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Licensed Unlicensed Requires Authentication Published by De Gruyter September 18, 2020

Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict

Tamar Megiddo and Eyal Benvenisti

Abstract

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 inclusion 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.


* Post–Doctoral Fellow, Minerva Center for the Rule of Law Under Extreme Conditions, University of Haifa. The research was conducted under the auspices of the Minerva Center for the Rule of Law under Extreme Conditions, Faculty of Law and Department of Geography and Environmental Studies, University of Haifa.

** Whewell Professor of International Law, University of Cambridge, CC Ng Fellow, Jesus College, Cambridge, Visiting Professor, The Hebrew University of Jerusalem.

The authors thank Hanoch Dagan, Yaël Ronen and participants of the Historical Justice in the Context of the Israeli-Palestinian Conflict Conference at Tel Aviv University. Cite as: Tamar Megiddo & Eyal Benvenisti, Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict, 21 Theoretical Inquiries L. 397 (2020).


Published Online: 2020-09-18
Published in Print: 2020-07-28

© 2020 by Theoretical Inquiries in Law