Individual property restitution: From Deng to Pinheiro - And the challenges ahead

International Journal of Refugee Law

Volumn 20, Issue 3, 2008, Pages 391-412

  Paglione, Giulia ^a,b,c  

^a UNIVERSITY OF OSLO   (Norway)

^b SAPIENZA UNIVERSITY OF ROME   (Italy)

^c Department of Migration

Author keywords

[No Author keywords available]

Indexed keywords

CONCEPTUAL FRAMEWORK; HOUSING; INSTITUTIONAL FRAMEWORK; INTERNATIONAL LAW; PEACEKEEPING; PROPERTY RIGHTS; REFUGEE; SOCIAL CONFLICT; SOCIAL JUSTICE; SOCIAL POLICY;

EID: 52649137078     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/een023     Document Type: Article

References (99)

1. The term 'property' as used in this article refers to real and immovable property, and in particular to housing and land. Movable property and intellectual property are therefore excluded from this analysis. Furthermore, the terms 'housing and property restitution', 'housing, land and property restitution' and 'property restitution' will be used interchangeably. Even though early provisions referred exclusively to 'property restitution', more recent standards, such as the Pinheiro Principles, favour the broader definition of 'housing, land and property restitution', as it provides reference to both the right to property and the right to housing, and includes land and land-related rights.
2. See, Norwegian Refugee Council, Global IDP Project, Internal Displacement, Global Overview of Trends and Developments in 2006, Geneva, Apr. 2007, 6. The countries with the highest numbers of IDPs in 2006 were Sudan (5 million), Colombia (3.8 million), Iraq (1.7 million), Uganda (1.7 million) and the Democratic Republic of the Congo (1.1 million).
3. See, United Nations High Commissioner for Refugees (UNHCR), 2006 Global Trends, Geneva, June 2006, 4. The countries producing most refugees in 2006 were Afghanistan (2.1 million), Iraq (1.5 million), Sudan (686,000), Somalia (460,000), and the DRC and Burundi (about 400,000 each).
4. See, e.g., UN High Commissioner for Human Rights, Report of the High Commissioner for Human Rights on the situation of human rights in Kosovo, Federal Republic of Yugoslavia, E/CN.4/2000/10, (Sept. 1999), paras. 68-74.
5. Traditionally, the three solutions to refugee crises have been held to be integration into the asylum country, resettlement to a third country, and voluntary repatriation to the county of origin. The emphasis on which solution was ideal has changed numerous times throughout history, depending on the practicalities of particular situations as well as the prevailing geo-political circumstances. For much of the post-war period, resettlement was generally thought to be the most, indeed, the only viable option for refugees. Now mainstream thought has changed, and since the late 1980s voluntary repatriation has been highlighted as the best of durable solutions'. See, S. Takahashi, 'The UNHCR Handbook on Voluntary Repatriation: The Emphasis of Return over Protection', 9 IJRL 593 (1997).
6. See also, J. Milner, 'Resettlement' in M. Gibney and R. Hansen (eds.), Immigration and Asylum: From 1900 to the Present (ABC-Clio, Santa Barbara, 2005).
7. The right to freedom of movement, and its complementary provision guaranteeing the right to leave one's own country and to return to it, is included in all major human rights documents. See, e.g., Universal Declaration of Human Rights [hereinafter UDHR], adopted 10 Dec. 1948, art. 13 (2)
8. International Covenant on Civil and Political Rights, [hereinafter ICCPR], adopted 16 Dec. 1966, art. 12(4)
9. American Convention on Human Rights, entered into force 21 July 1978, art. 22
10. African Charter on Human and People's Rights, entered into force 21 Oct. 1986, art. 12.2
11. Geneva Convention relative to the Protection of Civilian Persons in Time of War [hereinafter IV Geneva Convention], entered into force 21 Oct. 1950, arts. 45, 132, 134 and 135. The 1951 Convention Relating to the Status of Refugees, however, does not address refugee's right to return to their country of origin; return is conceptualized only in negative terms as prohibition against refoulement.
12. See, Convention Relating to the Status of Refugees, [hereinafter 1951 Convention], adopted 28july 1951, art. 33.
13. A right to return specifically for refugees and displaced persons is recognized in numerous documents passed by different UN bodied See, e.g., Human Rights Committee, General Comment No. 27: Freedom of Movement, UN doc. CCPR/C/21/Rev.1/Add.9 (1999)
14. Sub-Commission on Prevention of Discrimination and Protection of Minorities, resolution 1998/26 on Housing and property restitution in the context of the return of refugees and internally displaced persons (1999)
15. Committee on the Elimination of Racial Discrimination, General Recommendation No. 22: Article 5 and refugees and displaced persons (1996).
16. SC res. 820 (1993), emphasis added. Similar statements addressing the right to return specifically to one's home are included in various Security Council resolutions dealing with displacement in numerous countries. Amongst them, e.g., res. 1716 on Georgia (of 2006), res. 1639 on Bosnia (2005), res. 1244 on Kosovo (of 1999), and res. 999 on Tajikistan (of 1995).
