Tag Archives: privatization

Look before you legislate? The challenges facing restitution in Libya

by Rhodri C. Williams

It seems that plans are now afoot in Libya for a full-scale program of restitution of properties nationalized and appropriated under the Ghaddafi regime. Bloomberg reported yesterday that a law envisaging a two phase process will be rolled out as soon as next month:

Libya will announce a law that will return land and buildings expropriated by late ruler Muammar Qaddafi to the original landowners “within weeks,” a senior member of the Land Ownership Committee said.

“Phase one will return unused lands, empty shops, buildings and villas taken by Qaddafi’s regime and then by the rebels to the rightful owners,” said Fawzy Sheibany, legal representative for the committee, in an interview in the capital, Tripoli. “This will mean millions of dinars can be invested in construction projects and provide employment.”

Phase two of the new law involves rehousing families residing in buildings on expropriated land and could take several years to implement fully, he said. The Ministry of Justice will deal with individual cases through a civil court.

On the face of it, there is every reason to welcome this development. The Ghaddafi-era expropriations were ostensibly meant to further public purposes but became, by all accounts, an arbitrary means of both punishing enemies and rewarding those the regime favored. Moreover, the resulting legal uncertainty in property relations was cited (in 2004) by a leading Middle Eastern law firm as a key structural obstacle to legal reform efforts during the run-up to the uprising:

As a result of abolishing real property ownership for investment purposes, the commercial real estate market has been completely distorted. There exists now a private land market and a public land market with a price gap that creates considerable uncertainty for both foreign and local investors. Compounding the problem, the [1997] Foreign Investment Law is not clear as to whether real property can be used as collateral or even can be freely transferred without government approvals. The government has announced plans to reform the laws governing property and rentals, but their scope is uncertain.

Finally, perhaps the most convincing ground for pushing for quick legislative measures is the need for the National Transitional Council (NTC) to be seen to lead from the front. In the wake of Amnesty International’s widely publicized allegations of human rights abuses by ‘out of control’ militias in Libya, anything the NTC can do to stamp its legitimate authority on matters of broad public interest appears welcome. In fact, this is a particularly important issue in regard to property. Recent reports such as this one by the Guardian indicate that the militias have become part of a pattern of spontaneous restitution, often carried out by means of violent self-help.

So what, one might ask, is not to like in a bill that serves not only justice but also economic development and political consolidation? The answer is that if it is rushed through without consultation, this bill may actually have the opposite effect, generating new cycles of grievance, reducing legal certainty and even undermining the authority of government in Libya if it proves impossible to effectively and consistently implement. Perhaps the most cogent argument for a deliberative approach to restitution for the prior regime’s confiscations is that this is to some extent a constitutional decision rather than merely a legislative one. Continue reading

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Someday, none of this will be yours: the predatory state eyes ‘public’ land

by Rhodri C. Williams

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a  particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent TN guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, the Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

Continue reading

Proposals to allow private ownership of First Nations’ land spur debate in Canada

by Anneke Smit and Gloria Huh

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada.  She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013).  Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.

In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people.  Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations.  Further, a steady stream of judicial decisions (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.

Not all is well however.  Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing.  Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.

Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples.  Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada.  The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.

This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position.  To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw).  While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted.  The proposed Act would change that.

The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement.  While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.

While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time.  University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands.  Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights.  They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country.  The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.

To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders.  A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat.  But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.

Week in links – week 44/2011 – restitution in Libya, privatization in Cuba, assimilation in Israel

I’m a little behind this week having been in Cyprus, where I participated in the launch of the paper on property issues I co-wrote with Ayla Gürel for PRIO. The local feedback was very helpful as we are planning to expand the scope of inquiry a bit beyond the fallout of the Demopoulos case in the coming months.

Much of interest from the net this week, including one of the first really good reports on the transitional housing, land and property (HLP) issues in post-revolution Libya from the Guardian. This new article goes well beyond the expensive but relatively tractable reconstruction issues described by BBC last week and enters into the far more fraught territory of what to do about the great transfer of assets that resulted from the Ghaddafi regime’s selective nationalization of property.

