[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.