I. The state and the right of individual to property (Congress of
Athens, Committee on Civil and Economic Law)
1. In our time
the state undertakes to an ever-increasing extent planning and
responsibility with the aim of serving the public well.
However, a
democratic state, no matter how far its planning and socialization
extends, should ensure that it does not put itself above the law and
that the private sector is not unjustly discriminated against or
destroyed.
2. The right to
own property is a fundamental human right and should be recognized in
law and in practice without any discrimination.
3. In the case of
expropriation or restrictions on use of private property, adequate
compensation, of which the persons entitled may freely dispose, should
be awarded. Confiscation of property through court judgments should not
be used as a means of expropriation.
4. In accordance
with the principles of justice the state should be subject to the law in
the same way and to the same extent as owners of private property or
private enterprises.
5. It is the
elementary and imperative duty of the legislator to define unequivocally
that category of persons to whom a certain law shall apply.
6. A nubile
citizen's right to choose a spouse should be free and unlimited.
Political, party, racial, or class considerations should not be taken
into account in matters of marriage and divorce.
7. Parents should
not be deprived of the right to the custody and education of their
children on the ground that the political and/or economic views of the
parents do not find favor with the state.
II. Economic and social development
within the Rule of Law (Conference of Bangkok, 1965, Committee II)
Introduction
The Rule of Law requires the establishment
and observance of certain standards that recognize and foster not only
the political rights of the individual but also his economic, social and
cultural security. It is endangered by the continued existence of
hunger, poverty and unemployment, which tend to make a truly
representative form of government impossible and promote the emergence
of systems of government opposed to the principles of the Rule of Law.
The lasting and effective way of reaching the social and economic goals
necessary to the smooth operation of the Rule of Law is by methods and
procedures that conform to its principles. In consonance with the
Universal Declaration of Human Rights, the economic, social and cultural
rights of the individual include the right to work, to free choice of
employment, to protection against unemployment, to just and favorable
conditions of work and remuneration which will ensure to the worker and
his family an existence worthy of human dignity, to security and social
protection, and to the satisfaction and enrichment of his intellectual
and cultural faculties;
In the light of the foregoing, the following
principles can be stated:
1. Some of the
economic, social and cultural standards set forth above have already
been given legal force and sanction by constitutional and statutory
provisions; however, there is a need progressively to enact the
appropriate legislation and to develop the legal institutions and
procedures whereby these standards may be maintained and enforced within
the Rule of Law.
Economic, social and cultural rights should
also be safeguarded on the international level by relevant conventions
of the United Nations and its specialized agencies. Governments are
urged to co-operate in the framing of such conventions and to ratify
them.
2. It is
essential to economic and social development under the Rule of Law that
inequality of opportunity arising from birth or wealth, and
discrimination arising from ethnic, religious, linguistic, regional or
communal factors be overcome.
Political, racial, social, religious and
other types of intolerance impede the unified effort required for
economic progress. Governments should therefore promote and encourage a
spirit of tolerance among all sections of the community.
3. It is
recognized in general, and more particularly in the case of the
developing countries, that in order to achieve greater economic and
social benefits for the individual some measure of intervention in
property rights may become necessary, but such intervention should never
be greater than is absolutely necessary in the public interest and
should be subject to safeguards afforded by the Rule of Law.
4. The land
problem is one of the most fundamental and complicated problems.
Consideration to appropriate land reform programs must therefore be
given high priority.
5. While no
specific methods of land reform can be suggested by the Committee which
are uniformly appropriate for all communities, it is recognized that
such methods may properly include qualification of the right to own or
to succeed to land, provision for the maximum utilization of land,
facilities for the granting of credit on advantageous terms, the
issuance of land titles, the strengthening of the right of association
of rural people for their political, economic, social and cultural
advancement, and support for rural development in general. These and
other measures of land reform must, however, conform to the principles
and procedures of the Rule of Law.
6. Sound economic
planning is essential to the social and economic development of all
countries, but the Rule of Law requires that both the ends and the means
embodied in such planning derive from and reflect the ideas, the needs
and the aspirations of the people themselves.
7. To inspire
confidence and to reduce the possibility of maladministration,
especially in regard to capital investment in public economic
development projects, it is recommended that full accounts on such
projects be the subject of independent and expert examination, and that
reports thereon be regularly submitted to the legislature.
8.
