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Attachment (E/14/03)
BADIL Resource Center
3 April 2003
For Immediate Release
The right to return of refugees and internally
displaced persons
Sub-Commission on Human Rights resolution 2002/30
The Sub-Commission on the Promotion and
Protection of Human Rights,
Recalling Sub-Commission resolutions 1994/24 of 26 August 1994 and
1998/26 of 26 August 1998, and Commission resolutions 1999/47 of 27 April
1999, 2000/53 of 25 April 2000 and 2001/54 of 24 April 2001,
Conscious that serious human rights violations and breaches of
international humanitarian law are among the reasons why people flee their
homes or places of habitual residence and become refugees or internally
displaced persons,
Noting that millions of refugees and displaced persons remain in need
of solutions and that voluntary return remains the durable solution sought
by the largest number of them,
Concerned that the lack of progress with respect to voluntary
repatriation reflects the fact that basic requirements for return, that is,
physical, legal and material safety and the restoration of national
protection, are not yet in place,
Recognizing that the right of refugees and internally displaced
persons to return freely to their original homes or places of habitual
residence in safety and dignity coupled with their right to adequate housing
and property restitution or, should this not be possible, just compensation
or another form of just reparation, form indispensable elements of national
reintegration, reconstruction and reconciliation, and that the recognition
of such rights, as well as judicial or other mechanisms to ensure the
implementation of such rights, should be included in peace agreements ending
armed conflicts,
Recognizing also the right of all returnees to the free exercise of
their right to freedom of movement and to choose their residence, including
the right to re-establish residence in their original homes or places of
habitual residence, including issuance of relevant documentation, their
right to privacy and respect for the home, their right to reside peacefully
in the security of their own home and their right to enjoy access to all
necessary social and economic services, in an environment free of any form
of discrimination,
Noting that the right to freedom of movement and the right to
adequate housing and property restitution include the right of protection
for returning refugees and internally displaced persons against being
compelled to return to their original homes or places of habitual residence
and that the right to return to their original homes or places of habitual
residence must be exercised in a voluntary, safe and dignified manner,
Observing that, in the present resolution, "those displaced" and
"displaced persons" refer to both refugees and internally displaced persons,
unless otherwise indicated, and that nothing in the present resolution
affects any disputes with regard to title to territory,
1. Confirms that all those displaced have the right to return
voluntarily in safety and dignity, as established in international human
rights law;
2. Also confirms that all displaced persons have a right to return to
their original homes or places of habitual residence or to settle
voluntarily elsewhere; where authorities send displaced persons to a place
other than their habitual residence, this does not affect their right to
return to their place of habitual residence, nor their right to restitution
or compensation or both;
3. Reaffirms that all those displaced have the right to adequate
housing and property restitution or, should this not be possible,
appropriate compensation or another form of just reparation, and the
particular importance of these rights for displaced persons wishing to
return to their original homes or places of habitual residence;
4. Urges all parties to peace agreements and voluntary repatriation
agreements to include implementation of the right to return in safety and
dignity, as well as housing and property restitution rights, consistent with
the requirements of international law, in all such agreements;
5. Confirms that the exercise of the right to return is voluntary and
not conditional upon permission or approval; if documentation of any sort is
necessary, returnees are entitled to such documentation as of right and free
of cost;
6. Reminds States of the right of all displaced persons to
participate in the return and restitution process and in the development of
the procedures and mechanisms put in place to protect these rights;
7. Urges all States to guarantee the free and fair exercise of the
right to return to one's home or place of habitual residence by all
displaced persons and to establish an enabling framework to enable return to
take place in conditions of physical, legal and material safety and to
restore full national protection of returning displaced persons; in this
context, States are urged to take measures to ensure the physical safety of
returnees; to remove legal and administrative barriers to return and to
provide other legal guarantees for returnees; and to ensure
non-discriminatory access to means of survival and basic services;
8. Confirms that the obligation of the State to assist the right of
return includes an obligation, without which the right to return cannot be
fulfilled, to make good any damage for which the authorities are
responsible, including the obligation to restore the infrastructure,
including water, sanitation, electricity, gas, roads and land, where it has
been damaged or destroyed; in particular, States shall not charge returning
displaced persons with the costs for services consumed by those who were
temporarily accommodated in the displaced persons' homes;
9. Reaffirms the obligation of States to repeal any laws and
regulations which are inconsistent with international legal standards, in
particular the right to return and the right to adequate housing and
property, and in this respect urges States to put in place effective and
impartial mechanisms designed to resolve outstanding housing and property
problems;
10. Reminds States of the need to ensure, in implementing the right
to return, that measures are taken to address the special needs of women and
children, including effective and equitable access to means of survival and
basic services, including education, and the effective implementation of the
right of women to full equality with respect to housing and property
restitution, in particular in terms of access, control, ownership,
possessory and inheritance rights;
11. Confirms that where displaced persons voluntarily settle
elsewhere, this does not affect their right to return to their home or place
of habitual residence, nor their right to housing and property restitution
or, should this not be possible, just compensation or other form of just
reparation;
12. Recognizes that displaced persons may choose voluntarily to
exchange their property rights over their original homes or places of
habitual residence for the same or similar rights over another property or
undertake other possible transactions, on condition that such decisions are
knowingly and voluntarily taken;
13. Also recognizes that property restitution processes are only
effective if the rights of occupants of displaced persons' houses, who
themselves are equally affected by displacement and in need of
accommodation, are protected, and urges States to provide adequate
alternative accommodation; where secondary occupants have no place to return
to, States are encouraged to provide affordable social housing;
14. Urges States where secondary occupants are in possession of the
homes of displaced persons as a result of criminal action to enforce their
own laws and to ensure that displaced persons have the possibility to return
in safety;
15. Encourages States to seek, through appropriate means, to
cooperate with the Office of the United Nations High Commissioner for
Refugees with regard to matters concerning refugees and, where appropriate,
to internally displaced persons and with all other humanitarian
organizations and other appropriate actors, in the exercise of their
respective mandates, and to ensure rapid and unimpeded access to displaced
persons in order to assist in their voluntary return or voluntary relocation
and reintegration;
16. Decides to continue its consideration of the question of the
right to return of displaced persons in the context of freedom of movement
under the same agenda item at its fifty-fourth session;
17. Recommends that the Commission on Human Rights adopt the text of
the
present resolution.
