The Origins of Competing Claims to Land in East Central Europe - In-Kind Restitution as a Problem of Fair Division

Abstract

Nations that transition from authoritarian regimes to democracy or emerge after years of protracted civil war often engage in various methods of transitional justice to address wrongs committed in the pre-transition periods. One such transitional justice mechanism that has been variously considered and implemented in these circumstances is the restitution of property, specifically, land. The countries of East Central Europe have presented notorious case studies in this context; they have either avoided property restitution altogether, or they have reallocated property in blatantly unfair ways. But simple solutions or ready-made formulas for property restitution are not, of course, readily available, and each scheme must address the historical, practical, and equitable concerns applicable to the lands and people involved. The impediment to fair restitution on which I focus here is the challenge of historical “layering of claims.” Generally, this “layering” phenomenon arises when the same piece of land is expropriated by an authoritarian regime or occupant and transferred to a new owner. From this owner, the land is then expropriated again - usually by a different autocrat or occupant. But instead of returning the land to its original owner, the property is conveyed to yet another new beneficiary, typically one who is aligned with the authorities effecting the expropriation. This process can be iterated several times, and each stage generates a new class of claimants to the same piece of land.

Keywords: Land Reform, Transitional Justice, East Central Europe, Restitution