Francis Cheneval / / legally expropriated, given away, or rented out. Why are property rights human
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1 Property Rights as Human Rights page 11 Property Rights as Human Rights Francis Cheneval Property is not the first thing that comes to mind when we think about human rights. We might even associate it with exclusion and see the signs private property, keep off! flashing through our imagination. Human rights are supposed to stand for the noble task of protecting and promoting human persons as such, especially the most vulnerable. Many people who actually need human rights protection the most own little or nothing. Property rights, so it seems, protect the few, not mankind. The lack of property can be signaled as the reason why many people are in need of fundamental protection and unable to protect themselves. Historical evidence shows that property has been a privilege of the few, and billions of people on this planet seem to own little more than the clothes they wear and the bags they carry. In the earliest days of democracy, only property owners had political rights. Not only was property a privilege, it was, together with ethnicity, race, and gender, a criterion of the massive exclusion from political and social participation. To this list of irritations one might add that human rights are inalienable, yet property can be sold, traded, destroyed, used as collateral, legally expropriated, given away, or rented out. Why are property rights human rights? The historical development of the idea of human rights is closely connected to the right to private (individual or common) property, especially of indigenous peoples. 1 Early defenders of human rights consider the latter to be of similar importance as the right to life, freedom of religion, and freedom of speech. The right to private property is understood as a direct consequence of the human person s need and ability to provide for his or her subsistence and entertainment through manifold activities. 2 The body itself is the first property of the human person. The respect for a person s property is thus related to the respect of the integrity of the body and the human person as a free and active being. Every human person has to be considered proprietor of his or her body, its labor and its projects. The denial of private property rights as human rights opens the door to slavery and grave forms of exploitation. Human rights obtained their distinct status as a means of protection of the funda-
2 Realizing Property Rights page 12 mental interests of the individual person against the ever present and overwhelming economic abuse of political power. In the context of the emancipation of the individual, property rights were thus separated from political authority and relocated in the private sphere of persons, families, and, in the 19th century, private legal persons. Where property rights were discussed in a context of absence of political authority, as in the frontier lands of colonialism, the idea of the human ( natural ) right to private property acquired by work or first occupation represented a criterion for the settlement of land disputes. The idea of a property right of the first occupant also represented a first step in an important critical argument against the illegitimate robberies of colonialism and Aristotelian theories of natural slavery. 3 Today, important texts of international law unequivocally state the right to private property. The Universal Declaration of Human Rights stipulates that Everyone has the right to own property alone as well as in association with others and that No one shall be arbitrarily deprived of his property. 4 According to the European Convention for the Protection of Human Rights and Fundamental Freedoms Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his [or her] possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 5 The American Declaration on the Rights and Duties of Man states that Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home. 6 The American Convention on Human Rights holds that Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. It further provides that No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 7 The same legal intention is expressed in the African [Banjul] Charter on Human and Peoples Rights when it holds that The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. 8 In the context of peace-building and in dealing with the complex situation of refugees and internally displaced persons ( IDPs ), property restitution is considered an important human rights issue. According to representative texts of the international community, there is no just peace without the institution of private property and without the restitution of arbitrarily expropriated property or an equivalent compensation for expropriated goods. 9 But what does it mean that private property rights are human rights, and how is this justified? What is property, what are property rights in the first place? There are basically two sorts of arguments in favor of private property rights as human rights. In one version, already al-
3 Property Rights as Human Rights page 13 luded to, the property right is understood to be acquired by an act, for instance by labor, purchase, or transmission through gift or inheritance. The property right is therefore a special right founding an entitlement theory of distributive justice. Only persons who have actually acquired property through the aforementioned legitimate acts are under the protection of property rights. People are guaranteed to peacefully enjoy the fruits of their labor and luck with regard to the exclusive use of specific material or immaterial things. Within this framework, considering property rights as human rights, therefore, means that human persons are guaranteed not to be excluded from the group of potential property owners for reasons of gender, race, social status, etc. They are not to be hindered in their efforts to acquire property in due manner. This right to property does not actually guarantee anybody to become an owner and it does not pay people s bills. But it creates the opportunity and an inclusive tendency when compared to the numerous formal reasons and social barriers of exclusion from property in many societies and through state boundaries. According to a second argument, owning property is part and parcel of the autonomy and ethical integrity of the person. Personal property is implied in mutual recognition of personhood and creates a sense of responsibility, a sense of dignity, and it puts a person in a position to be autonomous and generous to others. The property right is therefore a general right related to the moral value of human personhood and we have to conclude that as many people as possible, ideally everybody, should have property. Since the body itself is property and its activities lead to legitimate entitlements, hardly anybody in society will be without property in those societies that offer fair conditions and legal guarantees of property acquisition. Although general rights are necessarily egalitarian while special rights are not, it is wrong to construct a complete contradiction between the two justifications of property rights. The main reason for this is that the dynamic human body is at the basis of both types of arguments. The special property right is tied to the body, to the space it takes, the place it needs to be, to the things it uses and the labor it constantly executes. Property rights are therefore naturally linked to housing and land rights. The special right to property through acquisition converges therefore with a general right to private property. Every body uses space and things alone and with others. The person s bodily existence and activity makes every person a proprietor with the right to the appropriate protection. The right to property is everybody s special right and, in that sense, a general right. The right to property constitutes a duty of legal recognition of the factual ownership of the body of all persons and the belongings they accumulate in their activities. The private property right is thus a universal special right to the legal empowerment of everybody. The property right is not to be confused with the thing owned, nor is it a purely unilateral claim. The property right is the common recognition of a bundle of relations of
