5 December, 2020

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Is Right To Property A Human Right?

By Laksiri Fernando

Dr. Laksiri Fernando

Is right to property a human right? I really doubt it, in its unqualified and undefined terms. It is extremely controversial. This question has become important in the context that the Sub-Committee on Fundamental Rights on Constitutional Reforms has proposed it to be included in a new constitution. In human rights, there are still areas which are controversial, and the ‘right to property’ is one of them. The important thing is to consider ‘human rights’ as an evolving conception and not to take anything as God given (even there is one or several!) or dogmatic.

More research and truly democratic discussions are necessary to fill the gaps without dictates from anyone. Critical knowledge instead of blind faith is necessary in truly promoting human rights in practical terms. What is lacking among many present day human rights activists is critical acknowledge. This does not undermine the importance and centrality of human rights in philosophy, political theory or democratic governance. On the contrary, critical knowledge enhances its relevance, applicability and necessary consensus in implementing human rights in political and legal terms in varied countries and cultures.

Universal Declaration

The Universal Declaration of Human Rights (UDHR) did recognize the right to property in vague and in general terms in Article 17. But it was a declaration with broad aims, principles and standards on human rights that should be achieved by the UN member states and nations. But when these principles were formulated in more operational terms in the two International Covenants in 1967 (‘International Covenant on Civil and Political Rights’ and ‘International Covenant on Economic, Social and Cultural Rights’), the right to property was conveniently ‘dropped.’

Some could argue that the right to property was ‘dropped’ because of the pressure from the former Soviet Union and because of the cold war conditions. Therefore, they would argue that it should now be reinstated. Well, this is an argument completely in support of ‘neo-liberalism’ in human rights. There have been such pressures during the last couple of decades. Even the British Labour Party changed its constitution on ‘property’ under this pressure during Tony Blair’s leadership.

However, for those who are concerned about proper theoretical foundations of human rights, the reinstatement of the ‘right to property’ in unqualified and undefined terms is controversial and unwarranted. The ‘right to property’ in its customary sense goes against many of the other human rights, unless it is properly defined, qualified and limited to probably ‘human needs, wellbeing of the person and family, and economic benefits to the larger society through legitimate enterprises.’

What the UDHR said about the right to property in 1948 was the following in two sentences (Article 17).

Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.”

The first sentence makes sense as an ideal, but the second one appears a cover up. Everyone here means 7.5 billion people in the world today, but how many actually own any property? Estimates reveal that over 200 million of these people are homeless, and over 3 billion have no tangible property at all. Then who owns property alone or in association with others’? In deed a very small minority. More drastic is the inequality. The richest 1 percent of the world owns more wealth than the rest ((99 percent). The Oxfam also recently revealed that the top 8 richest billionaires control the same wealth as the poorest 50 percent.

This is a homeless person not in a Third World country, but in France. (Picture courtesy – Wikimedia.org)

Duality of the Right

One can argue that inequality in the exercise of human rights is common to other rights. For example, how many actually exercise the freedom of expression? It is again a small minority. However, there is a clear difference. Those who are in the ‘silent majority’ are basically doing so voluntarily unless there is a clear suppression. Anyone in the silent majority can instantly become an advocate or even an agitator, if the right/freedom is guaranteed. But in the case of property inequality, it is not at all voluntary. On the contrary, all aspire for some property. Therefore, the denial of them is a human rights violation in that sense.

The reason is that there is a clear duality in the case of the ‘right to property.’ There is a difference between the ‘right to property of the people’ and the ‘right to property of the rich.’ Most of the time the latter goes against the former. John Lock considered property as sacred. But Pierre-Joseph Proudhon called it theft.

There is a natural propensity of the ordinary people for some property. That is legitimate. However meagre your present property is – ‘the purse, bank account, furniture, clothes or books’ – every day you are concerned about them. You like a house, even if it is mortgaged. This is the natural instinct for personal property. That is why you are against theft; private or public! Here obviously, there is a natural right involved. But that is not exactly the present day international norm or law on property. Take for example, the second sentence of the UDHR article. It says “No one shall be arbitrarily deprived of his [sic] property.” ‘His property (!)’ is here taken as a given thing with all the inequalities involved.

