Who owns it? - Land claims in Latin America: their moral legitimacy and implications

Conflicts due to unresolved land claims are a pressing political and social issue throughout Latin America. The two main objectives of this project were to evaluate the moral legitimacy of land claims in different Latin American countries, and to normatively assess the means that have been adopted (or may be adopted) to vindicate such claims. We classified land claims under three types: first, those that appeal to ?contribution-based responsibilities?, i.e to the idea that agents have stringent and demanding responsibilities to rectify past or ongoing injustice insofar as they have contributed or are contributing to it. Second, claims that appeal to ?assistance-based responsibilities?. Here the thought is that agents have a moral responsibility to help those who suffer severe harm at no fault of their own when the benefits of their actions are likely to be significant, and the cost to them will be moderate. A third type of claim appeals to "beneficiary-based responsibilities", namely, it proposes that agents have moral responsibility to address injustices that they have benefited or are benefiting from. To achieve the first objective, we developed and perfected this framework. Øverland and Barry focused specifically on why benefiting from injustice is morally problematic and how the moral wrong of benefiting from injustice is increased by sustaining it in time. Another task regarded evaluating the use of counter-factuals when assessing land claims. Many of the latter rest on the assumption that knowing what would have happened had colonization not taken place, for example, is epistemically uncontroversial. Barry explored the tensions brought about by such an approach. There were difficulties in applying each of the three arguments to particular land claims, making them less decisive than they may at first appear. Assistance-based responsibilities do not appear to entail that the form of assistance to be given should take the form of a particular piece of land. For arguments asserting contribution-based responsibilities to get traction, one must identify those who have contributed to a wrongful harm (the contributors) and those to whose hardships their wrongdoing has contributed (the victims). But in many cases the individuals directly deprived of their land are no longer alive, and the connections that their descendants have to the land may be tenuous. The perpetrators who unjustly usurped the land also no longer exist. This can make it difficult or even impossible to determine, on these grounds alone, who should be compensated, how, and who should bear the cost. Arguments asserting beneficiary-based responsibilities share some of the same features (and are vulnerable to similar challenges) of those relating to contribution-based responsibilities. Having said this, Aylwin and Haaland suggested, respectively, that the demands of the Mapuche in Chile and those of the Zapatista in Mexico may best be cashed out in terms of contribution-based responsibilities - mainly the responsibility of the State in authorizing illegitimate expropriations in the past and in failing to meet their present demands for rectification. Pericás showed how the recent governments in Brazil have explicitly recognized assistance-based responsibilities toward the Landless Peasant Movement, but have failed to live up to their promises. Regarding the assessment of the means that communities have adopted (or may adopt) to vindicate their claims, Mancilla applied the idea of a ?right of necessity? to the claims of urban squatters in Chile in the second half of the 20th century, and those of Paraguayan peasants displaced by soy agribusinesses. She suggested that a right of necessity may be invoked in both, which may serve moreover as a trigger for the States in question to respectively fulfill their assistance-based responsibilities, and eliminate their contribution-based responsibilities.

Conflicts due to unresolved land claims are a pressing political and social issue throughout Latin America. The aim of this project is to investigate the legitimacy of land claims by both indigenous and non-indigenous communities in Latin America, and to explore the means that these communities can adopt to vindicate the justified land claims that they may have. A better understanding of the normative considerations that underlie land claims and the strategies that have been adopted to pursue them in Lati n America can help facilitate dialogue between social actors that currently are in conflict over land claims. Three kinds of argument can support that communities have a legitimate claim to some land or territory. The first argument is based on the idea t hat because these communities (or their ancestors) were unjustly dispossessed of their land, and are being kept in a state of poverty and deprivation due to their continued exclusion from the land, the State and persons such as those who currently occupy their land have a responsibility to rectify past injustice, and to reform the current legal order which perpetuates it - contribution-based responsibilities. The second argument is based on the idea that, because the community is in severe need and the St ate and affluent persons are in a position to alleviate their need at moderate cost, they have a responsibility to do so - assistance-based responsibilities. The third argument appeals to the idea that, even if the State and current occupants of the land did not cause or could not have prevented unjust exclusion from the land from happening, they have a duty to compensate the wronged community because they have benefited from these injustices - beneficiary-based responsibilities. Our project will evaluate the force of these three types of arguments in relation to the land claims of disadvantaged persons and groups in Latin America-focusing in particular on Mexico, Brazil and Chile.