Created by Georgy Senyuk for Baltic Practice 2010 Human Rights group

Property right: approaches, challenges, restrictions and application

Introduction

I want to address my paper to the problem of the property right. This problem is closely connected with my specialization in law – business law. The property law protection and recognition is the main reason why people work and create something new.

In my paper I want to find out the roots of property and right on it. When did property exist? What is the property genesis? When we find answers on these questions, we will see the place of the property right in our lives and legislation. All rights are connected with each other: without freedom there is no prosperity, and without property there is no freedom. The property right place determination in international and national sources permits to apply this right correctly. If we determine the property right as a human right and as something immanent to the modern personality, there will be no room for denial by the ‘sovereign democracies’ and other artificial theories of this right as a core and inalienable right. Here we should analyze the property right clauses in Constitutions of USA, Germany, Italy, Russia and Japan.

Then I am going to compare the property right application by the ECHR and by the Russian Federation Constitutional Court. The purpose of this comparison is to fill the gap of the property right in Russia using European standards.

We should understand that the crucial role in the human rights promotion plays the public perception of them. There are many factors which influence on this perception: official rhetoric, journalists, and society institutions. The legislation is a consequence of public perception. We should scrutinize main trends in this field to understand problems to deal with.

The last aim of this paper is to elaborate universal grounds for alienation and deprivation of property. The current situation shows us many problems. How should we understand public use and need? Where should we search for interests balance among owners, citizens and the state? How could we determine a just compensation? If we conclude that the property right is the essential human right, the limits of it should be very clear, narrow and should be imposed only by courts using due procedure.

  1. Definition of property right.

Any researches should be started from the basic definitions of theme’s parts, if the researcher wants to obtain some results. What does property right mean? In accordance with my perception of this problem, we should distinguish property right in the broad sense from the property right in the narrow sense. In the broad sense property right means the right to have a property. This is the basic personal right of all human beings, because as it will be shown later, we could not imagine modern person without property. The right to have a property should be understood as a right to receive respect to the all types of property (personal, state or common) from all subjects of law and all members of the society. This right has a corresponding duty – all members should grant the respect to all owners. In the narrow sense property right means the institute of the civil legislation. The property right in this sense means rights (power) and duties (burden). In civil law countries the property right is defined through “corpus possessionis”, which consists of three rights: right to possess, right to use and right to dispose. In common law countries there are also three rights: right to use, right to exclude others from using the asset (the right of sole dominion) and right to transfer asset.[1]These rights constitute the bundle of property rights. Obtaining of the property rights imposes not only rights, but also duties (burden). Although, the property right in the narrow sense is closely connected with the property right in the broad sense. Moreover, it will be not far from the truth, if we say that property right as a right to have a property is a precondition to the bundle of certain rights. “Corpus possessionis”is the consequence of property right recognition by the State.

  1. Property right – inalienable personal human right.

For the purposes of the property right evaluating, for correct application of rules and for analyzing the perception of right among citizens, we should find out the grounds of this right and its place in national legislations.

The analyzing of the property right genesis seems to be quite prolific for our purposes. Plato in his IdealState built an ideal totalitarian society. There are two main tools for building this society: total filtration of incoming information and alienation of private property. If we look at all totalitarian regimes, we will see that these two measures are very common to all dictatorships. These measures pursue one aim – make citizens feel dependent on State and preserve them from all kinds of external relations, but preservation and isolation are fundamental features of archaic people. They live in the space with certain borders and only this space they can perceive. Therefore archaic people had no need to divide property – all property was common. Nowadays, modern people understand the necessity of multiple attitudes to the world. Today there are many cultures, unbounded space and the universe. Romano Guardini showed us that the modern personality has a permanent intention to isolate himself from the crowd, to establish his own autonomy.[2]This intention plays a crucial role in humanization of our way of life. Every human life has the highest value because of only one fact – the fact of existence. Nobody should prove his right to live in the welfare state by using any arguments, but the empirical fact of his own existence. There are no goals, which could override the right to live worthy. Inalienable Human rights are the consequences of this approach. When the person understand that the universe has no borders and that he lives with his neighbors, who are equal to him, he should establish very clear limits of his autonomy. But how could the person provide himself with the autonomy without property? In the archaic society the property was common, and so there was no independence, but now independence plays the most critical role, because it is the strongest tool for human life and multiple wills respect. The property right recognition and protection guarantees freedom, because when you have property, you have responsibility for your decisions and you have resources to follow your way of life. We can say that all rights we posses are our property.[3]

In Plato’s Euthyphro Socrates tells us about clashes between the Gods as something against theirs nature. The absence of property is against modern human nature. We cannot imagine modern human kind without property, because even homeless person has a paper to sit on.

