LAW2043 Contemporary Issues in Property Law Coursework Assessment First-Class Answer

Submitted by: Gurarjun Toor


Question: Is there a general right to property in international human rights law, and what are the main arguments for and against such a right?


There is no doubt that in modern-day civilization, one of the fundamental human rights is the right to property. Nearly every country has its own domestic legislation pertaining to the right to property, however, the question arises if this right is held internationally under human rights law. An inquiry shall be completed to determine how property is viewed in the eyes of the law. Arguments for and against the establishment of property law under international human rights law will be critically assessed. In order to do so, one must examine various jurisdictions to determine how such legislation is recognised.


As property is a broad expression, the United Kingdom has identified five areas of focus: land law, real property law, personal property law, trusts law, and intellectual property law, with the main two being, real property and personal property law. Real property includes real estate and immovable property such as land. Personal property includes intangible and tangible goods, such as licences and jewellery. Trusts law focuses on the protection of assets that are held by one party for another’s benefit.[1] Intellectual property law focuses on the protection of intangible assets that are created based on human intellect. While all these branches of property law differ, each is quite important as these rights have allowed society to progress.


Historically, the feudal system structure allowed the Crown to own all land. The monarch would grant plots of land to their most respected allies and this pyramid of land lending would eventually work its way to the lowest ranks of society. Though most would optimize land usage and maintain their approved land plots, ownership still belonged to the Crown. The development of property law was essential for the progression of individual property rights as it allowed for persons to legally own land. “Transformative economic and political changes over…decades have laid the foundation for establishing a universal right to property.”[2] The trend of communist countries becoming market economies has alleviated the resistance towards property rights. Many states have adapted to the idea, as it supports investment and helps citizens strive financially without aid from the state.


One cannot dispute the existence of property law domestically, as the right is present in the majority of the world. Each state’s interpretation of the right may vary but regardless include in some form, the natural ability to own private property without any form of limitation.[3] Under the Universal Declaration of Human Rights, Article 17(1) states “Everyone has the right to own property alone as well as in association with others”. John G Sprankling believes that regardless of how a sovereign may choose to interpret the right of private property, the state usually ‘specifically addresses one or more of the following topics: the content of the right, limitations on the state’s ability to regulate property and, limitations on the state’s ability to deprive citizens of property”.[4] It is clear that head of states’ all over the world today have understood this right, and have adapted to create a new universal norm regarding private property. One could argue that this reflects the progress that states have made domestically, however universal appreciation of this right has yet to be established.


Various forms of legislation support the ideology of property rights under international human rights law. However, there is no universal jurisdiction that systematically applies to all; the closest form of international law derives from treaties, conventions, and customs. Unanimous agreement is not required for a principle of international law to exist, as there are a limited number of doctrines that require universal acceptance.[5] The United Nations consists of 193 member states, a majority of the world. There are only two sovereign states that voluntarily choose not to be a part of the international organization.[6] In order to confront issues facing humanity in the 21st century, The United Nations created the Universal Declaration of Human Rights. This declaration includes article 17: the right to own property. Documents like this helped the United Nations to improve the conditions of humanity as a whole. Though this declaration is not imposed on all member states, it is still impactful on the states that do choose to follow it. By actively raising the threshold of human rights, society is able to remedy power imbalances normalized by previous governments. There will always be an ongoing battle between governmental authority and society’s free will in determining what is in the public’s best interest. Humanity must strike a fair balance between both, as any tipping of the scale has the opportunity to negatively impact all parties.


The African Union, which consists of 55 member states that make up the continent of Africa, has the mission of “promoting Africa’s growth by championing citizen inclusion and cooperation.”[7] The union created The African Charter on Human and Peoples’ Rights, an international human rights charter that is used to promote human rights and freedoms within the continent of Africa. Article 14 under the charter is the right to property, which is guaranteed and may only be breached if it is deemed to be in the best interest of the community. Africa’s modern approach to civil rights under international covenants supports the belief of property ownership under international human rights. Historically, Africa has had a lack of regard for the rights for individuals, especially regarding racial discrimination and freedom of expression. Africa has progressed significantly from individuals having limited tangible rights, to individuals having the ability to own private possessions. Private possession at a first glance may seem to be just a civil issue, but at its core, it is much more. The right to private possession also deals with economic matters, as allowing citizens to legally purchase and sell possessions has the potential for financial benefit. By ratifying this right, the state allows those who would conventionally come from a background of financial hardship, to become more economically stable without dependence on the state. Upholding the right to property for all individuals can help to improve social and economic status. Historically, when there is a stronger economy there is less violence, drug abuse, and alcoholism, which in turns can lead to more foreign investment and a stronger international reputation.


