Time to Redefine Property Taking Economic, Social and Cultural Rights Seriously

[Dr Koldo Casla (Twitter: @koldo_casla) is a Lecturer in International Human Rights Law at Essex Law School and Director of Essex Human Rights Centre Clinic, UK.]

In the context of the current food and energy crisis, and the rising cost of living, it is essential to tackle the right to property directly, defining its content and shape in line with the Economic, Social and Cultural Rights (ESCR) proclaimed in International Human Rights Law (IHRL).

The urgency to do this became paramount at the early stages of the Covid-19 pandemic, when governments of different political colours mobilised privately owned resources and facilities, including private hospitals and labs, as well as hotels and other accommodation establishments to host people in homelessness.

The pandemic was, among other things, a reminder that private resources have a public function to play when society needs them.

The Polysemy of International Human Rights Law

Key documents in IHRL are either silent or even contradictory in the conceptualisation of the right to property. The right was proclaimed in the Universal Declaration of Human Rights in 1948, but neither the International Covenant on Economic, Social and Cultural Rights (ICESCR) nor the International Covenant on Civil and Political Rights (ICCPR), both from 1966, mention this right. They only talk about property as one of the prohibited grounds of discrimination, as do the other core instruments in IHRL: ICERD, CEDAW, CRC, CRPD and the Convention on the Rights of Migrant Workers and their Families. 

There are remarkable differences between regional human rights systems. In Europe, property is one of the most frequently claimed rights in front of the European Court of Human Rights. Besides its exclusive focus on private property, one other European particularity is that it provides coverage to both natural and legal persons, namely, corporations. On the other hand, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights have applied a flexible and broad interpretation of property to protect cultural rights and collective interests of minorities and indigenous peoples.

As I argue in a new article, besides the mentioned polysemy, international human rights bodies dealing with ESCR have largely avoided defining the contours of the right to property. Neither the UN Committee on Economic, Social and Cultural Rights (CESCR) nor relevant Special Procedure mandate holders have thus far provided a substantive analysis of the outlined of the right to property. The issue was implicitly acknowledged by the former Independent Expert on Foreign Debt and Human Rights, Juan Pablo Bohoslavsky, and by the Special Rapporteur on Adequate Housing, Balakrishnan Rajagopal, both in relation to the challenges posed by Covid-19. CESCR’s new General Comment No. 26, on Land and ESCR (2022), understandably left out of scope issues concerning urban settings, and property-relevant issues other than land, such as the private provision of public services, intellectual property, foreclosures and rental evictions, or the privatization and exclusion of public spaces.

The issue of property comes up over and over in CESCR case-law, but the Committee has not addressed it head on yet. The CESCR has advocated for housing rights not only against the state but also vis-à-vis private actors. The CESCR has called for better protection of the procedural rights of homeowners in mortgage foreclosures (IDG v Spain, 2015). The CESCR has also established that there must be an independent assessment of the proportionality of evictions in the private rental sector on a case-by-case basis (Ben Djazia and Bellili v Spain, 2017). The right to adequate housing may also require postponing “an eviction while the competent authorities negotiate with the persons concerned regarding the available alternatives” (Gómez-Limón Pardo v Spain, 2020). In López Albán v Spain (2019), the CESCR added that the proportionality test “entails examining not only the consequences of the measures for the evicted persons but also the owner’s need to recover possession of the property. This inevitably involves making a distinction between properties belonging to individuals who need them as a home, or to provide vital income and properties belonging to financial institutions.” In Walters v Belgium (2021), the CESCR acknowledged that the fact that property is not in ICESCR is no reason to restrict this right or to derogate from it. However, immediately after doing that, the Committee attempted to swiftly solve the conundrum this way: “States parties would violate their duty to protect Covenant rights by failing to prevent or to counter conduct by businesses that leads to such rights being abused, or that has the foreseeable effect of leading to such rights being abused.”