17. Commission on Human Rights, 'Guiding Principles on Internal Displacement' [hereinafter Guiding Principles], UN doc. E/CN.4/1998/53/ Add.2.
18. International Law Association, 'The Declaration of International Law Principles on Internally Displaced Persons' [hereinafter the ILA Declaration of Principles], London, Oct. 2000, 12 IJRL 672-9 (2000).
19. Other standards containing references to property restitution rights for displaced persons are, e.g., the Comprehensive Human Rights Guidelines on Development-Based Displacement (1997)
20. the Declaration of Principles of International Law on Compensation to Refugees (International Law Association, Cairo, Apr. 1992)
21. the Geneva Convention relative to the Protection of Civilian Persons in Time of War, (1948)
22. the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989)
23. and the Draft United Nations Declaration on the Rights of Indigenous Peoples (1993).
24. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Housing and Property Restitution in the context of return of refugees and internally displaced persons. Principles on housing and property restitution for refugees and displaced persons [hereinafter Pinheiro Principles], UN doc. E/CN.4/ Sub.2/2005/17 (2005). It should be noted that neither the Guiding Principles nor the Pinheiro Principles were formally adopted by the General Assembly, Human Rights Commission/Council or any other intergovernmental body. The Pinheiro Principles were adopted without a vote by the Sub-Commission on the Promotion and Protection of Human Rights. The Guiding Principles, however, unlike the Pinheiro Principles, have been referred to in resolutions of the UN General Assembly and of the Human Rights Commission, and have found extensive acknowledgement by states.
25. See, General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Agreement on Refugees and Displaced Persons (1995). The peace agreement was agreed in Dayton on 21. Nov 1995 and signed in Paris on 14 Dec. 1995. Other peace agreements containing provisions on property restitution are, e.g.: Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Annex 4, Repatriation of Cambodian Refugees and Displaced Persons (1991)
26. Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Refugees and the Resettlement of Displaced Persons, (1993).
27. The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) was established in 1995 under Annex 7 of the Dayton Peace Agreement. The Housing and Property Directorate (HPD) and the Housing and Property Claims Commission were established in 1999 through UNMIK Regulation 1999/23. In 2006 the HPD was subsumed into the Kosovo Property Agency (KPA) under UNMIK Regulation 2006/10.
28. UDHR, above n. 6, art. 17. The right to property was also included both in the International Convention on the Elimination of All Forms of Racial Discrimination, [hereinafter CERD], adopted
29. Dec. 1965, art. 5
30. and in the Convention on the Elimination of All Forms of Discrimination against Women [hereinafter CEDAW], adopted 18 Dec. 1979, arts. 15 and 16.
31. The right to property is codified in the following regional instruments: art. XXIII of the American Declaration of the Rights and Duties of Man; art. 21 of the American Convention on Human Rights; art. 14 of the African Charter on Human and People's Rights; art. I of the First Protocol to the European Convention for the Protection of Human rights and Fundamental Freedoms [hereinafter ECHR].
32. The right to housing is codified in, e.g., UDHR, above n. 6, 25 (1)
33. International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, art. 11(1) [hereinafter ICESCR]
34. CERD, above n. 14, art. 5(e)(iii)
35. Convention on the Rights of the Child, adopted Nov. 20, 1989, art. 27(3) [hereinafter CRC]; CEDAW above n. 14, art. 14(2)h. Art. 14(2)h is however restricted to rural women's right to housing.
36. See, Committee on Economic, Social and Cultural Rights [hereinafter CESCR],'General Comment 4: The Right to Adequate Housing', UN doc. E/C. 12/1991/4 (1991) and'General Comment 7: Forced Evictions', UN doc. E/ C.12/1997/4 (1997). Although legally speaking these obligations apply only to the ICESCR, they may be referred to for the interpretation of housing rights in other human rights instruments.
37. Commission on Human Rights resolution 1993/77 on Forced Evictions, adopted on 10 Mar. 1993.
38. Cases of forced evictions have been adjudicated in many international and domestic Courts. At national level, one can mention the case of Hajrizi Dzemajl et al. v. Jugoslavia, where the Committee against Torture (CAT) held that the forced eviction and destruction of a Roma settlement in Serbia and Montenegro violated the Convention against Torture.
39. See, Hajrizi Dzemajl et al. v. Yugoslavia, Committee against Torture, Communication No. 161/2000, UN doc. CAT/C/29/D/161/2000 (11 Nov. 1999).
40. For cases at the European Court of Human rights, see, e.g., Dulas v. Turkey, (25801/94), [2001] ECHR 60, (30 Jan. 2001)
41. Bilgin v. Turkey, (23819/94), [2000] ECHR 579, (16 Nov. 2000)
42. Selçuk and Asker v. Turkey, (23184/94), [1998], Eur.Ct.H.R. 36, (24 Apr. 1998).
43. Forced evictions and forced displacement resulting from international armed conflicts, internal strife and communal or ethnic violence are strongly interlinked and overlapping phenomena. While forced evictions might be the cause of forced displacement when the displaced cannot return and have no access to alternative accommodation, forced evictions can also be a type of forced displacement per se. Forced evictions are defined as 'the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection'. The practice of forced evictions might appear to occur primarily in heavily populated urban areas; however, 'it also takes place in connection with forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements'. CESCR, 'General Comment 7: Forced Evictions', above n. 17, points 4 and 6 (emphasis added).
44. The right to a remedy is codified in various international and regional instruments. See, e.g., UDHCR, above n. 6, art. 8; ICCPR, above n. 6, art. 2.3, CERD above n. 14, art. 6, ECHR above n. 15, art. 13, African Charter on Human and People's Rights, above n. 6, art. 7, American Convention on Human Rights, above n. 6, art. 25.
45. Commission on Human Rights, Civil and Political Rights, Including the Questions of. Independence of the Judiciary, Administration ofjustice, Impunity, 'The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms', Final Report of the Special Rapporteur, Mr M. Cherif Bassiouni, submitted in accordance with Commission Resolution 1999/33, E/CN.4/2000/ 62 (2000).
46. James Crawford, The International Law Commission's Articles on State Responsibility, (University of Cambridge, Feb. 2002), Introduction, Text and Commentaries.
47. 'Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law', A/RES/60/147, 21 Mar. 2006.
48. The International Law Association is an international association founded in 1873, which aims at the study, clarification and development of international law, and the furtherance of international understanding and respect for international law. The ILA has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies.
49. Guiding Principles, above n. 9, Introduction.
50. ILA Declaration of Principles, above n. 10, art. 1.
51. Only three Principles (28-30) refer to the post-displacement phase.
52. W Kälin, Guiding Principles on Internal Displacement, Annotations [hereinafter Annotations], Studies in Transnational Legal Policy No. 32 (The American Society of International Law and the Brookings Institution Project on Internal Displacement, 2000).
53. The Guiding Principles contain two provisions on IDPs property: One provision on the protection of property during displacement (Principle 2 1) and one provision on property restitution (Principle 29).
54. Guiding Principles, above n. 9, Principle 21. According to Principle 21: 1. No one shall be arbitrarily deprived of property and possessions. 2. The property and possessions of internally displaced persons shall in all circumstances be protected, in particular, against the following acts: (a) Pillage; (b) Direct or indiscriminate attacks or other acts of violence; (c) Being used to shield military operations or objectives; (d) Being made the object of reprisal; and (e) Being destroyed or appropriated as a form of collective punishment. 3. Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use.
55. Guiding Principles, above n. 9, Principles 6 and 28. The Guiding Principles only include a reference to IDPs right to liberty of movement and freedom to choose their residence (Principle 14).
56. ILA, Declaration of Principles, above n. 10, art. 5, emphasis added.
57. Ibid., art. 9.
58. Guiding Principles, above n. 9, Principle 29.
59. Ibid.
60. Pinheiro Principles, above n. 11.
61. Inter-Agency, Handbook on Property Restitution for Refugees and Displaced Persons. Implementing the'Pinheiro Principles' [hereinafter Handbook], Mar. 2007. The Handbook is the result of collaboration between UNHCR, FAO, UN HABITAT, OCHA, OHCHR, the Norwegian Refugee Council (NBC) and NRCs Internal Displacement Monitoring Centre (IDMC). The substantive draft of the Handbook was, however, prepared by Scott Leckie, Executive Director of the Centre on Housing Rights and Evictions (COHRE). See, Handbook, 8.
62. Pinheiro Principles, above n. 11, Principle 1.2. As stated in the Commentary to the Draft Princi- ples: 'While the mandate given to the Special Rapporteur refers to "refugees and internally displaced persons", it should be noticed that the issues, norms and standards regarding housing and property restitution also pertain to persons in similar situations. The phrase "refugees and internally displaced persons" unfortunately overlooks those persons displaced across borders, e.g., following a conflict or disaster, who may not meet the legal definition of a refugee under international law. Because such populations have the right to housing and property restitution, as internally displaced persons do, the Draft Principles incorporates the language "refugees and displaced persons"'. See, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 'Progress Report of the Special Rapporteur, Paulo Sérgio Pinheiro, Addendum, Commentary to the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons', UN Doc. E/CN.4/Sub.2/2004/22/Add.1 (2004), par 3.
