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A law-and-community approach to compensation for takings of property under the European Convention on Human Rights

Published online by Cambridge University Press:  15 January 2019

Ting Xu Open the ORCID record for Ting Xu [Opens in a new window]
Ting Xu*
Affiliation:
School of Law, University of Sheffield, Sheffield, UK and Jilin University, Changchun, China
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*Author email: [email protected]
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Abstract

Studies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be guaranteed if the taking of property fulfils certain legitimate objectives of the ‘public interest’. To unpack the complexity surrounding compensation provisions under the European Convention on Human Rights, this paper adopts and develops a ‘law-and-community’ approach – an important dimension, not previously investigated in the study of takings of property – which sees ‘community’ as networks of social relations, and views law as not only grounded in community but also existing to regulate communal networks. This paper then identifies the limits of both Art 1, Protocol 1 of the ECHR and the current approaches to compensation in the light of this law-and-community approach. In so doing, the paper makes a distinctive contribution by offering a new socio-legal interpretation of controversies surrounding compensation for takings of property beyond the private/public divide and by proposing an alternative framework of engaging law and regulation in wider social life.

Keywords

propertyhuman rightstakings of propertythe law-and-community approachEuropean Convention on Human Rights
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 3 , September 2019 , pp. 398 - 414
Copyright
Copyright © The Society of Legal Scholars 2019 

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Footnotes

†

I am very grateful for the invaluable comments I have received on earlier drafts of this paper from Jean Allain, Tom Allen, Gordon Anthony, Alison Clarke, Roger Cotterrell, Brice Dickson, Peter Doran, Wei Gong, Chris McCrudden, John Morison, Tim Murphy, Michael Palmer, Amanda Perry-Kessaris, Chris Rodgers, and Francis Snyder, as well as the anonymous reviewers. All omissions and faults are of course my own.

References

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6 T Allen ‘Compensation for property under the European Convention on Human Rights’ (2006–07) Mich J Int'l L 287 at 295.

7 See eg Art 14(2) of the Basic Law of the Federal Republic of Germany 1949 (‘Property entails obligations. Its use shall also serve the public good’); Art 42(2) of the Italian Constitution 1948 (‘Private ownership is recognized and guaranteed by the law, which determines the manner of acquisition and enjoyment as well as its limits, in order to ensure its social function and to make it accessible to all’).

8 Sporrong and Lönnroth v Sweden, above n 4, at [69].

9 Allen, above n 6, at 295.

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11 Allen, above n 6, at 290.

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31 Cotterrell Law, Culture and Society, above n 14, p 1.

32 Ibid. There is a rich literature on legal pluralism and the recognition of normative and customary rules. See eg Berman, PS ‘Global legal pluralism: past to present, local to global’ (2007) 80 Southern California Law Review 1155Google Scholar; Tamanaha, B ‘Understanding legal pluralism’ (2008) 30 Sydney Law Review 375Google Scholar; Twining, W ‘Normative and legal pluralism: a global perspective’ (2010) 20 Duke Journal of Comparative & International Law 473Google Scholar.

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34 Cotterrell Law, Culture and Society, above n 14, p 77.

35 Cotterrell, above n 29. He argues that ‘many people, reported as advocating “remain”, seemed to rely on the image of the UK as a primarily economic communal network’, but lacked the attention to the national environment of co-existence and threats to it.

36 Cotterrell, above n 21.

37 Ibid, p 274.

38 For a definition of ‘customary law’ see Snyder, FG ‘Colonialism and legal form: the creation of “customary law” in Senegal’ (1981) 19 Journal of Legal Pluralism 49 at 49Google Scholar:

‘The notion of “customary law” in Africa and elsewhere was specific to particular historical circumstances. It belonged to an ideology that generally accompanied and formed part of colonial domination. Both the concrete legal form and its conceptualization resulted from changes in social relations associated with the transformation of precapitalist modes of production and the sub-sumption of precapitalist social formations within the capitalist world economy’.

The formation of the notion of ‘customary law’ highlights the complexity involved in the three-level analysis of the interaction between individuals, communal networks, and authorities with respect to the enforcement of law discussed above.

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44 Collins Compact French Dictionary (Glasgow: HarperCollins Publishers, 2nd edn, 2009) p 21Google Scholar. See also Praduroux, S ‘Objects of property rights: old and new’ in Graziadei, M and Smith, L (eds) Comparative Property Law: Global Perspectives (Cheltenham: Edward Elgar, 2017) p 51 at p 53CrossRefGoogle Scholar.

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46 Ibid. Italics original.

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52 Ibid. See also Beyeler v Italy (2001) 33 EHRR 52.

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56 See eg Van Marle and Others v Netherlands (1986) 8 EHRR 483.

