The Role of Environmental Easement Rights in Building Environmental, Social, and Governance (ESG) Principles

We address a debate over the effects of private versus customary property rights on external investment. Despite political economists’ claims that external investors favor private property rights, other experts argue that customary systems enable large-scale “land grabs.” We organize these competing claims, highlighting trade-offs due to differences in legibility versus the ability to displace existing landholders under both systems. We study a natural experiment in Liberia, where law codifies parallel private and customary property rights systems. We use this institutional boundary and difference-in-differences methods to isolate differential changes in external investment under the different property rights systems following the global food crisis of 2007–08. We find a larger increase in land clearing where private property rights prevailed, with such clearing related to more concession activity. Qualitative study of a palm oil concession reveals challenges external investors confront when navigating customary systems.

Market value is the most common compensation basis for expropriation of both private and customary property rights. Private property rights are generally exchangeable while customary property rights are conceptually not as exchangeable. It is hence critical to analyse the applicability of current compensation theories, which are founded on private property rights, to different property rights and in different social settings. By using existing literature and empirical evidence from Africa and other countries where customary property rights dominate, this paper undertakes a theoretical analysis of the applicability of existing compensation theories and the methodologies used to achieve the desired compensation goals. The analysis concludes that whilst current compensation theories are broadly applicable to customary property rights as they aim to protect property rights and prevent expropriatees from impoverishment, various ontological and methodological factors limit the realisation of these goals in settings dominated by customary properties. Such factors include ontology and dominance of customary property rights, use of market value as a compensation basis, and capacity of compensation assessors. Broadly, these factors lead to inadequate compensation and impoverishment of affected people.

Although the evolution of the modern concept of the right to private property is a matter of historical contingencies, private property has now been firmly established as a basic institution of the contemporary world. It may be defended or justified by a number of moral and economic theories. Since the late twentieth century, the predominant conception of property has been one which associates it with its 'social function', thus superseding the earlier notion of 'absolute' property rights. At the same time, the protection of property rights has acquired increasing prominence in the constitutional jurisprudence of many legal systems. While it was a British colony, property rights in Hong Kong were not constitutionally entrenched. These rights were however clearly defined by the long established tradition of the common law which had been transplanted to Hong Kong. At the same time, the principle that the compulsory acquisition of private property by the exercise of governmental power must be subject to the payment of just compensation was reflected in legislation. Hong Kong law also followed the modern trend in subjecting various private property rights to regulation in the public interest. The pre-1997 legal system in Hong Kong has largely remained intact after Hong Kong's incorporation into the People's Republic of China (PRC). The legal protection of property rights has in fact been enhanced after the handover with the coming into effect of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the PRC. This 'mini-constitution' for post-1997 Hong Kong gives constitutional recognition to the protection of private property rights. This paper will begin by reviewing briefly the theories relating to and rationales for the protection of property rights (part II). It will then introduce the existing regime for the constitutional protection of property rights in Hong Kong (part III). Two specific problems arising from the interpretation and application of the constitutional provision for the protection of property rights in Hong Kong will then be examined (parts IV and V). The paper will conclude with a summary and some observations about the development of constitutional protection of property rights in Hong Kong and in mainland China (part VI).

This chapter examines the effect of occupation on private property and contract rights within the context of the U.S.-led invasion of Iraq in 2003. In doing so, I examine how the treatment of private property in the Iraqi occupation compares and contrasts with Japanese, Italian, and German occupations after World War II. Furthermore, I show how non-European occupations have been characterized by a disregard of occupation rules safeguarding private property as opposed to European occupations. This disregard of the private property under occupation is similar to the disregard with reference to territorial acquisitions of a much earlier period, which I addressed in Chapter 2. In this chapter, I also demonstrate the importance placed on the private property of Europeans in non-European contexts and the lack of focus on the private property rights of non-Europeans. It is therefore not surprising that, following the U.S.-led conquest of Iraq in early 2003, most scholarly and press coverage focused on the status of foreign corporations’ property in Iraq before the war.

This Article models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of scarce resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to conflict/war, the following question is considered: if pre-conflict common ownership is socially-optimal, under what conditions will disputing parties fail to bargain around the conflict? In addition to the explanations identified by Professor Fearon, the present article offers an additional behavioral explanation evidenced in the institution of private property rights itself, and, in particular, in state “Castle Doctrine” laws that permit the use of lethal force in defense of real property. To promote the socially-optimal shared use of contested scarce resources, a role for the courts is suggested where de facto common property rights are established by rendering private property rights random or unclear — judicial behavior that stands in sharp contrast to the commonly understood normative implications of the Coase Theorem. This uncertainty weakens private property rights, reducing the expected spoils of costly conflict, and, in turn, creates an incentive for disputing parties to cooperate in the form of negotiated settlement agreements. In this way, less secure claims to private property promote social cooperation.