When discussing international relations, one must include the most primary source of international law, Treaties. Treaties are a formal instrument used between sovereign states which allow written obligations to become binding under international law.[8] Currently, many human rights treaties are in effect regionally such as the Inter-American Commission on Human Rights and the European Convention on Human Rights. Today “two-thirds of all nations are parties to regional human rights treaties that contain the right to property”. Based on this fact, it is clear that there is a trend of regional acceptance for the right to private possessions.[9] One might ask themselves why there is not a global charter of accepted principles that defines the minimum standard that all member states must abide by. A common concern is that not all states are willing to accept partial restriction of their legislation by an external party. The United Kingdom is currently facing a similar dispute; it could be argued that their parliament is not sovereign if they must obey the legislation put in place by the European Union. Even with its current standing within the European Union, the United Kingdom is wary of relinquishing its sovereignty to an external organization that has no record of procedural impropriety or of acting ultra vires. It is unlikely a one-time agreement that cannot be amended is the solution. The ‘living instrument’ doctrine was introduced directly to oppose such a suggestion, as legislation should be interpreted “in the light of present-day conditions.”[10] One would not want to introduce right of property globally at the expense of compromising the rule of law.


The benefits of recognizing the right to property on a global scale are endless. In order to do so, one must verify that international tribunals are upholding the right consistently across the board. One may achieve this consistency by helping to distinguish various interpretations of the meaning of property. This will allow for “clarification of ambiguities and gaps in international treaties”.[11] This may be easier said than done, as every country abides by their own laws and often do not take too kindly to others compromising their sovereignty. The outcome of this effort will result in harmonious international property laws, which in return will aid in global empowerment. One could argue that if this right was internationally implemented, then many other largely accepted beliefs would be enforceable internationally as well.


In order to determine if there is a right to property under international human rights law, one must assess if there is even a true right to property. In the historic House of Lord’s case of Pye v Graham, Pye had lost his land to Mr Graham, which was worth nearly 10 million pounds.[12] It was held in the case that Graham has retained possession of the land and had acquired legal ownership by adverse possession. Pye then submitting the case to the European Court of Human Rights in hopes of securing damages against the UK government.[13] The supported legislation, in this case, was inconsistent with Article 1of the first protocol of the European Convention on Human Rights. The Grand Chamber had voted against Pye, resulting in no damages being granted. After reviewing relevant legislation, Pye had lost the land due to the Limitation act of 1980 and section 75 of the Land Registration Act 1925. The argument could be made that if there is a true right of possession, then how is it acceptable to allow the reallocation of one’s possession without approval? State interference is understandable when it is in the best interest of the community, as long as proper compensation of appraised market value is granted in exchange. The argument can be made that adverse possession is directly contrary to personal property rights and is an outdated principle that needs to be abolished. Traditionally, entering one’s land without permission is a form of trespassing, however, under the principle of adverse possession, if one is there long enough it becomes squatter’s rights. The contradiction here is clear. The doctrine of adverse possession discredits human rights and above all else encourages unethical behaviour.


State interference is anticipated on some level, however, the question of whether allowing interference discredits the intended right, still stands. Article 1, protocol 1 of the European Convention on Human Rights states that one has a right of protection of their property however, this does not impair the states right to control the use of the property in any way. In the case Sporrong v Sweden, it was held that Article 1 embraces three distinct rules: there is a general right to the enjoyment of private property, the deprivation of possessions are subject to certain conditions, and it must be recognized that the states are entitled to control the use of property in accordance with the public’s best interest.[14] If the state ultimately is entitled to take possession of one’s land at their discretion, the argument can be made that society ultimately has not progressed since the feudal era. The state may give you the illusion that the property is yours, but they are ultimately in control and can take it when convenient. The right of property is about being able to generate security by creating reliance upon possessions. For many, land is a contingency plan in case of economic uncertainty, however, others depend on passing their land to future generations for continuous growth. With this, one could argue that it is inhumane to not provide the public with the human right of dependability. Most states act in favour of the public and rarely abuse their powers, nevertheless, mere allowance of governmental discretion when it comes to property, allows the possibility for abuse to arise. It was discussed in case law that in order for the state to intrude on one’s property rights, one must “determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individuals’ fundamental rights.”[15] In modern society, the need to put the collective before the individual is understandable. The issue, however, arises when the state unnecessarily oversteps and occupies people’s land, without consideration of viable alternatives, simply because they are permitted to do so. When there is a need for a reformed solution, often it is found. When the state can achieve their goal with little resistance, they often do just that. The state should be model citizens and represent the ideals of society, however, this may not occur when the state does not consider their citizen’s rights.