4 Realizing Property Rights page 14 persons and things. Mutual recognition is a common spiritual act, a common knowledge of human beings. It establishes specific relations among people with regard to the allocation of material or intellectual things. This explains why property rights are inalienable human rights while the things owned are alienable. A person selling her patch of land does not alienate her property right. Quite the contrary, she exercises a transaction under the protection of property rights by asking and getting something in return for her possession. There is a continuity of property rights protection and mutual recognition in the transfer and exchange of property. It is the mutual recognition of property rights that makes orderly property transactions possible. The concept of property is the concept of a system of rules governing the allocation, i.e. the access and control of material and spiritual resources. Even in the extreme case of legal expropriation, the property right might be recognized, provided that certain conditions are met. When the state expropriates land for the construction of an airport or other facilities of public interest but does so according to the law (i.e. the same rules for everybody) and offers market value compensation to the owner, the property right is not abrogated but recognized. Also the speed limit, the safety rules for cars, houses, etc., do not put into question the right to property. General background constraints with regard to the use of mobile and immobile things are not property rules, not rules of allocation. They tell us, for instance, how a car should be made and driven, not who owns it. The special right resulting from property acquisition and the general right tied to human dignity are both based on the concept of property as a system of mutual recognition of rules of allocation. Mutual recognition is a spiritual bond among human beings. While not everyone has the same amount of property, the property right is the agreement that everyone has the right to the property they own according to lawful and legitimate acquisition. The owners of big fortunes have always had means, other than the law, to protect themselves and to deprive others of their property; the poor and the middle classes have nothing but the law. If they don t have the legal protection of their property, they have few other options to protect their belongings. The general right to property is based on the idea of self-responsibility and autonomy of the human being. It does not determine a fixed end-result of distribution and does not directly establish a duty of the community to provide everybody with the same amount of property, independent of their actions. This would go against the idea of self-responsibility and autonomy. The general mode of acquisition must remain active labor of the individual and associations. But the general right to property presents property as something the state or any community should promote systemically and not just leave to the initiative and luck of individuals. The state has thus a duty to establish a system of rights that puts property at the reach of the vast majority of people striving to improve their life chances through labor and trade. Understanding property rights as
5 Property Rights as Human Rights page 15 human rights highlights the responsibility of governments to install functioning property rights systems that promote massive and fair access to property for every human being, independent of race, gender, and other societal distinctions. The basic right to subsistence justifies this system and also puts a definite limit to the seizure of property after bankruptcy or insolvency. It also justifies a duty of assistance to people who are physically and mentally unable to provide for their basic needs through their labor. The protection of the basic right to subsistence, thus, does not constitute an argument against property rights; it rather constitutes an argument against the complete seizure of people s property under any circumstances and an argument in favor of an understanding of property rights as general rights attached to the human person. The background constraints with regard to the use and transmission of property differ among legal systems and so do the conceptions of ownership. Understanding property rights as human rights does not mean that these circumstances should be made the same. The bundle of rights and duties attached to the ownership of land in Britain, Mexico, and Tanzania might be quite different. What the human rights documents state is not an imperative for the homogenization of the bundles of rules attached to ownership. The human rights documents use a basic concept of private property and defend some fundamental rules attached to it. Ownership expresses the idea of a material or intangible object being allocated to a person according to a rule granting a specific person the final decision on when and how the object can be used within the prescription of the law. The human rights documents express the rule to respect and guarantee basic ownership and not to expropriate property in the name of common interest without strict procedural justice and fair compensation. This leaves ample room for culturally sensitive definitions of different conceptions of private property. Inheritance, for instance, can be regulated in quite different terms, as long as it is the same for all persons under the law. Systems which allow for inheritance in the name of private property but exclude women violate the human right to private property. Every human being is entitled to the guarantee of ownership according to its basic meaning and no violation of the fundamental rules can be tolerated. The duty to protect the right to private property is held by an impartial authority called the state. The state and the apparatus that uphold the system of private property cannot themselves become a private property. If the state becomes a private property or is completely subverted by private interests, private property rights disappear. Put it this way: If there is only private property, there is no right to private property. If the state is reduced to a private property of a clique or very limited group of people, there is no impartial authority left to guarantee private property rights. The reason why the formal separation of the public and the private sphere is so important is that neither can exist without