57 See eg Smith Kline and French Laboratories v Netherlands Application No 12633/87 (ECtHR 4 October 1990).

58 See eg Gasus-Dosier und Fördertechnik v The Netherlands, above n 51.

59 See eg Pine Valley Developments Ltd and Others v Ireland Application No 12742/87 (ECtHR 29 November 1991).

60 See eg X v Federal Republic of Germany Application No 8363/78 (ECtHR 12 May 1980).

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62 See eg Pine Valley Developments Ltd and Others v Ireland, above n 59, at [51].

63 Fabris v France (2013) 57 EHRR 19 at [50].

64 Ibid. See also Kopecky v Slovakia (2005) 41 EHRR 43 (‘Where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law’, at [52]).

65 Praduroux, above n 44, p 54.

66 In the anthropology of law, there is a large literature on law of social sub-groups, but a comprehensive review of the literature extends beyond the parameters of this paper. For seminal studies see eg Pospisil, L Anthropology of Law: A Comparative Theory (London: Harper & Row, 1971)Google Scholar; Moore, above n 33.

67 See Xu and Gong, above n 12, p 225.

68 See eg, Scordino v Italy (No 1) (2007) 45 EHRR 7; see also Sporrong and Lönnroth v Sweden, above n 4.

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73 Ellickson, above n 72, at 736.

74 For one of the earliest studies in the UK see eg Young, M and Willmott, P Family and Kinship in East London (London: Penguin, 2007 [1957])Google Scholar. For relevant issues see a recent documentary film ‘Uprooted – London's Housing Crisis’, trailer available at https://vimeo.com/166171144 (accessed 17 November 2018).

75 Eg James v United Kingdom, above n 4, at [54].

76 Pye v United Kingdom, above n 5, at [54].

77 See eg Sporrong and Lönnroth v Sweden, above n 4; Pine Valley Developments Ltd and Others v Ireland, above n 59.

78 Pye v United Kingdom, above n 5, at [66].

79 Ibid, at [55].

80 Ibid, at [47]. Cases become more complicated when private land is taken by governmental power and then transferred to another private owner to further economic development. There are some prominent and influential US cases offering comparative insights. Eg Southwestern Illinois Development Authority v National City Environmental, LLC (2002) 768 NE 2d 1; Kelo v New London (2005) 545 US 469. Those cases have raised questions as to whether ‘public purpose’ equals ‘public use’ or ‘public interest’ and where to draw the boundary between regulation and expropriation.

81 As per the dissenting opinion of Judge Loucaides joined by Judge Kovler.

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88 Swedberg, ibid, at 9.

89 van Banning, above n 2, p 148.

90 The test that is now used in UK courts includes a general community interest element. See Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 and 39, [2013] 3 WLR 179 at 229–30, at [20], Lord Sumption:

the reviewing court must enquire (i) whether [the decision or other measure's] objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether [the decision or other measure] is rationally connected to the objective; (iii) whether a less intrusive [decision or] measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

Because the right to peaceful enjoyment of possessions is considered as a less important right compared to highly important rights such as the right to life, it may be argued that ‘more relaxed proportionality tests should apply to those less important rights, ‘which may be restricted when “in the public interest”’. See C Chan ‘Proportionality and invariable baseline intensity of review’ (2013) 33 LS 1 at 10.

91 See eg Lacey, N and Pickard, H ‘The chimera of proportionality: institutionalising limits on punishment in contemporary social and political systems’ (2015) 78 MLR 216CrossRefGoogle ScholarPubMed; Lacey, N ‘The metaphor of proportionality’ (2016) 43 Journal of Law and Society 27CrossRefGoogle Scholar. The former looks at the way in which the idea of proportionality has been socio-politically and culturally constructed in the context of penal theory. The latter expands the scope of the critique to a variety of spheres including private law, human rights and international law.

92 Valiante, M ‘In search of the “public interest” in Ontario planning decisions’ in Smit, A and Valiante, M (eds) Public Interest, Private Property: Law and Planning Policy in Canada (Vancouver: UBC Press, 2016) p 104 at p 107Google Scholar.

93 See above n 80.

94 A McHarg ‘Reconciling human rights and the public interest: conceptual problems and doctrinal uncertainty in the jurisprudence of the European Court of Human Rights’ (1999) MLR 671 at 694.

95 Ibid.

96 Möller, K ‘Proportionality and rights inflation’ (2013) 17 LSE Law, Society and Economy Working Paper Series 3 at 3Google Scholar. Italics added. Public authorities may present different interests, see eg Oxfordshire County Council v Oxford City Council and Another [2006] UKHL 25.

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98 I am aware that some of these communal networks may prove quite open to being incorporated into the money economy through cashing in on their ‘heritage’ for profit-making purposes. For example, Bali is a popular tourist destination. But a further examination of such cases extends beyond the scope of this paper.

99 Ecologist, The Whose Commons Future?: Reclaiming the Commons (London: Earthscan Publications, 1993) p 9Google Scholar.

