¹ See Marcus-Helmons, ‘Le Droit de Propriété est-il un droit fundamental au sens de la Convention européenne des Droits de l'Homme?’, in Les nouveaux Droits de L'Homme en Europe (BruxellesEuropean Lawyers' Union 1999) 193 paras 207–8; Meyer-Bisch 194 of the same article: ‘l' homme tire une partie de son identité de ce qu'il s'est approprié’.Google Scholar

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¹⁴ The Israeli High Court has approved acquisitions by private persons of privately owned land in the territories occupied by Israel for the settlements of Israeli civilians, with the explanation that such settlements increased the security of the occupying power and could therefore be justified on the basis of military interest (Beth El Case, Israel Yearbook on Human Rights 9 (1979)). As rightly observed by Dr Hans-Peter Gasser, Senior Legal Adviser to the International Committee of the Red Cross: ‘This extension of the concept of security as an exception to the guarantee of property should be rejected as excessive, since it nullifies the guarantee of property based in international law’: ‘Protection of the Civilian Population’ in Fleck, D (ed) The Handbook of Humanitarian Law in Armed Conflicts (OxfordOUP 1995) 209, 262.Google Scholar

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²² See Rook, DProperty Law and Human Rights (LondonBlackstone 2001) 60–1 where it is also stated that the guarantee does protect the ‘peaceful enjoyment of possessions which embraces the right to own, possess, use, lend or dispose of the property as one so desires without interference by the state’.Google Scholar

²³ Art 8 of the Convention.Google Scholar

²⁴ Art 15 of the Convention.Google Scholar

²⁵ No derogation concerning a state of war has yet been in issue.Google Scholar

²⁶ Cf Harris, DJ, O'Boyle, M, and Warbrick, CLaw of the European Convention on Human Rights (LondonButterworths 1995) 502. See also Art 53 of the Convention: ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.’Google Scholar

²⁷ Art 53 of the Convention.Google Scholar

²⁸ This requires that any taking of property must conform with international law, and it is submitted that the better view is that this requirement applies to nationals as well as to aliens: Russo, C ‘L'application aux nationaux des principes généraux du droit international vise l'article 1^er du Protocol N° 1’ in Mélanges Wiarda (CologneCarl Heymann Verlag 1988) 547 et seq, and the references appearing at 522 n 5;Google ScholarCondorelli, L ‘Article 1 of the Additional Protocol’ in Pettiti, , Decaux, and Imbert, (eds) La Convention européenne des Droits de I'Homme (ParisEconomica 1995) 986–8. See to the contrary Lithgow v UK ECHR Series A No 102 (1986) and James and Others v UK ECHR Series A No 98 (1986).Google Scholar

²⁹ Res 2675 (XXV) ‘Noting that in the present century the international community has accepted an increased role and new responsibilities for the alleviation of human suffering in any form and, in particular, during armed conflicts … Convinced that civilian populations are in special need of increased protection in time of armed conflicts … Affirms the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law of armed conflict: 1. Fundamental human rights, as accepted by international law and laid down in international instruments, continue to apply fully in situations of armed conflict …’.Google Scholar

³⁰ Applications 6780/74, 6950/75, 8007/77, and 25781/94 respectively.Google Scholar

³¹ Application 15318/89.Google Scholar

³² Application 16219/90.Google Scholar

³³ Application 16163/90.Google Scholar

³⁴ See the Commission's Report in Cyprus v Turkey applications 6780/74 and 6950/75, 151 and 166, ‘there has been deprivation of possessions of Greek Cypriots on a large scale, the exact extent of which could not be determined’ and Report in application 8007/77, 42–3, 47. The reference to possible justification ‘by any of the aims mentioned in Article 1 of Protocol No 1’ was made without any consideration of the question of whether such justification can in law apply to any interference with property rights by an occupant country contrary to the Hague Regulations. Such question was not raised in the relevant proceedings and it is submitted that the answer should be in the negative (see 5–6 in the present Article). It may be added that in any event no justification in terms of Art 1 of Protocol No 1 was invoked by the respondent government. Therefore the reference to possible justification under the Article in question was obiter as well as wrong.Google Scholar

³⁵ ResDH(79)l and ResDH(92)12.Google Scholar

³⁶ Loizidou v Turkey (Preliminary Objections) ECHR Series A No 310 (1995) 24 para 63, and Loizidou v Turkey (Merits) (n 19), 2223, 2234.Google Scholar

³⁷ Ibid, at 2231–2.

³⁸ Ibid, at 2237.

³⁹ Ibid, at 2237–8.

⁴⁰ Ibid, at 2238.

⁴¹ See the Commission's Report in respect of applications 6780/74 and 6950/75, 141 et seq; and in respect of application 8007/77, 38–43; and the judgment of the Court in Cyprus v Turkey application 25781/94 ECHR 2001-IV 49–52.Google Scholar

⁴² Loizidou v Turkey (just satisfaction) Reports of Judgments and Decisions 1998 –IV.Google Scholar

⁴³ See Blaskic (n 18) para 233. According to Art 5(h) of the Statute of the Tribunal, persecution on political, racial and religious grounds amounts to a crime against humanity punishable under the same Statute.Google Scholar

⁴⁴ See at 12 of the opinion entitled ‘Legal Issues arising from Certain Population Transfers and Displacements on the Territory of the Republic of Cyprus in the Period since 20 July 1974’ <http://www.attorney-general.gov.cy>..>Google Scholar

⁴⁵ Loucaides, LGEssays on the Developing Law of Human Rights (DordrechtNijhoff 1995) 133.Google Scholar

⁴⁶ Oppenheim's International Law (n 10) 411.Google Scholar

⁴⁷ Ibid.

⁴⁸ Robinson, ‘Transfer of Property in Enemy Occupied Territory’ AJIL 39, 221 et seq.Google Scholar

⁴⁹ Oppenheim's International Law (n 10) 410–11, and Robinson, (n 48) 228–9.Google Scholar

⁵⁰ Robinson, (n 48) 223.Google Scholar

⁵¹ Ibid, at 219.

⁵² Ibid, n 10.

⁵³ Ibid, at 220.

⁵⁴ Weidlich and Others v Germany applications 19048/91, 19049/91, 19342/92, 19549/92, and 18890/91.Google Scholar

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⁵⁶ Applications 71916/01, 71917/01, and 10260/02.Google Scholar

⁵⁷ Eg A/RES/41/63[D] (3 Dec 1986). The UN Commission on Human Rights followed the same approach in a series of Resolutions entitled ‘Question of the violation of human rights in the occupied Arab territories, including Palestine’, see, eg, Resolutions 1985/1 A and B (19 Feb 1985) and Resolution 1986/1 A and B (20 Feb 1986).Google Scholar

⁵⁸ Roberts, and Guelff, (n 6) 300. Turkey for example, although it occupies the northern part of Cyprus since the invasion of the island in 1974, resists the terms ‘invasion’ and ‘occupation’ and uses instead the terms ‘peaceful action’ and ‘peaceful operation’; more specifically, as regards the status of the occupied area, this has been described by Turkey as the ‘Turkish Federated State of Cyprus’ and later as the ‘Turkish Republic of Northern Cyprus’ (‘TRNC’); see the Commission's Report in applications 6780/74 and 6980/75 (n 34) 6–7 and at 10 of the admissibility decision attached as an appendix to the same Reports, the admissibility decision in application 8007/77 at 150 and the judgment of the Court in Cyprus v Turkey (n 41) 22–3.Google Scholar