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16.02.2009
»  HISTORICAL PRECEDENTS FOR RESTITUTION OF PROPERTY OR PAYMENT OF COMPENSATION

17.10.2006
»  PROPERTY RIGHTS ARE HUMAN RIGHTS

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17.10.2006
Alexandra Mareschi

PROPERTY RIGHTS ARE HUMAN RIGHTS

‘No other rights are safe where property is not safe’ – Daniel Webster

Generally the driving force behind conferring human rights protection upon certain rights is that those rights are so fundamental to all persons in a civilised society, that the rights are worthy of special protection.

How important are property rights to us?

Analysing our civilization it appears that materialism is inherent to the nature of mankind and vital for the survival of a community.

It does not take us by surprise that acquisitive behaviour is both among people and animals common, John Pipes, Property & Freedom. It is quite normal for animals to mark and secure their environment. A clear demarcated habitat is essential for animals in order to be able to search for food and propagate.

If one wanted to prove that acquisitiveness, among humans is a product of social conditioning then one would need to demonstrate that children have no innate possessive behaviour, i.e. the latter is taught through society or social contacts, cf. Richard Pipes. Examinations however, have indicated quite the opposite; infants are extremely possessive, and have to learn to divide.

Similar to animals, the reason for this possessiveness is the instinct to survive; the need for economic and biological security. The security of habitat as well as objects (such as nourishment, clothing, tool etc.) are extremely important for the development of a person. Furthermore one must keep in mind, that all human activities take place at particular localisation (e.g. work, sleep, cooking, hunting, cultivating, shopping etc.). Locality is therefore one of the most basic aspects of human society.

Looking back in time, no society has ever existed without some kind of property and all societies have condemned theft.

Even the Church, tolerates property, although this seems to contradict with Jesus’ convictions, for Jesus rejected possessions for himself and his disciples.

Despite the fact that the Christian Bible does not appear to contain any definite theory on property, the 10 commandments certainly speak in favour of its recognition: The eighth commandment, forbids robbery and the tenth commandment purports: "you should not desire your neighbour’s house …".

With the surge of trade, the concept of the property is able to mature and consolidate itself. Essentially property meant land, however with the wave of commerce, one soon considered that also capital ought to fall under the heading property. Including the sixteenth - and seventeenth century literature offered many examples for the justification of private property (Calvin, Espinosa). Grotius, On the Law of War and Peace, even maintains that to kill would be legal, if it would serve to secure one’s goods.

However, the Magna Charta of 1251 was the first document to consider private property invulnerable. The Charter prohibits the outright confiscation of enemy property emphasising that law must protect private property.

Seventeenth century England sanctified property. According to Locke, private property arose out of natural law and existed prior to the creation of government. The right to own property, therefore, did not depend upon the whims of a king or parliament; to the contrary, the primary purpose of government was to protect rights in property, since these rights were at the base of all liberties.

Locke’s views not only influenced France but America as well. Art. 23 Treaty of Amity and Commerce between his Majesty the King of Prussia, and the United States of America (September 10, 1785) already alludes to the protection of private property during wartime.

Of all periods, probably the twentieth century has been the most hostile to the institution of private property and this for economic as well as political reasons
This century not only witnessed restrictions of property rights but also other liberties historically connected with property, such as the right to freedom.

Of all totalitarian regimes, probably the Soviet Union came closest to realising the Communist ideal of a property less society. Lenin pursued property confiscations with a fanatical zeal and an unbridled brutality because he was convinced that all prior attempts to reform society had failed due to the fact that they had been carried out half-heartedly.
History has shown that the biggest and most brutal attempt to abolish private property ended in a disaster.

The protection of property has become a fundamental issue in all civilised societies. This is not just a recent development but a process, which started centuries ago. The Virginia Bill of Rights 1776 and Déclaration des Droits de l'homme et du citoyen 1789 were the first catalogue of rights to adopt the following rights as being inalienable human rights and which have since formed the core of human rights: right to life, freedom, property and legal protection etc.

However, still today there is a lot of controversy around private property. Certain groups still identify property with moral corruption, social injustice, and war.

"For decades social critics in the United States and throughout the Western world have complained that property Rights too often take precedence over humane Rights, with the result that people are treated unequally and have unequal opportunities" - Armen A. Alchian, Property Rights.

As already mentioned there have been many attempts to separate property rights from other rights. Usually it is done by classifying some rights as human rights and referring to others as rights of property. As justification some groups claim that human rights are superior to proprietary rights. Still today this argument is put forward, when it comes to returning illegally seized property (cf. the judgments regarding communist land reform; expropriation of Palestinians, expropriation native Indians in the USA, expropriation of Aborigines in Australia and Africa, mass expulsions in Bosnia, Kosovo etc.).

Considering the various International Human Right Conventions (cf. Art. 17 of the Universal declaration of Human Rights, Art. 21 of the American Convention on Human Rights and Art. 1 of Protocol 1 to the European Convention on Human Rights) this ambiguous interpretation is somewhat surprising and alarming at the same time, because it may well help communism to come back through the backdoor. One should not forget that the loss of property rights either preceded or coincided with the loss of other rights, such as freedom of speech, freedom of press, freedom of religion etc ..