Arbitrary deprivation of property, particularly land, has gone in many countries in the world in massive scale under colonialism. But all those were made legal and claimed ‘not arbitrary.’ The Waste Land Ordinances in India and Sri Lanka are examples along with ‘Terra Nullius’ (nobody’s land) in Australia and other countries. Australia has made some amends to the situation only after the Eddie Mabo case in 1992. At present in Sri Lanka, there are arbitrary deprivation of land by the military in the North still unresolved. If they were legitimate under national security before 2009, it is not the case at present after the end of the war. The rightful owners deserve compensation. However, that situation does not warrant a general coverage for property rights of the rich, under any pretext.

Land of the peasants and the farmers should be preserved and protected. It is more of an economic right than a property right. It is about the right to land and not just right to property. John Lock at least defined ‘property’ as the product of ‘mixing labour with land.’ That is however not the case today. Most of the large properties are products of not mixing, but exploiting labour. Therefore, the right to property should not be a cover up for such exploitation or dubious means of acquiring massive property under the ‘right to property.’

The Latin American Example

When the text of the UDHR was negotiated, the Latin American countries suggested that it should be limited to the protection of private ‘property necessary for subsistence.’ That view was rejected by the Western nations. However, they managed to include that concept in the ‘American Declaration of the Rights and Duties of Man’ (ADRDM) in 1947. America here means Latin and South America. It is important to note that they also incorporated the ‘duties’ along with rights, as Mahatma Gandhi also suggested. The following is the formulation (Article 23) on property in ADRDM.

“Every Person has the 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.”

The essential needs here mean land in the case of farming, a house in the case of all, and all personal possessions for decent living with comforts and to preserve human dignity. It didn’t include companies, shares or luxuries.

The Latin American countries also came up with a convention, the ‘American Convention on Human Rights’ (ACHR) in 1969 and even agreed to prohibit ‘usury and other exploitation’ and allow any deviation with compensation. 25 countries have ratified it. The following is what the Article 21 says.

“(1) Everyone has the rights to the use and enjoyment of his property. The law may subordinate such use and the enjoyment to the interest of society.

(2) 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.

(3) Usury and any other forms of exploitation of man by man shall be prohibited by law.”

The most radical proposition was to declare that ‘exploitation of man by man’ shall be prohibited by law. Even in the ‘European Convention on Human Rights’ (ECHR) in 1950, the right to protection of property could not be enshrined due to the controversies. The social democratic parties and governments opposed it. It came into the picture later, in Protocol 1 to the ECHR as “right to peaceful enjoyment of possessions” and not as property.

A Progressive/Pragmatic Approach

The property rights of business, industries and of entrepreneur nature are considered essential in the present-day society and in economies. It is true that any attempt to make haphazard abolition or containment of such private property would invite disaster like in Pol Pot’s Cambodia. This was also the case during the forced collectivization efforts in the Soviet Union. However, the land rights of big landowners should not have been allowed in an unbridled manner even then. Such a permit goes against the basic tenets of human rights and particularly economic and social rights of the people. Fortunately, in Sri Lanka, thanks to the progressive land reforms in the 1970s such landowners are not in existence.

A review of different regional human rights conventions (i.e. European, American and African) and country legislation show considerable differentiations in its recognition and implementation. There are countries which are completely silent on ‘right to property’ as a human or a fundamental right. This is one reason why the drafters of the new constitution in Sri Lanka should be careful.

There is a difference between rights and human rights. There are customary rights and treaty rights which are not necessarily human rights. Some of them are recognized erroneously in rights conventions. Yet, they are not human rights. One good example is the ‘right to hold arms’ in the American (USA) constitution. Some of the entitlements that we call rights are simply not rights, or human rights, but privileges. To be a human right, a right must be common, ‘universal’ and equally applicable to all, or such a right should give expression to common human rights in a particular context or group (e.g. rights of women, children and minorities). In the latter case, although the right/s are specific to a group, they give effect and expression to human rights. This nature cannot be found in the customary right to property.

In a developing society, there are pragmatic reasons to allow the ‘right to property’ as a customary right to develop enterprises, trade, goods and services and expand the economy. However, that does not necessarily require the recognition in the constitution as a fundamental right. Those rights are covered substantially under the civil, company and even the criminal law. What has to be prevented is the political and other victimizations in the name of ‘nationalizations’ or progressive measures.

