Showing posts with label property. Show all posts
Showing posts with label property. Show all posts

Go On! Land & jurisdiction

(Go On! is an occasional item on symposia and other events of interest)

The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas is the title of a free, public symposium to be held Friday, April 8, 2011, at the Newberry Library in Chicago.
It's organized by Tamar Herzog (below right), Professor of Latin American and Spanish History at Stanford University (who will speak on :How the Indios Lost Their Land: Spanish Debates and Practices of Recession"), and Richard J. Ross, Professor of Law and History at the University of Illinois at Urbana-Champaign. They write:

The struggle to possess and control land, both as property and as jurisdictional territory, was central to the formation of early modern European societies as well as their colonial domains. This conference will look at how Europeans and indigenous peoples defined the right to land. We will examine how so-called European expansion influenced the conceptualization of property and territorial jurisdiction and the relationship between them. Conference participants may explore how notions of property and territoriality changed over time; and how colonial needs and the encounter with new cultures reshaped these notions. In what ways did “international competition” and the emergence of an “international law” (to use an anachronism) modify property and jurisdiction? How did economic, social, and political developments influence new ideas and experiences regarding the land? In what ways did these ideas and experiences shape practical strategies for claiming land and asserting rights to govern it and profit from it? We are particularly eager to know whether these encounters encouraged, consciously or not, borrowing between different European legal systems as well as between settlers and indigenous peoples. How was the movement and refashioning of legal knowledge bound up with the movement of peoples and refashioning of modes of control over land?
Other scheduled panelists include Dominique Deslandres, Professor of History at the University of Montreal, Bianca Premo, Associate Professor of History at Florida International University; Professor Julia P. Adams, Chair of the Department of History at Yale; Yale Law Professor Claire Priest; and Alison LaCroix, Assistant Professor of Law at the University of Chicago.
Detailed program and registration information here.


On December 14

On this day in ...
... 1962, the U.N. General Assembly passed Resolution 1803 (XVII), "Permanent sovereignty over natural resources," which declared:
The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

It then set forth principles framing the exercise of these rights. Among them was a right to nationalize property upon payment of "appropriate compensation"-- though not "prompt adequate and effective compensation," as the United States had urged. The resolution also promised "good faith" adherence to "[f]oreign investment agreements freely entered into by or between sovereign States," a formulation that omits investment contracts entered under colonialism. (photo credit)

(Prior December 14 posts are here, here, and here.)

Nottebohm’s Nightmare

(Delighted to welcome back IntLawGrrls alumna Cindy Galway Buys, who contributes this guest post on her scholarship)

Many international law professors likely teach the 1955 International Court of Justice decision in The Nottebohm Case.
If so, they will recall that Frederic Nottebohm was a German-born businessman living in Guatemala at the time of World War II. He traveled to Liechtenstein during the war and became a citizen of that country in very short order. Guatemala refused to recognize his change in citizenship, leading Liechtenstein to bring suit against Guatemala at the ICJ. The ICJ held that Guatemala did not have to recognize Liechtenstein’s grant of citizenship to Nottebohm because he did not have a genuine connection to Liechtenstein.
Reading the ICJ decision always left me with unanswered questions. Accordingly, I began digging into the history a bit more to better understand why the ICJ reached the decision that it did.My research revealed that Nottebohm was the victim a little-known program run by the United States during World War II in which the United States pressured Latin American countries like Guatemala to identify persons of German nationality or ancestry and turn them over to the United States for internment for the duration of the war. Many of these persons were arrested and detained for lengthy periods of time as Nazi sympathizers on the basis of mere accusations unsupported by any real investigation or evidence. Sadly, as with the Japanese-Americans who were forced into detention camps during World War II, U.S. law and courts allowed these arrests and detentions of persons with German connections with little or no proof of Nazi sympathies, much less subversive activities. (credit for photo at right of arrival at Camp Kennedy, Texas, whose detainees included Germans from Latin America)
The original motivation for the U.S.-Latin American Detention Program appears to have been national security concerns, especially after the attack on Pearl Harbor on December 7, 1941. However, as time went on, the United States continued detaining persons who, like Nottebohm, had been deemed to present little or no security risks, because it was beneficial for the United States and Latin American governments to do so for economic reasons.
Thus, what started as a national security measure evolved into a program aimed at increasing U.S. economic influence in Latin America. Continuing to treat Nottebohm as an alien enemy ultimately paved the way for the Guatemalan government to expropriate his assets in Guatemala without compensation. The wartime setting and the alien enemy accusations also may have influenced the ICJ in its decision.
The article begins by telling the story of how Frederic Nottebohm and his extended family came to be caught up in the U.S.-Latin American Detention Program. It relates the motivations behind the creation of the program and analyzes the legality of the program under both United States and international law existing at the time. The article next examines the extent to which the law has evolved and whether the changes in the law would lead to a different result today. (credit for photo at left of Crystal City, Texas, detention camp for interned Latin American families)
The article then draws parallels between the arrest, detention, and trial of alleged alien enemies during World War II and those practices being employed today with respect to alleged “unlawful enemy combatants” in the current fight against terrorism. Finally, the article suggests some lessons that may be learned regarding the treatment of so-called alien enemies during times of conflict that have relevance for current U.S. policies regarding the arrest, detention and trial of suspected foreign terrorists.

