The so‐called positive obligation to fulfill the right to property was reiterated in a 2010 “Legal Opinion on the Right to Property from a Human Rights Perspective,” authored by the Geneva Academy of International Humanitarian Law and Human Rights and cited in a report from the UN Special Rapporteur on the Right to Food, as noted below. This line of argument is not limited to academics, but has also been internalized by human rights officials, organizations, and courts.
In a report from October 2010, the UN Special Rapporteur on the Right to Food asserted that the unequal distribution of land threatens the right to food. As a remedy, the Special Rapporteur proposed that states should encourage “communal ownership systems” rather than focus on “strengthening the rights of landowners” through a “Western concept of property rights.” And according to the Special Rapporteur, realizing the right to food may also entail an obligation on the state to secure access to land “through redistributive programmes that may in turn result in restrictions on others’ right to property.”
The UN Committee on Economic, Social, and Cultural Rights has already criticized several states for privatizing land, housing, health care, and water — suggesting that such steps may lead to violations of the International Covenant on Economic, Social, and Cultural Rights, which, among others, seeks to protect the right to work, social security, and an adequate standard of living.
In a case from 2009, the European Court of Human Rights interpreted the right to property as including pre‐retirement benefits (the Inter‐American Court of Human Rights has adopted a comparable interpretation of the right to property in the American Convention). This prompted a scathing comment from the president of the Belgian Constitutional Court to the effect that the judges in Strasbourg had achieved something that not even Karl Marx had been able to do. The European Court of Human Rights determined that full compensation based on market value would normally be required for expropriations to comply with the ECHR.
However, compensations of less than the full market value may be sufficient if the taking of property pursues “measures of economic reform” or “social justice.” These categories are obviously very broad and lack any meaningful definition, conferring a worrying degree of discretion on governments while diluting the protection of property owners from arbitrary, ideologically justified seizures.
THE FUNDAMENTAL IMPORTANCE OF THE RIGHT TO PROPERTY
This development is a stark indicator of how far the concept of human rights has traveled since the United States became the first country to be founded on the idea that all men possess inalienable rights.
The Virginia Declaration of Rights from 1776 (which inspired the U.S. Bill of Rights) declared property an inherent right of all men, and the right to property is protected by the Fifth Amendment to the U.S. Constitution. That the right to property was considered a precondition for individual rights is clear from James Madison’s essay on property from 1792, in which he wrote:
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.
This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
But the emphasis on property as an inalienable human right was not particular to the American Founders at the time. The (first) French Declaration of the Rights of Man from 1789 states that “property is an inviolable and sacred right.” Most constitutions of European liberal democracies include bills of rights — often inspired by the American and French ones — that protect the right to private property.
The American Founders and the early European proponents of liberal democracy understood that the legal protection of private property against arbitrary interference creates a sphere of inviolability that is necessary for the enjoyments of other freedoms — such as privacy and the freedoms of expression, association, and religion. Were all housing, media outlets, organizations, and religious institutions state‐owned, the government would be able to control most parts of its citizens’ lives, direct their productive capacities, and quell dissent.
This classical understanding of the right to property primarily entails a “negative” obligation that protects against arbitrary expropriation and regulation of private property.
To the extent that the classical understanding of the right to property includes a positive obligation, it is limited to adopting the appropriate legal framework and protecting against the transgressions of third parties. The right to property provides opportunities and agency, but it does not guarantee results. It does not include a positive obligation to “fulfill” the right to property through the compulsory transfer of property from one individual to another. Such a humanrights obligation would make the protective sphere of the right to property largely illusory and would undermine, rather than strengthen, human dignity. Moreover, a positive duty to fulfill the right to property would make the application of this right wholly arbitrary and incompatible with the requirements of legal clarity and foreseeabilty on which respect for the rule of law depends.
THE POSITIVE EFFECTS OF PRIVATE PROPERTY ARE WELL DOCUMENTED
The hostile approach to private property among human‐rights defenders is a major hindrance toward securing respect for the fundamental rights and freedoms set out in the UDHR and the ICCPR, as well as for ameliorating poverty. The intimate relationship between the right to property and freedom and prosperity is well supported by various studies. All but one of the countries ranked in the top 10 of the 2010 International Property Rights Index also rank as “free” (with the best possible score) in Freedom House’s 2010 “Freedom of the World” survey of civil and political freedom. Conversely, of the countries ranked in the bottom 10 of the IPRI, none rank as “free.” Seven are ranked as “partly free” (including countries with widespread human‐rights violations such as Venezuela, Bolivia, and Bangladesh). And three are ranked as “not free” (Zimbabwe, Chad, and Cote D’Ivoire).
All the countries in the top 10 of the IPRI are developed countries with a high GDP per capita. On average, countries in the top quintile of the IPRI enjoy a per capita income eight times higher than the countries in the bottom quintile of the IPRI. The link between poverty and the absence or insufficient protection of property rights is also made clear in the World Bank’s 2009 Country Performance and Institutional Assessments. Of the more than 70 developing countries surveyed in 2009, only five had property rights and rule‐based governance scores of 4, and none scored higher (where 1 equals the lowest score and 6 equals the highest score).
History provides many stark lessons on the importance of respecting private property and the potential disasters that follow from the systematic violation of this right. In apartheid South Africa, the right to property of millions of blacks was systematically violated through forced relocations intended to ensure white rule. The forced collectivization of land in the Soviet Union in the 1930s and in China during the Great Leap Forward of 1958–61 resulted in famines claiming millions of lives.
UNDERMINING THE RIGHT TO PRIVATE PROPERTY AS A RECIPE FOR DISASTER
The Special Rapporteur on Food’s proposal to undermine private property rights for communal ownership is thus a recipe for both poverty and disaster. When the government becomes responsible for producing and distributing food, the result is not only less efficient production and distribution, but also a potentially lethal concentration of power over the lives of the many in the hands of the few. The government’s monopoly on food may thus become a weapon that can be deployed against recalcitrant parts of the population — as has been the case in Bashir’s Sudan, in Mugabe’s Zimbabwe, and in North Korea during the famine in the 1990s (which may have caused millions of deaths). Dictators and their cronies rarely starve.
In market economies with well‐defined property rights, very few depend on the government for satisfying their basic needs, such as nutrition. Food is provided by private actors operating in the market who offer choice, quality, and affordability that would have been unimaginable in the old socialist countries where citizens had to queue in order to get the most basic foods.
The conflict between economic, social, and cultural rights (ESC rights) and respect for private property can also be demonstrated with more recent examples. In 1999, Venezuela adopted a new constitution committed to “social justice,” which includes a wide range of (justiciable) ESC rights that require government interference with property rights. Under Venezuela’s constitution, the widespread and arbitrary nationalization of supermarket chains, telecommunications, electricity, oil companies, and land ownership carried out by the Chávez administration is thus in conformity with the underlying principles of ESC rights, rather than a violation of property rights. Moreover, the continuous concentration of power in the executive, including the right to rule by decree, has eroded the freedom of Venezuelans, including the freedom of expression: media are required to air pro‐government speeches and those critical of the government risk losing their licenses.
The situation in Venezuela is approaching the eerie scenario envisaged by an expert working group of UNESCO when debating how to realize the ESC rights proclaimed in the UDHR: