The right to land is at stake in the process of land acquisition for the public interest. Sometimes the existing land acquisition process does not respect the land rights, so it is necessary to reconceptualize the categorization of the rights.
A very accurate observation and an extremely important question. I would like to try to answer them from the perspective of the legal consequences of climate change.
Climatic deterritorialization causes that questions regarding the continuity of state institutions and citizenship and their relationships with the territory are still valid and valid. Will a state that is under water still be a state? Will it still have the right to a place among the members of the United Nations? What will happen to the exclusive economic zone of the state that will be subjected to this process? Finally, what will happen to its citizens? What rights will they be entitled to if they are forced to leave the sunken country and find themselves in the territory of another state? Will they have any legal measures against those countries whose greenhouse gas emissions have contributed to climate change causing deterritorialisation? These are questions that have not yet been answered in international law.
The principle of the presumption of the existence of a state does not guarantee that small island states threatened by climatic deterritorialisation will be able to maintain their statehood, because this principle can not repeal the fact that territoriality is a constitutive feature of statehood.
The international community probably could agree that states affected by climate change will continue to exist. However, even if such a case occurs, the governments of these states will be faced with many restrictions, and their population is very likely to be in a situation that would be similar, if not the same, to a situation where the state would cease to exist.
In the face of changes and emerging threats, it would be necessary to ensure the practical implementation of the right to own land. It is hard to expect that it could be provided on the basis of international law. Therefore, many countries try to ensure the continuity of their existence, and thus enable their citizens to exercise their rights through a commercial law.
So far, Kiribati is the only atoll state that is known to have bought its government abroad. The land purchased is a 5500-hectare estate of Natoavatu in Fiji, which is rare in this country, where landed property is usually inaccessible to foreigners. The Kiribati government purchased the property for 8.77 million USD in 2014. The current Prime Minister Fiji said he welcomed the climate refugees of Tuvalu and Kiribati. The purchase of Kiribati does not mean sovereignty over this land. Therefore, migration conditions will depend solely on the Fiji administration.
Unfortunately, it seems that this is the only way to ensure the right to own land in the face of the presented threat.
The proposal as stated would involve:
- entrenchment of the property rights of holders of interests in land specifically in respect of their land interests; such that
- an interest in land, once acquired, is an inalienable human right.
An important legal effect would be that an existing interest in land could not in any circumstances be modified without consent of the holder of the relevant land interest.
That inevitably would involve expropriation of existing holders of high-level land interests (such as freehold) in favor of holders of derivative land interests (such as leasehold, easements etc.). Suppose, for example, that a freeholder previously has granted a lease to a tenant. If the tenant's right to retain the tenancy were to be made inalienable, the State thereby would deprive the freeholder of his existing right to resume the tenancy.
In many jurisdictions, the applicable constitution guarantees that a person may not be compelled by expropriation or similar disposition to surrender an interest in property. Query whether the material impairment of the value of a freehold caused by entrenching property interests derived from the freehold would constitute a constitutionally relevant disposition involving surrender of an interest in property.
This line of inquiry points to a certain self-contradictory tendency of the proposal. I see a real risk that its implementation would lead to irresolvable collisions among various kinds of rights amounting to ownership of an interest in land. If each of these conflicting rights were entrenched as an inalienable human right, it is predictable that ensuing disputes could not satisfactorily be adjudicated in the absence of further regulatory action.
I suggest listing the desirable economic and cultural consequences the proposed innovation is intended to achieve. It is probable that more workable legal means could be found to attain those objectives.
The French economist and philosopher Frederic Bastiat stated in his book, The Law, “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused man to make laws in the first place.”
All species of life requires territory in the pursuit of survival, for humans (“Life”) must have freedom (“Liberty”) in the “pursuit of” survival which is a prerequisite for “Happiness”; hence, “Life, Liberty, and the pursuit of Happiness,” Thomas Jefferson’s celebrated claim of “unalienable Rights.” It so happens Thomas Jefferson’s philosophy of innate rights has a one-to-one mapping to the physical constructal law (the latest discovered law in thermodynamics):
Book Scientific Proof of Our Unalienable Rights
When government tax property in threat of “land acquisition for the public interest,” or any other form of interest, is simply a state of tyranny on the road to serfdom.
