Private Property and Human Rights: A Mis -Match in the 21 st Century?

1. Private Property and Human Rights:A Mis-Match in the 21st Century? Prof. Harvey M. Jacobs, Ph.D. Dept. of Urban & Regional Planning Gaylord Nelson Inst. for Environmental Studies

2. Where is Wisconsin?

3. Outline • Question • Classical Conceptions • Universal Declaration of Human Rights • Property – in theory and in reality • Private Property in Global Context • What to Do? • What is – should be – the role for property? • Property Rights <–> Human Rights

4. Question? • What is the contemporary (and future) relationship between private property and human rights? • What role does private land ownership have in an increasing urban world • What role does private property have when the poor increasingly live in informal settlements that are part of mega-cities

5. Larger Project – 2011-2013 • “The Road to Global Social Citizenship? Human Rights Approaches to Global Social Policy” • Project organized by ZiF, Univ. of Bielefeld, Germany • ZiF: ZentrumfürinterdisziplinäreForschung (Center for Interdisciplinary Research) • Interdisciplinary project with 8 global participants • Development Studies (1), Law (2), Social Policy (2), Sociology (1), Urban Planning (2) • Austria (1), Chile (1) , Germany (3), India (1), UK (1), USA (1) • Project strands-threads • Social assistance (pension, health care, unemployment) [3] • Human rights (and poverty) [2] • Land (private and “public”) [2 -] • Housing-governance-informality [1+]

6. Classical Conceptions • Focus on property (land) • Central element of human rights discussion • Exposition about link between • land ownership and citizenship • land ownership and democracy • land ownership and markets

7. Inspiration for Political Revolution • John Locke and Jean-Jacques Rousseau, in particular, • Saw strong relationship between right to property and viability (and functionality) of democracy

8. French Revolution –The Protection of Property • Formal protection for property established in • Right 17 of Declaration of Rights of Man (1789) • “[P]roperty being an inviolable and sacred right, no one may be deprived of it except when public necessity, certified by law, obviously requires it, and on the condition of a just compensation in advance.”

9. American Revolution –The Protection of Property • The so-called “takings” clause of the U.S. Constitution (1791) • The closing clause of the 5th Amendment of the Bill of Rights “. . . nor shall private property be taken for public use, without just compensation.”

10. For Both French and U.S. • Issue was about expropriation • Both clauses focus on the power of government to “take” • Government is allowed to take • Taking is conditioned • “for public use” • Subject to “just compensation” • [to use the U.S. example]

11. Key American Founders • Influential American founders promoted the idea that strong private ownership and limited government control were foundational for American democracy • John Adams – 2nd President • Thomas Jefferson –3rd President • James Madison – 4th President

12. Common Issue between U.S. & France • Concern about arbitrary and intrusive government • The ability of the individual (the citizen) to literally have a barrier that would protect him/her from government except under the most extreme of circumstances • “. . . no one may be deprived of it except when public necessity, certified by law, obviously requires it, and on the condition of a just compensation in advance.”

13. Markets and Property • Market economic systems based on private property rights • Ownership and control of property rights encourages efficient use of resources • Resulting in more wealth and higher standards for all

14. Universal Declaration of Human Rights1948 • Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

15. Wording of Article 17 was Contentious • U.S. delegation wanted to mimic Takings Clause • And be explicit in mentioning “private property” • Consensus was only possible when “private” was removed

16. Regional Declarations Followedwith related, though not exact, wordings • European Convention on Human Rights • Article 1, Protocol 1 (1952) • (Latin) American Convention on Human Rights • Article 21 (1978) • African Charter on Human and Peoples’ Rights • Article 14 (1981)

17. U.N. Conventions (Treaties) Followed • With great ambiguity as to property’s place and role • International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976; 160 parties) • No explicit mention of land or property; an implied and interpreted role vis-à-vis right to housing, as part of “the right of everyone to an adequate standard of living” (Article 11) • International Covenant on Civil and Political Rights (ICCPR) (1976; 167 parties) • No explicit or implied mention of land or property

18. Property – in theory and in reality • In theory • Growing skepticism among neo-classical economists as to whether land mattered any more • Maybe the classical formulation of land, labor and capital was now just labor and capital • In reality • Continued focus on land in selected places for selected peoples