The most harmless spheres to allow the customary rights to property would be the SMEs (small to medium scale enterprises). When they evolve into big enterprises, the ownership should preferably be distributed through easily accessible shares to the people. Even in the United States, there are anti-monopoly or anti-trust laws. Likewise, there can be limitations to private property of individuals and family inheritance. There are philanthropists who do not transfer the whole of their property to children for moral reasons.

One reason to write this article, as stated before, is the proposed inclusion of the ‘right to property’ (civil right) in the new constitution under fundamental rights. This might not be necessary as the right to property as a customary right is covered under other laws (civil, company and criminal). Inclusion of such as a fundamental right could jeopardise the future progressive legislation in the direction of social democratic or socialist type economy/society policies. If the ‘right to property’ is to be correctly formulated or enshrined, it must be done carefully and with due considerations for the people’s economic rights. It must address the basic human needs (land for farmers, houses for all), wellbeing of the person and the family, and economic employment through legitimate enterprises.

 

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Latest comments

  • 5
    1

    The ‘Land issue’ is at the core of the so-called national (Sinhala-Tamil-Muslim) problem in Sri Lanka. State land within provincial boundaries and privately owned lands wherever they are located, should be considered as a human right in the context of communities and individuals. Even nature and wild life reserves are being encroached and colonized with impunity now.

    We cannot afford to forget the LTTE and the government fought for real estate and not for the people who they claimed to represent! At this very moment this war for land is being waged in a very subtle, but more sophisticated manner

    Dr.Rajasingham Narendran

    • 1
      0

      Dr.Rajasingham Narendran

      You are right.

      Sinhalse with state aid are thieving Tamil lands.

      Sinhalese without state help are thieving their own Sinhala lands.

      Muslims are thieving Sinhalese and Tamil owned lands.

      Then the Tamils thieves with the help of rogue Tamil politicians are thieving the Tamil lands. There is a Tamil madam Minister heavily involved in the land grabs in the north.

      What we need is, not respect for human rights. Violators must be shot at sight without any mercy.

  • 1
    1

    The right to property exists only so long as it is subject to the public interest. It is the state which creates property in the individual. If the state does not permit property being held by a specific class of people, it could decide to remove it from them. This was the basis of the nationalisation of tea and other estates from foreign companies and the nationalisation of the oil companies. Many newly liberated Asian and African states did the same, paying little as compensation.

    The state continues to have such a right, whatever a constitution may say. It is inherently subject to the limitation that public interests trump an individual’s interest in property.

    The problem with Sri Lanka is that it has made many investment treaties which now give property protection to foreign investors. This issue has to be looked at. There is provision in the constitution -157- I think, which makes these treaties part of the law. This needs to be looked at.

    Equally, there are international norms about property of individuals occupied during an armed conflict. These rules must be followed and the army should vacate such land. There is no public interest in the state retaining them. On the contrary, it ensures a polity that is disgruntled and will arise against the state when an opportunity presents itself. Let us not have another round of bloodshed.

    ( I cannot understand the relevance of Dr Narendran’s comment. )

    • 2
      0

      Mama Sinhala,

      If you do not understand the relevance of my comment, you definitely do not have a grasp of fundamental problem underlying communal tensions in Sri Lanka. What was inter-communal is now also assuming a infra-communal dimension. In the context of Sri Lanka, land constitutes the central fixture of what we understand by the word ‘Property’.

      Dr.RN

      • 0
        0

        A correction: intra-communal ( not infra- communal)

        Dr.RN

  • 1
    0

    ‘Is right to property a human right?’

    Of course it has to be regarded as HR Mr.LF. Don’t pass all the rights as that of a Govt. and that of Minister’s. It is the rights of the individuals that is conveyed to the Govt. to use as part of administrative right. Our damn politicians are removing all the rights by fragmenting. Consider the statement,

    “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.”

    which is self explanative. Let those who owned land to exercise their rights.

  • 0
    2

    Ot is simply Tamils and christians trying to share Sinhale for they themselves.

    It is simply anarchy.