The Real Right Law of the People’s Republic of China is the basic law for regulating and protecting the property rights. The Constitution, as the fundamental law, adjusts the property right relationship too. The protection from Constitution is the precondition and base for protecting property right. The Real Right Law is to fulfill the principle of Constitution that ensures citizen’s private property right. To protect the property right, Constitution mainly aims at defending the country against outside. Its basic function is to define the country activity. As for the Real Right Law, it is to protect the property right by defining the property in case of invasion of other civil subjects. Both Constitution and Real Right Law offer protection for private property right and also impose restrictions on private property right. That is the national requisition system. This system imposes strict restrictions to private property right. Therefore, it is necessary to set up firm restrictions and constraints on the requisition system. According to the legislation of other countries, we can restrict and constrain this system from three aspects, namely the intention of requisition, the complement standards, and the process, driving the government to realize lawful administration, and protecting the private property right properly.

Environmental Markets: A Property Rights Approach, by Terry L.Anderson and Gary D.Libecap. Published by Cambridge University Press, Cambridge, UK, 2014, pp. 240, ISBN: 978 0 5212 7965 9, AUD$ 37.59 (paperback) AUD$ 94.03 (hardcover).

We use household survey data to investigate the effects of formal, private property rights to agricultural land on agricultural investment, land valuation and access to credit in Tanzania. Results show that while there are no detectable effects of formal, private land property rights (written documentation of ownership) on agricultural investment, land ownership documents nevertheless increase the market value of land substantially (more than 25 percent). One reason appears to be that well-documented private property rights facilitate the use of land as collateral for loans and therefore eases access to credit. The findings suggest that there are potentially significant, economic returns to systematic land titling in Tanzania and other countries, although more research is needed to firmly establish this conclusion.

Private property rights security is currently seen as central to explaining cross-country differences in economic development. Variation in private property rights security itself is perceived to be best explained by differences in the degree to which the political system is able to constrain the despotic power of state executives. I reassess the existing evidence for these two hypotheses and find that: (1) higher levels and significant changes in private property rights security and constraints on the executive are not correlated with higher levels of income and (changes in) growth rates; (2) the commonly used instrument for constraints on the executive and private property rights security - the natural log of European settler mortality - is invalid because it is associated with current levels of income besides its effect through private property rights security and constraints on the executive; and (3) the regularly cited Korean case is in fact evidence against these hypotheses. I provide explanations for these findings and call for a rethinking of which type of institutions and policies are decisive for growth.

Political theories of property rights are less optimistic than self-governance perspectives regarding the ability of non-state organizations to supply private property institutions. Despite offering different answers to the question of where property rights come from, these diverse perspectives share a concern with organizational capacity, constraints, and legitimacy as explanations why organizations are able to supply private property rights. We use these shared concerns as a point of departure to investigate formal and informal private property rights in rural Afghanistan. We find that informal private property rights are more effective than formal private property rights because customary organizations fare better than the state on the dimensions of capacity, constraints, and legitimacy. More generally, these ‘political’ features of formal and informal organizations explain why self-governance works, as well as provide insight into the challenges confronting efforts in fragile states to establish formal private property institutions.

A property right is a socially enforced right to select uses of an economic good. A Private property right is one assigned to a specific person and is alienable in exchange for similar rights over other goods. Its strength is measured by its probability and costs of enforcement which depend on the government, informal social actions, and prevailing ethical and moral norms. In simpler terms, no one may legally use or affect the physical circumstances of goods to which you have Private property rights without your approval or compensation. Under hypothetically perfect Private property rights none of my actions with my resources may affect the physical attributes of any other person’s private property. For example, your Private property rights to your computer restrict my and everyone else’s permissible behaviour with respect to your computer, and my Private property rights restrict you and everyone else with respect to whatever I own. It is important to note that it is the physical use and condition of a good that are protected from the action of others, not its exchange value.

Takings are usually understood as government-imposed restraints on preexisting private property rights. But this is myopic. A cursory examination of actual takings cases reveals that disputes often arise where existing public and private property rights collide: where private lands meets public waters or where public wildlife have habitat on private lands. In these cases, the government is not just imposing on private property rights; it is also seeking to vindicate existing public property rights, for which no compensation should be required. This presents a boundary issue: where do private property rights end and public property rights begin? This chapter assesses the boundary problem in regulatory takings law by examining several important public-private boundary disputes, including Causby, Nollan, Pallazolo, Just, Christy, and Tulare Lake. The purpose is not to offer a comprehensive theory of when private property rights should trump public property rights, or vice versa. The boundary problem is simply too complex to permit a simple, theory-based solution. But neither can the problem be willed away - as the Supreme Court seems intent on doing - by ignoring the public property rights at stake in many regulatory takings disputes.

