Post-Conflict Property Restitution: Flawed Legal and Theoretical Foundations

36 Pages Posted: 13 Oct 2016

See all articles by Megan J. Ballard

Megan J. Ballard

Gonzaga University - School of Law

Date Written: 2010

Abstract

The international community has recently hailed the restoration of property rights for people uprooted by armed conflict as a means of remedying forced displacement. Proponents of property restitution assert that this remedy can enhance the rule of law in a post-conflict society by promoting reconciliation and bolstering economic and social stability. A United Nations (U.N.) subcommission has endorsed a set of legal and technical guidelines for constructing a property restitution scheme. While other authors have written in support of this plan and a general right to property restitution, this Article represents a critical analysis of the remedy, pointing to weaknesses in its legal and theoretical foundations.

The current emphasis on property restitution is similar to past efforts of the United States and other Western nations to promote the rule of law and economic development through exporting an instrumentalist model of law. Just as these well-intentioned "law and development" efforts were plagued by unforeseen, deleterious consequences, so too might the export of property restitution laws and processes suffer from ill side effects. This Article identifies some of the possible unintentional outcomes of property restitution, including, ironically, that the U.N.'s property restitution scheme may ultimately undermine development of the rule of law. The Article seeks to spur further debate on the merits of property restitution so that unintended consequences might be avoided and the remedies to forced displacement can be strengthened to meet the needs of refugees and internally displaced people.

Suggested Citation

Ballard, Megan J., Post-Conflict Property Restitution: Flawed Legal and Theoretical Foundations (2010). Berkeley Journal of International Law (BJIL), Vol. 28, No. 2, 2010; Gonzaga University School of Law Research Paper No. 2016-12. Available at SSRN: https://ssrn.com/abstract=2850639

Megan J. Ballard (Contact Author)

Gonzaga University - School of Law ( email )

721 N. Cincinnati Street
Spokane, WA 99220-3528
United States

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