Nationalization of private enterprises by a democratically elected
government when necessary in the public interest is not contrary to the
Rule of Law. However, such nationalization should be carried out in
accordance with principles laid down by the legislature and in a manner
consistent with the Rule of Law, including the payment of fair and
reasonable compensation as determined by an independent tribunal. The
same considerations should apply to other governmental action taken with
similar purpose and effect.
9. It is in
accord with the Rule of Law to adopt, when necessary in the interest of
public welfare, fair and reasonable measures with respect to price
control, state trading, control of private trade and anti-trust
legislation.
10. In every
developing country it is desirable in the interest of social and
economic peace that there be legal machinery for the peaceful settlement
of labor disputes. It is recommended that, where necessary, states which
have ratified the relevant conventions of the International Labor
Organization implement the same by appropriate legislation.
11. The effective
operation of the Rule of Law in developing countries requires an
efficient administration, adequately equipped to cope with vast and
complex social and economic problems.
Corruption among public officials not only
undermines confidence in the public service, but it is a positive
hindrance to economic and social progress. It also leads to miscarriage
of justice, thereby affecting the operation of the Rule of Law. These
considerations apply with at least equal force to ministers and members
of the government.
It is essential, particularly in
multi-racial or multi-religious developing societies, that the
appointment, promotion, dismissal and disciplinary control of public
servants be determined without discrimination on religious, racial,
linguistic or other grounds which may be extraneous to the proper
functioning of the public service.
12. In order to
minimize infringements of the rights and freedoms of the individual,
particularly in developing countries where far-reaching administrative
decisions are necessary, such decisions affecting these rights and
freedoms should be supported by stated reasons and be subject to review.
13. Full
observance of the Rule of Law requires that the government be liable for
wrongs committed by it or its servants in the execution or the purported
execution of public duties.
III. Nationalization of property and the
Rule of Law (Ceylon Colloquium, 1966, Committee II)
Introduction
1. The public
interest may sometimes require the nationalization of property for the
public benefit or in order that the legitimate right of man to social
justice and equality may be realized.
2. The basic
freedoms include the right of the individual to acquire, hold and
dispose of property subject only to such reasonable restrictions as may
be necessary in the public interest.
1. Definition
of nationalization
(i) Nationalization of property is a
category of acquisition of private property to which special rules
apply.
(ii) By nationalization is meant the
acquisition for a public purpose of a private enterprise or property
consisting of the means of production, distribution, or exchange by or
under the authority of the legislature in order that the enterprise or
such property should thereafter be publicly owned or controlled.
2.
Circumstances in which nationalization is permissible
(i) Nationalization must be for a bona fide
public purpose, commensurate with that purpose, and must not be for the
benefit of particular individuals.
(ii) Nationalization must be carried out
without discrimination between persons.
(iii) Nationalization and the procedure for
assessment of compensation therefore must be in accordance with local
law conforming with the principles herein declared, but in no
circumstances must such local law involve the arbitrary or unjust
treatment of the individual.
3. Protection
of rights of persons affected
(i) It must not be forgotten that
nationalization affects not only the owner of an enterprise but also the
employees, the consumers of the goods produced or services rendered by
the enterprise, and the general public, who become its owners, sharing
its profits or suffering its losses. There is the danger, furthermore,
that nationalization may lead to the undue growth of state power and
bureaucracy, to the creation of monopoly situations with their
consequent evils, to inefficiency and to political interference and
political appointments, with consequent adverse effects on the
individual citizen. It follows that nationalization, if it is to be in
accord with the Rule of Law, must be affected in such a way that the
legitimate interests of all persons concerned may be properly
safeguarded, and that the dangers referred to may be avoided.
(ii) The legislation by which
nationalization is effected should provide for the following matters in
particular:
(a) The payment of compensation which is
reasonably fair, expeditious, and effective in all the circumstances of
the case, to the owners of enterprises or property, employees and all
other persons who may be adversely affected; such compensation must be
assessed without undue delay by an independent tribunal observing proper
judicial procedures;
(b) Alternative employment for any employees
who may become unemployed by reason of such nationalization;
(c) The setting up of an independent
statutory body to which a consumer may bring his complaints, such body
to be empowered to investigate and report thereon to the legislature;
(d) Effective periodic review of the
accounts and affairs of nationalized industries by the legislature;
(e) Appropriate protection for the
legitimate interests of employees;
(f) Protection against the dangers inherent
in the undue growth of State power and bureaucracy, monopoly situations,
political interference and the risks of inefficient management.
(iii) The problems of preserving human
rights and human dignity within nationalized industries should be one of
the tasks of those engaged in the promotion of the Rule of Law.