Tag Archives: distributive justice

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)?

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Week in links – week 15/2011

Apologies to TN readers for having been a little incommunicado in the last days! Have been too busy to even chase down some interesting guest postings that are in the works, let alone write, but I hope to pick up the pace again in the next weeks. Lots of interesting items out there in the HLP-related world as usual:

First, on womens’ land rights, the Landesa blog includes an interesting piece on the recent ‘revolution’ in Bengal that resulted from the inclusion of an extra line allowing registration of land grants in both spouses’ names. Earlier this month, the fourth Women’s Land Link Africa (WLLA) Land Academy was held in Arusha, Tanzania, with participants from fourteen African countries.

The Financial Times reported on the land issues now awaiting the attention of Ivory Coast’s new President Alassane Ouattara, now that the technicalities of the succession appear to have been resolved. As anticipated in Barbara McCallin’s earlier guest-post and report, both the technical and political obstacles will be sobering:

Some immigrants – many of whom have now lived in Ivory Coast for decades – have been thrown off their farms and may now want to return. This is a delicate issue for Mr Ouattara, and risks further alienating Mr Gbagbo’s supporters – those who already see the president-elect as a foreigner who favours immigrants. “He can’t be seen as someone who wants to take away the land from the indigenous groups,” the analyst added.

As documented in the report on a recent seminar held by Swedish Water House, the Swedish Government has come around to the notion of a human right to water after a surprising amount of circumspection (compared to peers such as the UK, which took the plunge in 2006). While Sweden is undoubtedly a progressive country, it has for various reasons been historically reluctant to consistently express this outlook in a vocabulary of rights. The official justification given for the delay in this case is somewhat lame – if everyone waited for the results of contradictory and bumbling UN processes instead of pushing them along, who knows where we would be right now. But the apparently enthusiastic embrace of this right by a key player in the water business is more than welcome.

The ICJ case pitting Georgia against Russia that I blogged on earlier here has been dismissed without examination on the merits. For a good analysis of the reception of this news in Georgia and Russia, see this recent piece in Opinio Juris. Presumably, the rather innovative interim measures previously ordered by the Court to protect the property of displaced persons have lapsed as well. More jaded readers may be tempted to wonder whether anyone on the ground will notice… (UPDATE – a bit more analysis by Marko Milovanovic at EJILtalk)

Finally, as if you didn’t have enough to peruse, the Forum for International, Criminal and Humanitarian Law has published a 440 page door-stopper of a book on ‘Distributive Justice in Transitions‘. It focuses heavily on land issues, with lots of case-studies on Colombia, and looks to be a fascinating read.