on, any interference with a state's territory constituted a prima facie breach of international law, establishing the state's general right to territory in the international legal order. (26)

   2. The State's Incomplete Right to Property

      Unlike the state's right to territory, the state's right to property is incomplete. Although the Immunities Convention of 2004 (27)--which has not yet entered into force (28)--appears to codify a general right to property, the Convention would apply only to "the immunity of a State and its property from the jurisdiction of the courts of another State." (29) Indeed, its purpose from the very beginning was only to codify the rules of foreign sovereign immunity applicable in national courts; it was never intended to prohibit interference with state property in the international legal order. (30)

      The absence of a general right to property is understandable as a historical matter. Traditionally, states kept all their property within their own territory, such that the general prohibition on interfering with another state's territory provided sufficient protection for states' property. But over time, states have needed to locate more and more of their property extraterritorially. In response, international law has evolved to provide protection--often in the form of immunities--for this property. This protection, however, has developed in a piecemeal fashion, creating rights to specific types of property instead of establishing a general right to property.

      The first type of protected extraterritorial property is diplomatic property. Originating from the practice of Italian sovereign city-states, diplomatic premises began enjoying immunity in the sixteenth century. (31) Today, their immunity has been enshrined in the Vienna Convention on Diplomatic Relations of 1961 (VCDR), which extends immunities to other diplomatic property as well, such as the diplomatic mission's means of transport, archives, documents, correspondence, and diplomatic bag. (32) The Vienna Convention on Consular Relations of 1963 (VCCR) extends similar protections to consular premises and property, (33) as does the Convention on Special Missions of 1969 for the premises and property of special missions. (34) In the landmark Tehran Hostages case of 1980, the ICJ held the relevant provisions of the VCDR and VCCR to be general international law. (35)

      The second type of protected extraterritorial property is extraterritorial vehicles, including ships, aircraft, and spacecraft. State ships employed for noncommercial purposes have historically enjoyed immunity based on the legal fiction that they form part of their flag state's territory; (36) their immunity is now enshrined in the Unification Convention of 1926, (37) the High Seas Convention of 1958, (38) and the U.N. Convention on the Law of the Sea of 1982 (UNCLOS). (39) Under UNCLOS, state aircraft likewise enjoy the freedom of overflight in the high seas and the exclusive economic zone, (40) and under the Paris Convention of 1919, military aircraft enjoy certain immunities in the territory of other states. (41) State spacecraft are also accorded a certain degree of immunity under the Outer Space Treaty of 1967. (42)

      Therefore, as a matter of lex lata, (43) any interference with a state's diplomatic property or extraterritorial vehicles gives rise to a cause of action under international law. But where a state interferes with any other type of property belonging to another state, often no such cause of action arises. Indeed, the very existence of treaties specifically protecting diplomatic property and extraterritorial vehicles supports the contention that a general right to property does not exist. After all, if there had been a general right to property, then states would not have had to provide for specific protections in the aforementioned treaties in the first place.

2. THE NEED FOR A GENERAL RIGHT TO PROPERTY

   If the only types of state property at risk of interference were diplomatic property and extraterritorial vehicles, then there would be no need for a general right to property. However, each year more and more types of state property--both within and outside of state territory--find themselves at risk.

   Consider three examples. The first is computer networks: states are increasingly launching cyberattacks on other states' computer networks, as seen in Estonia, (44) Georgia, (45) Iran, (46) Israel, (47) and the United States. (48) Second, communication systems: states are increasingly conducting espionage by bugging other states' communication systems, as evidenced by Brazil, (49) Germany, (50) Timor-Leste v. Australia, (51) and most...