The Right to Property

One of the more controversial and complex human rights is the right to property. The right is controversial because the very right which is seen by some as central to the human rights concept is considered by others to be an instrument for abuse, a right that protects the ‘haves’ against the ‘have-nots’. It is complex, because no other human right is subject to more qualifications and limitations and, consequently, no other right has resulted in more complex case-law of, for instance, the supervisory bodies of the ECHR. It is complex also because it is generally regarded as a civil right, and by some even as an integrity right. At the same time, it clearly has characteristics of social rights with significant implications for the distribution of social goods and wealth. Moreover, the right to property has major implications for several important social and economic rights such as the right to work, the right to enjoy the benefits of scientific progress, the right to education and the right to adequate housing.

In many revolutions, including the French, the Russian, the American and the South African, property questions played a central role. Moreover, several of the worst violations of human rights in the 20th century were related to property rights. The collectivisation of agricultural land in the Ukraine during the Stalin era led to large scale famine, which claimed five to seven million lives in 1932-1933 alone. During the ‘Great Leap Forward’ of Chairman Mao, land in China was collectivised, and household iron utensils were gathered to be used for collective purposes. This, too, led to famine, whereby an estimated 20 million people died of starvation between 1958 and 1962. One of the worst violations was the removal of some three million people, on discriminatory grounds, from their ancestral lands during the Apartheid regime in South Africa.

It is, therefore, not surprising that this right was already the subject of debate quite early in history. To John Locke, the right to property belonged to the so-called natural rights such as life and liberty, which human beings could not be deprived of. To the socialist Proudhon, on the other hand, property was equal to theft. The question was likewise fundamental in the treatises of Friedrich Engels, but also in the papal encyclical letterRerum Novarum (1891). Land reform, incentives to provide people with access to land, housing and wealth, can have significant benefits. Successful pension schemes in Europe in the 1960s to 1980s have had a significant impact on the distribution of wealth and increased long-term security of the population.

Property has been defined in the case-law of both the European and the Inter-American human rights courts. As such, the concept of property has an autonomous meaning, often substantially different from national legislation. It may also include rights which result from rent or lease agreements and - under certain conditions - benefits from public relationships, such as public pension schemes.

In today’s modern states – the EU member states, for instance - property is considered one of the key concepts of the legal order. Property is vital to society, since property and contracts jointly form the basis of exchange and trade, on which the market economy is built. In parallel, extensive case-law has been established to protect individuals against abuse of property, while some limited legislation has been developed to counterbalance possible imbalances caused by the accumulation of property, and to provide additional protection for those dependent on the property of others.

In the developed world, protection of property is, despite its complexity and controversial nature, considered an important element in the market economy, and a prerequisite for security of the individual. In the developing world, property and, more specifically, land issues are frequently sources of controversy. On the one hand, there is sometimes a lack of protection of the owner against abuse, because of the absence of proper registration and of judicial recourse in the case of infringement of property rights. On the other hand, powerful property owners can sometimes abuse their power, which can go hand in hand with large-scale holdings.

In many less developed countries – where the industry and services sectors are underdeveloped - there are few alternatives to land to provide citizens with the means for a decent standard of living, as well as security. It is therefore not surprising that land is one of the most difficult issues in many developing countries, as often more than two-thirds of all wealth is vested in land. Moreover, utilisation patterns of, for example, indigenous peoples do not fit into existing property protection systems and are therefore more susceptible to abuse.

Examples of infringements of property rights are the forcible eviction or relocation of urban squatters who have settled in an area for a long period; excessive administrative difficulties in the registration of land; denial of grazing or water rights, which have existed for many generations, but have never been formally registered; eviction of forest dwellers for environmental reasons; and the relocation of villages for the development of hydroelectric projects without adequate compensation.



                                                 1. STANDARDS

The protection of property is included in Article 17 UDHR: ‘Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.’ But the ideological debate between East and West in the 1950s and 1960s, as well as large-scale nationalisation of banks, railways and industries in Western Europe, led to no provision on property being incorporated into the two main UN Covenants (ICCPR and ICESCR). The right to property is touched on in two UN Conventions. Article 16 CEDAW sets out equal rights of spouses to enjoyment and disposition of property and Article 15 CMW recognises the right to property and the right to adequate compensation in case of expropriation with regard to migrant workers and their families.

The regional human rights Conventions in Europe, America and Africa contain property clauses. The ECHR includes the right to property in its First Protocol (1952): ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’ (Article 1). This standard qualifies the right, not only by speaking of ‘enjoyment’ rather than of ‘ownership’, but also by giving the state more powers to limit property rights than is the case for other rights. The state may deprive an individual of his/her possessions ‘in the public interest and subject to conditions provided for by law’ and may limit this right ‘in accordance with the general interest or to secure the payment of taxes or other contributions or penalties’. In fact, a balance has to be struck between the interests of the community, on the one hand, and the fundamental rights of the individual, on the other. The article expressly does not stipulate compensation in case of deprivation or expropriation. In practice, the extensive case law, as well as standards such as the Charter of Nice (2000), lead one to conclude that justifications for non-payment of compensation are very unlikely to be accepted.

