European experts reflect on the right to property within the framework of the cycle “Counterpoints Chile-EU for the constituent process”, organised by EUROsociAL+ and other institutions, with the aim of generating spaces for discussion on the various experiences of European countries in relation to the issues to be addressed by the Constitutional Convention.
Foto: Sandro Cisternas
Water, energy and other natural resources essential for human subsistence and for the well-being and development of the country – are they global public goods? Are there assets that were traditionally considered public yet are no longer so? Is there any way to de-privatise these assets? How can the rights of some native peoples who have a collective conception of property and the use of certain goods be respected? These are some of the questions that were addressed on September 1 at the “Property Rights” event, within the framework of the series of two events of the “Economic freedoms and fundamental rights” section.
In her speech, Mariana Canotilho, the holder of a doctorate in European Constitutional Law and judge of the Constitutional Court of Portugal, explained that the current Constitution that governs Portugal dates from 1976 and is said to have been very successful “because it has been agreed upon and discussed at length by people with very different political views, with a wealth of contributions from Christian Democratic, western European pluralist liberal and social democratic perspectives. Everything was brought together and a consensus was agreed upon.”
This regulation distinguishes between civil and political fundamental rights and economic, social and cultural rights. Property is included with the latter. To this end, “the declared intention of the framers of the constitution was to dissociate the idea of property from possessive individualism from classic liberalism and make the ordinary legislator in the public authorities understand that property was going to have a social function that should be read within the framework of the Constitution.”
In the opinion of the Portuguese academic, “regardless of the government, the existence of public systems in education, health and social security should be a constitutional requirement.”
Appropriation of assets as stipulated in the Constitution
The professor and expert in public property at the University of Zaragoza, Fernando López Ramón, began his presentation by stating that “”it would be a very good thing if the basic regulations for appropriation of property were included in the founding text of the future Chilean Constitution.”
López Ramón went on to say that it is more pertinent to assume the traditions inherited from other constitutions and that in the Chilean case one could “start with the concept of the common heritage of humanity. It would be extremely helpful for a modern Constitution to begin by stating that it recognises the existence of humanity’s common property rights and that it refers to general international law for the implementation and consequences thereof. So far there is a very vague conception in international law about the common figure of humanity”, he argued.
He added that it would be expedient to “establish the principle of public domain in a natural and artificial way. The former refers to the continental and maritime waters that depend on the states, the coastal areas and the country’s mining deposits. The latter is a reference to all public works – public buildings, roads, reservoirs and so forth. The constitution should establish that the use of property in the public domain is essentially temporary. It seems to me to be essential not to consider that concession implies an absolute privatisation of the country’s assets. It is temporary and is subject to the fulfilment of conditions, with any breach thereof determining an end to that concession”, he said.
Finally, López Ramón recommended that the new Magna Carta should include “the collective assets of indigenous communities, which must be clearly recognised and allow the autonomous management thereof, without prejudice to their maintenance. However, not only should these groups enjoy collective ownership, it should also extend to the use of water, for example.”
In the opinion of Víctor Caro Castro, the director of the University of Santiago de Chile’s Centre for Future Studies, “framed in the process that Chile is going through, discussing the right to property is fundamental, since, as we saw in the webinar, a democratic country must have clear laws regarding this issue.”
He added that “establishing public systems of high-quality basic services; recognising goods that are the common domain of humanity, framing the uses of the public domain and the recognition of indigenous communities is essential to the transformation of our country. The example of Doctor Canotilho, from her Portuguese experience, shows us that we can have a Fundamental Charter in which we see the country we want reflected”, he said.
The cycle of debates under the title “Chilean-EU counterpoints for the constituent process” is organised by the European Union Delegation in Chile, through the EUROsociAL+ Programme, together with LEXEN, the University of Chile’s Centre for Interfaces of Law, Economics and Business, the University of Santiago’s Centre for Future Studies and the University of Concepción’s European Studies Programme, in association with El Mostrador.
