MARCKX v. BELGIUM JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 44 obviously quite inappropriate for the purpose, and it is impossible to believe that if the paragraph had really been intended for this, it would have been expressed in that way. But the Article has a second paragraph, which has constituted a major plank in the construction which the Court has given to this provision. It reads as follows: "The preceding paragraph shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use [French: ‘usage’] of property [French: ‘biens’] in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." The Court relies on the presence of the term "use" here as imparting to the whole Article a scope wider than the notion of possession, and extending to rights of inheritance and disposal. To my way of thinking "use" is use of what one still has or possesses, and "the use of property" is not the language that would normally be employed if use through disposal by testamentary means, gifts inter vivos and so forth were intended to be covered. Simply to refer to the use of property would definitely not be the method that any competent lawyer would resort to if he were asked to draft a clause that would bring these matters clearly within its scope. 18. The method by which the Court arrives at its conclusion (paragraph 63 of the judgment) is by a process of double assumption, neither element of which can be justified as a legitimate inference to be drawn from the text. First, it is postulated (and a postulate it is) that "by recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property". This is already the language of hyperbole, although the obviously poor drafting of the text, both in the English and French versions, may to some extent condone it8. But onto the gratuitous assumption, that the right to enjoyment (of whatever possessions a man in fact has) necessarily includes the right to acquire them in the first place and to do so by any particular means, is grafted the quite untenable assumption represented by the further sentence in paragraph 63 of the judgment to the effect that "the right to dispose of one’s property constitutes a traditional and fundamental aspect of the right of property". This may be true in fact of many countries and legal systems, although many departures from it could be pointed to. But it is not a necessary truth. Rights of inheritance and disposal are not logical concomitants of the right to have and to hold. They constitute a different order of concept, - but the point is that for the purposes of any particular complaint involving an The apparent interchangeability of the terms "possessions", "property", "biens" and "propriété" in different contexts and without evident reason is confusing. The French "biens" is best translated into English by "assets" not "possessions". But the best French rendering of the English "assets" is "avoirs". In addition, there is no really satisfactory French equivalent of "possessions" as such, and in the plural. These anomalies of translation add to the difficulties. But they also thereby reduce the value of the Court's interpretation. 8