Property right is the main cause of stable development and welfare state. Thomas Hobbes thought that “Every man by nature has right to all things … Nature has given all things to all men… but that right of all men to all things, is in effect no better than if no man had right to any thing.”[4]So for effective using of the assets we need clearly defined owners, but without law all assets will be allocated among the strongest citizens – this is the right of the strongest, but not the supremacy of equity. The absence of law leads to permanent wars and this situation is against the Law of nature. Savages live without rules, but their lives are very short and deprived of comfort.

Property right is the external expression of the human’s will.[5] Person’s will is hidden from his neighbors and has no physical substance, therefore the property indicates this will. The will is objectified by the goods possession.

John Locke’s labor theory.[6] All property belongs to all citizens – the same position had Thomas Hobbes. All humans have a possibility to labour and when this labour is applied to the common property certain goods are transferred to the private property of the labour’s owner. The labour individualized the property.The property existed before the state and its laws, so the property is the initial phenomenon.

In 1979 Karel Vasak argued on the three generations of human rights at the International Institute of Human Rights.[7] He derived these generations from watchwords of the French Revolution: Liberte, Egalite, Fraternite. The first generation includes civil and political rights. The second generation contains of social, economic and cultural rights. And the third generation deals with collective rights, which could be exercised and enjoyed by the group of citizens: the right to self-determination, the right to a healthy environment, the right to natural resources and other rights. The main aim of this classification is to show the development of human rights. All these rights should be recognized by the states, but some of them are essential for human kind and do not depend on the level country’s prosperity. We can state that all humans have right to live in comfort, to obtain medical aid and education, but very few countries in the world have resources to meet the requirements. For instance, the Indian Constitution prescribes that social, cultural and economic rights from Part IV of this Constitution have no remedies, therefore they are named not as rights, but as the directive principles of state policy.[8] It means that nobody could enforce these provisions and make state authorities provide him with unpaid education, medical aid or with healthy environment. As we can see, the respect for the property right does not mean the state’s duty to make some extra-payments for services. The respect for the property right means the protection of assets, which were gained by the citizens even before the existence of all states.[9]The property right is not connected with the level of living standards, but without respect for the property right there is no way to freedom, prosperity and welfare state.

  1. International sources of the property right and the decisions of ECHR.

The property right as a human right is fixed both in the Universal Declaration of Human Rights and in the Protocol 1 of the European Convention for Human Rights.

  1. The property right in Russia and the decisions of the Constitutional Court.

The Russian Federation Constitution in the art. 35 stipulates that the right of private property is protected by law. If we begin to analyze certain rules from art. 35 solely, we will see that the deprivation of the property should be exercised only under the court decision. In the same situation the art. 17 prohibits the arbitrary deprivation of property. In these circumstances many questions arise: due and fair procedure in court, the access to the court protection, the independence of courts.

  1. The perception of the property right in Europe and in Russia by the society and its institutions.

In this part we are going to find out the attitude of the Russian citizens to the problem of the property right. The public perception of rights plays crucial role in the field of the human rights development, because the respect for human rights is the consequence of such attitude. If the society is not ready to grant the respect to the property right there are no laws or organizations which could change the situation. (In this part I am going to evaluate the property right perception by the Russia state authorities, Russian Orthodox Church approach[10] and Establishment).

  1. Limits of the property right in international and national sources.

As we have deduced earlier, the property right is personal human right which is closely connected with the idea of modern personality. The property right is at the one level with the right to life, liberty and security. With regard to this fact, all limits imposed on owners should be clear and fair. We could not find any samples in national and international law sources without any limits at all. The main agenda in this part is to show the application of these limits in USA (Amendment V), Europe (Art. 1 Protocol 1) and Russia (Art. 35 of Constitution) by courts. How we should examine and determine due process of property alienation for public use and welfare. What does it mean – just compensation? Practice shows us that these limits are not very clear and depend in many cases on the balance of interests.[11] We should find out universal principles of alienation.

1

[1] Terry Lee Anderson,Laura E. Huggins. Property rights: a practical guide to freedom and prosperity. P. 3.

[2]Romano Guardini. The End of the Modern World. [

[3]Property Rights and the Constitution, Chapter 34, Cato Handbook for Policymakers (2009) [

[4]Thomas Hobbes. The Elements of Law, Natural and Politic [

[5]Georg Wilhelm Friedrich Hegel. Philosophy of Law.

[6]John Locke. The second Treatise on Government [

[7] Karel Vasak, "Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights", UNESCO Courier 30:11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.

[8]Constitution of India with all the Amendments [

[9]John Locke. The second Treatise on Government.

[10] “Basic Principles of the Russian Church Teaching on Human Dignity, Freedom and Rights” adopted by the Russian Orthodox Church in June 2008[

[11]Roger Pilon. The Constitutional Protection of Property Rights: America and Europe. American Institute for Educational Research, June 2008 [

Kelo v. City of New London. “The Government Stole My Home” [