Pinheiro and the political philosophers: Achieving justice through post-conflict property restitution

by Christopher Thornton

All legal principles seek, at least in theory, to advance some form of justice. Justice is not however an axiomatic concept; it is highly context-specific and ambiguous. When we are attempting to codify and promote legal norms we cannot afford to fall back on Justice Potter Stewart’s “I know it when I see it” test. Rather we must rigorously interrogate whether a particular legal norm advances justice and under what conditions. This post will attempt a preliminary exploration of the justice of property restitution. It will examine the philosophical paradigm that forms the basis of this “right” and consider how property restitution looks through different philosophical lenses.

Paolo Sergio Pinheiro, the godfather of the right to property restitution in the form of the ‘Pinheiro Principles,’ refers to this right as a “key component of restorative justice” (Principle 2.2) What exactly is meant by “restorative justice”? Restorative justice is a judicial approach that aims to foster reconciliation between conflicting parties. It does not seek to apportion blame but rather to find solutions that allow the parties to both feel that, as justice has been delivered, they can re-establish their relations on a normal footing. Mediation and other flexible problem-solving approaches are characteristic of restorative justice. Restorative justice approaches are particularly useful in post-conflict situations, where the dichotomy between perpetrator and victim is seldom self-evident.

The notion of a right to property restitution, at least strictly interpreted, does not conform to the usual definition of restorative justice. A right to property restitution, and perhaps more broadly an unconditional right to anything, eschews problem-solving approaches and encourages total disregard for the views of the other concerned party. There is little space for a negotiated solution where one party feels they have absolute rights and are absolutely right. I believe that Pinheiro’s use of the term “restorative justice” is misguided, perhaps a result of a conflation of “restorative” with the verb to restore: “to return (something lost, stolen etc.) to its owner”.

It would be more accurate to describe property restitution as a form of corrective justice. Corrective justice finds its philosophical roots in Aristotelian ethics. What matters for a just solution in Aristotle’s eyes is that corrective action is taken to return the situation to the status quo ante. Aristotle describes this as equality: “the just … consists in having an equal amount before and after a transaction.”[1] Property restitution aims to restore a person to the state they were in before the ‘transaction’ took place, i.e before their displacement and subsequent loss of their property, and thus evinces a corrective justice approach to the problem of post-conflict property disputes.

Aside from the practical problems created when more than one “transaction” has taken place (necessitating a chain of corrective actions, which, in some post-conflict situations, has made property restitution programmes look like a game of “musical chairs” in Cox and Garlick’s words), the main problem with this conception of justice is that it presumes the status quo ante was just. Putting aside the question of whether forced displacement is the “right” way to address unjust distributions of property (which I don’t think it is), how do we decide whether a particular person was justly entitled to their property (and by extension, unjustly deprived of it)?

For John Locke this was perfectly simple: one develops the right to a property when one combines one’s labour with previously un-owned goods. As few of us now can enjoy the pleasure of clearing the bush and farming virgin soil, how does one acquire property rights in the modern age? Robert Nozick hypothesises that once one has developed property rights in the manner described by Locke, one is also entitled to transfer them on to others: thus an unbroken chain connects modern property owners to their forefathers who toiled to create fields and houses from the untamed wilderness. These principles are entitled justice in acquisition and justice in transfer by Nozick. Property cannot be taken from someone who is entitled to it under either principle. Only if someone has acquired property in violation of these principles can property by legitimately taken: this again is conceptualised as a corrective measure, entitled as justice in rectification by Nozick.

This seems to simplify matters for us: unless a displaced person has acquired or been transferred their property unjustly, the State must rectify the violation of their property rights, and what better and simpler way than through property restitution? Conversely, the current occupant is precluded from developing bona fide property rights because arguendo their acquisition of the property or its transfer to them was unjust. Taking the property from the current occupant is justified by the principle of justice in rectification.

However, this theory of justice creates problems of its own. First, what do we do in situations where both previous and current occupants can demonstrate legitimate ownership of the property? As we know, secondary occupants often purchase properties from someone claiming to be the legitimate owner. In situations of protracted displacement, what is the burden of investigation imposed upon the purchaser, who may be three or four steps removed from the displaced former occupant? Second, it is impossible to evaluate the justice of historical patterns of property ownership to determine whether the displaced person’s ancestors acquired the property “justly” (in a Lockean sense). Attempting to do so may perversely license discriminatory expropriations based on the argument that a group’s property rights are invalid due to the injustice of their acquisition several hundred years ago. For example, reasons of undeserved historical privilege ostensibly justified the seizure of Tutsi property in Rwanda.

Moreover, justice in rectification is based on counterfactual speculation, which assumes that the dispossessed would have acted in a certain way if intervening forces had not compelled them to leave their property. In some ways this seems a little strange: Why do we choose to restitute property to the forcibly displaced and not to those who lose property through bad investments? There is no ethical reason that one form of bad luck, e.g. forced displacement, should be differentiated from another, e.g. market crashes. This critique of Nozick is made far more eloquently than I ever could by Jeremy Waldron.[2]

The philosophical underpinnings of property restitution, whether under the concept of corrective justice or an entitlement theory of justice, does not provide convincing justifications for a strict right to property restitution. Let us now look and property restitution through a different philosophical lens.