    • 1
      0

      Batticoloa monks think right to property is human rights. We all seen the videos. Disgrace to other countries who peacefully follow Buddhism. Bloody Govigama monk

  • 0
    0

    yes easy access to foods and shelter,opportunities for leading peaceful and quality life is basic human rights. no doubt about it.that does not mean it should come free of charge but to earn them opportunities should be there like education in whatever the form.that too is a basic human right. beyond that it is depend on your capabilities. there should not be any restrictions.equal opportunities should be created for everybody.

  • 3
    1

    All lands that belongs to USA-Red Indians, Canada of the original people, Australian first citizens of Aborigine and new-Zealand Moraines have been lost their homeland and forced to leave land by force.

    But not a single Human rights-organisation base on that USA,UK,CANADA, Australia and New-Zealand utter single word of their lost of original people rights of Land.

    In fact USA base of “Human Rights of lands” are hipcoracy of White race Democracy. White race and rulers that write Rules according to suit their necessity and Freedom hegemonic of dominations.

    To other hand they talk homeland for example Tamil homeland is well known fact which is myth of Tamil homeland in Sri lanka?
    Not Tamil Nadu is real homeland of all over the living Tamils in India? TaMil Nadu is holy land for Dravidians culture.

    We have to be carefully to study right of land that basis on grounds of civilization of each nation and habitation of several centuries.

    • 0
      0

      Tamils could not get 1/3rd of eelam and 2/3rd of the adjacent sea with the LTTE war.

      Now, this constitution gives lands to Tamil as a constitutional rights.

      How about Sea. that also should be a constitutional right. So then, Tamils can not have2/3rd of Sea also for they themselves.

      Only problem for Tamils is their homeland. Why, only now, Tamils changing the names in the north to a some dialect of Tamils even Tamilnadu Tamils can not pronounce.

      • 1
        0

        Sinhala is one of the Tamil dialect. Tamils cannot pronounce all the Sinhala words. So what’s your point , if you have one.

  • 0
    0

    All lands that belongs to USA-Red Indians, Canada of the original people, Australian first citizens of Aborigine and new-Zealand Moraines have been lost their homeland and forced to leave land by force.

    But not a single Human rights-organisation base on that USA,UK,CANADA, Australia and New-Zealand utter single word of their lost of original people rights of Land.

    In fact USA base of “Human Rights of lands” are hipcoracy of White race Democracy. White race and rulers that write Rules according to suit their necessity and Freedom hegemonic of dominations.
    On the other hand they talk homeland for example Tamil homeland is well known fact which is myth of Tamil homeland in Sri lanka?

    Not that Tamil Nadu is real homeland of all over world the living Tamils in and out of India?

    Tamil Nadu is holy land for Dravidians culture.

    We have to be carefully to study right of land that basis on grounds of civilization of each nation and habitation of several centuries in living in this world

    • 1
      0

      Ranjith Gunawaradana

      “Tamil Nadu is holy land for Dravidians culture.”

      What is Dravidian culture?

  • 0
    0

    All lands that belongs to USA-Red Indians, Canada of the original people, Australian first citizens of Aborigine and new-Zealand Moraines have been lost their homeland and forced to leave land by force.

    But not a single Human rights-organisation base on that USA,UK,CANADA, Australia and New-Zealand utter single word of their lost of original people rights of Land.

    In fact USA base of “Human Rights of lands” are hipcoracy of White race Democracy. White race and rulers that write Rules according to suit their necessity and Freedom hegemonic of dominations.
    On the other hand they talk homeland for example Tamil homeland is well known fact which is myth of Tamil homeland in Sri lanka?

    Not that Tamil Nadu is real homeland of all over world the living Tamils in and out of India?

    Tamil Nadu is holy land for Dravidians culture.

    We have to be carefully to study right of land that basis on grounds of civilization of each nation and habitation of several centuries in living in this world

  • 1
    2

    Right to property is implemented in different ways.

    One way to implement is subsidized housing. So, people can work and pay rent.