Write On! Upcoming inaugural meeting of the Association for Law, Property & Society

(Write On! is an occasional item about notable calls for papers.) Syracuse Law Professor Robin Paul Malloy has spearheaded an effort to create the Association for Law, Property, and Society (ALPS), which will hold its first annual meeting on March 5-6, 2010, at Georgetown Law School in Washington, D.C. Save the date.
Topics will include all areas of property (real, personal, intangible, cultural, and intellectual property), and themes will center on Property and issues related to Entrepreneurship, Development, Identity, Takings, Sovereignty, Finance, Mortgage Markets, Securitization, Environment, Sustainability, Land Use, Patents, Copyright, Trade Secrets, Internet, and the concept of Home. While all types of paper topics are welcome and encouraged, two particular themes are being developed for book publications. These two themes are:
► Property, Identity, and Sovereignty; and
► Property and Entrepreneurship.
Individual paper proposals or session proposals for a panel composed of three to four paper participants are welcome (panels may include a chair and discussant as well). Send proposals or questions to Malloy at rpmalloy@law.syr.edu -- send him an e-mail and he will put you on the mailing list for e-updates on the ALPS Annual Meeting. More details to follow.)

Guest blogger: Bernadette Atuahene

It's IntLawGrrls' great pleasure to announce today's guest appearance by Professor Bernadette Atuahene (left) of the Chicago-Kent College of Law in 2005, where she focuses her scholarship on confiscation and restitution of property. Before joining the Kent Law faculty she held a number of positions in law and international development: legal consultant for the World Bank; associate at New York's Cleary, Gottlieb, Steen & Hamilton; and human rights investigator for the Center for Economic and Social Rights. While at the last of these, Bernadette received Amnesty International’s Patrick Stewart Human Rights Award on account of her work with human rights organizations in South America. As a Fulbright Scholar, she served as a judicial clerk to Justices Tholie Madala and Sandile Ngcobo of the Constitutional Court of South Africa. Bernadette's just headed back to that country for several months' fieldwork.
In her guest post below, Bernadette presents her most recent work, From Reparation to Restoration.
Heartfelt welcome!

Toward restoration for the dispossessed

Thanks to IntLawGrrls for this giving me this opportunity to appear as a guest-blogger.
In this post I present what constitutes the 1st of a planned trilogy of articles on issues related to property dispossession. Entitled From Reparation to Restoration: Moving beyond Restoring Property Rights to Restoring Political and Economic Visibility, and just published in the Southern Methodist University Law Review, this article explores 2 important questions facing countries that decide to give communities and individuals compensation for property stolen in the past. The questions are:
► Who at minimum should be restored?
► How should the restorative process transpire?
As to the 1st question, I argue that, at minimum, the state has a moral obligation to compensate people who have been subjected to severe dehumanization as a result of an uncompensated property confiscation. My claim is that this confiscation of property results in property-induced invisibility; that is, people are removed from the social contract and made invisible. Instances of such property-induced invisibility can be seen throughout history among native peoples whose land was stolen through conquest. Also, Tutsi and moderate Hutu subjected to property confiscation during the Rwandan genocide. The dispossession of nonwhites during apartheid governments' incessant campaign of dehumanization would be yet another modern-day examples of property-induced invisibility.
As to the 2d question, I argue that societies must redirect their focus from the limited concept of reparations to restoration. When the concept of reparations is invoked, the goal is to secure compensation for past wrongs; however, the state does not allow the dispossessed to choose how they are compensated. Restoration, in contrast, is a larger project -- a project of restoring a dispossessed group or individual’s relationship to society, of including them in the social contract and thereby reversing the condition and effects of their property-induced invisibility. Restoration is accomplished through a bottom-up process that provides asset-based choices; that is, choices that both allow people to decide how they are to be made whole and give people viable options from which to make that decision. The options may vary according to what is possible; for example:
► return of property
► alternative property
► monetary compensation
► free higher education for 2 generations
► priority in an already established housing process
► highly subsidized access to credit
The article then moves to an evaluation of South Africa’s Land Restitution Program, as a means of testing the theoretical concepts of property-induced invisibility and restoration previously set forth. More specifically, I investigate whether, as a baseline, South Africans who were subjected to property-induced invisibility are benefiting from the Land Restitution Program. In addition, I offer recommendations on how the government can transform the Land Restitution Program from a reparations program to a restoration program.

(photo courtesy of South Africa's Commissions on Restitution of Land Rights)


 
Bloggers Team