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Subject: Memorandum 31.07.2000
Sender: Alexandra Mareschi, Secretary-General, ILOG
Contact: www.projusticia.net
Email
"No other rights are safe where property is not safe." - Daniel
Webster
Throughout history, property has enjoyed a mixed reputation, being identified sometimes with prosperity and freedom, sometimes with moral corruption, social injustice, and war.
There have been attempts to separate property rights from other rights. It has usually been done by classifying some rights as human rights and referring to others as rights of property. This distinction has been accompanied by the claim that human rights are superior to property rights.
This differentiation is not only somewhat surprising considering the various International Human Right Conventions (cf. Art. 17 of the Universal declaration of Human Rights, Art. 21 of the American Convention on Human Rights and Art. 1 of Protocol 1 to the European Convention on Human Rights) which protect property rights but alarming at the same time because it may well help communism to come back through the backdoor. One should not forget that the loss of property rights either preceded or coincided with the loss of other rights, such as freedom of speech, freedom of press, freedom of religion etc ..
Taking a closer look one could even assert that there is causal connection between property and other rights. "Our right to life stems from the fact that it is our own life. Our right to the disposal of our time stems from the fact that it is our own time. Our right to the use of our faculties stems from the fact
that they are our own. Remove from them the concept of private property and the claim to them goes as well" (cf. Professor L.J.M. Cooray, Freedom of the Individual and Property Rights).
However, generally the driving force behind conferring human rights protection upon certain rights is that those rights are so fundamental to all persons in a civilised society, that the rights are worthy of special protection.
The protection of property has become a fundamental issue in all civilised societies. This is not just a recent development but a process, which started centuries ago. The Virginia Bill of Rights 1776 and Déclaration des Droits de l'homme et du citoyen 1789 (copies available under www.projusticia.net ) were the first catalogue of rights to adopt the following rights as being inalienable human rights and which have since formed the core of human rights: right to life, freedom, property and legal protection etc.
Also various subsequent constitutions (in particular the American (1791), Norwegian (1814), Swiss (1874), Finnish (1919), Danish (1920) and German (1919) Constitution) clearly stipulated that expropriations were only permissible under due process of law and against adequate compensation. The inviolability of private property actually dates back to the 1251 Magna Carta. The document prohibits the outright confiscation of enemy property emphasising that private property must be protected by law, not power, to facilitate trade and investment. Otherwise, investments would be made only in powerful countries, thus restricting trade.
Henceforth International Customary Law has considered these maxims as "minimum standards" of law (decision No. 7 of the International Court of Justice (1926), Hague Convention on Warfare, Geneva Convention relative to the protection of Civilian Persons in the time of War, Nuremberg Charter) and has subsequently expressly enshrined these principles in the above-mentioned Conventions.
Regardless of the numerous debates on whether this particular Human Right is inferior to the Right of Life, one ought particularly bear in mind that the deviousness and unbridled will to destroy well established social structures during and after World War II were so compelling that one cannot help but be indebted to treat both rights in this specific case as equals, for the victims of mass confiscations never received compensation and had no legal means to challenge these takings.
Rather the property was simply taken by physical seizure: the former owners and occupants were removed by use of force or threat of force, and were subsequently required to leave the area in which the property was situated, eliminating thereby their means of support, endangering thus their lives.
It is inconceivable that arbitrary conduct, the antithesis of lawful conduct should in the present so-called century of Human Rights be regarded as legally effective by any judicial, executive or legislative body governed by the elementary principles of the rule of law.
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