I Book Review: The Human Right to Property
| Published date | 01 March 2006 |
| DOI | 10.1177/016934410602400116 |
| Date | 01 March 2006 |
| Subject Matter | Part D: DocumentationI Book Review |
humane treatment in detention. The authors do not present much analysis of the
case-law and they only very rarely refer to academic literature.
The question arises what the authors have attempted to achieve with this
publication. It is regrettable that they focussed exclusively on the Human Rights
Committee’s case-law under the Optional Protocol. The concluding comments
adopted under the reporting procedure are of great relevance and should not have
been ignored in exploring the interpretation of the rights under the ICCPR. The
presentation of case-law is in itself useful, and serves a purpose to those who are not
yet familiar with the Committee’s case-law and wish to glance over its work. The
grouping of subjects appears to have restricted the depth of the analysis. The choice
of subjects and the attention they receive seems to have been quite arbitrary. For
example, the chapter on security of the person includes an extensive section on the
mandatory imposition of the death penalty. However, it devotes only three lines to
the Committee’s case-law dealing with the right to a fair trial in death penalty cases.
The chapter simply states that failure to observe the requirements of Article 14 has
repeatedly resulted in a finding of a violation of Article 6 of the Covenant, which
does not do justice to the Committee’s vast case-law on this issue. The chapter on the
judicial process does not make up for this brevity, as it does not pay specific attention
to the consequences of an unfair trial in death penalty cases.
Articles 2-5 are most relevant for the application and interpretation of Articles 6-
27. However, there are no chapters that deal with these articles (with the exception
of the non-discrimination provisions), resulting in, inter alia, the absence of a
discussion of the remedies recommended by the Committee when a violation has
been found, and the Committee’s case-law and general comment on derogations.
There are a number of other books available about the Covenant and the
Committee, which have provided a much better and more thorough analysis.
1
In my
view, this book is at best a modest contribution to existing studies on the Covenant
and the Human Rights Committee’s work.
Theo R.G. van Banning,
The Human Right to Property
, Ph.D Thesis, Utrecht
University, Intersentia, Antwerpen-Oxford-New York, 2002, xvi + 445 p., ISBN:
90-5095-203-8*
The roots of protection of property against State interference go back as far as the
Magna Carta (1215). Throughout the history of human rights the concepts of
‘freedom’ and ‘property’ have been interrelated. Great thinkers like Grotius and
Vazquez simply did not differentiate between freedom and property. In this line of
thinking John Locke stated explicitly: ‘Government has no other end but the
preservation of property’. As a result of the practice of arbitrary expropriation under
the Ancien Re
´gime the protection of property was given a prominent place in the
De
´claration des droits de l’homme et du citoyen of 1789. Protection of property, therefore,
I Book Reviews
Netherlands Quarterly of Human Rights, Vol. 24/1 (2006) 173
1
In addition to the above-mentioned book by Nowak, the following recent publications deal with the
Covenant and the Committee in general: Joseph, Sarah, Schultz, Jenny and Castan, Melissa, The
International Covenant on Civil and Political Rights: cases, materials and commentary, 2nd ed., Oxford
University Press, Oxford, 2004; Ando, Nisuke (ed.), Towards implementing universal human rights:
festschrift for the twenty-fifth anniversary of the Human Rights Committee, Martinus Nijhoff, Leiden, 2004.
* Jan-Peter Loof, Lecturer, Department of Public Law – Section Constitutional and Administrative
Law, University of Leiden, the Netherlands.
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