63. 'States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights'. Pinheiro Principles, above n. 11, Principle 16.
64. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 'The return of refugees' or displaced persons' property. Working paper submitted by Paulo Sérgio Pinheiro pursuant to Sub-Commission decision 2001/122' [hereinafter Working Paper], UN doc. E/CN.4/Sub.2/2002/17.
65. Ibid., 4-7.
66. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, resolution 2002/7 on 'Housing and Property Restitution in the Context of Refugees and Other Displaced Persons', UN doc. E/CN.4/SUB.2/RES/2002/7.
67. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 'Housing and property restitution in the context of return of refugees and internally displaced persons. Preliminary Report of the Special Rapporteur, Paulo Sérgio Pinheiro, submitted in accordance with Sub-Commission resolution 2002/7', [hereinafter Preliminary Report], UN doc. E/CN.4/Sub.2/2003/11.
68. Ibid., part III.
69. Paulo Sérgio Pinheiro, quoted in S. Leckie, 'New housing, land and property restitution rights', (2006) 25 Forced Migration Review 52.
70. Paulo Sérgio Pinheiro was appointed Special Rapporteur of the Sub-Commission in Aug. 2002 following para. 6 of the Sub-Commission on the Promotion and Protection of Human Rights resolution 2002/7 'Housing and Property Restitution in the Context of Refugees and Other Displaced Persons', UN doc. E/CN.4/SUB.2/RES/2002/7. His mandate was concluded with the adoption of the Pinheiro Principles.
71. See, e.g., CERD General Recommendation No. 22, above n. 7, where it is stated that: '... [a]ll such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict ...' (emphasis added).
72. Pinheiro Principles, above n. 11, Principle 2.2.
73. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 'Progress Report of the Special Rapporteur, Paulo Sérgio Pinheiro', above n. 39, at 9.5.
74. Pinheiro Principles, above n. 11, Principle 10.3. The Principle reads as follows: 'Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence. Refugees and displaced persons should be able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property'.
75. Guiding Principles, above n. 9, Principle 29.2.
76. Handbook, above n. 38, 18-20.
77. See, e.g., D. Warner, 'Voluntary Repatriation and the Meaning of Return to Home', (1994) 7 JRS 160-76
78. R. Zetter, 'Reconceptualizing the Myth of Return: Continuity and Transition Amongst the Greek-Cypriot Refugees of 1974', (1999) 12 JRS 1-22.
79. See, e.g., .
80. Pinheiro Principles, above n. 11, Principle 2.2.
81. Guiding Principles, above n. 9, Principle 28.2.
82. Pinheiro Principles, above n. 11, principle 14.1.
83. This obviously presupposes the recognition that property restitution applies to all displaced, independently from their return.
84. Guiding Principles, above n. 9, Principle 29.2
85. Pinheiro Principles, above n. 11, par. 10.
86. Pinheiro Principles, above n. 11, Principle 2.1.
87. Ibid., Principle 21.2.
88. Ibid., Principle 21.1.
89. Preliminary Report, above n. 44, par 10.
90. Above n. 49.
91. Despite the establishment the Housing and Property Directorate (HPD), the return of non-Albanians to Kosovo, which started in 2000, has been painfully slow due to recurrent violence and ethnic tensions. UNHCR estimates that some 17,000 minority returns have been registered, out of the estimated 200,000 ethnic Serbs, Roma and others who left the province after the withdrawal of Serbian forces in 1999.
92. See, UNHCR, 'Last family leaves camp for displaced in Kosovo', 9 Nov. 2007, available at: >http://www.unhcr.org/news/NEWS/ 47342a822.html>.
93. Basic Principles, above n. 24, point 18.
94. The CRRPD is an independent agency of the Government of Iraq. Formerly the Iraq Real Property Claims Commission (IPCC), replaced in Mar. 2006 with the Commission for the Resolution of Real Property Disputes (CRRPD). Two important changes are introduced by the new law: (1) good faith secondary occupants now have a right to compensation from the government if the property they currently live in is returned to the original owner; (2) compensation amounts will now be calculated with reference to the value of the property on the date on which the claim was fi led rather than the date of the wrongful taking by the former regime, a change which will often result in higher levels of compensation (IOM, 17 May 2006). More information on the work of the Commission is available on their website: http://ipcciraq.org/
95. The Constitution of the Republic of South Africa, Chapter II, Bill of Rights, art. 25(7), 1996.
96. Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Rwandese Refugees and the Resettlement of Displaced Persons (1993), art. 4.
97. Preliminary Report, above n. 44, point 31.
98. Pinheiro Principles, above n. 11, Principle 10.2.
99. Handbook, above n. 38, 27.