Right to property

The right to property or right to own property (cf. ownership) is often classified as
a human right for natural persons regarding their possessions. A general
recognition of a right to private property is found more rarely and is typically
heavily constrained insofar as property is owned by legal persons (i.e.
corporations) and where it is used for production rather than consumption.[1]

A right to property is recognised in Article 17 of the Universal Declaration of

Human Rights,[2] but it is not recognised in the International Covenant on Civil and
Political Rights or the International Covenant on Economic, Social and Cultural
Rights.[3] The European Convention on Human Rights, in Protocol 1, article 1,
acknowledges a right for natural and legal persons to "peaceful enjoyment of his
possessions", subject to the "general interest or to secure the payment of taxes".

Definition

The right to property is one of the most controversial human rights, both in terms
of its existence and interpretation. The controversy about the definition of the
right meant that it was not included in the International Covenant on Civil and
Political Rights or the International Covenant on Economic, Social and Cultural
Rights.[4] Controversy centres upon who is deemed to have property rights
protected (e.g. human beings or also corporations), the type of property which is
protected (property used for the purpose of consumption or production) and the
reasons for which property can be restricted (for instance, for regulations,
taxation or nationalisation in the public interest). In all human rights instruments,
either implicit or express restrictions exist on the extent to which property is
protected. Article 17 of the Universal Declaration of Human Rights (UDHR)
enshrines the right to property as follows:

(1) Everyone has the right to own property alone as well as in

association with others. (2) No one shall be arbitrarily deprived of his
or her property.[5]

The object of the right to property as it is usually understood nowadays consists

of property already owned or possessed, or of property acquired or to be acquired
by a person through lawful means. Not in opposition but in contrast to this, some
proposals also defend a universal right to private property, in the sense of a right
of every person to effectively receive a certain amount of property, grounded in a
claim to Earth's natural resources or other theories of justice.[6]

Africa

The African Charter on Human and Peoples' Rights (ACHPR) protects the right to
property most explicitly in Article 14,[7] stating:

The right to property shall be guaranteed. It may only be encroached

upon in the interest of public need or in the general interest of the
community and in accordance with the provisions of appropriate
laws.[8]

Property rights are furthermore recognised in Article 13 of the ACHPR, which

states that every citizen has the right to participate freely in the government of his
country, the right to equal access to public services and "the right of access to
public property and services in strict equality of all persons before the law". Article
21 of the ACHPR recognises the right of all peoples to freely dispose of their
wealth and natural resources and that this right shall be exercised in the exclusive
interest of the people, who may not be deprived of this right. Article 21 also
provides that "in case of spoliation the dispossessed people shall have the right to
the lawful recovery of its property as well as to adequate compensation".[9]

Americas
When the text of the UDHR was negotiated, other states in the Americas argued
that the right to property should be limited to the protection of private property
necessary for subsistence. Their suggestion was opposed, but was enshrined in
the American Declaration of the Rights and Duties of Man, which was negotiated
at the same time and adopted one year before the UDHR in 1948.[10] Article 23 of
the declaration states:

Every Person has the right to own such private property as meets the
essential needs of decent living and helps to maintain the dignity of
the individual and of the home.[11]

The definition of the right to property is heavily influenced by Western concepts of

property rights, but because property rights vary considerably in different legal
systems it has not been possible to establish international standards on property
rights.[12] The regional human rights instruments of Europe, Africa and the
Americas recognise the right to protection of property to varying degrees.[13]

The American Convention on Human Rights (ACHR) recognises the right to

protection of property, including the right to "just compensation". The ACHR also
prohibits usury and other exploitation, which is unique amongst human rights
instruments.[10] Article 21 of the ACHR states:

(1) Everyone has the right to the use and enjoyment of his property.
The law may subordinate such use and enjoyment to the interest of
society.

(2) No one shall be deprived of his property except upon payment of

just compensation, for reasons of public utility or social interest, and
in the cases and according to the forms established by law.