In general, international bodies dealing with ESCR have remained silent about property, treating it largely as an inconvenience when construing other socioeconomic rights. These bodies have missed several opportunities to clarify the meaning of the right to property, its relationship and interdependence with other human rights, and how to deal with the inevitable situations where property will clash with ESCR. I think it is important for the human rights community to grab the bull by the horns.

Time to Redefine Property 

Last time the UN tried to demarcate the human right to property was in 1993. The Special Rapporteur appointed by the Commission on Human Rights, Luis Valencia Rodríguez, concluded that the right to own property “may be regarded as an essential human right and a fundamental freedom,” but he also questioned the universal nature of the right “given the enormous variety of forms of property and their social importance.” 

Thirty years have passed since then. Valencia Rodríguez wrote his report at a time of profound political transformation around the world at the end of the Cold War. No ESCR-related UN Special Procedure existed at the time. The global human rights community had largely ignored ESCR, and international and national advocacy on these rights was in its infancy.

Three decades later, an increasing number of ESCR are recognised in one way or another in most national constitutions, ESCR are being judicially enforced internationally and nationally, there are multiple thematic reports emerging from the Human Rights Council, in addition to Treaty Body general comments, and individual decisions from the UN and from the regional human rights systems. The human rights community should be much better equipped to deal with the right to property and its relationship with ESCR.

The Social Function of Property

What could the right to property mean from the perspective of ESCR? My article introduces a proposal with several principles. One of them is the social function of property.

The idea of the social function of property has been incorporated into national constitutions primarily in Latin America and in Europe. However, it has not yet found its way onto the international human rights systems. The social function of property is often presented as “a notion that aims to secure the goal of human flourishing for all citizens within any state.” Understood as such, there is room to explore this idea within the international human rights system, searching for new links between private law and human rights law.

The social function of property is important for all human rights, but particularly for ESCR. This is so for at least four reasons.

Firstly, the social function of property can provide the baseline for a more holistic approach to human rights, like Lhaka Honhat v Argentina (2020), where the Inter-American Court of Human Rights highlighted the interdependence between communal property, the right to a healthy environment, the right to an adequate standard of living and the right to take part in cultural life.

Secondly, from the social function of property, it follows that privately owned goods and services ought to be part of the maximum of available resources that public authorities should make use of in order to realise ESCR (Art. 2(1) ICESCR). Contributing to fulfil ESCR is one of the social functions of property, including private property. In this sense, taxation is not simply a potentially legitimate form of control of the use of property (Art. 1 Protocol I ECHR). Taxation is also a necessary public tool to materialise ESCR. 

Thirdly, the social function can contribute to bring to the fore the material gaps and structural inequalities between property-holders and the propertyless. This would result in a richer understanding and acknowledgment of the cumulative and varied effects of discrimination and disadvantage due to the combination of identity – sex, ethnicity, disability, etc. – and material conditions – income and wealth.

This would build on incipient jurisprudence from international human rights bodies, which are showing some awareness of intersectional inequalities, for example, in relation to residential segregation (ECSR, ERRC v Greece, 2004) and evictions from informal settlements of Roma people in Europe (ECtHR, Yordanova and Others v Bulgaria, 2012), communal property rights of indigenous people in Kenya (ACHPR, Endorois Welfare Council Case, 2010), and unsafe working conditions affecting predominantly low-income women in Brazil (Inter-American Court of Human Rights, Fireworks Factory Case, 2020).

Fourthly and finally, the social function also provides a foundation to focus on the “very essence” of the right to property (ACHPR, Zimbabwe Lawyers for Human Rights v Zimbabwe, 2009). A helpful normative reference in this regard would be Article 23 of the American Declaration of the Rights and Duties of Man of 1948, which provides protection as a matter of human rights only to the level of property that “meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”

In line with a proportionality test of the very essence or core content of the right, a basic level of private property would deserve the highest level of protection, while private property above and beyond such a level would be subjected to greater scrutiny. The scrutiny would need to be particularly close when the public intervention that would result in the limitation of private property intends to mobilise resources to fulfil ESCR, which is one of the social functions of property.