Commons as possessions: The path to protection of the commons in the ECHR system

• Author: Rocco Alessio Albanese,Ugo Mattei,Ryan J. Fisher
• DOI: http://doi.org/10.1111/eulj.12320
• Published date: 01 May 2019
• Date: 01 May 2019

ORIGINAL ARTICLE

Commons as possessions: The path to protection of

the commons in the ECHR system

Ugo Mattei|Rocco Alessio Albanese|Ryan J. Fisher*

Abstract

The ‘commons’is not mentioned in the texts of the European Convention on Human Rights (ECHR)

or Article 1 of Protocol No. 1 (P‐1). This essay argues that ‘possessions’—which does appear in the

latter —should be interpreted by the European Court of Human Rights (ECtHR) to protect commons

against national governments' undue interferences. The argument comprises two parts. First, we

analyse the polysemic term ‘possessions’to show how the current understanding of this category

is marred by flawed assumptions and by false dichotomies. Then, we propose an ‘ecological’con-

struction of legal relationships between subjects and objects. We find support in the ECtHR case

law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled

from possessive individualism and market paradigms, ‘possessions’encompass the commons and

the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be

deprived of his possessions except in the public interest and subject to the conditions provided for by

law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it

deems necessary to control the use of property in accordance with the general interest or to secure the

payment of taxes or other contributions or penalties.

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Toute personne physique ou morale a droit au respect de ses biens. Nul ne peut être privé de sa propriété que

pour cause d'utilité publique et dans les conditions prévues par la loi et les principes généraux du droit

international.

Les dispositions précédentes ne portent pas atteinte au droit que possèdent les États de mettre en vigueur les lois

qu'ils jugent nécessaires pour réglementer l'usage des biens conformément à l'intérêt général ou pour assurer le

paiement des impôts ou d'autres contributions ou des amendes.

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*Ugo Mattei is Professor of Civil Law at University of Turin and Professor of Comparative Law at University of California, Hastings College of the Law

(‘UCH’). Rocco Alessio Albanese is Post‐Doctoral Research Fellow at University of Turin, Department of Law. Ryan J. Fisher is a JD from UCH and PhD

candidate at University of California Santa Barbara. The research for this article has been conducted jointly. Ugo Mattei and Ryan J. Fisher drafted jointly

Sections 1 and 4. Rocco Alessio Albanese drafted Sections 2, 3, 5 and 6. Special thanks to Daniela Caruso, Harm Schepel and Edoardo Chiti for their

comments.

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European Convention on Human Rights at 33 (European Court of Human Rights; Council of Europe: entry into force—through Protocol No. 16—2018).

[Article 1: Protection of Property 1952], https://bit.ly/2E8PRcw (last accessed 11 January 2019).

2

Protocole Additionnel à la Convention de Sauvegarde des Droits de l'Homme et des Libertés Fondamentales (Council of Europe 1952), https://bit.ly/

2VLfCJN (last accessed 13 January 2019) at 2.

Received: 19 September 2018Revised: 6 February 2019Accepted: 1 March 2019

DOI: 10.1111/eulj.12320

230 © 2019 John Wiley & Sons Ltd.Eur Law J. 2019;25:230–250.wileyonlinelibrary.com/journal/eulj

1|INTRODUCTION

The aim of this essay is to acknowledge the legal relevance of the commons

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within the European Convention on

Human Rights (ECHR) framework. In particular, we show how commons exist as possessions, whose protection is

granted under Article 1 P‐1 cited above. We have divided our essay into a first pars destruens and a second pars

construens.

The first part consists of Sections 2, 3 and 4. In the first two of these sections, we investigate the complex cat-

egory of ‘possessions’(‘biens’in the French version of the ECHR),

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which is at the core of the conventional system

of protection of private property. We illuminate through analysis of the preparatory works the historical roots of

the main theoretical contradictions we observe today with regard to the autonomous interpretation of Art. 1 P‐1

established by the Court of Strasbourg.

