When it comes to living within our planetary boundaries, land use is incredibly important. Not only do industry and agriculture significantly contribute to climate change, also construction of homes and the way in which these homes are used have negative effects on our climate. Our legal system plays an important role in our transition to a more sustainable society. Our social imaginary, the social grounding for our world view and our ideology, gives direction to how we structure our society. A large part of this structuring happens through state-made law, both public law and private law. Creating a sustainable society is a public value that is rightfully addressed through public law. Governments lead the energy transition, invest in green infrastructure, and provide the building blocks for a functioning economy. Private law is another instrument that a state has at its disposal.
When it comes to land use there are two levels at which such regulation can take place. First, there is a constitutional framework that regulates the entitlement to land. In Europe this is provided by Article 1 of the First Protocol to the European Convention on Human Rights (ECHR) (A1P1). Since the 1950s the European Court of Human Rights has developed an intricate web of regulation through its case law. In the first decades, this has been a negative protection of a constitutional concept of property (neutrally called possessions in the ECHR), but in recent years the Court has created a constitutional layer in which contracting States are bound to actively protect (possessions of) their citizens. Case law on A1P1 in this respect is closely connected to the right to life (Article 2) and the right to private life (Article 8). In all these instances the Court has construed positive state obligations to ensure protection of these rights. Most of these protective obligations are of course a matter of public policy and hence a matter of public law. However, there are situations in which the state can fulfil its obligation by making use of the private law instruments it has at its disposal (see BVerfG 15 July 1981 – 1 BvL 77/78, where the German Constitutional Court holds that the state must mold it private law rules in the context of the social obligation norm that results from Article 14 of the German Basic Law).
Two levels of property: Constitutional and Private Law Property
Property exists at two levels. This applies to all systems, but this is a point that is somewhat underdeveloped in the ECHR. It can better be illustrated by means of of German and South African constitutional law. Both legal systems have instituted a constitutional property clause, establishing a constitutional right to property. Such a constitutional property right should, however, not be confused with the private law notion of a right of ownership, which operates at a different level. In both these systems the constitutional property clause gives shape to the private law right. It provides the space in which that private law right can exist. The private law right of ownership can therefore not be an unlimited power of the landowner, but must be given shape in the context of the constitutional framework. (See, e.g., BVerfG 15 July 1981 – 1 BvL 77/78, Port Elizabeth Municipality v Various Occupiers (CCT 53/03)  ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC)). In fact, the private law right of ownership or regulation of that right are primary methods by which the state can fulfil its constitutional duties.
In European civil law systems, private lawyers tend to ignore this constitutional dimension. Handbooks of property law often make short reference to the constitutional framework before neglecting this very important connection. This is a significant deficiency, as it is mainly the constitutional dimension that gives room to reflect on the political choices we make regarding property law. Instead, the discussion in European systems of private law has since the Second World War been exclusively pivoting around the political choice to focus on market building and the smoothening of the market economy, both at the national and the European level. The underlying constitutional values (and theory) are under-investigated in most European systems, and therefore other potential theoretical foundations, such as human flourishing theory instead of utilitarianism, are also often left undiscussed.
Also within private law we can look at property from two sides. It can be defined starting from the powers of the owner, mostly focusing on the power of exclusion that the right of ownership brings, but it can also be defined by the regulations that limit the owner’s power. Which perspective one takes matters a great deal in the realm of private law property. But either of these two perspectives ignores the constitutional dimension provided by the ECHR: both property’s powers and its restrictions should be in line with the constitutional obligation that follows from Article 1 First Protocol.
Creating a sustainable right of ownership as a part of sustainable property law
Accepting these different levels of property law provides a powerful framework to give shape to our social ideology of a society that lives within its planetary boundaries. Our property nomos, i.e. our conception of the norms and values of property, can become our instrument to allow both the state and private parties, companies and individuals, to make sustainability one of our key organising principles.
An right of ownership in a sustainable society is not only defined by the powers of the owner, or by the regulation that limits these powers, but also includes positive (sustainable) obligations. These obligations exist by nature of the right of ownership; they are propter rem – tied to the property right. This is a right of ownership that is exercised in the context of those that are affected by it: the community in which the right is held. In terms of wicked problems such as climate change, that community is potentially very large.
Such a renewed right of ownership incorporates sustainability as a key organising principle. It means that an owner must take planetary boundaries into account, ensuring that also future generations can enjoy the land. An owner should be under an obligation to ensure not only their own flourishing, but also those of their fellow community members. Depending on their capability, they should actively contribute to their community, financially or in kind. In terms of climate change this could mean investing in non-fossil energy such as solar or wind power or a heat pump system.
In property theory, such positive obligations are often discussed as moral obligations. In my approach, they become legal obligations as part of the private law right of ownership. In fact, by taking the propter rem-approach, the existing property law system can work in favour of sustainable development. One such example is the use of existing property law regulation such the doctrine of abuse of right and the doctrine of nuisance in neighbour law.
The doctrine of abuse of rights was developed in the 19th century to counteract the liberal idea of ownership as an absolute right. Although the idea of an absolute ownership has never found traction in most European legal systems, the doctrine of abuse of rights has become widely used to limit the powers of the owner in private law. The doctrine can be renewed and provided with new values in the context of a sustainable right of ownership. This would create liability for unsustainable use, and form an additional foundation for a positive obligation to use the right ownership in a sustainable manner. Non-sustainable use would create an abuse of the right of ownership.
A similar approach can be taken regarding neighbour law. An owner can also be seen as being part of a community of neighbours. It is not controversial to state that such an owner must have obligations towards their neighbours. However, extending the definition of neighbours to go beyond a neighbourhood and include a whole province or a country is more complex. The discussion on what obligations to these much more remote neighbours exists is still underinvestigated: depending on the specifics of the situation at hand, such obligations of care will be as large as they can reasonably be. Such an approach would apply, for example, to an owner polluting his land or over-extracting the soil.
Towards positive obligations in property law
These two uses of private law doctrine can be seen as thought exercises to explore how we can use current property law to contribute to social change. They require more experimentation and further consideration. Yet the time to act is now. Our current private property law has brought us incredible welfare, but it has also created an historically large gap between those that have and those that have not. It has led to a financial crisis and has shown that we must act collectively in times of other crises, such as the global pandemic. Around us the climate is changing rapidly and we see rising sea levels, floods, forest fires and loss of biodiversity. The way in which we use our land can drive positive change in all these areas. Merely regulating and introducing negative obligations can be helpful but will not get us to the systemic change we need. Positive obligations in property law provide a promising venue to further explore how we can get to that systemic change.
(Photo: Roman Synkevych)