instruments permitting the deprivation of property in some specific instances.
Such cases are often associated with large-scale development projects in
pursuit of a greater public benefit, such as the construction of dams or road
infrastructure. While the state, as established, has the authority to expropriate
privately-owned property, certain principles must be followed for it to remain
lawful. The following common and widely accepted principles are extracted
from various components of IHRL and reiterated in domestic and regional
legislations to provide a system of protection for private property.36
·
·
·
·
Legality: Due process or lawfulness of the act of property deprivation.
This means the act must have a legitimate aim according to the law,
and judicial review must be guaranteed. This principle is meant to
avoid arbitrary deprivation of property.37
Public interest: The deprivation of property must be for public
purposes, or for the benefit of society.38
Proportionality: there must be a reasonable relationship of
proportionality between the means employed and achieving the
desired aim. A just balance should be found between the protection
of the right of property and the needs of general interest.39
Ensuring full and just compensation (timely, adequate and effective).40
The principles are interrelated and should frame the practice of land
confiscation and denial of access, when states are considering limiting an
individual’s right to use property, or depriving them from their property. It is
also important to emphasize that the deprivation of private property must be
an exceptional act and not a state policy.41
Furthermore, the aforementioned principles should be implemented together
36 See European Convention on Human Rights, Protocol, Article 1; American Convention on Human
Rights, Article 21; African Charter on Human and Peoples’ Rights, Articles 14 and 21. These principles
can also be found in different forms or structure in numerous IHRL instruments and conventions. For
example, the UN Basic Principles and Guidelines on Development-Based Evictions and Displacement
include a list of principle that must be followed for an eviction to be lawful: (a) authorized by law; (b)
carried out in accordance with international human rights law; (c) undertaken solely for the purpose
of promoting the general welfare; (d) reasonable and proportional; (e) regulated so as to ensure
full and fair compensation and rehabilitation; and (f) carried out in accordance with the present
guidelines.
37 Laurent Sermet, The European Convention on Human Rights and property rights, Council of Europe,
1998, Human rights files no. 11, 32, available at: http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/
DG2-EN-HRFILES-11(1998).pdf [accessed 19 September 2017].
38 Id., 33.
39 Id., 34.
40 Id., 38.
41 Id., 26.
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