The legitimate justification of expropriation. A comparative law and governance analysis by the example of third-party transfers for economic development
PhD student: Prof B. Hoops
Promotors: Prof L.C.A. Verstappen, Mrs Prof A.L.B. Colombi Ciacchi
Duration: 16/9/2013 - 15/9/2017
PhD defence: Groningen, 14/12/2017
Constitutions around the world subject the expropriation of land to the requirement that the expropriation serves a public purpose, a public interest, the public good or is taken for public use. This project is intended to compare how this requirement is interpreted in Dutch law, German law, South African law and US law. First, I will seek to determine the substantive content of this requirement in each considered jurisdiction. On the one hand, this quest includes research into the philosophical and political notion of public. On the other hand, it will be examined to what extent constitutions, statute law and case-law in the considered jurisdictions define the term \"public purpose\". Particular attention will be given to transfers to a private entity. The substantive definition of public purpose may pose various problems. It may change over time. The public need for (public) housing, for instance, fades once the housing shortage is over. Furthermore, the constitutional courts may defer to the legislator as to the definition of public purpose. The conclusion would be that public purpose is primarily defined by the legislator and, if necessary, by the expropriation authority in an administrative procedure. Therefore, the second field to be examined is the procedure that leads to the determination of the public purpose. The following aspects will be considered: (1) the procedure in which, and the extent to which, Parliament determines the public purpose; (2) the authority that is competent to determine whether there is a public purpose; (3) procedural safeguards in place in order to ensure that it is accurately determined that there is a public purpose (e.g. the provision of information; public participation; obligation to give reasons; etc.). The good governance standards contained in the Voluntary Guidelines on Responsible Tenure Governance will be applied to the different legal frameworks to assess the level of protection. The goal of this examination is to compare the characteristics of the different procedures in the considered jurisdictions and the protection that the different jurisdictions afford through the procedure in which the public purpose is determined.