Transforming the right to property

Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons. Firstly, a right to property takes the present distribution of wealth across society for granted, and requires justification for redistributive state action. Thereby it does not question the mechanisms that distribute wealth among individuals, despite the fact that it is clear that maldistribution can both cause or result from human rights violations. By protecting the status quo, the right to property can undermine the transformative potential of human rights.  Secondly, and related, those who have the most property obviously have a larger claim to property protection, disproportionately empowering the most advantaged vis-à-vis the least advantaged. Thirdly, upholding the right to property itself can amount to violations of human rights. Slavery is of course the most shocking example, but also think of how intellectual property rights restrict access to medicines affecting the right to health, or how the right to property can be mobilized to restrict access to fora for social action, affecting the freedom of expression. Fourthly, the right to property does not by itself distinguish between the kinds of property it protects, thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht. While it is clear how the former relates to foundational principles of human rights such as human dignity, in the latter case the link seems non-existent. Why should human rights at all care about the millionaire’s yacht?

Should we then do away with the human right to property? Perhaps that’s stretching my fundamental unease with the right to property too far. Surely no one would want to go back to the days of communist Europe. The question thus remains how the right to property can be transformed in such a way as to relate better to what we as human rights lawyers care about. The recent judgment in the case of N.K.M v. Hungary (see Ingrid’s blog post here)  and R.Sz. v. Hungary may indicate the way forward.

The Hungarian cases

Both cases principally concern the same issue: the imposition of a 98 % tax on the upper bracket of the severance payment for dismissed civil servants (in the case of N.K.M.) or employees working for state-owned companies (in the case of R.Sz.). In both cases, the Court found a violation of Article 1 Protocol 1, holding that

“(…) the measure complained of entailed an excessive and individual burden on the applicant’s side. This is all the more evident when considering the fact that the measure targeted only a certain group of individuals, who were apparently singled out as having been paid, directly or indirectly, out of the public purse. Assuming that the impugned measure served the interest of the State budget at a time of economic hardship, the Court notes that the majority of citizens were not obliged to contribute, to a comparable extent, to the public burden.

On the basis of this alone, the Court could have found a violation of Article 1 Protocol 1. More interesting however, the judgments show a tendency of the Court to look beyond the mere property dimension of the case, and to take into account the context of social protection against unemployment. This is illustrated by the Court referring to Article 34 of the EU Charter of Fundamental Rights:

“As regards the personal burden which the applicant sustained on account of the impugned measure, the Court notes that he had to suffer a substantial deprivation of income in a period of presumable considerable personal difficulty, namely subsequent to the loss of employment. The Court would observe in this context that Article 34 of the Charter of Fundamental Rights of the European Union (…) endorses benefits providing protection in the case of loss of employment, and that according to the European Court of Justice, the aim pursued by severance pay – that is, helping dismissed employees find new employment – belongs within legitimate employment policy goals (…).”

The Court further held that the measure

“(…) affected the applicant being in good-faith standing and deprived him of the larger part of an acquired right (statutorily guaranteed to a large extent), serving the special social interest of labour-market reintegration.”

Instrumentalizing the right to property

While the latter two paragraphs can easily be considered as mere obiter dicta, the Court did put its finger on why we should care more about this case from a human rights perspective than about the millionaire’s yacht: because the case does not simply concern property, it also concerns the social right of protection against the risk of loss of employment. The right to property can actually be considered to be instrumental for the protection of the social right involved. The prioritization of the protection of the right to property in cases where this is instrumental for the protection of other human rights could clearly be a step towards an Article 1 Protocol 1 jurisprudence that fits better with most people’s conception of what human rights should be about.