Quite a few familiar dilemmas arise, including lurking historical claims (in this case, those of expelled Jews), multiple subsequent purchases by third parties, weak courts, unclear rules, the suspicious 1982 destruction of the land registry, and the fact that the expropriations had (in many cases) a genuinely distributive element, meaning that reversing them would disproportionately worsen the situation of marginalized groups.

In the area of belatedly getting with the times, the New York Times reports that Cuba has now formally adopted a new property law allowing far less restricted transactions in homes than was previously the case (see earlier observations on these developments here). After decades of state control, no one seems to be able to predict where this will go, although some positive economic affects and quick attempts to buy in to the property market by exile Cubans seem like safe bets.

In the area of never getting with the times, the Guardian reports that Israel has proposed a bill to allow the near wholesale resettlement of Bedouin nomads from (what remains of) their traditional territories in the Negev desert to planned new towns. All in the name of modernisation and progress, all undertaken without consulting those affected or paying any heed to the fact that previously forcibly urbanized Bedouins have hardly benefited. Very 1960s. A brief excerpt from the article reads like a compendium of discredited colonial and post-colonial assimilation policies:

Before 1948, the Bedouin tribes lived and grazed their animals on much of the Negev, claiming ancestral rights to the land. In the following decades, the state of Israel took over almost all of the land; the Bedouin lost more than 3,200 land ownership cases in the Israeli courts in the early 1970s, rejected mainly on the grounds there was no proper documentation. Now the Bedouin are claiming ownership of about 5% of the Negev as traditional tribal lands.

Three years ago, the government commissioned a retired judge, Eliezer Goldberg, to make recommendations for dealing with the Bedouin. He advised that many of their villages should be recognised, acknowledging their “general historic ties” to the land.

A committee chaired by the planning policy chief, Ehud Prawer, was tasked with looking at how to implement Goldberg’s recommendations, and proposed the immediate transfer to the state of 50% of the land claimed by the Bedouin, minimal compensation for the remaining land with severe exclusions and the demolition of 35 unrecognised villages. The Bedouin were neither represented on nor consulted by the committee.

As my soapbox is only so big, I’ll leave aside the issue of Israel’s apparently retaliatory expansion of its West Bank settlements this week.

And a last note, the Guardian also reports on the aftermath of the Dale Farm evictions in the UK (see previous WiL)

Week in Links – Week 33/2011: Ethnic engineering in Osh, privatization in Havana

I should begin by noting that my NRC report on urban displacement in Liberia has now been published in the Journal of Internal Displacement, vol. 1, no. 2. Other articles in the same edition cover the plight of the Sahrawi people in Morocco and provide an assessment of development-induced displacement in the Narmada Valley in India.

A bit of follow-up in the meantime on some stories TN has been following:

– First, the latest Economist (Aug. 13) gives some insights into just how bad things have gotten for the Uzbek minority in southern Kyrgyzstan since the appalling violence last summer that killed hundreds. According to the article (“Kyrgyzstan’s Uzbeks: Weak fences, bad neighbours”), all signs of moderation are now gone.

At the national level, Kyrgyz nationalism is “surging” in advance of October’s presidential elections and the head of the International Commission of Inquiry that found evidence of crimes against humanity undertaken during the pogrom (see TN post here) has been PNG’ed by Parliament.

However, events in Osh, the epicenter of last summer’s violence, are most disturbing. As discussed previously in TN, the Kyrgyz major still appears to have no qualms about using an antiquated master plan as the device for cleansing Uzbek survivors of the violence from their homes and communities in the center of the city: Continue reading

Week in links – Week 30/2011

Discerning TN readers will have noted that the blog has now clearly gone into summer mode (even if its slightly workaholic administrator has, regrettably, not entirely managed the same trick). In any case, I’ve tried to keep track of a few interesting items, below, for what should now properly be called the ‘month in links’.

It’s also my pleasure to announce an upcoming guest-posting by Veronica P. Fynn, the Editor-in-Chief of the Journal of Internal Displacement. Veronica will introduce the journal and highlight some of the property issues covered in its first edition (full disclosure: my recent NRC report on Liberia is under consideration for reprinting in a forthcoming edition).

