Disputed property rights: Article 1 Protocol No.1 of the European Convention on Human Rights and the Land Reform (Scotland) Act 2016

Abstract

The right to property contained within art.1 Protocol No.1 of the European Convention on Human Rights has proved to be one of the most controversial and persistently disputed rights within the Convention. As land law reform has grown to become one of the most provocative issues in contemporary Scotland, it is helping to serve as a useful normative lens to highlight the limits of the right to property and the inherent difficulties that become apparent when grappling with the jurisprudence emanating from Strasbourg.

This article will outline and question the recently passed Land Reform (Scotland) Act 2016 . In doing so, this article examines the limits of property as a 'right' and the theoretical basis of such disputes. This article will emphasise the often irreconcilable disputes that arise when considering property rights, notably between public and private interest in relation to land—in particular, the difficulties inherent in defining principles such as 'property', 'public interest' and 'just compensation'. It will conclude by highlighting the problems inherent in applying art.1 Protocol No.1 and ask whether recent land law reforms comply with the Scottish Government’s obligation to respect Convention rights.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

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