Property and Human Rights in a Global Context

Ting Xu, Jean Allain, Ting Xu, Jean Allain

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509901746
• Edition: 1
• Topic: Law
• Subtopic: Property Law
• Index: Law

Property as a human rights concern is manifested through its incorporation in international instruments and as a subject of the law through property-related cases considered by international human rights organs. Yet, for the most part, the relationship between property and human rights has been discussed in rather superficial terms, lacking a clear substantive connection or common language. That said, the currents of globalisation have witnessed a new era of interrelation between these two areas of the law, including the emergence of international intellectual property law and the recognition of indigenous claims, which, in fundamental ways, speak to an engagement with human rights law. This collection starts the conversation between human rights lawyers and property lawyers and explores analytical approaches to the increasing relationship between property and human rights in a global context. The chapters engage with key theoretical and policy debates and range across three main themes: The re-evaluation of the public/private divide in the law; the tensions between the market and social justice in development and the balance between the rights of individuals and those of communities. The chapters adopt a global, comparative perspective and engage in case studies from countries including India, Philippines, Brazil, the United States, the United Kingdom and includes various regions of Africa and Europe.

Part One

Shifts in the Public–Private Divide

1

Property, Human Rights and Communities

ALISON CLARKE

I. INTRODUCTION

HUMAN RIGHTS LAW has an uneasy relationship with property. The protection of property rights against the state can be seen as fundamental to the freedom of the individual and the maintenance of the rule of law. From another view it reinforces the grip on power and privilege held by the property-haves over the property-have-nots. Modern human rights law, at both the international and the national constitutional level, struggles to reconcile these opposing views.¹ This chapter is concerned with a complicating factor in achieving this reconciliation, which is that property rights holders are not necessarily private individuals. Whilst humans sometimes utilise resources individually for their own private benefit, at other times they organise themselves into communities to utilise them collectively, either for their collective benefit or for the better realisation of benefit for their members. How far should human rights protection extend beyond the relationships humans have on an individual basis with the resources they use? Should it also extend to the relationships they have as communities with the resources they use collectively?

II. RESOURCES COLLECTIVELY USED BY COMMUNITIES

We are concerned here with land and other natural resources,² and with unincorporated communities defined by their locality. Once a community becomes incorporated it becomes a legal person and, as we see later, different human rights considerations arise. Also, we are concerned only with communal resource use which is exclusive of outsiders, in the sense that each member of the community regards herself as entitled to use the resource in a particular way³ in common with other members of the group and to prevent non-members from doing so. This exclusivity is important: it is what distinguishes communal resource rights from public resource rights such as public rights of way or the allemansrätt access rights recognised in much of Europe and Scandinavia.⁴ As far as exclusive communal resource use is concerned, the exclusive use by the community may be explicitly protected by the state, in which case the community can be said (relatively uncontroversially) to have a communal property right in the resource. Alternatively, but equally significantly from a human rights perspective, exclusive communal use may be customary but not, or not yet, regarded by the state as proprietary.

III. COMMUNITIES DEFINED BY LOCALITY

Some of these resource sharing communities also have a common racial, ethnic or cultural identity, or a system of shared values, which sets them apart from their neighbours. We are primarily although not exclusively concerned with those which do not, but which do have an identity defined by reference to locality in the sense considered below. The object of this exercise is to consider whether these local communities should have human rights protection in respect of the resources they utilise collectively simply by virtue of their local identity, and not by virtue of any special consideration that should be given to them because of the indigenous or minority status of the community, or because their resource use is integral to the cultural identity of the community.

The justifications for protecting the communal property rights of communities who have a cultural identity that separates them from their neighbours, or from the dominant ethnic and cultural groups within a state, are primarily based on ideas of protecting cultural identity, removing racial and ethnic discrimination, and/or reversing the effects of past and present injustices to minority, disadvantaged or oppressed communities. If we separate off those justifications, are we left with additional justifications that depend solely on ideas of protecting local community resource use for its own sake, either as an independent good in its own right or in order to achieve fairness of treatment between different patterns of resource use?

There are a number of situations in which this question assumes importance. First, it must be appreciated that there are local communities who utilise resources collectively who have no cultural identity separating them from their neighbours. Arguments based on preservation of distinctive culture are irrelevant for these groups: What is at issue is protection of their resource use in its own right. A clear case would be the local inhabitants who hold town and village green recreational rights in England and Wales, an example we return to later. On the other hand there are other local resource-sharing communities who do have a distinct cultural identity but do not fall within any of the recognised categories of peoples who currently attract human rights protection. For example, the international law protection for property rights of communities provided by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)⁵ protects indigenous peoples only. It is disputed whether ‘indigenous’ for these purposes extends beyond peoples whose cultures predated invasion or colonialism⁶ to all self-identifying groups with a distinctive culture who have experienced ‘subjugation, marginalisation, dispossession, exclusion or discrimination’.⁷ Nevertheless on any definition there are arguably many culturally distinct groups with strong claims to protection of their land rights which fall outside this definition.⁸ In any event it is not obvious that the kind of protection that UNDRIP provides for indigenous peoples should necessarily be extended in full to all of them, even if there was the political will to do so. Not all cultures are necessarily deserving of human rights protection: Consider the example provided by James Griffin of the Boers in apartheid South Africa.⁹ Equally, the full range of protection given to indigenous peoples is not necessarily appropriate for all disadvantaged groups. People living in ‘illegal’ settlements all over the world do not necessarily want protection and preservation of any distinctive culture they may have evolved to enable them to exist in intolerable conditions. They do, however, want their usage of local resources to be respected and protected by law, whether the usage is on an individual basis or a collective basis.¹⁰