And now, some HLP highlights from July 2011:

– Beginning with UN Special Mechanisms, UN Special Rapporteur on the Right to Food, Olivier De Schutter has published an article in the Harvard International Law Journal on “The Green Rush: The Global Race for Farmland and the Rights of Land Users“.  Mr. De Schutter introduces the piece with a nice summary in Opinio Juris, in which he suggests the need to move beyond decrying the global land rush phenomenon to seeking ways to minimize its negative impact on local communities. However, Katharina Pistor’s response in OJ highlights significant obstacles to such approaches, both at the level of politics and of theory.

– Meanwhile, UN Special Rapporteur on the Right to Adequate Housing Raquel Rolnik recently followed up on her report on the right to housing in the wake of conflict and disasters (posted on here) with a trip to Haiti in which she appealed for an end to forced evictions and endorsed a proposal by UN-HABITAT for a “comprehensive strategy for reconstruction and return”. A further report on post-disaster housing issues is said to be shortly forthcoming.

– UNHCR recently called for the creation of “new tools” to address the effect of climate change-induced displacement. The agency also released a report noting the 80% of the world’s refugees now find themselves in developing countries and that protracted displacement is becoming the rule rather than the exception.

– Although the most recent coverage of Kyrgyzstan on TN related to the defensive and unconstructive reaction of the national government to a critical report by an international Commission of Inquiry on last summer’s violence in the country’s south, the local response apparently continues to deteriorate as well. EurasiaNet now reports that the authorities of the city of Osh, where the violence against ethnic Uzbeks reached its peak, have rediscovered their infatuation with an urban master plan from 1978. The failure of the authorities to stop a heavily armed mob from demolishing centrally located Uzbek neighborhoods, while regrettable, now presents an opportunity to build  high-rise housing, and reconstruction – even with the prospect of Asian Development Bank funding – is not on the agenda.

– Keeping on the theme of bad behavior, Israel gets the latest award for innovations in forced evictions (previous honors went to Cambodia for the use of dredging machines). BBC reports that Bedouins in the Negev Desert now not only face regular demolition of their homes but will also be expected to foot the bill for this important public service.

– On a more positive note, BBC has also reported on a recent decision by the Cuban government to allow open sales of homes and cars in Cuba. In a follow-up piece, the BBC described the pressing need for such reforms in a setting where the previous system of exchanges with government approval and without money changing hands fostered informality and corruption. As noted previously on TN, BBC coverage has not addressed the issue of historical claims by exile Cubans that may exist against some of the properties involved. Thus, it is only possible to speculate on whether Cuban privatization now may serve a similar dual purpose to Cambodian privatization in the late 198os, where investing current users with greater rights also served to dilute the claims of exiled historical owners.

Week in links – week 17/2011

A somewhat abbreviated WiL this week as the family is on Åland for an extended Easter break.

BBC coverage of this week’s Communist Party congress in Cuba leads with the news that private property rights will be allowed again, though the details have yet to be released. The main rule at this point appears to be that “concentration of property” will not be permitted. One is tempted to wonder if part of the motivation is to cut off restitution claims by Cuban exiles. As a stratagem, this worked rather well in Cambodia, but that was the Eighties…

– The European Journal of International Law (EJIL) has released its latest issue online. The focus is on the ‘human dimension of international cultural heritage law’, with quite a lot on the restitution of cultural property but also a number of interesting articles on indigenous peoples’ rights, including to land.

– The New York Times reports that scientists met in Aleppo, Syria this week to develop strategies for combating new diseases afflicting wheat. Let us hope that they are not hit by any stray bullets from the strategies the Syrian security forces have developed for combating new diseases afflicting authoritarianism.

– Tim Dunne and Jess Gifkins do a nice job in OpenDemocracy of pushing along the debate on how the current Libya intervention may both support and undermine the new concept of ‘responsibility to protect’ (R2P).

– Finally, the New York Times reported first on the pending collapse of a promising flurry of regional cooperation over damming the Mekong in Southeast Asia – and then its actual collapse.