My proposal to transform the human right to property however is more radical and goes as follows. Forget about the intrinsic value of the right to property: what we should care about from a human rights perspective is not just money or the worth of goods, but how this affects the capability of individuals to effectively enjoy their human rights, both civil and political as social and economic ones.  The right to property should therefore be transformed in a purely instrumental right: property would then only be protected under the European Convention insofar as it can be linked to the enjoyment of another human right. In these cases the link is obvious: the right to protection against the risk of loss of employment. It is easy to imagine some other obvious candidates that can in some cases be instrumentally protected through the right to property: the right to housing, the right to an adequate standard of living or the right to social benefits. Other examples could be the instrumental protection of the freedom of religion, freedom of association or freedom of expression, in cases in which the property of for example minority religions, social movements or political dissidents are targeted. What obviously shouldn’t be protected by human rights law are the wealth and luxuries of the Rockefellers of these worlds. These persons are wealthy and powerful enough to protect their interests through the political process anyway, without needing additional empowerment through human rights law.

Of course, moving from an all-encompassing right to property to an instrumental right would mean a radical change in the Court’s jurisprudence. Clearly, taking this route would first require further reflection to fully grasp the full consequences of such a radical move. A more modest version of the transformative project would be for the Court to further incrementally prioritize property protection in the case of instrumental effects, and to incrementally decrease property protection in the absence of such effects. In this respect, the Court’s approach in the Hungarian cases is clearly an applaudable step in the right direction.

14 thoughts on “Transforming the right to property

  1. I can emphasise very well with your unease about the right to property. Aside from the cases you mentioned, I tend to feel especially queasy when property rights of corporations stand in the way of environmental protection et al.
    And yet… I find it very difficult to find a legitimate reason to exclude such cases, or those you mentioned. Your proposal has the definite advantage of not excluding a certain group of people as such; however, it does seem to me to be very far-reaching in that it would end up excluding not only the “Rockefellers”, but also any average citizen when not threatened in any particular way; e.g. not only would the millionaire’s yacht not be protected, but the average citizen’s yacht, for which he saved up quite a while but on which he is not dependent, would not either.
    I’d be interested in whether I misunderstand you (and if so, on what grounds you would protect cases such as this) or not.

    • Dear Th,
      Thank you for your comment. You understand me correctly. I’m not arguing that millionaires should not have human rights, I’m arguing that the protection of certain kinds of property is in my view too much disconnected from what human rights should be about: protecting values such as human dignity, autonomy and equality. By turning the right into an instrumental one, it is easier to connect the right with those foundational values. Of course I can perfectly sympathize with the average citizen in case something happens with his yacht for which he saved up quite a while, but that does not in my view make it a human rights issue on which the European Court of Human Rights should spend its scarce time on.
      Thank you also for raising the issue of property rights of corporations. It is not self-evident to extend protection of human rights to legal persons, for the simple reason that they are not human. The Inter-American Court for example does not allow petitions by legal persons. Since of course there are humans behind them, striking at legal persons can indirectly affect the human rights of those persons. It is clearly easier to make such a connection in cases of for example newspapers and political or religious organizations, than in the case of large corporations. Nonetheless even in the latter case such a connection cannot be excluded in certain cases. In this respect, it can for example be regretted that the Court treated the Yukos case ( purely on the basis of the right to property, while refraining from strictly scrutinizing the political motivations behind the case – which was in my view the core issue at stake – by all too easily rejecting the complaint under Article 18. In other words, I’m not interested in the property rights of the Yukos company which should in my eyes not be dealt with by the European Court, instead I’m interested in the freedom of expression of Michail Khodorkovsky. And to relate back to your example: from a human rights perspective, I don’t feel any sympathy for large corporations facing restrictions of their property rights in order to advance environmental protection.

  2. “The right of protection against the risk of loss of employment”??? I’m not sure that I even know what that means, much less where I would locate it in the Convention. The right to property, on the other hand, is one of the most fundamental rights in existence. Property, like life and liberty, cannot be taken away without due process of law, and is fundamental to a just society.

    (Gratuitous quotation of medieval English law French:
    Item, q nul home, de quel estate ou condicion qil soit, ne soit oste de tre ne de ten, ne pris, nemprisone, ne deherite, ne mis a la mort, saunz estre mesne en respons p due pces de lei.

    ITEM, That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.)

