Right to Property, Investments and Environmental Protection : The Perspectives of the European and Inter-American Courts of Human Rights

International obligations to protect property and foreign investments do not prevent states from enacting measures of environmental protection. They rather affect the domestic choices as to the allocation of the related costs. The issue is therefore to be conceptualized as one of distributive justice. In the case law of the European and Inter-American Courts of Human Rights, this matter is looked at from two opposite perspectives. While the former has dealt with environmental measures as possible interferences with the right to property, the latter has considered some investment programs for the exploitation of natural resources as an interference with the right to property of indigenous peoples’ over traditional lands, which encompasses an environmental dimension. Notwithstanding this different starting point, the two regional courts have developed some common jurisprudential patterns. A short analysis of the jurisprudence suggests that an approach based on a degree of deference to good faith sovereign decisions of states, on the balancing between competing interests that takes into account the behaviour of the owner/investor and on a flexible determination of compensation, in allowing different solutions tailor-made on the specific facts of each case, may tackle issues of ‘distributive justice’ much better than the ‘all or nothing’ approach which prevails in the context of international investment arbitration.