Property as a human right: another casualty of the 'war on terror'?

McCarthy, F. (2013) Property as a human right: another casualty of the 'war on terror'? In: Hopkins, N. (ed.) Modern Studies in Property Law. Hart Pub Ltd: Oxford, UK, pp. 243-262. ISBN 9781849463218

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Does the right to peaceful enjoyment of possessions, set out in Article 1 of the First Protocol to the European Convention on Human Rights, offer “real and effective” protection against the state? This paper uses the first European Court of Justice decision in Kadi (2009) as the starting point to discuss whether the property right provides the minimum standard of protection it was designed to deliver. Kadi ruled that the European post-9/11 anti-terrorist financing regime violated fundamental human rights norms, including the right to property. The decision focused on the absence of procedural guarantees in a process by which the entire patrimony of blacklisted parties could be frozen indefinitely without explanation or opportunity to appeal. Subsequent judicial comment suggests that, if the due process concerns are addressed, the case under the property right will simply fall away. Yet an anti-terrorist asset freeze represents a virtually unparalleled state control of private assets, for an unlimited duration, on grounds with an arguably ideological dimension. At a political level, ownership of property provides a solid base from which dissenting voices may speak out against the state. Protecting this base against expropriation by totalitarian regimes seeking to silence their opponents is a key part of the conceptualisation of property as a human right. Do the ostensibly preventive measures employed in cases like Kadi go so far as to compromise the basic principle at stake here? Or should we recognise that the terrorist threat cannot be tackled effectively unless the state is given the leeway to dismantle the framework from its foundations?

Item Type:Book Sections
Keywords:Property law; human rights; european law; terrorism
Glasgow Author(s) Enlighten ID:McCarthy, Professor Frankie
Authors: McCarthy, F.
Subjects:K Law > K Law (General)
College/School:College of Social Sciences > School of Law
Publisher:Hart Pub Ltd
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