Sri Lanka: Is Right to Property a

Human Right?

The property rights of business, industries and of

entrepreneur nature are considered essential in the
present-day society and in economies. It is true that any
attempt to make haphazard abolition or containment of
such private property would invite disaster like in Pol
Pots Cambodia. This was also the case during the forced
collectivization efforts in the Soviet Union.

by Laksiri Fernando-Feb 11, 2017

(February 11, 2017, Sydney, Sri Lanka Guardian) Is right to
property a human right? I really doubt it, in its unqualified and
undefined terms. It is extremely controversial. This question has
become important in the context that the Sub-Committee on
Fundamental Rights on Constitutional Reforms has proposed it to
be included in a new constitution. In human rights, there are still
areas which are controversial, and the right to property is one of
them. The important thing is to consider human rights as an
evolving conception and not to take anything as God given (even
there is one or several!) or dogmatic.

More research and truly democratic discussions are necessary to

fill the gaps without dictates from anyone. Critical knowledge
instead of blind faith is necessary in truly promoting human rights
in practical terms. What is lacking among many present day
human rights activists is critical acknowledge. This does not
undermine the importance and centrality of human rights in
philosophy, political theory or democratic governance. On the
contrary, critical knowledge enhances its relevance, applicability
and necessary consensus in implementing human rights in
political and legal terms in varied countries and cultures.

Universal Declaration

The Universal Declaration of Human Rights (UDHR) did recognize

the right to property in vague and in general terms in Article 17.
But it was a declaration with broad aims, principles and standards
on human rights that should be achieved by the UN member
states and nations. But when these principles were formulated in
more operational terms in the two International Covenants in
1967 (International Covenant on Civil and Political Rights and
International Covenant on Economic, Social and Cultural Rights),
the right to property was conveniently dropped.
Some could argue that the right to property was dropped
because of the pressure from the former Soviet Union and
because of the cold war conditions. Therefore, they would argue
that it should now be reinstated. Well, this is an argument
completely in support of neo-liberalism in human rights. There
have been such pressures during the last couple of decades. Even
the British Labour Party changed its constitution on property
under this pressure during Tony Blairs leadership.

However, for those who are concerned about proper theoretical

foundations of human rights, the reinstatement of the right to
property in unqualified and undefined terms is controversial and
unwarranted. The right to property in its customary sense goes
against many of the other human rights, unless it is properly
defined, qualified and limited to probably human needs,
wellbeing of the person and family, and economic benefits to the
larger society through legitimate enterprises.

What the UDHR said about the right to property in 1948 was the
following in two sentences (Article 17).
Everyone has the right to own property alone as well as in
association with others. No one shall be arbitrarily deprived of his
property.

The first sentence makes sense as an ideal, but the second one
appears a cover up. Everyone here means 7.5 billion people in the
world today, but how many actually own any property? Estimates
reveal that over 200 million of these people are homeless, and
over 3 billion have no tangible property at all. Then who owns
property alone or in association with others? In deed a very small
minority. More drastic is the inequality. The richest 1 percent of
the world owns more wealth than the rest ((99 percent). The
Oxfam also recently revealed that the top 8 richest billionaires
control the same wealth as the poorest 50 percent.
This is a homeless person not in a Third World country, but in
France.

Duality of the Right

One can argue that inequality in the exercise of human rights is

common to other rights. For example, how many actually exercise
the freedom of expression? It is again a small minority. However,
there is a clear difference. Those who are in the silent majority
are basically doing so voluntarily unless there is a clear
suppression. Anyone in the silent majority can instantly become
an advocate or even an agitator, if the right/freedom is
guaranteed. But in the case of property inequality, it is not at all
voluntary. On the contrary, all aspire for some property. Therefore,
the denial of them is a human rights violation in that sense.

The reason is that there is a clear duality in the case of the right
to property. There is a difference between the right to property
of the people and the right to property of the rich. Most of the
time the latter goes against the former. John Lock considered
property as sacred. But Pierre-Joseph Proudhon called it theft.

There is a natural propensity of the ordinary people for some

property. That is legitimate. However meagre your present
property is the purse, bank account, furniture, clothes or books
every day you are concerned about them. You like a house, even
if it is mortgaged. This is the natural instinct for personal property.
That is why you are against theft; private or public! Here
obviously, there is a natural right involved. But that is not exactly
the present day international norm or law on property. Take for
example, the second sentence of the UDHR article. It says No
one shall be arbitrarily deprived of his [sic] property. His
property (!) is here taken as a given thing with all the inequalities
involved.

Arbitrary deprivation of property, particularly land, has gone in

many countries in the world in massive scale under colonialism.
But all those were made legal and claimed not arbitrary. The
Waste Land Ordinances in India and Sri Lanka are examples along
with Terra Nullius (nobodys land) in Australia and other
countries. Australia has made some amends to the situation only
after the Eddie Mabo case in 1992. At present in Sri Lanka, there
are arbitrary deprivation of land by the military in the North still
unresolved. If they were legitimate under national security before
2009, it is not the case at present after the end of the war. The
rightful owners deserve compensation. However, that situation
does not warrant a general coverage for property rights of the
rich, under any pretext.

