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Univ. of Arkansas, Fayetteville

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Saturday, December 15, 2012

The Wheels of Restitution Turn Slowly, If at All

Two weeks ago a conference was held in Prague on the restitution of property expropriated from Jews in Europe during the World War II era.  The conference came three years after another remarkable conference in Prague produced a document known as the Terezin Declaration, by which 47 countries agreed to facilitate the restitution of, or compensation for, property expropriated from Jews (the Declaration was named after the Terezin concentration camp outside of Prague, where tens of thousands of Jews, and in particular Jewish children, were held before being shipped to death camps further east). 

Terezin
Entry to part of the Terezin complex

Despite that commitment, the recent conference found that progress has been uneven at best.  Restitution is particularly difficult with regard to two types of property -- immovable (essentially real property in the common law tradition) and communal.  The restitution of immovable property is notoriously difficult.  Often, that property is now in the possession of people who committed no wrongs themselves, other than continuing to benefit from the wrongs committed by others (we in North America should have no trouble identifying with that difficulty).  Communal property was often held by rural Jewish communities, and restitution claims for it inherently involve questions of standing.  And, with each day that passes, restitution and compensation become less likely, as current occupiers feel less connected with the past wrongs.   

I've written a lot about the race against time for the viability of restitution claims.  Restitution claims are undermined by a paradox.  It takes time for a society to willingly acknowledge it responsibility for a wrongful dispossession of property rights.  But during that time, the moral strength of claims fade and the practicality of restitution becomes infinitely more complex.  In other words, by the time restitution claims are socially and politically viable, they are often no longer morally and practically viable.  That may help explain the uneven progress made despite the good intentions of the Terezin Declaration.

Mark A. Edwards 

http://lawprofessors.typepad.com/property/2012/12/the-wheels-of-restitution-turn-slowly-if-at-all.html

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