Property Rights and the Need for More Inclusive Concepts, Laws, POLICIES, and PRACTICES / Jean Du Plessis Scott Leckie1

Realizing Property Rights page / 194 PROPERTY RIGHTS AND THE NEED FOR MORE INCLUSIVE CONCEPTS, LAWS, POLICIES, AND PRACTICES / Jean du Plessis Scott Leckie1 Various contributions in this book address between property rights and rights to per- one of the most vital, yet still controver- sonal integrity and security. sial issues within the vast and growing discourse of human rights law: the no- The issues raised form part of debates tion of “property rights.” The perspectives and struggles taking place all over the of the respected authors throughout this world in a variety of contexts, ranging volume take many forms and make many from the conference rooms of academia contentions, but one thread rightly runs to the corridors of government and inter- through them all: No matter the place or national finance, and the boardrooms of context, the question of property rights is business – and all the way down to the an ubiquitous one which impinges upon streets, homes, fields and factories where the lives and livelihoods of people in every the urban and rural poor live and work. country and, indeed, in every neighbor- The stakes in these debates and struggles hood and every home. are incredibly high and their outcome will invariably determine whether or not the The chapters are indicative of the count- world’s poor will remain so or be lifted out less ways by which property rights are re- of poverty. Because the notion of property garded, understood, and interpreted. The is by definition exclusive, how it gets authors in this volume touch on a mix- managed, controlled and manipulated in ture of issues including philosophical con- society is a crucial determinant of who cerns; the manner by which the treatment enjoys the fruits and benefits of the earth of property rights may have both caused and who does not. conflict and acted as a key determinant to long-term peace following conflict; how Not surprisingly, then, the history of hu- property issues relate to broader economic man rights and the body of law that holds development objectives; and the interface these vital values in place has been heavily Property Rights and the Need for More Inclusive Concepts, … page / 195 chequered when it comes to the approach ing human rights for all. One key area of taken towards property rights. Much has concern is the problem of exclusivity. The been written about, for instance, the work of the Centre on Housing Rights and glaring and explicit omission of the term Evictions (COHRE) over the past decade “property rights” from both of the Inter- has illustrated, time and time again, the national Covenants, as well as the for- danger of property rights approaches to mulation of the relevant language with- human rights questions if these are al- in the European Convention on Human lowed to be seen in isolation, or are allowed Rights – the right to the peaceful enjoy- to dominate understanding of the broad ment of possessions (and thus explicitly spectrum of human rights. From the Do- not “property rights”). At another level of minican Republic to Kosovo and from Zim- debate, much excitement and fanfare has, babwe to India we have found that the from time to time, accompanied particular terminology of “property rights” is too ex- analyses and proposed reforms to prop- clusive, ideologically loaded and linked to erty rights and how they are managed, specific political and economic trends. A which seemingly offer miracle answers key challenge is, therefore, to develop a to the problem of poverty, provided more unified view of property rights in a that certain sets of reforms are imple- manner reflecting all of relevant human mented and touched with the magic wand rights law. There is, of course, a place for of title deeds. property rights within the human rights domain, but these rights must be con- It is evident from these debates, and also sidered together with a spectrum of other from the inevitable outcome of what are rights. peddled as nothing less than miracle cures, that the real answers to the problems For example, in the realm of housing and caused and represented by property rights land, property rights have often proven in the world, and the advent of a world in inadequate for fully achieving the objec- which property rights can be viewed as tive of universal access to a place to live in truly empowering, inclusive, and human- peace and dignity. Indeed, on their own, rights-supportive, instead of tools of exclu- property rights are often seen to under- sion and privilege, are still some way off. mine the pursuit of this goal, in many sit- uations serving – as a concept as well as in The problem of exclusivity from the law, policy, and practice – merely to justify perspective of Human Rights a grossly unfair and unequal status quo. The issues surrounding both the concept In other instances, property rights are of property rights, and the way in which confused with housing and land rights, this concept fits within the broader human effectively usurping them in an effort to rights legal framework, pose some urgent give an impression that all residentially- questions and challenges to all of those in- related human rights requirements can be volved in the global effort towards achiev- met via property rights. For this reason Realizing Property Rights page / 196 we have increasingly advocated the more The bundle of rights approach inclusive terminology of “housing, land, Treating what is traditionally referred to and property (HLP) rights” as a far better as “property rights” as “HLP rights” also term with which to describe the residen- promotes a unified and evolutionary ap- tial dimensions of the property question, proach to human rights grounded deeply set within a human rights framework. in the indivisibility and inter-dependence of all rights. In the real world of 2006, The term “housing, land, and property “property rights” is simply too narrow a rights” ensures that all residential sectors concept to promote the achievement of are included in legal analyses and in the core objectives of innumerable human development of plans, policies, and insti- rights treaties, as well as, for instance, the tutions addressing the legal and physical UN’s 1996 Habitat Agenda such as “the conditions in which people in all societies provision of an adequate supply of land in live. Working with HLP rights also ensures the context of sustainable land use poli- that the terminology used in one country cies” or “equitable access to land.” Rather, to describe the rights possessed by every- we believe that an integral, comprehensive one, e.g. “housing rights,” are treated as approach holds the best promise for mar- the human rights equivalent of terms such shalling resources and assets associated as “property rights” or “land rights” and with the HLP sector and which will lead to vice-versa. Using only the term “proper- the improvement of the lives of lower in- ty rights” to describe all of the residential come groups. Treating HLP rights simul- issues that require attention by policy and taneously as human rights concerns and law-makers and the residential rights pos- development concerns is both practical sessed by all under international human and universally relevant. Ultimately, this rights law, can very easily result in the ex- approach can provide one of the clearest clusion of certain sectors (tenants, coop- examples of how a rights-based approach erative dwellers, informal sector dwellers to development actually looks in practice. without secure tenure, women, vulnera- ble groups, nomads, indigenous peoples, When we speak of HLP rights, of course, and others), inequitable treatment and, we refer to the totality of the residence far too often, outright discrimination. In and resource-related rights of everyone, contrast, the term “HLP rights” is univer- set within a human rights framework. If sally relevant within all legal and political we view these matters in this way, we can systems, and resonates in both developed identify six fundamental positions held by and developing countries. COHRE there- different rights-holders, depending upon fore regards it as a more appropriate way their current residential situation: of describing in full the relevant human rights framework affecting the place and 1. The rights of those without hous- conditions in which people reside and live ing, land, or property (the landless, the out their lives. homeless); Property Rights and the Need for More Inclusive Concepts, … page / 197 2. The rights of those informally in pos- The right to adequate housing: The right session of housing, land, or property (slum to adequate housing was first recognized dwellers, squatters); within Article 25(1) of the Universal Dec- 3. The rights of those in possession of laration on Human Rights,2 and subse- housing, land, or property under custom- quently promulgated in various stand- ary or traditional law arrangements (in- ards, most notably the International Cov- digenous peoples, many rural dwellers); enant on Economic, Social and Cultural 4. The rights of those with formal legal Rights (CESCR).3 Beneficiaries of this right title to housing, land, or property (private are entitled to housing that is adequate, land owners); which is defined to include: security of 5. The rights of those that commonly tenure; availability of services, materials, face discrimination in equitably access- facilities and infrastructure; affordability; ing housing, land or property (women, habitability; accessibility; location; and ethnic minorities); and cultural adequacy. Governmental obliga- 6. The rights of all persons to be protected tions derived from this right include du- against arbitrary or illegal, forced eviction ties to take measures to confer security or displacement from housing, land, or of tenure (and consequent protection property.

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