23rd meeting
15 August 2002
[Adopted without a vote. See chap. VIII.]
Housing and property restitution in the
context of refugees and other displaced persons
Sub-Commission on Human Rights resolution 2002/7
The Sub-Commission on the Promotion and Protection of Human Rights,
Guided by the principles embodied in the Charter of the United
Nations, the Universal Declaration of Human Rights, the International
Covenants on Human Rights, the 1951 Convention relating to the Status of
Refugees and its 1967 Protocol, and other relevant international instruments
on human rights and humanitarian law,
Recalling Commission on Human Rights resolutions 1996/25 of 19 April
1996, 1997/22 of 11 April 1997 and 1998/26 of 17 April 1998 and resolution
1998/28 of 17 April 1998, in which the Commission called upon the
Sub-Commission and its members
to further enhance cooperation with mechanisms of the Commission and, within
their competence, with all relevant bodies, including human rights treaty
bodies; Commission
resolution 1999/81 of 28 April 1999, in which the Commission welcomed the
Sub-Commission's efforts to enhance such cooperation; and Commission
resolution 2002/66 of 25 April 2002, in which it reaffirmed that the
Sub-Commission could best assist the Commission by providing it with
independent expert studies carried out by its members or alternates,
Recalling also Commission on Human Rights resolution 1999/47 of 27
April 1999, in which the Commission encouraged the Sub-Commission to
continue its work on the matter of housing and property restitution in the
context of the return of refugees and internally displaced persons,
Recalling further that the Committee on the Elimination of Racial
Discrimination, at it fiftieth session, decided to propose to the
Sub-Commission nine topics for the preparation of studies, including on the
return of refugees' or displaced persons' property,
Welcoming the developing cooperation between the Committee on the
Elimination of Racial Discrimination and the Sub-Commission on this and
other topics of mutual interest,
Recalling Sub-Commission decision 2001/122 of 16 August 2001 on the
return of refugees' or displaced persons' property,
1. Takes note of the working paper submitted by Mr. Paulo Sérgio
Pinheiro on the return of refugees' or displaced persons' property
(E/CN.4/Sub.2/2002/17) and endorses the conclusions and recommendation
contained therein;
2. Reaffirms its resolution 1998/26 of 26 August 1998 on housing and
property restitution in the context of the return of refugees and internally
displaced persons;
3. Urges all States to ensure the free and fair exercise of the right
to return to one's home and place of habitual residence by all refugees and
internally displaced persons and to develop effective and expeditious legal,
administrative and other procedures to ensure the free and fair exercise of
this right, including fair and effective mechanisms designed to resolve
outstanding housing and property problems;
4. Reiterates that the adoption or application of laws by States
which are designed to or result in the loss or removal of tenancy, use,
ownership or other rights connected with housing or property, the retraction
of the right to reside in a particular place, or laws of abandonment
employed against refugees or internally displaced persons pose serious
impediments to the return and reintegration of refugees and internally
displaced persons and to reconstruction and reconciliation;
5. Affirms that the remedy of compensation should only be used when
the remedy of restitution is not possible or when the injured party
knowingly and voluntarily accepts compensation in lieu of restitution;
6. Decides to appoint Mr. Paulo Sérgio Pinheiro as Special Rapporteur
with the task of preparing a comprehensive study on housing and property
restitution in the context of the return of refugees and internally
displaced persons based on his working paper as well as on the comments made
and the discussions that took place at the fifty-fourth session of the
Sub-Commission and the fifty-eighth session of the Commission;
7. Requests the Special Rapporteur to seek the advice and cooperation
of the Committee on the Elimination of Racial Discrimination in carrying out
his mandate;
8. Also requests the Special Rapporteur to submit a preliminary
report to the Sub-Commission at its fifty-fifth session, a progress report
at its fifty-sixth session and a final report at its fifty-seventh session;
9. Requests the Secretary-General to provide the Special Rapporteur
with all the assistance necessary to enable him to accomplish his task;
10. Recommends the following draft decision to the Commission on
Human Rights for adoption:
"The Commission on Human Rights, taking note of Sub-Commission on the
Promotion and Protection of Human Rights resolution 2002/7 of 14 August 2002
and recalling Commission resolution 1999/47 of 27 April 1999 in which it
encouraged the Sub-Commission to continue its work on the matter of housing
and property restitution in the context of the return of refugees and
internally displaced persons, endorses the decision of the Sub-Commission to
appoint Mr. Paulo Sérgio Pinheiro as Special Rapporteur with the task of
preparing a comprehensive study on housing and property restitution in the
context of the return of refugees and internally displaced persons based on
his working paper (E/CN.4/Sub.2/2002/17) as well as on the comments made and
the discussions that took place at the fifty-fourth session of the
Sub-Commission and the fifty-eighth session of the Commission, and the
Sub-Commission's request to the Special Rapporteur to submit a preliminary
report to the Sub-Commission at its fifty-fifth session, a progress report
at its fifty-sixth session and a final report at its
fifty-seventh session."
22nd meeting
14 August 2002
[Adopted without a vote. See chap. VI.] |