If we are to create a just society after COVID-19, we need to talk about property rights
The lockdown offers a glimpse of what can be done when we prioritise the social, economic and physical health of everyone.
In human rights terms, Covid-19 could be a game-changer. Governments everywhere have mobilised resources and regulated markets to increase access to healthcare, housing, and food, in truly unprecedented ways. State actions are progressing economic, social and cultural (ESC) rights where decades of campaigning have struggled to make a dent.
As author and activist Arundhati Roy so eloquently put it, the pandemic is a portal. The lockdown makes visible what has been hidden, offering a glimpse of what can be done when equal treatment – and the social, economic and health protection of all – becomes everyone’s concern.
The emergency measures taken have been breathtaking – bans on evictions, mortgage and rent holidays, universal health care, guaranteed minimum incomes – have all taken place with a speed and certainty that cuts right across all the “impossibilities” of the recent past. It suggests a new and potential reality of how we might live.
In respect of the right to housing, in several countries homeless people are being quickly housed. In pursuit of the right to health, temporary authority has been given to the State to manage private health care facilities, in Ireland, Spain and Iran. These breakthroughs should not distract from government failings in protecting rights, and catastrophic failings in relation to the elderly and those in care-homes.
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It should also be noted that breakthroughs have not occurred across all ESC rights equally. State interventions on the right to food have been muddled and varied in some places. In the UK, the government response has been to distribute money to ensure a steady flow of exchange through supermarkets. Both the short and medium term responses to the crisis require more than cash payments to consumers, and indirectly supermarkets. For example, the Scottish Government has now set-up a food parcel delivery service for those who are ‘shielding’. Interventions will also be needed to build long-term resilience into localised supply chains and networks.
The question is whether or not these emergency measures to reduce the externalities of inequalities will be maintained and amplified as new norms. This requires a deeper questioning of the structures the state seeks to uphold, and of the asymmetry of property rights against ESC rights. This asymmetry means that the right to property is given more state support than the right to housing, for example. (This could apply equally in relation to the right to food, health, and education.)
This plays out in the debacle surrounding the Labour Party’s new rent policy, which proposes that tenants should pay back any arrears within two years. This is defended on the basis that any waiving of rents would mean that the state would have to compensate landlords in full. Under the European Convention of Human Rights, the government can interfere with the right to property but the state must provide compensation, and generally market value. Recent jurisprudence (Khizanishvili and Kandelaki v. Georgia 2019) suggests that where market value is not the method of calculation, the resulting awards must be fair and sufficient, and in line with the reasonable expectations of the property owners.
If the emergency measures are to make a new normal for human rights protections, it may require a rethink of the state’s duty to compensate the wealthiest, and more generally a rethink of the extent to which the law protects property rights before all else, including health.
The crisis is a unique moment in history. It offers another shot at the founding principle of the international human rights movement – universality. Making universality a reality requires a reconfiguration of property rights, or as the economist Thomas Piketty suggests, steeply progressive taxes on large concentrations of property, to create a just society. This requires long term shifts towards greater equality and not temporary adjustments.
Resolving the crisis in an equitable way aligns with growing demands for a democratisation of property rights. The Scottish Parliament recently passed land reform legislation which stipulates that, in line with both European and international law, the pursuit of citizens socio-economic rights are a legitimate justification for interference with property rights. Central to these discussions has been the realisation that rights exist in a fine balance with resources; in order for economic, social and cultural rights to thrive, their asymmetry with property rights must be rebalanced – in law, policy and practice.
In her 2007 book 'The Shock Doctrine', the author and activist Naomi Klein argued that capitalism has in place a range of strategies to take advantage – and, in some cases, to create – shocks to society. In these natural or engineered crisis moments, citizens are distracted and cannot engage or develop an adequate response. Governments are manipulated to push pro-capital policies in these situations.
For example, the institutional and State responses to the home loan crisis after the Global Financial Crisis of 2008 were directed towards protecting the financial system and financial institutions rather than protecting the rights of citizens. This time it must be different. We can embed human and housing rights into the institutional and State responses to this crisis.
The challenge now is to make the radical government interventions and short-term solutions stick in the long term. The pandemic has thrown into view the structural and systemic failures that have left many at increased risk of death from Covid-19. It has also reminded us of our interconnectivity, and thus complicity, in crises elsewhere.
Perspectives have shifted. There is no ‘normal’ to go back to.
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