    • Dear David,
      Thank you for your interesting contribution to the debate. I definitely agree with your comment that “His suggested scheme also has to engage with due process rights under Article 6(1). ” I don’t question the fact that due process to avoid arbitrariness is essential for a state based on the rule of law. In my view, it however is not necessarily “a bit odd” to provide procedural protection to a certain property interest under Article 6 (1), while not providing it substantive protection under Article 1 Protocol 1. This is the logic of Article 6 (1) as being concerned with “civil rights and obligations” in general, regardless of whether the interests concerned can also be considered as a human right under the Convention.
      My blog post could indeed be interpreted as arguing against Rockefeller’s human rights, which was not how I intended my argument. I definitely agree that the Rockefellers and the poor alike should enjoy equality before the law and due process. The Rockefellers clearly should not be excluded from human rights protection simply on the basis of their wealth. My argument simply goes that interference with the property interests of Rockefeller would rarely be severe enough to amount to a violation of a human right, without excluding the possibility that in some circumstances it actually might (see the example of Khodorkovsky in my comment above). In the case of the poor, much ‘smaller’ interferences (in absolute terms) with their property interests may however affect their human dignity in a far more severe way.
      In any event, my argument is not that property should not be protected at all by the law, even in cases in which they would not be protected under Article 1 Protocol 1. Take the example of intellectual property rights and medicines: I indeed consider that an absolutist application of the right to intellectual property could give rise to violations of the right to health. Does this mean that we should do away with intellectual property altogether? I don’t think so, since you indeed need intellectual property to encourage investment and innovation, but it is important to make sure that the right to health is not excessively affected. So I definitely agree with you that balancing these interests is principally a matter for the government. If the government however chooses to clearly prioritize the right to health, I merely consider that the medical companies do not have a claim to a _human_ right to intellectual property under the Convention to question this.

  3. A bit sketchy logic here, no? “[T]hose who have the most property obviously have a larger claim to property protection, disproportionately empowering the most advantaged vis-à-vis the least advantaged”. And those who are tortured by the police obviously have “a larger claim” to freedom from torture.

    • And those who are married with children have a larger claim to “family life” than a single guy. Those who are interested in politics and go to rallies have a larger claim in “freedom of assembly” than couch potatoes. And so on.

  4. Property rights do not necessarily protect the status quo, they just require the state to follow due process when it wants to take away property (by taxes or directly, for example to build a highway across your field).
    Property rights in constitutions have, as far as I am aware, not even prevented parliaments from passing laws that tax the substance of property versus taxing the proceeds. (The German property tax for example was specifically not struck down on grounds of property rights, but on equal protection because different rules applied to real estate and other assets.)

  5. “Why should human rights at all care about the millionaire’s yacht?” you ask. Because the millionaire is a human being as well, and it’s one of the characteristics of human rights that they apply to EVERYONE. If we apply human rights to murderers and dictators, surely it’s OK to grant them to rich people.

    • I’m clearly not saying that rich people are not worthy of human rights protection. Rather, my blog post is concerned with the question to what extent property interests should be considered as a human right. By merely arguing that “what obviously shouldn’t be protected by human rights law are the wealth and luxuries of the Rockefellers of these worlds”, I’m clearly not justifying, say, torturing Rockefeller. Clearly excluding certain interests from human rights protection is a different thing than excluding individuals. Universality of human rights does not mean that everything (e.g. the millionaire’s yacht) should be protected

  6. I am not convinced that the following statement, lumping “human rights lawyers” collectively into a group, is correct: “what we as human rights lawyers care about.” This human rights lawyer is perfectly happen w/ an expansive interpretation of art 1 of 1 port. for the simple reason that property rights are intrinsically linked to market economy and democratic development, including rule of law.

  7. […] Such placement on the same footing may not be entirely surprising given the fact that the notion of “possession” under Article 1 Protocol 1 has been constructed by the Court as corresponding to “the acquired economic value of [an] individual interest” (Harris, O’Boyle & Warbrick’s Law of the European Convention on Human Rights, 2nd edn, 657). The Court’s over-reliance on monetary considerations is indicative of its failure to legally construct the human right to property under Article 1 Protocol 1 as something conceptually different from an ordinary civil right to property (in the same vein, see my previous blog post here). […]

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