Defending the Polygon: The Emerging Human Right to Communal Property

Abstract

For many peoples in the developing world, "homeland security" has a meaning very different from its post-September 11 meaning in the United States. In many cases, peoples who have a shared cultural conception of "territory" within nation-states have begun to adopt the dominant Western property paradigm of land titling to formalize their rights to that territory. Many view this paradigm and the individualization of property rights it facilitates as an inevitable outcome of the inexorable march of social evolution, evidenced by the end of the twentieth century collapse of communism. The Enlightenment era conception of fungible individual property emerged triumphant. Moreover, it has been enshrined in the fundamental human rights charters and domestic constitutions of the twentieth century.' Yet a closer inspection yields a much more nuanced analysis of the nature and forms of property ownership around the world and its treatment within the rights-based framework of humanitarian law. The literature suggests that communally held lands, often referred to as "common property," have remained robust and adaptable in the face of the forces of globalization, and continue to persist in even the most developed nations.'This Article begins with a brief review of the literature of common property - an area of intense and interdisciplinary scholarly interest sparked by Garrett Hardin's famous essay, The Tragedy of the Commons. In Part II we briefly review the modem view of common property and its relationship with international development theory. Part III describes the historical development of the three-generational conceptual framework for international human rights law and the right to property within that framework. Part IV discusses key national jurisprudence that has attempted to reverse the colonial legacy of indigenous homeland alienation and the inter-American human rights system.