(3) Usury and any other form of exploitation of man by man shall be
prohibited by law.[14]

Europe

After failed attempts to include the right to protection of property in the European
Convention on Human Rights (ECHR), European states enshrined the right to
protection of property in Article 1 of Protocol I to the ECHR as the "right to
peaceful enjoyment of possessions",[15] where the right to protection of property
is defined as such:

(1) Every natural or legal person is entitled to the peaceful enjoyment

of his possessions. No one shall be deprived of his possessions except
in the public interest and subject to the conditions provided for by
law and by the general principles of international law. (2) The
preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties.[16]

Therefore, European human rights law recognises the right to peaceful enjoyment
of property, makes deprivation of possessions subject to certain conditions and
recognises that states can balance the right to peaceful possession of property
against the public interest. The European Court of Human Rights has interpreted
"possessions" to include not only tangible property, but also economic interests,
contractual agreements with economic value, compensation claims against the
state and public law related claims such as pensions.[17] The European Court of
Human Rights has held that the right to property is not absolute and states have a
wide degree of discretion to limit the rights. As such, the right to property is
regarded as a more flexible right than other human rights. States' degree of
discretion is defined in Handyside v. United Kingdom, heard by the European Court
of Human Rights in 1976. Notable cases where the European Court of Human
Rights has found the right to property having been violated include Sporrong and
Lonnroth v. Sweden, heard in 1982, where Swedish law kept property under the
threat of expropriation for an extended period of time.[4] The highest economic
compensation following a judgment of the Strasbourg Court on this matter was
given (1,3 million euro) in case Beyeler v. Italy.[18]

India

In India property rights (Article 31) was one of the fundamental rights of citizens
until 1978, and it became a legal right through the 44th Amendment to the
Constitution in 1978. [19] The amendment was introduced by the Morarji Desai
government as part of land reform policies.[19] In 2020, the Supreme Court of India
has stated that, even though property rights are not part of a citizen's fundamental
right, it should be considers as one of the human rights promised by the
Constitution.[19][20] The Supreme Court also ruled that the states cannot acquire
individual land unless there is a clear legal framework.[19]

International conventions

Property rights are also recognised in the International Convention on the

Elimination of All Forms of Racial Discrimination which states in Article 5 that
everyone has the right to equality before the law without distinction as to race,
colour and national or ethnic origin, including the "right to own property alone as
well as in association with others" and "the right to inherit". The Convention on the
Elimination of All Forms of Discrimination against Women recognises the
property rights in Article 16, which establishes the same right for both spouses to
ownership, acquisition, management, administration, enjoyment and disposition
of property and Article 15, which establishes women's right to conclude
contracts.[7]rights

Property rights are also enshrined in the Convention Relating to the Status of
Refugees and the Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families. These international human rights
instruments for minorities do not establish a separate right to property, but
prohibit discrimination in relation to property rights where such rights are
guaranteed.[21]

Relationship to other rights

The right to private property was a crucial demand in early quests for political
freedom and equality and against feudal control of property. Property can serve
as the basis for the entitlements that ensure the realisation of the right to an
adequate standard of living and it was only property owners which were initially
granted civil and political rights, such as the right to vote. Because not everybody
is a property owner, the right to work was enshrined to allow everybody to attain
an adequate standard of living.[22] Today, discrimination on the basis of property
ownership is commonly seen as a serious threat to the equal enjoyment of human
rights by all and non-discrimination clauses in international human rights
instruments frequently include property as a ground on the basis of which
discrimination is prohibited (see the right to equality before the law).[7] The
protection of private property may come into conflict with economic, social and
cultural rights and civil and political rights, such as the right to freedom of
expression. To mitigate this, the right to property is commonly limited to protect
the public interest. Many states also maintain systems of communal and
collective ownership. Property rights have frequently been regarded as preventing
the realisation of human rights for all, through for example slavery and the
exploitation of others. Unequal distribution of wealth often follows line of sex,
race and minorities, therefore property rights may appear to be part of the
problem, rather than as an interest that merits protection. Property rights have
been at the centre of recent human rights debates on land reform, the return of
cultural artifacts by collectors and museums to indigenous peoples and the
popular sovereignty of peoples over natural resources.[23]

History

In Europe, The Roman law defined property as "the right to use and abuse one’s
own within the limits of the law" — jus utendi et abutendi re suâ, guatenus juris ratio
patitur. Second, salus populi suprema lex esto, or “the safety of the people shall be
the supreme law,” was stipulated as early as the Law of the Twelve Tables. The
notion of private property and property rights was elaborated further in the
Renaissance as international trade by merchants gave rise to mercantilist ideas.
In 16th-century Europe, Lutheranism and the Protestant Reformation advanced
property rights using biblical terminology. The Protestant work ethic and views on
man's destiny came to underline social views in emerging capitalist economies in
early modern Europe. The right to private property emerged as a radical demand
for human rights vis-a-vis the state in 17th-century revolutionary Europe, but in the
18th and 19th centuries the right to property as a human right became subject of
intense controversy.[24]

