The Dispossessed and the Distressed: Conflicts in Land-Related Rights in Transitions from Unlawful Territorial Regimes
CONFLICTS BETWEEN FUNDAMENTAL RIGHTS, Eva Brems, ed., Intersentia: Antwerpen, 2008
42 Pages Posted: 17 Oct 2007 Last revised: 15 Apr 2015
The article concerns the mechanisms adopted for balancing conflicting rights related to privately-owned real property in a discrete category of situations, namely transition from unlawful territorial regimes. It is based on practice in various historical and contemporary cases of transition from unlawful regimes. These transitions were characterized by the need to balance two conflicting principles, namely ex injuria ius non oritur and ex factis ius oritur. They place in direct conflict persons who have been dispossessed of their property by the unlawful regime, and those who have been purportedly given rights in the same property by that regime.
A preliminary issue is the significance that should be attached to the unlawfulness of the purported grant of rights. Another question is whether to grant unqualified priority to one right over the other or to attempt a balance between them, and, in the latter case, whether to take account of the intrinsic characteristics of the rights or of extrinsic factors. An analysis of specific mechanisms adopted by various post-transition regimes reveals that despite the great political differences among them, they share many common features. This phenomenon suggests that there are some principled guidelines in the balancing of the fundamental rights, rather than only ad hoc decisions. The absence of complete uniformity nonetheless highlights the challenges and difficulties involved in the process.
Keywords: dispossession, restitution, land, original owners, current occupants, human rights, Baltic States, TRNC, East Timor, territorial regime, ex injuria
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