Finally, there are collective resource users who might be able to claim protection for their resource usage on the basis that it is integral to their culture, but might also want to claim that the resource use itself is of a kind that merits protection in its own right, regardless of the identity of the rights-holder. Pastoralist resource use provides an important example. In some regions of the world pastoralists are fundamentally culturally different from sedentarists, but in others the cultural difference subsists in, or arises out of, no more than their approach to resource use. The question of human rights protection for pastoralists’ collective resource use is therefore important not just because of its relevance to the protection of the cultural identity of distinct pastoralist communities. Its prime significance is for the argument that pastoralism and sedentarism present equally viable approaches to resource use and, where both are practised, legal systems should not favour one over the other.¹¹

IV. COLLECTIVE RESOURCE USE BY COMMUNITIES

This leads on to one more clarification that needs to be made here. Most resource utilising communities, whether or not culturally distinct, use only some of their resources collectively. The rest of their resources may be loosely regarded as community assets but will be allocated to individuals or individual families on a more or less private property basis, perhaps subject only to a prohibition against alienation out of the community. Mabo v Queensland (No 2)¹² which established the recognition and protection of native title for indigenous peoples in Australia, concerned this kind of resource use, and some (but not all) pastoralists groups use their resources in this way. Alternatively, resources which are not used collectively may not be regarded as community assets at all. In other words, the community as such may have no proprietorial role or function in relation to any of its members’ resources beyond those that are used collectively. This is characteristic of some other pastoralist or semi-pastoralist groups, and of many of the recreational and agricultural commons and collective irrigation systems referred to below. Those who use, for example, a grazing common collectively, whether nomadically or sedentarily, may nevertheless each privately own their own homes or farms and the animals they pasture on the common. At the international and national level, human rights protection for resource use by culturally distinct indigenous, minority or disadvantaged communities usually encompasses all aspects of the resource use patterns adhered to by the community and its members, whether they are collective or individual.

The terms ‘communal property’ or ‘communal tenure’ are sometimes, confusingly, used as blanket terms to cover the whole of that mix of communal and individual resource use adopted by a local community and its members.¹³ ‘Communal property’ in that sense is not the area of concern here.¹⁴ The question at issue is the narrower, or at least different, one of whether the collective resource use of a local community should be given the same human rights protection as individual resource use by an individual human being, regardless of any cultural distinctiveness or disadvantaged status of the community.

V. INDETERMINATE AND DETERMINATE COMMUNITIES

Our focus then is on local resource-sharing communities who do not have a distinct cultural identity, or whose cultural identity is irrelevant for present purposes, and we are concerned only with their collective resource use, in other words with the resources the community uses collectively, not with the resources which members of the community may use on an individual basis.

These resource-sharing communities can usefully be put into two categories. In the first, membership of the community is loosely defined by reference to locality or neighbourhood, so anyone ‘of’ or ‘belonging’ to that locality/neighbourhood is entitled to use the resource. These communities may be called ‘indeterminate’ communities. The indeterminacy relates to the membership rather than to the nature of the use, which is often highly specific. Membership of such a community is usually fluctuating and in the normal course of events no-one would be concerned to draw up a definitive list or be concerned with borderline cases. The resources used tend to be of a nature that can tolerate fluctuations in the level of use by the community, some degree of use by non-members and a low level of regulation. A good example is the use of land for recreational purposes by a local community, such as the town and village green rights in England and Wales already noted. These rights are ancient communal proprietary rights of inhabitants of a locality to use land designated as a town or village green for ‘lawful sports and pastimes’, recently reaffirmed by statute.¹⁵ The community of resource users is characteristic of one of the types of resource-sharing community noted above, in that the members of the community share nothing in common other than the shared resource and a local identity. There are other examples of such communities. A local community may have a right to use a local water source such as a well or stream, for example. Inhabitants of the locality may be happy that anyone loosely ‘belonging’ to or even visiting the neighbourhood draws water from it, but would feel that their rights were being infringed if, say, a tanker arrived to draw water to take it to supply a nearby city or a water bottling plant.

In the second category, in what may be called ‘determinate’ communities, membership is more strictly limited to specific categories of local people so that precise identification of the members at any one time is possible. This kind of resource use tends to involve extraction from a rivalrous resource, and the obvious examples are communal grazing lands or fishing grounds or irrigation systems. In small and isolated communities anyone ‘belonging’ to the locality of neighbourhood may be entitled to graze their animals, to fish or to irrigate their land. In other cases, where pressure on the resource is greater and there is a greater need to distinguish members from non-members, membership may be confined to those who own or inhabit or cultivate specified neighbouri...

Table of contents

• Cover
• Title Page
• Preface
• Contents
• List of Contributors
• Table of Cases
• Table of Legislation
• Introduction: Property and Human Rights in a Global Context
• Part One: Shifts in the Public–Private Divide
• Part Two: The Market versus Social Justice
• Part Three: Community and Human Rights
• Bibliography
• Index
• Copyright Page