Property Transfer and Commons in the Debate about the Right to Development

Tuesday, March 2, 2010
http://wphr.org/2010/oscar-howell/property-transfer-and-commons-in-the-debate-about-the-right-to-development/

By Oscar Howell
The world has endured a last century of strenuous armed conflicts and human suffering, one also marked by an accelerated and unequal development. The commitment to human rights in general, and development in particular, became a priority. This seems a truism, but it is a fact that the United States, among others, has refused to ratify the UN Covenant on Economic, Social and Cultural Rights (ESC), a complement to the Universal Declaration. This refusal has a powerful reason: a contradiction over the crucial concept of private property. What seems an irreconcilable problem, has found social and legal solutions in the past, and more recently, with the resurgence of Common Property Regimes (CPR). The use of CPRs could establish a model for implementing clear legal claims and duties in development and social organization. I will show how.

The ideas inherent in non-market regimes contradict the neo-liberal notion that unfettered market systems are most conductive to development, as expressed so adamantly by Martin Wolf: “The market is the most powerful institution for raising living standards ever invented: indeed there are no rivals.” (Wolf, p. xvii) Sure enough, markets have brought prosperity to certain population groups, but an alarmingly large number of persons still live below poverty levels and in exclusion of access to resources. According to Wolf about 1.169 billion persons lived in income poverty in the year 2000 (a reduction from 1,183 billion in 1987), which he sees as a good result given the rate of growth of population and economic output: “for it is clear that human welfare has improved greatly in recent decades. “ (Wolf, pp. 138-172)

Regardless if such numbers may represent a success of development efforts, the reason for the refusal of the US to ratify the Covenant on ESC relates back to those recent decades of the 20th century: the Cold War period. The drafters of the human rights declaration intended to cover everything considered an inalienable human right. Those rights were primarily political and civil in nature. Soon a “second generation” of human rights was established. The UN drafted two different sets of documents, the Covenant on Political and Civil Rights (PC), which was ratified by the United States, and the Covenant on Economic, Social and Cultural Rights (ESC), the “development” rights, not ratified. The rift was political: the Soviet bloc supported the ESC against the US bloc supporting the PC document. (see Uvin)

A second and in my view weightier reason exists for US aversion to ESC. It is an ideological reason. It is the implication that a general right to aid would have for private property and markets. The right to development (RTD) is an economic right that creates a duty to transfer property and redistribute wealth with no clear restriction. It is further a right that may encapsulate the poor as “the passive recipients of paternalistic state welfare, rather than as active providers for themselves.” (Beetham, p.49) Here is a non-viable right that would create legal and unlimited claims against private property: the wealth owned by others, who most of the time happen to be in power.

However, the US refusal to ratify the RTD does seem to go beyond ideological posturing, since every political party in power has maintained the same course. At the same time the Millennium Challenge Account (MCA) program launched by the US covers much of the development issues not ratified (Marks, p.156-160) The refusal may be a negative to accept any international “hard law” that creates a legally binding system and duties for the US, in which a right to US wealth may be exerted by foreign states. The issue could be understood as national security in such terms.

Sir Richard F. Burton, an 19th century Orientalist, put the idea of delimitation of duty in unrepentantly prejudiced words: “Throughout the East a badly dressed man is a pauper” writes Burton, “and, as in England, a pauper–unless he belongs to an order having a right to be poor–is a scoundrel.” (Burton, p.24, emphasis mine) The right to be poor in religious and mendicant orders becomes also the right to aid as a socially certified destitute, a status or caste. Orders and castes are an important delimitation of the duty to help, and most certainly, the circumscription of a general duty or moral imperative of transfer of wealth.

If a right is expressed in terms of the obligation to transfer or redistribute wealth, it is objectionable when “it is impossible to specify the duties which correspond to the rights claimed,” (Beetham, p.50), in other words, when it is not clear to what extent the transfer of wealth has to be executed. In capitalist societies, the holders of property constantly contest the mechanisms for the provision of aid. The poor benefit only when wealth “trickles down”, to use the neo-liberal metaphor.

The issue becomes how to circumscribe a general right to aid, how to create a specific duty that can be limited and performed according to set laws and regulations, without becoming a “bottomless” (Beetham) problem for society? One could establish social mechanisms that promote and reward aid, like special taxes, the tequio (mandatory community work in Mexico), the diezmo (tenth of income for the church in colonial regimes), and even more complex organizations like the modern welfare state, with its system of claims and assignability. Another way is to create Common Property Regimes where the participants own and obtain profit from a good held in common.

Commons are not new. They were a widespread form property holding before the enclosure movement created the general private property with the aim of making better use of resources. Elinor Ostrom and Charlotte Hess have argued that a form of New Commons has emerged in the last decades. The commoners participate and manage the New Commons in a large scale with the use of technology and telecommunications. The question of governance is the relevant part, without which a Commons would revert to a “waste land” as is Hardins’ concept of the “Tragedy of the Commons.” (see Hardin) New methods made possible that “community based management of […] common pool resources has proved to be enormously successful in many contexts and many societies” (Sachs, p.39).

The New Commons is what Sachs refers to when he writes about global cooperation and the need of “overcoming the importance of the market.” (Sachs p.39) It is my opinion that by promoting the formation of New Commons the misgivings on property transfer may recede. New Commons may go beyond natural resources, and encompass new areas like the intellectual property and genetic information of indigenous peoples. Other non-monetary resources like information or tacit knowledge are also area of neo-communalization. The holders of the rights receive the authority to the management of resources and its entitlements. The reduction of the role of markets and the state is the outcome. In this way, the discussion about aid would be about how to manage resources commonly held, and not about the disbursement of aid packages and property transfers. Entitlement would be a constitutive element of the social group and not the dead ink of human rights law.
References

Beetham, David, What Future for Economic and Social Rights? In Political Studies, Vol. XLIII, pp. 41-60, 1995.

Burton, Richard F, Sir, Personal Narrative of a Pilgrimage to Al-Madinah & Meccah. Memorial Edition, Volume I. London : Tylston and Edwards. 1893.

Hess, Charlotte, Mapping the New Commons. In Governing Shared Resources: Connecting Local Experience to Global Challenges, University of Gloucestershire, July 14-18, 2008.

Hardin, Garrett, The Tragedy of the Commons. In Science. Vol. 162. No. 3859. pp 1243-1248. 1968.

Marks, Stephen, The Human Right to Development: Between Rhetoric and Reality. In Harvard Human Rights Journal, Vol. 17, pp. 137-168

Ostrom, Elinor, Charlotte Hess eds. Understanding Knowledge as Commons. Cambridge MA.: MIT Press. 2007.

Rawls, John, A Theory of Justice. Cambridge MA.: Harvard University Press. 1971.

Sachs, Jeffrey D., Commonwealth. Economics for a Crowded Planet. New York : The Penguin Press . 2008.

Uvin, Peter, Human Rights and Development. Bloomfield, CT.: Kumarian Press. 2004.

Wolf, Martin, Why Globalization Works. New Haven, CT.: Yale University Press. 2004.

© 2010, Oscar Howell. All rights reserved.