Antonio Azuela and Carlos Herrera National University Mexico May, 2007

Transcription

1 The Expropriation of Land for Urban and Infrastructure Projects: A Broken Instrument? Antonio Azuela and Carlos Herrera National University Mexico May, 2007

2 Why expropriation? High public debt in Sao Paulo Political crisis in Mexico Property rights around the Kelo case in de USA

3 Outline The discontent around expropriation Mayor trends in policy and law Exploring contexts of expropriation reform Legal dilemmas

4 The changing landscape of discontent From localized and segmented protest (property owners and evicted settlers, separately) To generalized discontent

5 Displacement by development From 1980 to 2000: 10 million people displaced per year (Cernea, 2000) Only in in China 30 million in 40 years (Meikle and Youxuan, 2000) Since 1980, a policy issue for the World Bank

6 Expropriation of two kinds Removing people from the place where they live Removing assets from people s wealth

7 Two aggravating (institutional) factors Lack of land rights (many users, few right holders) Weak protection from the judiciary (rule of law) Not external factors

8 One aggravating (noninstitutional) factor Growing discontent with development projects (e.g. environmental movements) Public opinion and a new airport for Mexico City Sociology and property owners

9 The use of expropriation as a policy instrument Many indications of a decrease but few official figures

10 Expropriations in Mexico

11 A conjecture: three groups Countries with high economic growth rates / strong states: UP China, South-Korea, Singapore Weakened states (and economies): Down Mexico, Ghana Industrialized economies: Business as usual / growing debates U.S.A., France, G.B

12 The source? Mostly jurists opinions An exception: 239 largest U.S.A. cities...in 49% of cases, property was conveyed to real estate developers only in 3% of the cases did litigation create an extensive delay equitable, effective and efficient (Cypher and Forgey, 2003)

13 Policy trends? Governments Do not report in a systematic way... They rarely express policy orientations WB, USAID, awareness of negative social impact of projects and expropriations The UN system, a similar diagnosis in a different discourse

14 Legal changes: one direction, many contexts General trends: Compensation at market values More stringent procedures

15 Two ways of changing expropriation rules Directly (legislation, courts, international law) Indirectly: Land tenure reforms

16 Forces behind major trends Social resistance ( mobilizations in China during 2006, BBC) Changing patterns of land holding Independent judiciaries Greater role of public opinion Changing international context

17 On the question of global convergence From is it happening? To how are things happening?

18 Understanding legal changes in context Four institutional contexts Four types of issues National sources of law Development agencies The UN System and NGOs Free trade agreements Constitutional Economic development Human rights (housing) Protecting foreign investors property rights

19 Four contexts of initiatives Issues Institutional contexts Constitutional issues Economic development Housing as a Human Right Protection of Foreign Investors Nation /state China, the USA, Brazil India (Mexican Courts) Development agencies (WB ) Africa UN System, NGOs South Africa (India) Free Trade Agreements North America

20 Legal dilemmas on expropriation The concept of public use Compensation Housing rights and population resettlement Taking different components of the bundle of rights

21 The concept of public use A big (constitutional) issue in the U.S.A. (apparently an exception)

22 Compensation The most pressing issue around the world How to determine compensation Who is entitled (land tenure reforms) How to determine, two levels The general criteria Valuation methodologies

23 ANILLO PERIFÉRICO AV. CANAL DE GARAY CALZADA ERMITA IZTAPALAPA LOS ANGELES LOCALIZACIÓN METRO CONSTITUCION DE 1917 PARAJE SAN JUAN LOS ANGELES APANOAYA LA HERA AMP. PARAJE SAN JUAN FRANCISCO VILLA LAS PEÑAS PRESIDENTES DE MÉXICO IZTACCIHUATL LA NORIA CARLOS HANK GONZALEZ AV LOPEZ PORTILLO D. U. QUETZALCOTAL CALZ. SAN LORENZO

24 Housing rights and population resettlement Housing rights and the distinction between two main types of expropriations Land and housing as human needs Property and the market Housing rights, a one-sided discourse Does not recognize economic development dilemmas

25 Expropriation and the bundle of rights doctrine Regulatory takings: Expropriating individual sticks in the bundle Regulatory givings? Tenants, herders and agricultural workers (mainly in Africa), potential beneficiaries (Towards hybrid legal cultures?)

26 Conclusions Growing discontent Linked with wider discontent with development models Trends in the use of expropriation Undocumented, very diverse Trends in the law Growing restrictions on governments

27 Conclusions (Continued) Different issues in different contexts Two legal cultures Neo-institutionalism Human rights Can they recognize each other?

28 Policy implications Reconsidering expropriation does not mean dismissing it Unless it is kept as a hidden monster

29 Future research More empirical analyses: interdisciplinary approaches to law Expropriation, an aspect of the institution of property How does the context matter?