Frederic Bastiat also stated, “But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.”
The position taken in Frédéric Bastiat's book could be read either as neutral towards or as opposing Ade's suggestion that rights in relation to land be entrenched by giving such rights the status of inalienable human rights.
Bastiat presumably would have allowed that, insofar as the proposal is concerned with the defense of property, it deals with subject matter in relation to which State activity is not necessarily inappropriate.
However, Bastiat might nevertheless have condemned the proposal as an disproportionate measure in the nature of an unauthorized State philanthropic project which improperly interferes with defense of individual rights which existed in a natural law sense before the State imposed its own framework of legal codification.
Similarly, it is far from clear that Bastiat in all circumstances would have opposed State resumption of existing rights in relation to land.
In Latin America and elsewhere, there are numerous cases in which a State has granted a mining concession over lands occupied by traditional people. In our time, it is a matter of notoriety that artificial persons in the form of corporations demand and obtain the legal benefit of human rights. In such a case, Bastiat presumably would have supported revocation of the mining concession. However, that course of action would not be possible in case all interests in land had been entrenched as human rights, being rights of a kind which the concessionaire company legally could claim to possess.
It's great responses from all of you, thank you very much for answering my question.
Having taught property law for quite a few years, the U.S. answer is "no." The original drafters of our Constitution (and even before, I think, in the Articles of Confederation) considered making "property" one of the basic, protected human rights (the language at issue was almost "life, liberty, and property"). The "property" bit became "pursuit of happiness." Sometimes, the common weal demands that property be controlled by the collective, not by individuals. This is perhaps the "enlightened" part of "enlightened self-interest." Sometimes the collective has to inject a certain level of enlightenment. Think of it this way - if most of the world was underwater and there was only a small growing area for vegetation, could a single owner or group deny humanity the right to nourishment? Like it or not, I think that most of us can agree, at least in the extreme, that property rights include some limits. The debate is over the level of interference, I believe.
If we return to the original question relating to land aquisition for the public interest, it must be noted that most legal systems allow, against proper compensation, to purchase land compulsory, if it is needed for the public interest. The answer whether land is "a non-derogable human right", must be so: no, it is not. You cannot make a bargain on the right to life, but you can compansate financially for the right to land. In practice, as your question also suggests, not all holders of rights are compensated at a fair level. Most precarious are users of land who have no formal rights, like in informal settlements. In some cases legal protection does not rest on the right to land, but on the right to protect your home.
The question is whether readers would agree with law reform to implement the principle that a right to land constitutes an inalienable human right.
The question is not whether the law of this or that jurisdiction presently considers an interest in land to constitute an inalienable human right. As far as I know, the law of no jurisdiction presently incorporates such a principle. The prevailing principle, as Willem notes, is to permit the State compulsorily to acquire land for fair value.
It is predictable that lawyers writing from European and derivative (including U.S.) legal traditions will be inclined to raise objections based on corresponding concepts of property. My own responses fall into that category.
The question is interesting because other perspectives are possible. For example, Paul cited the historical western clerical scholar Thomas Aquinas, whose view to some extent reflects that taken even today by many indigenous peoples.
If one were to consider the perspective of a tribe which understands itself to be charged with custodianship of particular lands, then "right to land" would have a very different meaning. Categorization of such a relationship between a land and its people as an inalienable human right may seem legally awkward, but I cannot see that it obviously would be inappropriate.
The view of St. Thomas Aquinas is the one adopted by the nations whose laws derive from the Austro-Hungarian Codes. Even the way that title to land is tallied shows significantly higher government involvement. (Compare the "grantor-grantee index filing" to the Torrens style, the latter of which is what I was used to in Central Europe). I recall that at least formerly, Asian systems had more fluid borders and control was based on the ruler(s) and where he/she/they resided and extended their influence. This caused problems for the developing international legal regime, which required the foundation of defined borders. The game needed players (states), and states had to be solidified around territory, a defined populace, etc. I have not had time to reflect on it, but this facet of developing international law probably is also involved in this debate.
