Private Law Theory

ABSTRACT
There is tension between private property and climate change action. A lot of the planet’s land area is privately owned, but at the same time drastic measures are needed in the battle against climate change. This begs the question how far States can go in regulating climate change, without triggering the compensation requirement under Article 1 of Protocol No 1 (A1P1) to the European Convention on Human Rights. The purpose of this paper is to explain why human flourishing theory, which introduces a social obligation inherent in property rights, is a sensible moral framework for applying A1P1. I provide two central arguments. First, the notion of a social obligation is descriptively accurate when it comes to understanding A1P1. The drafters of the provision envisaged that property protection under A1P1 would have a social aspect. The European Court of Human Rights has also stated that property has a ‘social function’. In addition to these sources, which directly address the social function, I will discuss other indirect evidence from the Court’s case law, which further support the ‘sociality’ of property under A1P1. Second, human flourishing theory is normatively appealing and can push the law in the right direction when it comes to ‘new’ problems, such as climate change. For that reason, the social obligation norm is better and more transparent than the current doctrinal standards. To make the tension between private property and climate change action more concrete, the focus of the paper will be on land-use decisions, which will serve as a case study.

Petersen, Vidir, Climate Change and the Social Function of Property – A Human Flourishing Reading of Article 1 of Protocol No 1 to the European Convention on Human Rights (September 7, 2023) in Takings for Climate Justice – Rethinking Expropriation Law, ed Björn Hoops et al (Boom/Eleven, forthcoming 2023).