6 Realizing Property Rights page 16 the other and both are fundamental for human coexistence in freedom. Scholars like to distinguish different and mutually irreducible methods in the justification of legal and political norms. A common distinction is made between a humanistic and a utilitarian approach. We may call it the validity-utility fault line. The humanistic approach is based on the assumption of an equal moral value of every human individual. It deduces rights and duties from such an assumption and no other. The utilitarian approach is more pragmatic. It aims at the greatest happiness for the greatest numbers. No task, as noble as it may be, has the remote chance of social and political realization if it does not have strong utilitarian arguments on its side. No individual and no community can, in the long term, consistently act against utility. On the other hand, human rights are not justified by utility, they are based on the idea of human beings as ends in themselves and ought to be guaranteed even if it does not seem lucrative to do so. However, this does not mean that the implementation of a human rights system must not have useful consequences. It is the purpose of this book to show that in the case of property rights, the connection between the humanity and utility of rights becomes quite obvious in the vast majority of circumstances. The utility of property rights is shown with regard to economic wellbeing and growth, but also to a general sustainable socio-political development. The rights system thereby assures that the general benefits of the economic system of private property are put to the service of the individual and not just of a particular group. The protection, guarantee, and respect of private property independently of its size are fundamentally useful for the promotion of individual and social wellbeing. It is also wrong to construe a fundamental contradiction of private versus common property since a free system of private property enables people to own things in common if they wish. Since human affairs are immensely complex, the authors of this book try to look very carefully at the different historical and cultural contexts and at the different thematic aspects of the problems involved in the creation of a fair system of property rights. As the reader will see, many aspects of this difficulty did not find their way into this volume for many reasons. But we do try to elucidate the multiple and complex relations between the humanity and utility of property rights in the domains of individual well-being, of social, economic, and political development, of conflict resolution and broader issues of justice among individuals, genders, and peoples. Property rights matter for women, for highly vulnerable refugees and internally displaced persons, for microentrepreneurs as well as for medium and big enterprises, but they matter in a different way and their guarantee has to be orchestrated differently. The reader will find that we try to combine a firm stand in favor of property rights as human rights and as indispensable driving forces of development with sensitivity for difference, context, and contingency.
7 Property Rights as Human Rights page 17 Following this guiding principle, the first part of the book focuses on the realization of property rights in different regions, countries, and concrete social and historical settings. Dealing with different worlds in Tanzania, Sudan, Zimbabwe, South-East Europe, China, Israel, and the Americas, the authors illustrate how the idea of property rights as human rights emerges from very basic but also very different social relations, conflicts, and traditions. The articles show that the property rights system is a fundamental and multifaceted structural condition for achieving individual well-being, just peace, poverty reduction, economic development, and political justice. A property rights system is not a single variable, but a structurally coherent bundle of social, judicial, and political relations. The task of realizing such a system is difficult. But it is worth the effort and the benefits are immediately visible even where success in installing formal and stable property relations is still relatively modest. The second part of the book takes a thematic approach to property rights as human rights. Fundamental aspects of property rights and human security (Williams), property rights of IDPs (Kaelin), property rights and peace (Goetschel) as well as property rights, housing, and land rights (Leckiedu Plessis) are treated in four articles in a critical and differentiated manner. We have identified a further key area where the realization of property rights is especially sensitive, difficult, or urgent. This is the case with women in many parts of the world (Nielsen). In an economic section, three chapters (Lombard, Felder-Kuzu, Talbott) show that micro finance is an instrument creating conditions under which the formal protection of property becomes meaningful to a broad spectrum of people usually excluded from the formal economy. Microfinance creates favorable economic and civic conditions for the realization of a formal property rights system. The dimension of economic well-being tied to property rights has also been explored in three interviews with Swiss business players and NGO representatives. We try to profit from their vast experience acquired in different parts of the world. To close, we have given the subject of intellectual property a prominent place. This complex matter is treated with regard to public health and indigenous peoples, both closely related to the domain of human rights (Baechtold).
8 Realizing Property Rights page 278 Notes Property Rights as Human Rights Francis Cheneval 1 See Georg Cavallar, The Rights of Strangers. Theories of International Hospitality, the Global Community, and Political Justice since Vitoria, Aldershot nature authorizes and reason sanctions the right a man has to enjoy the acquisitions which his talents and industry have acquired; and to bequeath them to whom he chooses. Mary Wollstonecraft, A Vindication of the Rights of Men [1790], Oxford 1993, p See Francisco de Vitoria, On the American Indians, in: Political Writings, ed. A. Pagden & J. Lawrance, Cambridge 1991, p Art. 17, The Universal Declaration of Human Rights, UN Doc. G.A. res. 217A (III), U.N. Doc A810 at European Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, Protocol I on enforcement of certain rights and freedoms not included in Section I. of the Convention, March 20, Art. XXIII, American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEASer.L.V II.82 doc.6 rev.1 at Art. 21, American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, in: Basic Documents Pertaining to Human Rights in the Inter-American System, OEASer.L.VII.82 doc.6 rev.1 at Art. 14, African [Banjul] Charter on Human and Peoples Rights, adopted June 27, 1981, OAU Doc. CABLEG673 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 56th session, Economic, Social and Cultural Rights, Housing and property restitution in the context of the return of refugees and internally displaced persons, Final report of the Special Rapporteur, Paulo Sérgio Pinheiro. ECN.4Sub June 28, See Arts. 7; 15.
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