100 Dietz et al define ‘commons’ as ‘a diversity of resources or facilities as well as property institutions that involve some aspects of joint ownership or access’. See Dietz, T et al. ‘The drama of the commons’ in Ostrom, E et al. (eds) The Drama of the Commons (Washington, DC: National Academy Press, 2002) p 18Google Scholar. Communal property can be understood as ‘land and other resources owned and/or used and controlled by a self-interested and self-governing group of people defined by reference to some common characteristics such as kinship, locality, or common interest’. See Clarke, A ‘Integrating private and collective land rights: lessons from China’ (2013) 7 Journal of Comparative Law 177 at 181Google Scholar.

101 The Ecologist, above n 99, p 9. See also Singer, JW Entitlement: The Paradoxes of Property (New Haven: Yale University Press, 2000)CrossRefGoogle Scholar; Lucy, W and Mitchell, C ‘Replacing private property: the case for stewardship’ (1996) 55 CLJ 556CrossRefGoogle Scholar; Gray, K ‘Equitable property’ (1994) 47 Current Legal Problems 157CrossRefGoogle Scholar; Rodgers, C ‘Nature's place? Property rights, property rules and environmental stewardship’ (2009) 68 CLJ 550CrossRefGoogle Scholar.

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103 See Koivurova, T ‘Jurisprudence of the European Court of Human Rights regarding indigenous peoples: retrospect and prospects’ (2011) 18 International Journal on Minority and Group Rights 1 at 1CrossRefGoogle Scholar.

104 Indigenous and Tribe Peoples Convention 1989 (No 169), adopted on 27 June 1989, entered into force on 5 September 1991.

105 Important international treaties regarding indigenous peoples prior to the 1980s include the International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. Article 27 provides:

‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’.

106 ‘The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security promote secure tenure rights and equitable access to land, fisheries and forests as a means of eradicating hunger and poverty’.

107 Xu and Gong, above n 12.

108 See Koivurova, above n 103, at 1.

109 Ibid, at 4.

110 Application No 18584/04 (ECtHR 12 January 2006).

111 Ibid.

112 Ibid.

113 Art 1.1 (b) of the ILO Convention 169 provides:

‘[This Convention applies to] peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions’.

The ruling of the ECtHR resonates to the common law's recognition of local customary rights ‘only if they are ancient, certain, reasonable and continuous’. See Gray and Gray, above n 86, p 1360. If the continuity is broken, local customary rights may be easily dismissed.

114 Hingitaq 53 and Others v Denmark, above n 110.

115 Chagos Islanders v United Kingdom (2013) 56 EHRR SE15.

116 Ibid, at [81].

117 J Wan ‘Chagos Islanders lose the European court battle but the struggle continues’ Think Africa Press, 14 January 2013, available at https://www.fairobserver.com/region/europe/chagos-islanders-lose-european-court-battle-struggle-continues/ (accessed 17 November 2018). See also BBC News ‘Chagos islanders cannot return home, says Supreme Court’, 29 June 2016, available at http://www.bbc.co.uk/news/uk-36659976 (accessed 17 November 2018).

118 Prior to the ECtHR ruling, several cases regarding the removal of Chagos Islanders had been heard in the UK courts, culminating with the House of Lords ruling in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61.

119 S Allen ‘Looking beyond the Bancoult cases: international law and the prospect of resettling the Chagos Islands’ (2007) Human Rights Law Review 441 at 470. Note that in June 2017 the UK suffered a defeat in a UN vote on Chagos Islands that supported ‘a Mauritian-backed resolution to seek an advisory opinion from the international court of justice (ICJ) in The Hague on the legal status of the Chagos Islands’. O Bowcott ‘EU members abstain as Britain defeated in UN vote on Chagos Islands (The Guardian, 23 June 2017), available at https://www.theguardian.com/world/2017/jun/22/un-vote-backing-chagos-islands-a-blow-for-uk (accessed 17 November 2018).

120 See I Gonciari ‘Legal update – new developments in French environmental law’, available at https://www.ukpandi.com/knowledge-publications/article/legal-update-new-developments-in-french-environmental-law-136823/ (accessed 17 November 2018). See also Reis, TH Compensation for Environmental Damages under International Law: The Role of the International Judge (The Netherlands: Wolters Kluwer, 2011) pp 65–66Google Scholar (arguing that ‘market value or other similar economic criteria… are not so adequate for the calculation of ecological damages’).

121 Allen, above n 119, at 477. See Section 3(c) for more discussion.

122 Allen, above n 6, at 290.

123 Allen, above n 119, at 476; ILO Convention No 169, Art 14(1).

124 The jurisprudence of the Inter-American Court of Human Rights, for example, recognises communal property rights and establishes a much broader scope of ‘possession’. See eg Melo, M ‘Recent advances in the justiciability of indigenous rights in the inter-American system of human rights’ (2006) 3 Sur Rev int direitos human. 30CrossRefGoogle Scholar; Sieder, R ‘The judiciary and indigenous rights in Guatemala’ (2007) 5 Int J Const Law 211Google Scholar; Xu and Gong, above n 12, pp 241–243.