At the Inter-American level, the right to property is set out in Article 21 ACHR. At the African level, it is protected under Article 14 ACHPR.

Mention should also be made of the United Nations Declaration on the Rights of Indigenous Peoples (UNGA Resolution 61/295) which sets out that states shall, inter alia, ‘provide effective mechanisms for prevention of, and redress for [...] any action which has the aim or effect of dispossessing [indigenous peoples] of their lands, territories or resources.’

In the CSCE/OSCE framework, the right to the peaceful enjoyment of property is stipulated in the 1990 Copenhagen document (Paragraph 9.6).


                                               2. SUPERVISION

In the absence of a defined right in the ICCPR, the Human Rights Committee has not found any complaint about property rights admissible, unless it was related to, for instance, non-discrimination. This is the case despite the fact that several communications, such as: Oló Bahamonde v. Equatorial GuineaAckla v. Togo and Diergaardt of Rehoboth Baster Community et al. v. Namibia showed, prima facie, evident unjustifiable interference with property rights. The Committee has also decided in several cases against the Czech Republic finding the requirement of Czech citizenship and residency for restitution of confiscated property discriminatory (see, e.g., Adam, Blazek and Marik v. The Czech Republic).

On the basis of the European Convention, the European Commission and the European Court have generated substantive case-law regarding the right to property. Important findings in hundreds of cases include that licences and ‘goodwill’ may, under specific circumstances, constitute ‘possessions’; that fairness requires affording affected individuals rights of appeal against governmental decisions and compensation; and that the right to property does not encompass the right to acquire property.

Many cases focus on deprivation and on compensation for such deprivation or expropriation (see, e.g. Avellar Cordeiro Zagallo v. Portugal and Korkmaz and Others v. Turkey) and failure of the state authorities to enforce judgments establishing property rights (see, e.g., Lapinskaya, Kulikov, Kurkunov and Silka v. Ukraine). The European Court has awarded compensation for unjustified limitation of property rights (see, e.g.,Chassagnou v. France which concerned the obligation of land-owners to allow hunting on their property). Salary arrears were held to be property in the case of Trykhlib v. Ukraine; in Bălăucă v. Romania the Court found that the requirement to pay tax on retirement allowances violated the right to property. The Court has ruled that imposition of a fine had dealt such a blow to an applicant’s financial situation that it amounted to a disproportionate measure in relation to the legitimate aim pursued, in violation of the right to property (Mamidakis v. Greece) and in Mazurek v. France that discrimination against children of adulterous relationships with regard to inheritance rights constituted a violation. Where authorities had denied a gypsy family permission to site a caravan on land they owned because of planning considerations, the Court found no violation as the interference with the applicants’ peaceful enjoyment of their property was proportionate and struck a fair balance in compliance with the requirements of the Convention (Chapman v. The United Kingdom). Like the Human Rights Committee, the Court has dealt with many cases arising from expropriation of property on the territory of the former USSR, for instance, territories that are now under Polish or German control (see, e.g., Jahn and Others v. Germany and Broniowski v. Poland). Finally, the free circulation of goods within the European Union has raised several issues of intellectual and industrial property. An example is the case of Anheuser-Busch Inc. v. Portugal. Here the Court concluded that trade mark applications have a proprietary nature protected against unlawful expropriation under the Convention - thus expanding the definition of property.

In the notable case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Inter-American Court clarified what the right to property entails: ‘those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value’. It has found that the protection of right to property extends to the rights of members of the indigenous communities within the framework of communal property. The Court also found that the right to property may lead to positive obligations, including the obligation of the state to delimit, demarcate and provide formal titles to lands. In this case, the land belonged to indigenous communities, which had never registered their ancestral land. Such failure to register cannot justify absence of government property protection. This principle is further illustrated in Yakye Axa Indigenous Community v. Paraguay. The Court has also ruled that arbitrary reduction of the pensions of former public servants constituted a violation of the right to property (Torres Benvenuto et al. v. Peru (Five Pensioners Case)).

The African Commission has not decided many applications concerning the right to property but found is a case against Nigeria that the ‘corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected.’(The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, Communication 155/96). In Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97 -196/97 and 210/98, the Commission found that the confiscation and looting of the property of black Mauritanians and the expropriation or destruction of their land and houses before forcing them to go abroad constituted a violation of the right to property.

In international co-operation the issue of property protection is increasingly receiving attention. The fact that property protection contributes to economic security and can stimulate growth is a significant element in this context. Projects that may contribute to improved protection, e.g., through titling, as well as projects that lead to better access to effective remedies, are increasingly receiving support. Compliance of states with positive obligations in connection with property rights should of course be focused on the position of those who cannot live in dignity, as a result of deprivation or the absence of possessions.

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