John Rawls challenges any conception of justice which suggests that one’s possessions, position in society and economic opportunities are a reflection of any kind of justice: his view is the antithesis of the American dream. For Rawls, one’s holdings are a product of three main contingencies: natural assets (e.g strength and intelligence), social contingencies (i.e inherited socio-economic status) and chance contingencies (i.e ill or good fortune). These contingencies are arbitrary and consequently holdings acquired because of them are neither justly, nor unjustly, held: one is not morally entitled to a property because one was born into a particular social class or because one was blessed with a particularly lucrative talent. Distributive justice, rather, dictates that justice is best served when each person has a set of basic liberties, equal opportunity to obtain positions commensurate with their motivation and ability, and when resources are distributed to ensure that everyone has minimally adequate food, shelter and medical care etc. This conception of justice poses significant challenges to a strict right to property restitution.

As is well known, discriminatory patterns of property distribution are often one of the key factors leading to conflict and instability. In such situations, returning to the status quo ante re-establishes a situation which may be characterised as unjust from a distributive justice perspective and potentially perpetuate instability. The emotive appeal of property restitution, fuelled by images of destitute refugees, often fails to capture the disparities in property distribution, both within and between groups, which often existed prior to violent conflict. An examination of the claims made before the European Court of Human Rights in Demopoulos v. Turkey evinces these disparities: for example, one claimant sought restitution of 26 properties which he previously owned in full and two which he owned in part. Other claimants advanced similar claims.[3] We see a less extreme example of the same phenomenon in Banja Luka, where a significant number of Bosniaks retain restituted homes for recreational purposes while evicted Serbs remain homeless and impoverished. Many of these Serbs are also displaced persons, unwilling to return to their pre-war homes and unable to afford property in Banja Luka. At least from a distributive justice point of view, this cannot be considered just.

Property restitution may not only restore previously privileged claimants to their privileged position, but may do little to assist the least advantaged displaced persons. In situations across the globe from Afghanistan to Burundi, from Kosovo to Palestine it is widely acknowledged that property restitution would benefit relatively few displaced persons and would fail to compensate the poor and underprivileged who often suffer the most from displacement.

While property restitution to the affluent displaced would not be particularly invidious in a climate which provided redress to all displaced persons, in the current climate, where “land reform” is considered taboo and other forms of reparation struggle to attract significant investment, we may find that property restitution is the main form of redress offered to displaced persons. We do, however, find that some programmes packaged as property restitution programmes, such as the South African case, are better considered as land reform programmes based on distributive justice. Similarly, in Guatemala, a mechanism was also created under the title of property restitution to provide land to the landless displaced. These cases, which are misnomers in my opinion, do not undermine my analysis, but rather indicate the restrictive political environment in which such programmes are conceived.

Thus, we see that property restitution could produce far from just outcomes when viewed through the lens of distributive justice.

One compromise solution to the problem of property restitution restoring rampant inequalities in property distribution is to place limitations on property restitution precluding, for example, the restitution of multiple homes, businesses or large properties. Such limitations are not unprecedented: in Kosovo, the HPD/HPCC exempted commercial property and agricultural land from restitution (although its successor organisation the KPA, did acquire a mandate to restitute these types of property), and, in the Hungarian restitution programme which followed the collapse of the communist regime, only a percentage of the value of a property was restored above a set minimum.[4] This would help to ensure that properties with which occupants had a strong personal attachment were returned but other properties were compensated only in part or by other means.

The key consideration, from a distributive justice perspective, should be providing displaced persons and current occupants alike with adequate housing. A secondary consideration should be ensuring that personal attachments to properties are respected. This would necessitate evaluating who has the greater present, continuing and legitimate attachment to the property, the former or current occupant. None of these comments suggest that property restitution be thrown out of the window but merely ensuring that it is used selectively in order to advance justice in the here-and-now.

There are many other paradigms of justice which have interesting implications for dealing with post-conflict property disputes: utilitarian justice, retributive justice. Waldron’s supersession theory of justice is particularly relevant in exploring the question that I set aside near the beginning of the post: how can a just distribution of property result from an unjust action? However, I believe I have already taken up far more space than I ought to and am happy to open the floor to other views.

[1]    Aristotle. Translated by W.D Ross. 1999. Nicomachean Ethics (Batoche Books, Kitchener) p. 78

[2]    Waldron, Jeremy. 1992.“Superseding Historic Injustice” Ethics (Vol. 103, No. 1) p.12

[3]    ECtHR. 2010. Demopoulos and Others v. Turkey (Admissibility) § 19-31

[4]    In the Hungarian reparations programme, “Claims up to $2,300 are compensated in full; the next $1150 are compensated 50%; the next $2,300 get 30%; and amounts above these totals get 10% up to a maximum compensation of about $57,000”: Heller, Michael; Serkin, Christopher. 1999. “Revaluing Restitution: From the Talmud to Postsocialism” Michigan Law Review (Vol. 97, No. 6) p.1402


One response to “Pinheiro and the political philosophers: Achieving justice through post-conflict property restitution

  1. Pingback: Upcoming TN guest-postings in early 2012 | TerraNullius

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