The Human Right to Property : A Practical Approach to Article 1 of Protocol No. 1 to the ECHR

"This is an excellent work. It is deeply researched, and the analysis of case law will prove very valuable to practitioners and academics seeking a synthesis of the law on an issue". The Rt. Hon. Lord Justice Green, Judge of the Court of Appeal of England and Wales and Chair of the Law Commission "A valuable contribution to the jurisprudence on Article 1 Protocol No.1 and of much interest to both property and human rights lawyers" Professor Sarah Nield, University of Southampton "The pervasiveness of A1P1 through contemporary property law makes this a serious and comprehensive study. This book masterfully interweaves theory and doctrinal law. It is both timely and necessary for academics and practitioners working in this area." David Sawtell, 39 Essex Chambers and Cambridge University This book provides a highly detailed, practical analysis of Article 1 of Protocol No.1 (A1P1) and its implications in the United Kingdom. A1P1 prescribes a qualified right to the peaceful enjoyment of 'possessions'. This right corresponds to a negative limit on legislators and public authorities to rationalise interferences with possessions and, where necessary, to strike a fair balance, often requiring just compensation. Through lively and rigorous commentary on the latest advances made by the European Court of Human Rights and domestic courts, The Human Right to Property enriches current understanding of the peaceful enjoyment of property since the enactment of the Human Rights Act 1998. Exploring the theoretical and political foundations of A1P1, the book guides the reader through the relevant case law from the earliest developments in Strasbourg to the present day. The Human Right to Property concludes that the most significant impacts of A1P1 are that it: forces States to justify interferences; limits radical redistributions of property; and casts a wider shadow over legislative choice and public body decision-making. Acknowledgements Brief Table of Contents Table of Contents Table of Cases Introduction Introduction A Structured Approach to Interpreting Article 1 of Protocol No 1 The Structure of the Book Reforming the Human Rights Act 1998 1. Interpreting Article 1 of Protocol No 1 Interpreting Convention Rights in the UK Interpreting the European Convention on Human Rights Guiding Principles on when the ECtHR Takes an Activist Approach 2. 'Property' as a Disputed Human Right Introduction Property as a Natural Right Should 'Property' or 'Right to Property' Be Considered Human Rights? The Ambit of Article 1 of Protocol No 1 The Inclusion of the Human Right to Property in International Human Rights Law Example of the Right to Property in Other Legal Systems Legal Protections and Presumptions Concerning the Right to Property before Article 1 of Protocol No 1 What Is 'Property'? Conclusion 3. Drafting Article 1 of Protocol No 1 Introduction The Background to the European Convention on Human Rights Conclusions 4. Identifying a Possession Introduction Reconciling the French and English Texts on the Meaning of Possession The Guiding Principles on the Meaning of 'Possession' What is a 'Possession'? What is not a Possession? The Evidence Required to Establish the Existence of a 'Possession' before the Strasbourg Court Conclusion on the Meaning of 'Possession' 5. Categorising Interferences: The Three Rules in Sporrong Introduction Categorising Interferences: The Principles Derived from Sporrong and Lönnroth v Sweden The Meaning of a 'Deprivation' The Meaning of a 'Control of Use' A 'General Interference' What Is Not an Interference? The Reverse Reasoning of the ECtHR and the Importance of the Presumption of Compensation for Deprivations Classifying Interferences and Property as a Bundle of Rights Conclusions on Classifying Interferences Key Principles for Identifying Different Types of Interference 6. Identifying when an Interference is 'Lawful' Introduction What Is the 'Law'? The Meaning of 'Lawful' and the 'Rule of Law Identifying the Rule of Law The Principle of Lawfulness Identifying the Meaning of 'Substantive Protection' The Importance of a Basis in Domestic Law The Key Features of Lawfulness: Accessible, Precise and Foreseeable The General Principles of International Law Conclusions on Lawfulness 7. The 'Public' and 'General Interest' Introduction Reconciling the French and English Language Texts How the ECtHR has Interpreted the Meaning of the Public and General Interest The Public Interest and the Pervasive Influence of the Margin of Appreciation Environmental Protection and the Public Interest Interferences not in the Public Interest Domestic Interpretation of the Public Interest Test Conclusion on the Meaning of the Public and General Interest 8. Proportionality Introduction The Structure of Proportionality Proportionality, the Margin of Appreciation and Deference The Burdens and Presumptions in Proportionality Review Proportionality and Micro- and Macro-Level Review The Development of Proportionality Review The Four-Part Structure to Proportionality Review Manifestly without Reasonable Foundation Conclusions on Proportionality 9. Just Satisfaction Introduction The Problem of Enforcement Just Satisfaction under Article 41 Calculating Pecuniary Damages Calculating Non-pecuniary Damages Calculating Costs and Expenses Calculating Just Satisfaction in England and Wales Damages for Breaches of Article 1 of Protocol No 1 Conclusion 10. Positive Obligations Introduction The Scope of the Positive Obligation under Article 1 of Protocol No 1 Conclusion 11. The Relationship between Article 1 of Protocol No 1 and Articles 6, 8 and 14 Introduction Article 6 and Article 1 of Protocol No 1 Article 8 and Article 1 of Protocol No 1 Article 14 and Article 1 of Protocol No 1 12. Conclusion The Role of Article 1 of Protocol No 1 Summary Bibliography Index "This book provides a highly detailed, practical analysis of Article 1 of Protocol No.1 (A1P1) and its implications in the United Kingdom. A1P1 prescribes a qualified right to the peaceful enjoyment of 'possessions'. This right corresponds to a negative limit on legislators and public authorities to rationalise interferences with possessions and, where necessary, to strike a fair balance, often requiring just compensation. Through lively and rigorous commentary on the latest advances made by the European Court of Human Rights and domestic courts, The Human Right to Property enriches current understanding of the peaceful enjoyment of property since the enactment of the Human Rights Act 1998. Exploring the theoretical and political foundations of A1P1, the book guides the reader through the relevant case law from the earliest developments in Strasbourg to the present day. The Human Right to Property concludes that the most significant impacts of A1P1 are that it: forces States to justify interferences; limits radical redistributions of property; and casts a wider shadow over legislative choice and public body decision-making"-- Provided by publisher "This book provides an analysis of Article 1 of Protocol No.1 (A1P1) and its implications in the United Kingdom. A1P1 prescribes a qualified right to the peaceful enjoyment of 'possessions'. This right corresponds to a negative limit on legislators and public authorities to rationalise interferences with possessions and, where necessary, to strike a fair balance, often requiring just compensation. Through lively and rigorous commentary on the latest advances made by the European Court of Human Rights and domestic courts, this book enriches current understanding of the peaceful enjoyment of property since the enactment of the Human Rights Act 1998. Exploring the theoretical and political foundations of A1P1, the book guides the reader through the relevant case law from the earliest developments in Strasbourg to the present day. Douglas Maxwell concludes that the most significant impacts of A1P1 are that it: forces states to justify interferences; limits radical redistributions of property; and casts a wider shadow over legislative choice and public body decision-making"-- Provided by the publisher