Daniel Fitzpatrick

Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has been studied extensively, scholars have paid relatively little attention to the evolution of open access itself. This Essay presents a theoretical analysis of open access that focuses on contested institutional interactions between laws, norms, and agreements. It argues that rising resource values are more likely to lead to open access than private property when the institutional environment is characterized by competing legal and norm-based systems. The Essay concludes that to understand property failures in contemporary Third World circumstances, we must move beyond conventional evolutionary analysis to taxonomic formulations based on the nature and interaction of property enforcement arrangements.

Land Claims in East Timor: A Preliminary Assessment

The task of land claims in East Timor is unusually complex and difficult. This article, therefore, simply attempts a preliminary assessment. It does not seek to provide answers or recommendations as such, but rather a basic chronology of events, and typology of current and future land claims. The picture will be incomplete, and a primary purpose will be to indicate what further information is required. Nevertheless, it is hoped that the information provided will be enough to begin debate, particularly in the Australian legal profession, on means of assistance and appropriate ways forward.

Land Policy and Transitional Justice After Armed Conflicts

Conflict often brings about dynamic changes in land distribution and governance systems. Vulnerable populations are displaced, secondary occupants complicate title, and political elites capitalize on the breakdown of governance to consolidate control over land. As a result, land policy plays an important role in recovering from the effects of conflict, as well as ensuring that further conflict does not follow. However, land-related challenges are rarely addressed holistically because land is a cross-cutting issue which implicates siloed domains of peacekeeping, humanitarian relief, and development assistance. Moreover, international law paradigms of rights to housing, land, and property can complicate the question of how to provide effective remedies for past human rights violations. A focus on universalized rights, or “best practice” models, may hinder adoption of effective land policy because of resistance from political elites or challenges posed by inter-agency coordination and institutional capacity. This chapter focuses on dynamic changes in land governance systems resulting from armed conflicts and their effect on the modalities of land policy as an instrument of transitional justice. It suggests, in particular, the need for a contextualized “systems” approach to post-conflict land policy as an alternative to rights-based models of property restitution to dispossessed persons.