On Saturday, the signing of the Universal Declaration of Human Rights was celebrated with international Human Rights Day. It is day where we are called upon to “…reaffirm our common humanity. Wherever we are, we can make a real difference.” In keeping with that, I want to talk about the human right to property. The right is written in two parts in the UDHR: “(1) Everyone has the right to own property alone as well as in association with others; and (2) No one shall be arbitrarily deprived of his property”.
The importance of this right is clear, in that it ensures individuals will be able to own something completely outright, without fear of the state depriving them of it, sending us back to feudal times. Property ensures freedom and equality. Beyond this it provides a foundation for security and further human development. Free from the struggle of finding a place to live, humans have more time to pursue interests beyond subsistence. More ability to make money. The right to property is the guarantee of a Room of One’s Own. Without it, people live tired lives, fearful of tyranny and serfdom.
In South Africa, about 79% of the population is black. Despite this, in 2006, 70% of the country’s land was owned by white people, and more than one third of the population occupies only 13% of the land. South Africa was first colonised in 1652 and the large disparity of land ownership can be traced to this. In addition, under Apartheid, the Land Act of 1913 was introduced, banning black South Africans from owning or renting land outside of designated “native reserves”. These amounted to 7-8% of South Africa. This was increased in 1936 to about 13.5% of the land, but not all this land was ever turned over into reserves.
The white people who now benefit from the deprivation of land had nothing to do with these policies. They merely inherited the land, which they now legally own. It is their right, as property owners, and as human beings, to keep the land and do with it as they wish. Apartheid has ended, and everyone is equal before the law. Everyone has an equal opportunity to succeed.
However, income inequality has increased in South Africa since apartheid ended. The wealthiest 10% of the population earned 58% of the total income in 2008. About 63% of black children live in impoverished households, compared with just 4% of white children. The inequalities that were created by and maintained by the apartheid regime have not only remained, but increased. This is not only due to historical property ownership, and there are many wealthy black South Africans, but it does play a part. Thomas Piketty showed how wealth can concentrate when returns made on capital are more than economic growth. In the post-apartheid world of legal equality, the game has been rigged to ensure that those with property maintain an economic advantage to those without property.
In this case, appeals to the human right to property serve to maintain an unequal and unjust economic order. That dangerous word, redistribution, would be one way of trying to set this right. On one hand, this could be seen as punishing those who have done no wrong, how rightfully and legally own their property and have done no wrong to anyone. Taking away their land would be tyranny. It is a view the indirectly blames the dispossessed for not succeeding in a rigged game. On the other, refusing to accept the economic realities, the inherent unfairness of the system, and appealing simply to legality (to which no morality is attached), can be seen as punishing those who have inherited a history of dispossession and oppression. Would justice not require that historical wrongs are undone? Is that not one purpose of human rights law?
This does not mean that Mugabe-esque land grabs are the answer. There are more civilised and fair ways of doing things. It does not mean depriving white people of all their land in South Africa. But it may mean depriving them of some, at a fair price, so that black people can have a stake in the game. This is a policy that has been pursued by the South African government and I hope that it is done in a clever way that does not cause tension or damage the economy.
Of course, there are many other countries that have histories of colonisation, from Brazil, to The Gambia, to New Zealand. And all of these instances have led to an economic reality where the colonised have lost out to the colonisers. Appeals to ensure the right to property can be used to maintain this unjust economic reality. What does this mean for the right? That its creation and implementation should be considered in the context that it is utilised, and to question it when it seeks to maintain inequality. No law, even a human right, is immune from being questioned. In some cases, ensuring the freedom of one person can mean maintaining the oppression of another, despite their common humanity.