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Liberalism, social democracy and the value of property under the European Convention on Human Rights.

Allen, Tom (2010) 'Liberalism, social democracy and the value of property under the European Convention on Human Rights.', International and comparative law quarterly., 59 (4). pp. 1055-1078.

Abstract

In most of Europe, expropriation must comply with the standards set under European human rights law. Article 1 of the First Protocol (‘P1-1’) to the European Convention on Human Rights declares that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The European Court of Human Rights has stated that the right would be ‘largely illusory and ineffective’ if it did not guarantee full compensation in all but exceptional circumstances. It is quite clear, however, that this was not the belief of at least some of the States that had signed it when it came into force in 1954. P1-1 makes no reference to compensation. An interference must be lawful, and in the public or general interest, but there is nothing that expressly requires compensation. Nevertheless, the Court has declared that any interference with the right to the peaceful enjoyment of possessions must strike a ‘‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights’, and this means that expropriation without compensation that is reasonably related to the value of the property would normally violate the owner's rights under P1-1.

Item Type:Article
Full text:PDF - Published Version (170Kb)
Status:Peer-reviewed
Publisher Web site:http://dx.doi.org/10.1017/S0020589310000448
Publisher statement:© Copyright Cambridge University Press 2010. This paper has been published by Cambridge University Press in "International and comparative law quarterly" (59: 4 (2010) 1055-1078) http://journals.cambridge.org/action/displayJournal?jid=ILQ
Record Created:12 Sep 2012 11:20
Last Modified:13 Sep 2012 14:36

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