Private ownership of property is a fundamental right in our democracy. Historically, land ownership and the virtually unrestricted right to use one's property, played a key role in the development and growth of this country. But private property rights are being challenged, redefined, and reallocated, resulting in new restrictions and changes in agricultural landowners' rights to use their land. Increased awareness and concern about health and environment are causing a change in public attitudes toward agriculture. In the name of environmental protection, new restrictions are being placed on private property rights, causing uncertainties and altering the economic options available regarding the use of land for agricultural production. This paper deals with questions regarding; what are private property rights, what entitlement does land ownership include, and how are property rights being changed? While recognizing there are additional issues impacting property rights such as nuisance conflicts between rural non-farm residents and their farm neighbors, and zoning ordinances, this discussion will be limited to the changing property rights due to environmental protection. These are questions currently being debated by people who believe they hold certain property rights, and by others who either want control or reallocation of those rights, or who also believe they are entitled to those same rights. As the allocation of private property rights changes, the determination of who holds what rights directly affects landowners engaged in agricultural production. Changes required in agricultural management are the result of new information regarding the impact of some agricultural practices, such as; atrazine is no longer viewed simply as a weed control product for corn production, but is now viewed as a substance that causes degradation of the groundwater; and wet spots in fields should no longer be tiled to improve the productivity of the land, but should be left as possible habitat for wildlife. While changes in management practices may be necessary and appropriate, uncertainty for agricultural producers is created regarding which current practices may be restricted in the future and how much control will those outside of agriculture have on the management and operation of agricultural operations. This paper is an analysis of the issues underlying the conflicts resulting from changing agricultural private property rights due to regulations seeking to increase environmental protection.

Zoning and private property rights in land: Static and dynamic boundary delineation

The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between public interests and private property rights. Indeed, those conflicts implicate fundamental debates over the state’s authorities and prerogatives to regulate privately owned shoreland (the police power), the public’s interest in coastal resources (the public trust doctrine), and private property owners’ rights to use and to exclude others from their shorelands (referred to collectively here as the private property doctrine). While not tidal, standing water levels of the Great Lakes fluctuate over time substantially. As a result, the lakes have beaches much like ocean coasts, and the public trust doctrine is aptly applied to them, albeit awkwardly. All of the eight Great Lakes states have long acknowledged the applicability of the public trust doctrine to their Great Lakes bottomlands and shorelands. In doing so, they have accepted the now-conventional understanding that the doctrine originated in ancient Roman law. Even so, recent critiques of the public trust doctrine assert that it has been misinterpreted and that its historical pedigree is not so strong or aptly applied to American coasts, especially along Great Lakes coasts. These critiques do not address the historical pedigree and robustness of the police power doctrine, or, more importantly, the pedigree and robustness of contemporary notions of private property rights. If the public trust doctrine is indeed lacking upon reconsideration, how does it fare in comparison to these other doctrines? This Article lays the foundation for an extended study of the public trust doctrine as it applies to Great Lakes shores. We provide an overview of the public trust doctrines of all eight Great Lakes states, noting for illustration and, where appropriate, particulars for the State of Michigan, which enjoys more than 60% of the combined U.S. Great Lakes coastline. To explain our motivations in undertaking this study, the Article first briefly reviews the importance of the lakes to the State of Michigan and the other Great Lakes states more broadly and then frames shoreland management as one of the resource management imperatives those states face. The Article then reviews the historical origins, the contemporary contours, and the ongoing debates surrounding the police power, public trust, and private property doctrines separately. Building on that foundation, we then analyze how courts and legislatures have reconciled those doctrines through application in coastal settings broadly. First, we find that the public trust doctrines of the Great Lakes states fall well within the boundaries of the origins and application of that doctrine throughout the nation’s history, even though the Lakes are not tidal. Second, we find that the concept of a ‘moveable freehold’ inherent in the public trust doctrine—that the boundary separating state-owned submerged public trust land from privately owned upland along the shore—reflects natural dynamic shoreline processes, not arbitrary governmental rulemaking, and is well established and accepted by all Great Lakes states. Finally, and most importantly for the purposes of this Article, we find that all three doctrines—public trust, police powers, and private property rights—trace their roots to English common law and even ancient Roman law, but all are in fact distinctly American doctrines. All three doctrines were first fully articulated in the context of unique American institutions, values, and conflicts. Each has evolved over time as American institutions, values, and conflicts have similarly evolved. Thus, despite detractors’ assertions to the contrary, the public trust doctrine is no less robust or aptly applied to Great Lakes coasts than is either the police power or private property rights doctrine. In fact, despite case law and commentary rhetoric that can be dogmatically extreme, efforts to understand and reconcile these doctrines in practice generally strike a pragmatic balance between the private rights inherent in shoreland property ownership and the public interest in common access to and use of submerged lands and the foreshore. Following our analysis of these doctrines from a broad perspective, we conclude by providing a brief overview of the several public trust doctrines as adapted by all of the Great Lakes states and finally identifying a number of questions for further study.