Inclusion and Representation in the Settlement of Property Claims in the Aftermath of Armed Conflict
Theoretical Inquiries in Law (2020), Forthcoming
24 Pages Posted: 7 Dec 2019 Last revised: 10 Jun 2020
Date Written: December 1, 2019
This article examines the authority of states to settle individual private property claims in post-conflict negotiations towards settlement. We analyze this question by exploring the limits of states’ authority to take or limit private property rights for the public good. We argue that this authority rests on two cumulative justifications: the inclusion of the property owners among the public that stands to benefit from the public good, and their representation by the government that decides on the taking of the property. In post-conflict settlement, the negotiating states may redistribute both private property and the public good between and within their respective communities. Their authority to redistribute continues to rests on the same justifications of inclusiveness and representation. Hence, their authority extends only to the redistribution of property of owners who are members of the respective communities that negotiate the agreement, and who are represented by a negotiating government.
Keywords: International Humanitarian Law, Laws of Armed Conflict, Belligerent Occupation, Property Rights, Resolution of Property Claims, Post-Conflict Peace Negotiations
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