Academic

Stigall on the Iraqi Civil Code & Displaced Persons

By Lawrence Solum

Dan E. Stigall (U.S. Army JAG Corps) has posted Of 'Principles' and Property Law: the Iraqi Civil Code and its Compatibility with International Standards for the Treatment of Displaced Persons on SSRN.   Here is the abstract:

A recent report by Refugees International notes that Iraq is currently faced with one of the most acute displacement crises in the world, with over 5 million Iraqis displaced by violence - 2.7 million of whom are internally displaced within Iraq. Such a situation creates not only a humanitarian crisis but also a perverse opportunity for insurgents and militia groups to exploit the displacement crisis in order to legitimate themselves and achieve geo-political goals. It is critical, therefore, to find adequate remedies for displaced person and forge a sustainable, long-term solution to the ongoing displacement crisis.

The Guiding Principles on Internal Displacement and the Pinheiro Principles provide an articulation of the rights and obligations relating to displaced persons under international law. Those instruments make certain demands on a nation's substantive civil law, primarily in the way the nation's legal architecture frames the nature of ownership; the means of restitution; and the protection given to secondary occupants.

The existing Iraqi civil law system is an adequate legal scheme for providing restitution to property owners who have been displaced or who have suffered a loss due to damaged property. Although it contains a major "blind spot" in a lack of remedies for those who lose property due to military action, such a blind spot is not due to any organic defect in the Iraqi legal system but, rather, the imposition of legislation by the CPA. This exception notwithstanding, the provisions of the Iraqi Civil Code provide a legal scheme to effect restitution that is compliant with the demands of international law.

Full post as published by Legal Theory Blog on July 11, 2008 (boomark / email).