It is exactly the case in the United Nations Organization (UNO) Charter. But this does not mean that this right has an unique form, since the nationality it self is part of it. The UNO human rights declaration includes, between others, the culture, religion, etc., that are the one's that determine the kind and the amount of properties that one can have. Finally and as an example, we should know that some communities by rights have only the right to have a salary and not an individual property, while they are national in this or that country; so, we should be careful of misunderstanding the cases or falling in the illness of ignorance and its negative exploitations.
Thomas Aquinas had it about right because land was not created by people but by Nature. Therefore, no one can properly own land because every person has an equal claim on what Nature provided, including land. A person or group may have exclusive use of a demarcated piece of land with the consent of the affected community. The community may put conditions on its permission, including repossessing the land for a community purpose if necessary. More on this in my paper on human rights, posted here.
I follow the opinion of mr. Korthals Altes: one can call the individual right on land a human right, but with the addition that the community has the right "against proper compensation, to purchase land compulsory, if it is needed for the public interest". With the compliments of St. Thomas?
I would like to add, with respect to our colleagues, that the whole subject of this discussion is already organized in the World, International and National Organization Systems. The Constitution of each one of the latests is the one which determines the related rights and guides the possibilities of solving any trouble that might surge in the life of a human society. As a result, we must be aware of misusing the legal related instances and their legal processes; there are not only laws but authorities too at all the previously mentioned levels.
Mr. Achik, True fundamental rights come first, the law second. If they are not in agreement, the law is wrong.
are there any cultures that define survival on land ownership? That is where theory that land ownership may approach a human right Might be found. history I think has more examples of nomadic cultures, or at least more fluid boundaries, than those that have set down tightly defined roots (except perhaps for sacred ground, e.g., for burials). Land ownership and definition of owned areas comes from advanced societies - fencing, parishes, powerful family landholdings. That makes it a more developed and not a basic concept, and thus not a human right but a more advanced (albeit possibly selfish) concept.
interesting to add the concept of noblesse oblige into this discussion. are there ownership structures that impose ‘higher’ responsibilities on the ‘privileged’ owners? If honored, does that justify the few who own, in some societies?
are there some systems of universal right to own land that have failed? entropy theory?
there is so much to this issue!
I would like to add that in classic cultural context the human being can have rights on all the articles which are produced or modified by human efforts. The one who has rights to claim as property is also responsible for taking care of it. But Land, Air, Water, Sunlight and Space in short entire nature are neither produced by humans nor they are modified by them. Thus there is no question of them having rights. If the concept of right on land of an individual, is removed, then we may be able to progress towards community rights. Thus land need to have rights of a community. The community must also understand that the right is not an exclusive one but shared with communities of other nature and other species. Thus their right is to co-exist with other communities. When an individual exercises his rights on the land by developing it (in many cases degrading it), the individual does that by the help of community and hope to get support from community for continuing the benefits of his rights on the land. Unless the individual also recognizes the fact that his rights are not just because but for the community, the conflict mentioned by Michael Lusk, Willem K. Korthals Altes are inevitable. We may be able to find answer if we see the land instead of as basic human rights, as basic community right. Humans Rights on land is via community's rights on land and not directly. I greatly agree with Przemysław Osóbka but the indication in the answers is still towards the rights of land to a community. Even Michael Lusk talked about community rights when the example of tribal lands were cited.
Anubandh, I think you are on the right track. Just add in the provision that a person or group may have exclusive use of a demarcated piece of land with the consent of the affected community and you have a right to land. Actual ownership is by the community and therefore they may reclaim the land if they develop a better use for it, with compensation to the occupant for any improvements he made on the land. e.g., buildings.
- Badges
- Science topic
- Similar topics
- Philosophy
- Ethics