Such foundational analysis allows us to progress from the domain of things to the domain of subjects. In Section 4,

we show how a certain notion of ‘possessions’seems deeply connected to a corresponding conception of ‘subject’.In

this regard, within the case law developed by the European Court of Human Rights (ECtHR), we see at work a theo-

retical construction of the subject inspired by the protoliberal equivalence between private property and liberty, as

well as by mutually exclusive relationships between subjects and objects.

Such an approach is not the only one available. Even within the current conventionalsystem, as interpreted by the

Court of Strasbourg, it is possible to observe a more circular and ecological constructionof the relationships between

subjects (i.e. legal entitlements) and objects (i.e. utilities and resources offered by the world of things). The second

part of the essay builds on this critical methodology.

In Section 5, we observe how this different theoretical framework emerges from recent case law established by

the ECtHR with regard to Article 8 of the ECHR, dedicated to the ‘[r]ight to respect for private and family life’. This

shift is paramount because it overcomes the a priori individualistic conception of the subject as a legal category. The

same approach can be extended to Article 1.

Finally, in Section 6, we argue that the commons constitute ‘possessions/biens’under Art. 1 P‐1, once the differ-

ent theoretical approach is adopted to emancipate the notion from the perspective inspired by possessive individu-

alism (according to which possession is synonymous with economic value/asset). Such recognition of the commons as

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Although the Commons is an institution and concept with a long historical pedigree—Carta de Foresta, widely recognised as the first constitutional docu-

ment granting legal recognition to the Commons, recently turned 800 years old—it is nascent as a field of thought and study. The term (without recognised

legal definition, neither private nor public, and used interchangeably in singular and plural forms) is understood not as territorial organisation(s) but rather as

resources and systems possessed by society as a whole; to expand this concept environmentally, Commons are commonly possessed resources and systems

that together constitute the ecosystem within which humankind, all other forms of life, and the material world coexist. See, e.g., F. Capra and U. Mattei, The

Ecology of Law:Toward aLegal System in Tunewith Nature and Community(Berrett‐Koehler, 2015). The Commons is a social, political, economic and intel-

lectual concept; it is not about a piece of territory bordered politically or a pasture at the centre of a village, although, historically, it derives from them. See

B. Coriat et al., Le retour des communs: La crise de l'idéologie propriétaire (Éditions les Liens qui libèrent, 2015). See, also, U. Mattei and M. Mancall,

‘Communology: The Emergence of a Social Theory of the Commons’,South Atlantic Quarterly, forthcoming.

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The authors acknowledge that the unambiguous equivalency of possessions and biens is not embraced universally. For example, in fn 8 to his dissenting

opinion in Marckx v. Belgium delivered by the European Court of Human Rights on 13 June 1979, Judge Sir Gerald Fitzmaurice observes:

The apparent interchangeability of the terms ‘possessions’,‘property’,‘biens’and‘propriété’in different contexts and without evident reason is

confusing. The French ‘biens’is best translated into English by ‘assets’not ‘possessions’.But thebest French rendering of the English ‘assets’is

‘avoirs’. In addition, there is no really satisfactory French equivalent of ‘possessions’as such, and in the plural.

Marckx v. Belgium (European Court of Human Rights 1979), https://bit.ly/2RlXhoa (last accessed 13 January 2019).The authors of this paper, however, are

concerned mainly with legal, social, political, and economic issues rather than linguistic ones. Furthermore, as argued topically by Egon Schwelb:

The second sentence of the French text does not repeat the term ‘biens,’but speaks of ‘propriété’instead. While the English text of the first

paragraph uses twice the term ‘possessions,’the second paragraph speaks of controlling ‘the use of property.’The French text renders this by

‘réglementer l'usage des biens.’…The only reasonable conclusion which can be drawn from this lack of terminological symmetry and

consistency [in the equally authentic English and French texts of the comparatively short treaty provision of Article 1] is that for the

purposes of the Protocol all the terms employed in Article 1 mean the same, namely ‘property,’‘propriété,’and that the use of different

expressions is legally irrelevant.

E. Schwelb, ‘The Protection of the Right of Property of Nationals under the First Protocol to the European Convention on Human Rights’(1964) 13(4) The

American Journal of Comparative Law, 518–541, 519–520.

MATTEI ET AL.231