Commons as Possessions: The Path to Protection of the Commons in the ECHR System

21 Pages Posted: 19 May 2020

See all articles by Ugo Mattei

Ugo Mattei

University of California Hastings College of the Law

Rocco Alessio Albanese

University of Turin

Ryan J. Fisher

affiliation not provided to SSRN

Date Written: May 2019

Abstract

The ‘commons’ is not mentioned in the texts of the European Convention on Human Rights (ECHR) or Article 1 of Protocol No. 1 (P‐1). This essay argues that ‘possessions’ — which does appear in the latter — should be interpreted by the European Court of Human Rights (ECtHR) to protect commons against national governments' undue interferences. The argument comprises two parts. First, we analyse the polysemic term ‘possessions’ to show how the current understanding of this category is marred by flawed assumptions and by false dichotomies. Then, we propose an ‘ecological’ construction of legal relationships between subjects and objects. We find support in the ECtHR case law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled from possessive individualism and market paradigms, ‘possessions’ encompass the commons and the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations.

Suggested Citation

Mattei, Ugo and Albanese, Rocco Alessio and Fisher, Ryan J., Commons as Possessions: The Path to Protection of the Commons in the ECHR System (May 2019). European Law Journal, Vol. 25, Issue 3, pp. 230-250, 2019, Available at SSRN: https://ssrn.com/abstract=3600318 or http://dx.doi.org/10.1111/eulj.12320

Ugo Mattei (Contact Author)

University of California Hastings College of the Law

200 McAllister Street
San Francisco, CA 94102
United States

Rocco Alessio Albanese

University of Turin ( email )

Via Po 53
Torino, Turin - Piedmont 10100
Italy

Ryan J. Fisher

affiliation not provided to SSRN

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