English Civil War

The arguments advanced by the Levellers during the English Civil War on property
and civil and political rights, such as the right to vote, informed subsequent
debates in other countries. The Levellers emerged as a political movement in mid-
17th century England in the aftermath of the Protestant Reformation. They
believed that property which had been earned as the fruit of one's labour was
sacred under the Bible's commandment "thou shall not steal". As such, they
believed that the right to acquire property from one's work was sacred. Levellers'
views on the right to property and the right not to be deprived of property as a civil
and political right were developed by the pamphleteer Richard Overton.[25] In "An
Arrow against all Tyrants" (1646), Overton argued:

To every individual in nature is given an individual property by

nature not to be invaded or usurped by any. For everyone, as he is
himself, so he has a self propertiety, else he could not be himself; and
of this no second may presume to deprive of without manifest
violation and affront to the very principles of nature of the rules of
equity and justice between man and man. Mine and thine cannot be,
except this. No man has power over my rights and liberties, and I
over no man.[26]

The views of the Levellers, who enjoyed support amongst small-scale property-
owners and craftsmen, were not shared by all revolutionary parties of the English
Civil War. At the 1647 General Council, Oliver Cromwell and Henry Ireton argued
against equating the right to life with the right to property. They argued that doing
so would establish the right to take anything that one may want, irrespective of
the rights of others. The Leveller Thomas Rainborough responded, relying on
Overton's arguments, that the Levellers required respect for others' natural rights.
The definition of property and whether it was acquired as the fruit of one's labour
and as such a natural right was subject to intense debate because the right to
vote depended on property ownership. Political freedom was at the time
associated with property ownership and individual independence. Cromwell and
Ireton maintained that only property in freehold land or chartered trading rights
gave a man the right to vote. They argued that this type of property ownership
constituted a "stake in society", which entitles men to political power. In contrast,
Levellers argued that all men who are not servants, alms-recipients or beggars
should be considered as property owners and be given voting rights. They
believed that political freedom could only be secured by individuals, such as
craftsmen, engaging in independent economic activity.[25][27]
Levellers were primarily concerned with the civil and political rights of small-scale
property owners and workers, whereas the Diggers, a smaller revolutionary group
led by Gerard Winstanley, focused on the rights of the rural poor who worked on
landed property. The Diggers argued that private property was not consistent with
justice and that the land that had been confiscated from the Crown and Church
should be turned into communal land to be cultivated by the poor. According to
the Diggers, the right to vote should be extended to all and everybody had the right
to an adequate standard of living. With the Restoration of the English monarchy in
1660, all confiscated land returned to the Crown and Church. Some property rights
were recognised and limited voting rights were established. The ideas of the
Levellers on property and civil and political rights remained influential and were
advanced in the subsequent 1688 Glorious Revolution,[25][27] but restrictions on
the right to vote based on property meant that only a fraction of the British
population had the suffrage. In 1780 only 214,000 property-owning men were
entitled to vote in England and Wales, less than 3 percent of the population of 8
million. The Reform Act 1832 restricted the right to vote to men who owned
property with an annual value of £10, giving approximately 4 percent of the adult
male population the right to vote. The reforms of 1867 extended the right to vote
to approximately 8 percent. The working class (which increased dramatically with
the Industrial Revolution) and industrialists remained effectively excluded from
the political system.[28][29]

John Locke and the American and French revolutions

John Locke's 1689 Two Treatises of Government in which Locke calls "lives, liberties and estates" the
"property" of individuals

The English philosopher John Locke (1632–1704) developed the ideas of

property, civil and political rights further. In his Second Treatise on Civil
Government (1689), Locke proclaimed that "everyman has a property in his
person; this nobody has a right to but himself. The labor of his body and the work
of his hand, we may say, are properly his".[30] He argued that property ownership
derives from one's labor, though those who do not own property and only have
their labor to sell should not be given the same political power as those who
owned property. Labourers, small-scale property owners and large-scale property
owners should have civil and political rights in proportion to the property they
owned. According to Locke, the right to property and the right to life were
inalienable rights and that it was the duty of the state to secure these rights for
individuals. Locke argued that the safeguarding of natural rights, such as the right
to property, along with the separation of powers and other checks and balances,
would help to curtail political abuses by the state.[25][31]

Locke's labor theory of property and the separation of powers greatly influenced
the American Revolution and the French Revolution. The entitlement to civil and
political rights, such as the right to vote, was tied to the question of property in
both revolutions. American revolutionaries, such as Benjamin Franklin and
Thomas Jefferson, opposed universal suffrage, advocating votes only for those
who owned a "stake" in society. James Madison argued that extending the right to
vote to all could lead in the right to property and justice being "overruled by a
majority without property". While it was initially suggested to establish the right to
vote for all men, eventually the right to vote in the nascent United States was
extended to white men who owned a specified amount of real estate and personal
property.

