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Univ. of Kentucky College of Law

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Tuesday, March 15, 2011

Watching in Sorrow and Horror

As I suspect many of you have been, I have been riveted watching the disaster in Japan this week.  The horror is so overwhelming, and the sorrow so immense, that it is difficult to think rationally about the long term needs of Japanese society.  Nonetheless, when the catastrophe is finally controlled, there will be some very hard decisions that must be made about property rights. 

I had the good fortune last week to sit on a panel at the ALPS conference with Professor Daniel J. Fitzpatrick from the Australian National University College of Law.  Daniel may be the world's leading expert on post-disaster property rights issues.  He was the primary author of the United Nations Human Settlement Programme's Land and Natural Disasters: Guidance for Practitioners, and worked for the UN in Indonesia following the Boxing Day tsunami, helping to re-establish a land tenure system. 

Post-disaster land issues are both immense and immensely important.  Consider, in addition to the much greater human costs, what has been lost in some instances in the Japanese tsunami: _51634457_011498586-2

  • the very land itself that people claimed ownership of;
  • all records of ownership and debt secured by that property;
  • all boundary markers;
  • all personal property;                                                                       
  • for survivors of those killed, all property intended for inheritance, and all records of the decedents' intent. 

Moreover, the great humanitarian needs of the survivors may mean that simply in order to live, others must occupy and make use of property that is not their own, with no way of defining rights, or even knowing whether any claimant to those rights will ever appear.

These issues aren't just important to the personal lives of the survivors; they can help determine whether a society as a whole can recover from disaster, and how quickly.  In order to have shelter, grow food, and produce economically, many of these issues will have to be addressed quickly.                                                       

In addition, it is important to remember the emotional and psychological costs of lost property.  As we know, property can become bound up with the person, so that the loss of property becomes a loss of part of one's identity.  I tell my students to think of the concept of "the horcrux" from Harry Potter -- sometimes a part of a person's soul enters an object, and when that object is destroyed, the result is devastating for the person.                                

From listening to Daniel last week, I know that in his experience, context is critical in restoring land tenure systems in order to restore lives and avoid conflicts among the survivors.  The Japanese people themselves will have to decide how property rights should be allocated to best aid recovery.  It is another task on the long list of difficult work ahead.

Mark A. Edwards

(picture from BBC website)

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Comments

I WISH I could get more information on the issue of property rights. My interest though is not necessarily in the area of property rights after natural disasters (although I had been wondering about this), it's more about property rights when your political system itself is questionable (such as the current case in the US, where there is no longer a democracy, but rule by large corporate interests to the exclusion of voters). What happens when your government can no longer be trusted to follow the law? How do you assign a risk premium to that?

And consider the real estate risks when you live in a country that is rapidly printing money in order to mask horrendous long-term debts (both at the state and federal level). What is the risk to property when your government can tax that property endlessly? Or the risk that comes from asset seizure without proof of guilt of any crime? This is our current situation in the US. Regardless of the fantasies of most Americans, the primary threat to our capital is our own government; not Osama bin Laden; not radiation from Japan. How do we properly account for this political risk?

Posted by: Gene | Mar 19, 2011 3:01:22 PM

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