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.