French revolutionaries recognised property rights in Article 17 of the Declaration

of the Rights of Man and of the Citizen (1791), which stated that no one "may be
deprived of property rights unless a legally established public necessity required it
and upon condition of a just and previous indemnity". Articles 3 and 6 declared
that "all citizens have the right to contribute personally or through their
representatives" in the political system and that "all citizens being equal before
[the law], are equally admissible to all public offices, positions and employment
according to their capacity, and without other distinction than that of virtues and
talents". However, in practice the French revolutionaries did not extend civil and
political rights to all, although the property qualification required for such rights
was lower than that established by the American revolutionaries.[32]

According to the French revolutionary Abbé Sieyès, "all the inhabitants of a

country should enjoy the right of a passive citizen... but those alone who
contribute to the public establishment are like the true shareholders in the great
social enterprise. They alone are the true active citizens, the true members of the
association". Three months after the Declaration had been adopted, domestic
servants, women and those who did not pay taxes equal to three days of labor
were declared "passive citizens". Sieyes wanted to see the rapid expansion of
commercial activities and favoured the unrestricted accumulation of property. In
contrast, Maximilien Robespierre warned that the free accumulation of wealth
ought to be limited and that the right to property should not be permitted to
violate the rights of others, particularly poorer citizens, including the working poor
and peasants. Robespierre's views were eventually excluded from the French
Constitution of 1793 and a property qualification for civil and political rights was
maintained.[33]

See also

English land law

 Entitlement theory

Married Women's Property Act 1882

Property law

Property rights (economics)

Real estate business

Real estate development

Real estate bubble

Notes

1. See generally AA Berle, 'Property, Production and Revolution' (1965) 65 Columbia Law Review
1 (https://www.jstor.org/pss/1120512)

2. "Universal Declaration of Human Rights" (https://www.un.org/en/universal-declaration-human-

rights/) . un.org. "Article 17. 1) Everyone has the right to own property alone as well as in
association with others."

3. Doebbler, Curtis (2006). Introduction to International Human Rights Law (https://books.googl

e.com/books?id=mQ61oCPJ1GECdq) . CD Publishing. pp. 141–142. ISBN 978-0-9743570-2-
7.

4. Doebbler, Curtis (2006). Introduction to International Human Rights Law (https://books.googl

e.com/books?id=mQ61oCPJ1GEC&q=%22right+to+property%22+human+rights) . CD
Publishing. pp. 141–142. ISBN 978-0-9743570-2-7.

5. "Universal Declaration of Human Rights" (https://www.un.org/en/documents/udhr/index.sht

ml) . United Nations. pp. Article 17.

. Stilman, Gabriel. "La Biblia, Laudato Si y el derecho universal a la propiedad privada" (https://w
ww.academia.edu/13859497) . El Dial – Biblioteca Jurídica online. Retrieved 2 February
2016.

7. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 372. ISBN 978-90-411-1168-5.

. "African Charter on Human and Peoples' Rights" (http://conventions.coe.int/Treaty/en/Treatie

s/Html/009.htm) . Organisation of African Unity. pp. Article 14.

9. "African Charter on Human and Peoples' Rights" (http://conventions.coe.int/Treaty/en/Treatie

s/Html/009.htm) . Organisation of African Unity. pp. Article 13 and 21.
10. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 370. ISBN 978-90-411-1168-5.

11. "American Declaration of the Rights and Duties of Man" (http://actrav.itcilo.org/actrav-english/

telearn/global/ilo/law/oashr.htm) . Ninth International Conference of American States.
pp. Article 23.

12. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. pp. 359–360. ISBN 978-90-411-
1168-5.

13. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 364. ISBN 978-90-411-1168-5.

14. "American Convention on Human Rights" (http://conventions.coe.int/Treaty/en/Treaties/Htm

l/009.htm) . Organization of American States. pp. Article 21.

15. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 366. ISBN 978-90-411-1168-5.

1 . "Protocol I to the Convention for the Protection of Human Rights and Fundamental Freedoms"
(http://conventions.coe.int/Treaty/en/Treaties/Html/009.htm) . Council of Europe.
pp. Protocol 1 Article 1.

17. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 367. ISBN 978-90-411-1168-5.