    • 0
      0

      You are right , right to property is implemented in different way. One way is Baticoloa monk style. Oops I meant thug style. Uneducated Dalits

  • 2
    0

    The Human Rights Charter of the UN I think drew heavily of the Soviet Constitution.
    An item smuggled into it by the capitalist countries was “Right to Property”. I think that there was dissent on it.
    Without restricting this right in terms of means by which property was acquired and how it is used to deny the right of a majority to the fruits of their labour, this right stands in breach of all other rights spelt out in the UN Charter.

  • 0
    0

    In Sri Lanka, if property owners are abroad their properties are liable to be “sold” on bogus deeds written by crooked lawyers.

    If the owner returns and seeks to evict those who have “sold” his properties to a commercial firm, they are “eliminated”.
    This happened to one man who owned properties in Kilinochi and returned from Canada.

    http://www.tamilnet.com/art.html?catid=13&artid=35158

  • 2
    2

    A decent article gets dragged into such a load of bullshit.

    • 0
      0

      kabaragoya
      Is it unusual here?
      For some reason, there are many who seem unable make an intelligent remark and resort to abuse when not puerile comments.

  • 1
    0

    Justice,

    This is what is currently unfolding in parts of the land formerly called ‘Singamalai Estate’in Navatkuli,Jaffna. A bogus organization named ‘Kaithady Housing Association’ fronted by an individual -Paramalingam- is selling land belonging to individuals, who are either abroad or deceased, with blatant disregard for the law and procedures. The Electricity Board is busy providing power infrastructure. It is claimed Deputy Minister Mrs. Wijayakala Maheswaran is backing this illegal project! I suspect the public servants are conniving.

    This land is located in the vicinity of the Northern Provincial Council and the Palmyra Research Institute.

    It is intriguing that a bunch of corrupt individuals are permitted to steal land and profit at the expense of the poor and gullible, and the real owners who are unable to assert their ownership due to circumstances beyond their control.

    I hope this comment catches the eyes of concerned authorities, the police and the the legal owners of this land, wherever they may live now.

    Dr.RN

  • 0
    0

    Tamils want right to self-rule because Sinhalese are raping Tamil women and children with impunity. A nation of sexual predators and serial killers has been let loose on defenceless civilians.

  • 0
    2

    New wave of Tamil classes has emerge in North, East, Hill Country, Colombo Metropolitan and suburb by Tamil-origin playing critical role of politics, Business, Trading, Employment and Self-employments in national level?

    They seek more political power that their resrestaitaive of Indian Origin Tamils want prime lands by that more barging with State and wider voice in Parliament.

    This is political cause of support by key political elements are UNP of Ranil W.. and CBK of that Tamil origin decedent main backs.

    The Mano Ganash and Sitiamberm are key players set up new lands in Colombo cities and around that encourage by UNP -Ranil Wicks and CBK of New Federalist politician.

    This is a key issues of Land for Tamils and Muslims by gain Capital Market with all an illegal means of Trading…by Tamils expanding policies of Lands in an Island.

    The major and prime Colombo Lands grab by Tamils and Muslims by unconstitutional means and undemocratic was inhered by majority race over thousands years . The land of small nation control by Tamils and Muslims are threaten to democracy of majority and its Parliamentary Democracy.

    The land of Democracy for all is that theory of myth of Rights under the democracy

    • 0
      0

      Susiripala Alakhon

      What are you blabbering about?

  • 0
    0

    This is a very reflective article on the right to property , a dream of every human .Some get it by the right of the invader and in the name of development .We do not have to go to other Colonial countries like Australia and Canada if we look at the luscious tea gardens we know how they were established and how the rural hamlets had no say in the matter when the land was cleared and they lost the forest drift wood for fuel and the freedom of movement with the new infrastructure to help the plantation economy ..Was this ever redressed ?No one fought for the homeland of these people who had to contend with a new culture imposed on them ..no we went forward .This article is for the future safeguards to put in place is my understanding not a battle of wits on the recent history ,it is for a greater understanding of the have nots and the Nova mega rich Investors local and imported and not to repeat past mistakes may be.The dream of a fisherman was to live in the coastal zone with the lagoon and the sea ..It always concern me to see the esplanade at Negombo used for drying fish by the fisher folks never witnessed before . .It is happening at Kalpitiya too .Are those karavela vadiyas still there?I wonder . We must make educated choices and this article is good education,

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