Avatar and Property Rights

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a treatise on avatar and how peoples relate to the universal notion of property rights protection by khaled hassine



avatar – return to pandora and the protection of property rights
a treatise on avatar1 and how peoples relate to the universal notion of property rights protection by khaled hassine

Unprecedented world-wide reactions to Avatar suggest that a new feature of globalization is emerging: one empathic culture.

Housing, Land & Property (HLP) goes Popular Avatar’s tremendous global success clearly correlates with the film’s subject matter, making it one of the most zeitgeisty movies of our times. When I was first confronted with the sympathy and empathy of persons, who had seen Avatar, I was absolutely astonished. All of a sudden, it was no longer difficult to explain, why refugees and displaced persons, who left their homes and belongings behind, become victims of displacement and dispossession, and thus need the protection of their housing, land and property (HLP) rights.2 Indeed, Avatar illustrates the issue of HLP rights and the protection need in a manner that is comprehensible and accessible to a wide public. The fate of the Na’vi people exemplifies the suffering of those threatened to be uprooted and made the HLP discussion accessible to persons who were not particularly well grounded in the subject. In the weeks following Avatar’s release, I experienced a considerably accrued interest in my subject and the durable displacement solutions and mechanisms we are working on.3 I also faced a number of challenging questions, seeking my views on the case of the Na’vi people. Would they better of with a collective or rather with an individual property rights

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http://www.avatarmovie.com; Avatar - Return to Pandora is considered to be a so-called game-changer. See Scott Leckie, Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, 2003; Scott Leckie, Housing and Property Restitution Rights of Refugees and Displaced Persons: Laws, Cases, and Materials, 2007; Pinheiro Principles - Principles on Housing and Property Restitution for Refugees and Displaced Persons, E/CN.4/Sub.2/2005/17/Add.1, of 11 August 2005; Scott Leckie/Khaled Hassine, A Legal Commentary on the Pinheiro Principles (forthcoming). 3 Khaled Hassine, Regularizing Property Rights in Kosovo & Elsewhere, 2010 (ISBN: 386553340X); Khaled Hassine, Housing and Property Directorate/Claims Commission in Kosovo, 2009 (ISBN: 3708306201); See also http://www.displacementsolutions.org.


attribution? Is there a special regime for indigenous peoples’, and what if their State would have disappeared? What remedies and forms of redress would exist for the Na’vi? These questions that were put to me indicate the extent to which awareness was raised by means of a simple entertaining movie. It further shows that once the human dimension of displacement and its negative socio-cultural impact is acknowledged, the need for solutions to HLP rights violations is widely understood.4 Avatar succeeded, regardless of whether this was intended or not, in breeding this comprehension by means of entertainment. My personal experience – which I would not claim to be representative – is that Avatar contributes to a popularisation of the international HLP protection and makes a strong case for a further global prioritisation of HLP rights redress.

Perceptions and Perspectives Initially, my experience was limited to my personal environment, according to the motto of `now we finally understand on what topics you exactly work`, until I discovered in the German press5, the feedback on Avatar and its reception in the People’s Republic of China.6 The amazing success of this science-fiction film in China is rooted in the peoples’ experience with forced evictions and massive resettlements. Avatar has clearly hit a nerve with the Chinese people, too many of whom remember their own story of violent forced evictions and large scale population resettlement. Millions of families had to leave their homes for new real estate, development projects or similar endeavours to be realized. 7

Scott Leckie, Housing, Land, and Property Rights in Post-Conflict United Nations and Other Peace Operations: A Comparative Survey and Proposal for Reform, 2008; Hans J. Gießmann/Bernhard Rinke (publisher), Handbuch Frieden, 2010. 5 Süddeutsche Zeitung, Ausgeburt der Gier, 16. Dezember 2009; Frankfurter Allgemeine Zeitung, China untersagt „Avatar“, 19. Januar 2010; Süddeutsche Zeitung, Ähnlichkeiten mit Außerirdischen, 19. Januar 2010; Frankfurter Allgemeine Zeitung, China: „Avatar“, Vorbild Nr. 1, 21. Januar 2010; Der Spiegel 9/2010, Menschliche Drohnen, pp. 132-133, 1. März 2010; Süddeutsche Zeitung, Der mit dem Na’vi tanzt, 26. März 2010. 6 See also for different receptions David Brooks/New York Times, The Messiah Complex, 7 January 2010; The Huffington Post, Evo Morales Praises ‘Avatar’, 12 January 2010; Daniel Mendelsohn/The New York Review of Books, The Wizard, Vol. 57, Number 5, 25 March 2010. 7 See e.g. COHRE, Mega-Events and Housing Rights, 2007; COHRE, Fact Sheet – Forced evictions and displacements in future Olympic cities, 5 June 2007; also COHRE/GIAN, Fair Play for Housing Rights, Mega-Events, Olympic Games and Housing Rights; A/HRC/RES/13/10, Adequate housing as a component of the right to an adequate standard of living in the context of mega-events, of 25 March 2010; Scott Leckie, Destruction by design: Housing rights violations in Tibet, 1994.