1 . The handling of the affair by the Italian authorities has never been the most mirrored, although
it is clear that, in the case Beyeler, the right and wrong was not all on one side: Buonomo,
Giampiero (2002). "Il contribuente paga il conto dell'adeguamento ai principi di legalità e
buona amministrazione" (https://www.questia.com/projects#!/project/89333348) .
Diritto&Giustizia Edizione Online.  – via Questia (subscription required)

19. വിശ നാഥൻ, വ ന. "സ വകാശം മനുഷ ാവകാശം; അറിയാം നിർണായക സു പീം
േകാടതി വിധിെയ ുറി "് (https://www.mathrubhumi.com/careers/gk/right-to-property-is-
a-human-right-says-supreme-court-of-india-1.4442755) . Mathrubhumi (in Malayalam).

20. "സ വകാശം പധാന ഭരണഘടനാ അവകാശം : സു പീംേകാടതി" (https://www.desha

bhimani.com/news/national/supreme-court-statement/909965) . Deshabhimani (in
Malayalam).
21. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 373. ISBN 978-90-411-1168-5.

22. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 533. ISBN 978-90-411-1168-5.

23. Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a
common standard of achievement (https://books.google.com/books?id=FmuoB-BlMvEC&q
=%22right+to+property%22) . Martinus Nijhoff Publishers. p. 360. ISBN 978-90-411-1168-5.

24. Compare: Ishay, Micheline (2008). The History of Human Rights: From Ancient Times to the
Globalized Era (https://books.google.com/books?id=YTh22XQrtlQC&q=right+to+property+hu
man+rights) . University of California Press. p. 91. ISBN 978-0-520-25641-5. "New forms of
mercantilist activities that emerged during the Renaissance rekindled efforts to define the
individual's right to private property. [...] With the advance of Lutheranism and the
Reformation, the fight for property rights was initially couched in the terminology of revelation.
[...] The work ethic of the emerging capitalist age was consistent with the Protestant vision of
man's providential destiny on earth, Max Weber later explained in his Protestant Ethics and the
Spirit of Capitalism. [...] Regarded as a radical human rights affirmation in the seventeenth
century, the right to property would become a major source of contention in nineteenth- and
twentieth-century human rights discourse."

25. Ishay, Micheline (2008). The History of Human Rights: From Ancient Times to the Globalized
Era (https://books.google.com/books?id=YTh22XQrtlQC&q=right+to+property+human+right
s) . University of California Press. pp. 91–94. ISBN 978-0-520-25641-5.

2 . Ishay, Micheline (2008). The History of Human Rights: From Ancient Times to the Globalized
Era (https://books.google.com/books?id=YTh22XQrtlQC&q=right+to+property+human+right
s) . University of California Press. p. 92. ISBN 978-0-520-25641-5.

27. Rossides, Daniel W. (1998). Social Theory: Its Origins, History, and Contemporary Relevance (h
ttps://books.google.com/books?id=TTYAGD7aKBkC&q=levellers+property) . Rowman &
Littlefield. p. 54. ISBN 978-1-882289-50-9.

2 . Robinson, Eric W. (2004). Ancient Greek democracy: readings and sources (https://books.goo
gle.com/books?id=Jug6crxEImIC&q=Aristophanes+ecclesiazusae+women%27s+rights) .
Wiley-Blackwell. p. 302. ISBN 978-0-631-23394-7.

29. "The Struggle for democracy – Getting the vote" (http://www.nationalarchives.gov.uk/pathway

s/citizenship/struggle_democracy/getting_vote.htm) . National archives. Retrieved
15 January 2011.

30. Second Treatise of Civil Government, § 27

31. Rossides, Daniel W. (1998). Social Theory: Its Origins, History, and Contemporary Relevance (h
ttps://books.google.com/books?id=TTYAGD7aKBkC&q=levellers+property) . Rowman &
Littlefield. pp. 52–54. ISBN 978-1-882289-50-9.

32. Ishay, Micheline (2008). The History of Human Rights: From Ancient Times to the Globalized
Era (https://books.google.com/books?id=YTh22XQrtlQC&q=right+to+property+human+right
s) . University of California Press. pp. 94–97. ISBN 978-0-520-25641-5.

33. Ishay, Micheline (2008). The History of Human Rights: From Ancient Times to the Globalized
Era (https://books.google.com/books?id=YTh22XQrtlQC&q=right+to+property+human+right
s) . University of California Press. pp. 97–98. ISBN 978-0-520-25641-5.

References

AA Berle and GC Means, The Modern Corporation and Private Property (New York,
Macmillan 1932) oclc 1411248

AA Berle, 'Property, Production and Revolution' (1965) 65 Columbia Law Review 1

(https://www.jstor.org/pss/1120512)

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