‘Limiting one kind of freedom, limits all freedoms and the freedom to buy and sell property cannot be compromised for any altruistic outcome, or to benefit any particular group. When bureaucrats become the arbiters in the property market, socialism has succeeded in replacing economic freedom and economic decline is inevitable’, Joan Thomas, Property Rights and Freedoms.

Marx’s intentions may have been honourable; he wanted to create equality by abolishing private property. However, put in practice by Lenin and Stalin no equality was achieved, rather the contrary:

‘The Soviet Union sought to institutionalize economic equality among its citizens in the most determined and ruthless manner ever attempted. And yet after 70 years of unprecedented tyranny costing the lives of millions, it produced a state that was not only unfree and miserably poor but socially highly lopsided, with an elite that enjoyed a Western standard of living and masses that lived on a Third World level`, Richard Pipes

Therefore, Marx’s criticism is equally applicable to communism, because the latter not only is discriminatory but also dictatorial and violates human rights.

‘You can have tyranny with private property, but you cannot have freedom and the rule of law without it’, Richard Pipes.
Furthermore, one ought not forget that through this ambivalent attitude 60-80 Mio. people in Europe lost their homes, their property and their livelihood. Even the current conflict between Israel and Palestine is really nothing else than a dispute over property rights, especially water rights.

The concurrent injury of property rights and annihilation of human life does not simply occur by chance. A man is: what he does and he possesses. The attack on his possessions is likewise an attack on his personality and his right to life.

"Our right to life stems from the fact that it is our own life. Our right to the disposal of our time stems from the fact that it is our own time. Our right to the use of our faculties stems from the fact that they are our own. Remove from them the concept of private property and the claim to them goes as well" (cf. Professor L.J.M. Cooray, Freedom of the Individual and Property Rights).

Taking a closer look one could even assert that there is a connection between property and other rights.

‘Freedom depends on the right to property just as it does to rights of free speech...There is no human activity that does not involve the use of property. We cannot sleep, wake, eat, walk, drive, fly, swim, boat, work, go to church, print a paper, view a movie, make a speech, procreate, or engage in conversation without using property in some one or more of its dimensions.

If a church cannot be owned by its communicants, their freedom to worship is under the control of someone else. If a press cannot be privately owned, freedom of the press is an illusion. If government controls all property, freedom of speech is something belonging to government, not to individuals’. Carson, Clarence B, Free Enterprise: The Key to Prosperity

"Property is surely a right of mankind as real as liberty." and, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence – President John Adams (1797-1801)

Furthermore, while discussing whether property rights are fundamental rights one ought to be aware that most of our legal system is based or built upon the institution of private ownership (e.g. purchase, tenancy, inheritance, etc.) and not the least to say that right to property is the heart of trade. Prosperity and economic growth are directly related to the free exchange of property without which standards of living cannot improve. Freedom of trade presupposes property rights. If no such rights exist, then there is no need for or opportunity to trade.

In contrast to communism, capitalism has survived, despite the fact that the latter system may lead to social differences, i.e. inequalities. However, capitalism just like property is not omnipotent. There are checks and balances. The State can influence the economy by passing laws and other political measures. Labour unions have become extremely influential and represent the workers’ interests and prevent their exploitation.

„A capitalist system is only one of three systems composing the free society. The economic system is checked and regulated by both of the other two systems: by the institutions of the political system and by the institutions of the moral/cultural system. Capitalism does not operate in a moral vacuum.“ – Michael Novak, Wealth & Virtue.

This system in contrast to communism ensures that the predominant part of the people living within this system are furnished with a variety of products and services (z. B. foods, clothing, medicine etc.).

"The fundamental pure pose of property rights, and their fundamental accomplishment, is that they eliminate destructive competition for control of economic resources. Well-defined and well-protected property Rights replace competition by violence with competition by peaceful mean" – Armen A. Alchain, Property Rights.

These deliberations clearly show that private property is a fundamental right to all people, because it is closely connected with other rights.

As long as property is not acquired illegally (i.e.. through robbery, through Colonialism, confiscation, grace of God or exploitation), it deserves special protection. It de facto guarantees the existence and the freedom of a person and also provides legal certainty.

‘Just imagine a country where nobody can identify who owns what, addresses cannot be easily verified, people cannot be made to pay their debts, resources cannot conveniently be turned into money, ownership cannot be divided into shares, descriptions of assets are not standardized and cannot be easily compared, and the rules that govern property vary from neighbourhood or even from street to street. You have just put yourself into the life of a developing country …’, Hernando de Soto.

Therefore, the tedious discussion whether property is a human right or not is more than obsolete.

Property is a human right.

‘You can’t have a free society without private property’, Milton Friedman

Alexandra Mareschi
Secretary-General
www.projusticia.net





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