The infamous European Court of Human Rights case of Syllogos Ton Athinaion v United Kingdom, discussed the sale of the temple of Parthenon of Athens sculptures, otherwise known as the “Elgin Marbles.” The collection of sculptures was transported in the early nineteenth century from Greece to the United Kingdom by Lord Elgin. The Marbles were then purchased by the British Government for display in the British Museum. Greece ultimately sought to re-acquire the Marbles back on the grounds that they were unlawfully removed. After the United Kingdom refused mediation from the United Nations Educational, Scientific and Cultural Organization (UNESCO), this issue was brought to the courts, where they unanimously declared the application inadmissible as the removal of the Marbles occurred over 150 years before the European Convention on Human Rights was drafted. One could make the argument that this is a clear indication that there is truly no general right to property. The European Court of Human Rights indisputably helps develop ones right to private possessions, but ultimately this is only a limited instrument.


Property law governs the area of self-interest towards personal property, while member states often focus on the area of public interest. The majority of the world are parties to regional human right treaties which contain a right to property, yet the recognition is not yet universal. One fundamental issue which has interfered with the progression of the right to become universally accepted, is that each nation enjoys its sovereignty over their own territory and implementing their own legislation at their own discretion.[16] Almost all nations recognize the right to property under domestic law, but, in order for the right of property to progress, it needs to be recognized as international law. This particular right needs to be viewed as customary and must demand that all nations uphold the law, while in reality it is mostly viewed as conventional.[17] One can make the argument that the right requires an in-depth review in order to establish if the right is in fact accurate and if the state is able to interfere at its own discretion.


Bibliography:

  • African Union ‘History About the African Union’ (AU, 2020) < https://au.int/en/overview > Accessed 9 April 2020

  • A.J. Van Der Walt, Constitutional Property Clauses: A Comparative Analysis (JUTA, 1999)

  • Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 22

  • J. A. Pye (Oxford) Ltd and Another v United Kingdom (2007) 46 EHRR 1083

  • J. A Pye (Oxford) Ltd v Graham [2002] UKHL

  • J. E. Martin, Hanbury & Martin: Modern Equity (19th edn Sweet & Maxwell 2012) ch 2, 49

  • John G. Sprankling, The Global Right to Property, (Pacific McGeorge School of Law, 2014)

  • John G. Sprankling, The Right to Property in National Constitutions (University of the Pacific Scholarly Commons, 2013)

  • Malcolm Shaw ‘Treaty: International Relations’ (Britannica, 2020) < https://www.britannica.com/topic/treaty > Accessed on 4 April 2020

  • Oppenheim’s International Law 458 (Robert Jennings & Arthur Watts eds., 9th ed. 1992)

  • Sporrong & Lonnroth v Sweden (1982) 5 EHRR 35

  • Tyrer v United Kingdom [1978] 2 EHRR 1

  • United Nations, ‘Non-member States’ (UN, 2020) < https://www.un.org/en/sections/member-states/non-member-states/index.html > Accessed 15 March 2020

[1] J. E. Martin, Hanbury & Martin: Modern Equity (19th edn Sweet & Maxwell 2012) ch 2, 49 [2] John G. Sprankling, The Global Right to Property, (Pacific McGeorge School of Law, 2014) [3] John G. Sprankling, The Right to Property in National Constitutions (University of the Pacific Scholarly Commons, 2013) [4] A.J. Van Der Walt, Constitutional Property Clauses: A Comparative Analysis (JUTA, 1999) [5] Sprankling, supra note 2 [6] United Nations, ‘Non-member States’ (UN, 2020) < https://www.un.org/en/sections/member-states/non-member-states/index.html > Accessed 15 March 2020 [7] African Union ‘History About the African Union’ (AU, 2020) < https://au.int/en/overview > Accessed 9 April 2020 [8] Malcolm Shaw ‘Treaty: International Relations’ (Britannica, 2020) < https://www.britannica.com/topic/treaty > Accessed on 4 April 2020 [9] Sprankling, supra note 2 [10] Tyrer v United Kingdom [1978] 2 EHRR 1 [11] Sprankling, supra note 2 [12] J. A Pye (Oxford) Ltd v Graham [2002] UKHL [13] J. A. Pye (Oxford) Ltd and Another v United Kingdom (2007) 46 EHRR 1083 [14] Sporrong & Lonnroth v Sweden (1982) 5 EHRR 35 [15] Ibid. [16] Oppenheim’s International Law 458 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) [17] Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 22