Land of the peasants and the farmers should be preserved and

protected. It is more of an economic right than a property right. It
is about the right to land and not just right to property. John Lock
at least defined property as the product of mixing labour with
land. That is however not the case today. Most of the large
properties are products of not mixing, but exploiting labour.
Therefore, the right to property should not be a cover up for such
exploitation or dubious means of acquiring massive property
under the right to property.

The Latin American Example

When the text of the UDHR was negotiated, the Latin American
countries suggested that it should be limited to the protection of
private property necessary for subsistence. That view was
rejected by the Western nations. However, they managed to
include that concept in the American Declaration of the Rights
and Duties of Man (ADRDM) in 1947. America here means Latin
and South America. It is important to note that they also
incorporated the duties along with rights, as Mahatma Gandhi
also suggested. The following is the formulation (Article 23) on
property in ADRDM.

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.

The essential needs here mean land in the case of farming, a

house in the case of all, and all personal possessions for decent
living with comforts and to preserve human dignity. It didnt
include companies, shares or luxuries.

The Latin American countries also came up with a convention, the

American Convention on Human Rights (ACHR) in 1969 and even
agreed to prohibit usury and other exploitation and allow any
deviation with compensation. 25 countries have ratified it. The
following is what the Article 21 says.
(1) Everyone has the rights to the use and enjoyment of his
property. The law may subordinate such use and the 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 forms of exploitation of man by man shall
be prohibited by law.

The most radical proposition was to declare that exploitation of

man by man shall be prohibited by law. Even in the European
Convention on Human Rights (ECHR) in 1950, the right to
protection of property could not be enshrined due to the
controversies. The social democratic parties and governments
opposed it. It came into the picture later, in Protocol 1 to the
ECHR as right to peaceful enjoyment of possessions and not as
property.

A Progressive/Pragmatic Approach

The property rights of business, industries and of entrepreneur

nature are considered essential in the present-day society and in
economies. It is true that any attempt to make haphazard
abolition or containment of such private property would invite
disaster like in Pol Pots Cambodia. This was also the case during
the forced collectivization efforts in the Soviet Union. However,
the land rights of big landowners should not have been allowed in
an unbridled manner even then. Such a permit goes against the
basic tenets of human rights and particularly economic and social
rights of the people. Fortunately, in Sri Lanka, thanks to the
progressive land reforms in the 1970s such landowners are not in
existence.
A review of different regional human rights conventions (i.e.
European, American and African) and country legislation show
considerable differentiations in its recognition and
implementation. There are countries which are completely silent
on right to property as a human or a fundamental right. This is
one reason why the drafters of the new constitution in Sri Lanka
should be careful.
There is a difference between rights and human rights. There are
customary rights and treaty rights which are not necessarily
human rights. Some of them are recognized erroneously in rights
conventions. Yet, they are not human rights. One good example is
the right to hold arms in the American (USA) constitution. Some
of the entitlements that we call rights are simply not rights, or
human rights, but privileges. To be a human right, a right must be
common, universal and equally applicable to all, or such a right
should give expression to common human rights in a particular
context or group (e.g. rights of women, children and minorities).
In the latter case, although the right/s are specific to a group,
they give effect and expression to human rights. This nature
cannot be found in the customary right to property.

In a developing society, there are pragmatic reasons to allow the

right to property as a customary right to develop enterprises,
trade, goods and services and expand the economy. However,
that does not necessarily require the recognition in the
constitution as a fundamental right. Those rights are covered
substantially under the civil, company and even the criminal law.
What has to be prevented is the political and other victimizations
in the name of nationalizations or progressive measures.

The most harmless spheres to allow the customary rights to

property would be the SMEs (small to medium scale enterprises).
When they evolve into big enterprises, the ownership should
preferably be distributed through easily accessible shares to the
people. Even in the United States, there are anti-monopoly or
anti-trust laws. Likewise, there can be limitations to private
property of individuals and family inheritance. There are
philanthropists who do not transfer the whole of their property to
children for moral reasons.
One reason to write this article, as stated before, is the proposed
inclusion of the right to property (civil right) in the new
constitution under fundamental rights. This might not be
necessary as the right to property as a customary right is covered
under other laws (civil, company and criminal). Inclusion of such
as a fundamental right could jeopardise the future progressive
legislation in the direction of social democratic or socialist type
economy/society policies. If the right to property is to be
correctly formulated or enshrined, it must be done carefully and
with due considerations for the peoples economic rights. It must
address the basic human needs (land for farmers, houses for all),
wellbeing of the person and the family, and economic
employment through legitimate enterprises.
Posted by Thavam