On Rights to Land, Expulsions, and Corrective Justice

| January 2014
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This article examines the nature of the wrongs that are inflicted on individuals and groups who have been expelled from the land that they previously occupied, and asks what they might consequently be owed as a matter of corrective justice. Such cases—in which individuals and groups are expelled, their property is expropriated, and their land is subsequently settled by other people—are not unusual. They include the expulsion of Germans from the Sudeten area of Czechoslovakia between 1945 and 1947; the expulsion of (mainly) Greek Cypriots from the north of Cyprus following the Turkish invasion there in 1974; and the expulsion of Muslim Bosniaks from what is now called the Republic of Srpska, in Bosnia-Herzegovina, between 1991 and 1995. Historically, there are numerous other cases of “ethnic cleansing” and border redrawing. The injustice with which this article is concerned is also foundational to the current dominant societies in the Americas and Australasia.

I argue that there are three sorts of potential wrongs involved in such expulsions: being deprived of the moral right of occupancy; being denied collective self-determination; and having one’s property rights violated. Although analytically distinct, all of these wrongs are likely to be perpetrated when people are expelled from their homelands. Although there is substantial literature on corrective justice dealing with such cases, most of that literature focuses on the expropriation of property only, and is therefore unlikely to grasp the full implications of the wrong done or to reveal the full extent of what might be owed to people as a matter of corrective justice.

Most theorists writing in the corrective justice tradition distinguish among three different mechanisms for correcting historical injustice: restitution, or giving back whatever it is that has been unjustly taken; compensation, or giving something of a certain value but not the unjustly taken thing itself because restitution is impossible, or in addition to restitution to make good the loss the victim has suffered meanwhile; and apology, again either because restitution is not possible or because there is an independent reason to acknowledge the wrong. Typically, these mechanisms are discussed in terms of the violation of property rights. I do not deny that property rights may be relevant in the analysis of such cases, but I suggest that a fuller analysis of the appropriate remedy requires us to identify which particular rights are violated and to analyze the interaction between that particular right and the interest it is designed to protect, on one hand, and between the particular right and the appropriate corrective justice mechanism, on the other.

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Category: Article, Issue 27.4, Migration

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