19. Very Contemporary Issue!

20. But . . . the World is Evermore Urban

22. Global Population in Slums

23. Private Property in Global Context • This is a period of history when private property is being actively promoted • By bi-lateral and multilateral international development organizations • e.g. – World Bank, UN, European Union, GTZ, USAID • And actively sought after • By countries around the world

24. Through mid-20th Century • Land reform! • Focus on breaking up large land estates, and getting land “to the people” • Central state, collectivist, models – Soviet Union, China, Cuba • Central state, decentralist, models – Taiwan, Mexico

25. Recently . . . • Countries as diverse as (for example): • Albania • China • Poland • Russia • Scotland • South Africa

26. Why? - “The End of History” • Fall of the Berlin Wall – 1989 • 24 years ago • Break up of the Soviet Union – early 1990s • Outcome? • “The End of History” (Fukuyama, 1989) • He argued that that the west had “won”

27. 20th Century Debate • 20th century debate was over • Democracy vs. Socialism • Capitalism vs. Communism • Post 1989 broad interest in • Capitalism – as an economic system • Democracy – as a political system

28. Policy Question of the 1990s-2000s • What are the necessary pre-conditions to create and develop capitalism and-or democracy? • In the newly transitional countries? • In the countries of the developing world? • (i.e. in all countries of the world?)

29. Answer? • Private Property! • Private Property is key to democracy • Private Property is key to capitalism • Why? • Economic and political theory

30. What to Do?What is – should be – the role for Property?

31. Create Private Property! • Some, most prominently Hernando de Soto, argue that property is the key to the alleviation of urban poverty • de Soto argues that classical conceptions are still valid • Even though spatial circumstances have changed

32. de Soto’s Critics • Others argue that de Soto’s “solution” is • Simplistic • Unrealistic • Even unwanted • By the very people it is intended to help e.g. Alan Gilbert, Dept. of Geography, University College London (UK) • “On the Mystery of Capital and the Myths of Hernando de Soto” International Development Planning Review (2002)

33. What’s Wrong with Legal Private Property? • Increases tenure insecurity • Obligates the owner to pay property taxes • Makes land attractive to those who can afford fees and taxes • Middle class • Can lead to an increase in the number and extent of informal settlements

34. What do the Poor Want? • Benefits associated with ownership • Secure site for housing • Clean water • Human and solid waste disposal services • Access to social and public services • Schools and health clinics

35. Property Rights <–> Human Rights • Property rights are central to civil and political rights • Property rights are definitional for individuals and peoples • Human rights without property rights are empty • Property rights correlate with the empowered and wealthy • Property rights impede realization of other human rights • Property rights pale in contrast to other human rights and needs • Hunger • Poverty

36. Property Rights –what do we know • Property is a social creation • Society (the state) decides what is private and what is public, and why • Society decides when and how property rights will be protected • Society decides the limits it will place on itself • People yearn for property • Maybe not “ownership” in a narrow sense, but security and stability in an ownership sense

37. An AssertionArticle 17 vis-à-vis other Stated Rights • (Private) Property is a human right • The right to property in the UDHR must be understood in relation to other stated rights • Article 25 promises “the right to a standard of living . . . including food . . . housing?” • According to one analysis: • “the link between property and housing is . . . so obvious that it requires little explanation.” • “there is an intrinsic link between property, land and food” • “the right to property is essential for the protection of human life and dignity of the right holder . . . ”

38. Private Property – but what does it mean? • But exactly what this means is unclear • Individual ownership in the historical western sense? • Utilizing alternate historical forms of ownership (tribal, social . . . )? • Modifying alternate historical forms of ownership • While recognizing their prejudices and shortcomings? • Inventing new forms of ownership that integrate old and new ideas?

39. Property is not a Static Institution • Property is a social institution that changes as societies change • So property will change in response to • Changing technology • Changing social values

40. The Context for Solution • Globalization fosters an institutional environment conducive to private property • Private property furthers the interests of global market actors • Individuals actively (even desperately) seek secure (predictable, defensible, investment compoundable) property relations

41. The Future? • What will be the future of the poor in the global mega-cities? • What role will private property play in this future? • How central will private property be to a global discussion and realization of human rights?