The frequent undertaking of forced evictions with disproportionate brutality, the definite loss of homes, normally without any compensation, has been experienced by the many in the name of the nation’s general interest of development, for the sake and benefit of a privileged few. Many Chinese people therefore naturally identify themselves with the Na’vi and empathically understand the tragedy of massive forced evictions. In the United States of America, by contrast to the Chinese liberal, democratic, rightsbased and anti-governmental reception of Avatar, reactions were very much divided along the right and left lines of the political spectrum.8 Even there, the common ground remained the protection of property rights. By some, the fight for property rights as Avatar’s main theme was perceived as selfevident to an extent that the violations committed by the Earthlings evoked associations to relevant controversial jurisprudence on expropriation of private ownership through the use of eminent domain to further economic development.9 Again, homes and HLP rights were disregarded in the name of economic development. Large scale infringements of individual HLP rights were de facto legalized, as private investor-driven redevelopment plans were qualified as ‘public use’, thus allowing for the transfer of property from one private owner, at hand the individual HLP rights holder (e.g. family/household), to another one, namely the large corporation. Unlike the Chinese however, the U.S. American people possess procedural, remedy and redress guarantees principled in the rule of law. The concerned U.S. HLP rights holder will receive appropriate, market-oriented compensation, whereas the Chinese HLP rights holders regularly suffer from brutal forced evictions, often without notice and with no adequate compensation or redress and inexistent or ineffective remedies and insufficient procedural guarantees.

Sensitivity and Solicitousness Avatar sets precedents in generating a global empathic solicitousness for displacement and its consequences for the Na’vi. A new emotional dimension triggered

FAZ, Das Weltkino erlebt sein blaues Wunder, 22. January 2010; The Washington Post, Avatar and property rights, 11 January 2010; The Wall Street Journal/Editorial, The Avatar Effect, China’s Moviegoers see a story about private property, not race, 11 January 2010. 9 Susette Kelo, et al. v. City of New London, Connecticut, et al. (04-108) 545 U.S. 469 (2005).


sympathies for the Na’vi in a manner and to an extent that is unusual for movies. Alike the ‘CNN-Effect’, yet not as far-reaching, whereby news media have a significant impact on international politics and decision-making processes by broadcasting about an event often real-time, mobilizing the global public opinion, Avatar as a movie produced a global empathy for the displaced Na’vi and an identification with the victims of HLP rights violations. Of course, the film has also provided for a number of other discussion dimensions and levels, but as the reception in China and to a certain degree in the U.S.A. shows, there is something that could be called the ‘Na’vi-Effect’, that was powerful enough to force the Chinese authorities to take counter-measures10. The Na’vi became the global representatives of all victims of HLP rights violations and if the movie’s success and its reception are an indicator of the zeitgeist, this gives hope for a reinvigorated and enhanced environment and habitat protection. Avatar’s worldwide commercial triumph and echo may thus have boosted awareness for this cause and promote the protection of housing, land and property (HLP) rights.

Commiseration and Consciousness This leads me to believing that the global reception of Avatar’s Na’vi is an indicator for the emergence of a global empathic culture.11 I believe that it may herald a new phase in which a global interdependent world is progressively developing one consciousness. This adhesion of our global civil society shows the way towards an empathic civilisation, conditioned and caused by the logics of international dependency and the cooperation


The Chinese authorities first tried to counteract public opinion by promoting a Hollywood-like Biopic of Confucius, then constrained the number of theatres for the projection of Avatar, later stopped the 3D version, alleging health hazards, and finally, in fear of social backlash, totally censored the screening of the movie. New Tang Dynasty Television, Chinese Censors Order Avatar out of Theatres, 20 January 2010 http://english.ntdtv.com/ntdtv_en/ns_china/2010-01-20/353483673181.html; IBN, Avatar scares China, film’s 2-d version blocked, 19 January 2010 http://ibnlive.in.com/news/avatar-scares-china-films-2d-versionblocked/108890-8.html; ICM, China bans Avatar fearing social backlash, 19 January 2010 http://news.icm.ac.uk/business/china-bans-avatar-fearing-social-backlash/5326/; Xinhua/China.org.cn, Avatar a eulogy for China's 'nail houses', 13 January 2010 http://www.china.org.cn/arts/201001/13/content_19230565.htm; Blogger Li Chengpeng http://blog.sina.com.cn/s/blog_46e7ba410100gi0g.html; Daily Kos, Avatar: Symbol of political dissent in China, 21 February 2010 http://www.dailykos.com/story/2010/2/21/839351/-Avatar:-Symbol-of-political-dissent-in-China; Huang Hung/China Daily, Lessons from Pandora’s Ministry of Propaganda, 19 January 2010 http://www.chinadaily.com.cn/life/2010-01/19/content_9341359.htm. 11 See also Jeremy Rifkin, The Empathic Civilization: The Race to Global Consciousness In a World In Crisis, 2010; Henning Ritter, Nahes und Fernes Unglück – Versuch über das Mitleid, 2004; Fritz Breithaupt, Kulturen der Empathie, 2009; Ronald De Sousa, Die Rationalität des Gefühls, 1997.


imperatives. No need for persuasion, if the power of facts imposes only cooperative solution-paradigms.

Geneva/Düsseldorf, 29 March 2010. ***


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