In defense of the social right to property
It is now more urgent than ever to redefine the contours of property and its social function in light of economic and social rights.
In the last year, I spoke with academics, practitioners, and representatives of human rights NGOs about the right to property.These conversations originated from my ongoing research on the relationship between the right to property and socioeconomic rights, which resulted in an article recently published by Human Rights Quarterly, as well as a longer-term project.
I show how international human rights bodies that deal with socioeconomic rights, both in the UN and at the regional systems, have largely bypassed the issue of property. I believe that this is a missed opportunity. The right to property can be reformulated as a right that should be interpreted in accordance with all other human rights in international law—in other words, not as an exclusivist, absolutist, and individualist right, as libertarians would desire, but as a right with an inherent social function.
Most of the people and organizations I encountered in this journey were intrigued by the proposition, and a good number of them were sympathetic. Others, however, resisted the move, arguing that property should not be put in the same category with the other values and entitlements that we hold dear, such as nondiscrimination or access to health, as it sustains colonial and neoliberal inequalities.
My response in defense of a new social right to property contains five points.
First, property and private property are not synonymous. It is important to distinguish between communal and private property—in the former case nobody has the right to exclude anyone else from accessing the resource in question.
Back in 1990, the UN General Assembly adopted without vote Resolution 45/98 on the “respect for the right of everyone to own property alone as well as in association with others and its contribution to the economic and social development of Member States.” The resolution recognized that there are many forms of property, private property, but also “communal, social and state forms.”
Regional case law in the Americas has shown how property can go beyond private property. In Awas Tingni v. Nicaragua (2001), the Inter-American Court recalled that, in the drafting process of the American Convention on Human Rights, it was purposefully decided to leave the word “private” out of article 21, a point the court used to extend the application of this provision to other forms of communal and collective property rights of indigenous and tribal groups. In that case, and others that followed, the Inter-American Court connected the right to property with the economic survival, spiritual life, and cultural identity of Indigenous peoples.
Second, many groups have historically been discriminated against and prevented from accessing property. This includes ethnic and national minorities, Indigenous communities, colonized people, women, and people with disabilities. The recognition of property was a progressive achievement for many who were and are denied the opportunity to be more autonomous and have greater control over their lives. Despite not recognizing property as a right as such, the two key treaties from 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, mention property as one of the prohibited grounds of discrimination, as do the other core human rights instruments dealing with groups deserving of special protection: ethnic minorities, women, children, people with disabilities and migrants.
The third point is this: property is not a euphemism for the accumulation of capital and is not necessarily property over the means of production. The distinction between property over personal items and economically productive property was of primary importance in the 1936 Soviet Constitution (articles 6–10).
The right to property is—or can be—the right to the protection of items that are of value to humans. This protection need not be absolute. A useful starting point to strike the right balance between (private) property and other legitimate interests in human rights may be article 23 of the 1948 American Declaration of the Rights and Duties of Man, which provides protection as a matter of human rights only to the level of private property that “meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”
Fourth, in a market economy, satisfying economic and social rights requires property, including economically productive property, and a fair tax system. The social function of property changes the role of taxes from a potentially but moderately acceptable form of interference—article 1, Protocol 1 of ECHR—to an indispensable tool to ensure economic, social, and cultural rights. States’ duty to fulfill these rights ought to be seen as one of the most important objectives that may justify limiting the right to property as a matter of public interest.
The fifth argument in favor of a social right to property is worth pointing out even at the risk of stating the obvious. The right to housing is not the right to be given a house. The right to social security is not the right to be given an income irrespective of personal circumstances. Socioeconomic rights declare certain standards of adequate material well-being, identify duty bearers, and affirm the principle that those standards should improve over time (progressive realization). Everyone is entitled to those standards, and public authorities must implement policies accordingly. For some, the state will need to provide tailored programs, for instance, in the form of social benefits or social housing. But, for others, their own private resources will be the means by which they satisfy their right to an adequate standard of living, even though they may still rely on universal services like public education and public healthcare.
Three decades ago, the then Commission on Human Rights issued the last UN report to date on the right to property, written by Luis Valencia Rodríguez. The world has changed remarkably since then. The human rights sector is also more mature, with a now vibrant community of activists working on economic and social rights who can rely on literature from UN treaty bodies and special procedures, as well as case law from national and international courts that did not exist in the early 1990s.
Human rights bodies, academics, and practitioners should feel confident in addressing the meaning of property and its coexistence with other human rights.
In the middle of a cost-of-living and food crisis, and in the aftermath of an appalling pandemic, it is now more urgent than ever to redefine the contours of property and its social function in light of economic and social rights.
Koldo Casla is a lecturer at the School of Law and the director of the Human Rights Centre Clinic, University of Essex. His Twitter is @koldo_casla.