25 September 2012

Property

'Reconsidering the Right to Own Property' by Rhoda Howard-Hassmann considers "whether a there should be a separate international Covenant to elaborate on the human right to own property, which has languished since its inclusion in the 1948 Universal Declaration of Human Rights (UDHR)".

Howard-Hassmann indicates [PDF] that
Focusing on two contemporary cases; namely, the situation of semi-starvation faced by many citizens of Zimbabwe and the shortage of food in Venezuela, I argue that a human right to own property protects the economic human rights to adequate food and freedom from hunger, found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11, 1 and 2. The right to own property is also key to the economic development necessary to ensure that human beings can supply themselves with food and otherwise support themselves. As such, it is a strategic human right, a right that protects other rights. I also argue that the right to own property is an intrinsic human right, valuable in itself as a component of human dignity. The paper ends with a brief proposal for an elaborated Covenant on the human right to own property.
She concludes with suggestions for a Draft Convention on the Right to Own Property
If the arguments considered above are convincing, then perhaps it is time to consider an elaborated human right to own property and to draft a Convention on such ownership. Such a Convention would have to take considerable care to protect those now considered not to own property, in the sense that they do not possess formal property titles. It would also have to take considerable care to protect vulnerable groups or collectivities. The Convention could include, as a start, the following principles.
  • Everyone has the human right to own property; 
  • Collectivities as well as individuals have the human right to own property; 
  • Everyone has the right to seek and acquire property without discrimination; No collectivity may be deprived of property because of its collective ethnic, national, or racial identity; 
  • No one (either individual or collectivity) may be deprived of property without due process of law and without adequate compensation as determined by law; 
  • No one (individual or collectivity) may be deprived of property on discriminatory grounds; 
  • Traditional possession and use of property must be taken into account when deciding who has rights—individual or collective--over a particular property; 
  • Corporate private property is not covered by this human right, as a corporation is not a human being.  
In conformity with Article 17, b of the UDHR, the Convention should also include some clauses protecting states’ rights to control property, namely:
  • Nothing in this Convention precludes governments’ rights to tax property; 
  • Nothing in this Convention precludes governments’ rights to expropriate property for public purposes, in accordance with the rule of law, so long as they pay adequate compensation for any property they take over. 
Finally, a draft Convention on the right to own property should include punishments for violation of that right. Above, I showed that massive, discriminatory and arbitrary violation of the right to own property in Zimbabwe since 2000 resulted in severe deterioration of the food supply, causing malnutrition, disease, and famine. It also resulted in individuals’ losing their houses and businesses, thus not being able to support themselves and their dependents in the cities. Similarly, massive and arbitrary deprivation of property in Venezuela resulted in deterioration of the food supply. Schaber suggests that “Massive violations of people’s property rights, particularly when they affect their fundamental rights, should be prosecuted,” and suggests the International Criminal Court (ICC) as the appropriate venue for such prosecution (Schaber 2011, quotation from p.194). Schaber’s concern is massive deprivation of the property rights of an entire people (nation) in oil concessions, but his suggestion could apply to all states that massively expropriate property, whatever the reason. It could also apply when such massive expropriation is limited in a discriminatory manner to particular categories of owners. 
When such massive expropriation undermines absolutely basic human rights such as the right to be free from hunger, there is good reason to bring its perpetrators before the ICC. At the moment, state-induced famine is not specified as a particular crime in the long list of crimes against humanity in the Rome Statute of the ICC. Famine would qualify merely as an “other inhumane act...intentionally causing great suffering, or serious injury to body or to mental or physical health” (International Criminal Court 1998, Article 7,1,k). Yet there is certainly justification for including intentional famine (deliberately using famine as means of extermination); and reckless creation of famine (continuing policies despite evidence of famine) as specific crimes (Marcus 2003, 246-7). Mugabe in Zimbabwe could be tried for reckless, if not intentional creation of famine. Ch├ívez in Venezuela could not, as food shortages there have not reached famine proportions nor is there evidence of massive malnutrition. 
In other cases, especially regarding indigenous peoples, massive expropriation of property in land can cause famine. In such cases, the expropriation is directed against specific national or ethnic groups and as such fits the definition of genocide in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (UNGC). According to the UNGC, genocide includes “causing serious bodily or mental harm to members of the group,” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article 2, b and c). Massive expropriation of land causes both bodily and mental harm to indigenous peoples deprived of their ability to cultivate food, and risks their physical destruction in whole or in part. The UNGC definition of genocide also includes “imposing measures intended to prevent births within the group” (Article 2, d); deprivation of land can cause starvation, which in turn renders women infertile. 
The UNGC require proof of intent in order to make a finding of genocide: there may be cases in which intent can be proven when states deprive indigenous peoples (or other categories) of the property that permits them to feed themselves. 
Thus, I propose two additional clauses to a Covenant on the right to own property.
  • Massive, arbitrary expropriation of property that causes famine or mass malnutrition is a crime against humanity; 
  • Massive, arbitrary expropriation of property on grounds of race, religion, ethnicity or nationality that causes famine is a crime of genocide. 
To conclude, there are both strategic and intrinsic reasons to reinforce the principle that there is a human right to own property. Had this been a principle during the early twenty-first century, the people of Zimbabwe might not have been malnourished and the people of Venezuela subjected to food shortages. Indigenous groups, peasants, women, and the poor might have had more security in their use of land. Moreover, people’s dignity and privacy, their identities, and their sense of themselves and their families would have enjoyed greater protection. With the security of private property, individuals, families, marginalized groups and collectivities would have been in a stronger position to act politically to protect themselves against both the state and more powerful private actors. It would seem appropriate to begin drafting an elaborated Convention on the human right to own property.