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Housing and Property Restitution |
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International Law The right to housing and property restitution is anchored in four separate branches of international law. Under the law of nations private property rights are respected to an extraordinarily high degree. Under the international law of expropriation, private property may not be confiscated by governments unless: (1) the expropriation is being done for a valid (nondiscriminatory) purpose; (2) adequate due process safeguards are employed (allowing the property owner to protest the proposed confiscation if it is not being done for a valid purpose); and (3) full compensation (or substitute property of equal value) is paid to the owner in exchange for the property so confiscated. In the specific context of state succession, the Doctrine of Acquired Rights requires that private property of individuals in the territory undergoing the change in sovereignty be respected by the successor state in all cases. Under humanitarian law private property is also accorded a very high degree of respect. The Hague Regulations annexed to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land contains at least sixteen articles, which contain rules requiring combatants to respect private property. Similarly, the Fourth (Civilians) Geneva Convention incorporated the private property protections from the Hague Regulations, and included a particularly strong prohibition against “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” in its famous Article 147, defining “grave breaches” of humanitarian law. Human rights law also contains a “right to own property free from arbitrary governmental interference.” This right is found in the Universal Declaration of Human Rights; in the International Covenant on Economic, Social and Cultural Rights; in the International Covenant on Civil and Political Rights; and in all three of the regional human rights conventions (i.e., African, inter-American and European). The right of restitution – which is the logical corollary of its “sister” right to own property – exists as the applicable remedy whenever property has been taken illegally (as determined by international law standards) by a government or with official governmental sanction. Finally, refugee law also contains the right of restitution. Under refugee law, the principle of the refugees’ absolute right to return, on a voluntary basis, to their place of origin – including, specifically, to their homes of origin – is central to the implementation of durable solutions designed by the international community to address refugee flows. Some of the most well-known examples of restitution laws were those implemented at the conclusion of World War II, both by the Allied Powers (including the U.S. and Great Britain) but also by individual European countries (including France, Romania, Italy, Bulgaria, Czechoslovakia, the Netherlands and Yugoslavia). Restitution of housing, land, and property is considered to be an essential part of the reconstruction, peace-building and national reconciliation processes. UN Resolutions UN resolutions also reaffirm the right of refugees and displaced persons to repossess their homes and properties. This includes resolutions concerning refugees from Cyprus, the former Yugoslavia, Azerbaijan, Georgia, and Tajikistan. Resolutions also call upon governments to lift restrictions on repossession of property and other obstacles to restitution. Generally Assembly Resolution 36/148 emphasizes the right of refugees to return to their homes. UN human rights bodies also affirm the right of refugees and displaced persons to repossess housing and property. The UN Sub-Commission on the Promotion and Protection of Human Rights reaffirms (Resolution 2002/30) the right to adequate housing and property restitution. The Sub-Commission also urges states (Resolution 2002/7) to develop effective and expeditious legal, administrative and other procedures, and fair and effective mechanisms designed to resolve outstanding housing and property problems. The Commission on Human Rights (Resolution 2003/34) also reaffirms that that victims of grave violations of human rights should receive restitution. General Assembly Resolution 194(III) reaffirms the right of Palestinian refugees displaced in 1948 to housing and property restitution. According to the UN Secretariat, the underlying principle of Resolution 194 is that Palestinian refugees should be permitted to return to their homes and be reinstated in the possession of the property which they previously held. It is clear from the phrasing “to their homes” that the Assembly intended to affirm the right of Palestinian refugees to housing and property restitution. If the General Assembly had not intended to affirm the right of Palestinian refugees to housing and property restitution, it is likely that the broader language in draft resolutions referring to the places from which they came would have remained. Assembly Resolution 3236(XXIX) reaffirms the "inalienable right" of Palestinian refugees to return specifically to their homes and properties. Peace Agreements Peace agreements also affirm the right of refugees and displaced persons to repossess their homes and properties. This includes Bosnia, Kosovo, Cambodia, Guatemala, Mozambique, Rwanda, Croatia, Burundi and Georgia. Agreements may establish separate institutions to process housing and property claims. In other cases new institutions subsequently established by the United Nations deal with housing and property claims. Many agreements also call upon governments to repeal legislation that prevents refugees and displaced persons from repossessing their properties. To date, agreements between Israel and the PLO do not affirm the right of Palestinian refugees and displaced persons to housing and property restitution. The 1993 Palestinian-Israeli framework agreement (Declaration of Principles) (Article V (3)) and the 1995 Interim Agreement (Chapter III, Article XVII) state that the issue of refugees displaced in 1948 will be addressed during permanent status negotiations. The 1993 Declaration of Principles [also] establishes a quadripartite continuing committee (Article XII) to decide on “the modalities of admission of persons displaced from the West Bank and Gaza Strip in 1967.” Similar provisions for Palestinians who became refugees or displaced persons as a result of the 1967 occupation by Israel of the West Bank and Gaza are found in the 1994 Gaza-Jericho Agreement (Article XVI(2)) and in the 1995 Interim Agreement (Chapter Four, Article XXVII(2)). The agreements do not establish procedures and mechanisms to enable Palestinian refugees to repossess housing and property. They do not call upon the government of Israel to repeal discriminatory legislation used to expropriate refugee properties. On the contrary, the 1995 Interim Agreement (Annex III, Appendix I, Article 16(3) and Article 22(3)) calls upon Palestinians to respect the "legal rights" of Israelis concerning “Government and Absentee property” that was “acquired” - most often through expropriation - in 1967 occupied Palestine. © 1999-2004 www.badil.org unless otherwise noted. This page may be copied, distributed and reprinted for informational purposes. To republish material from the BADIL website please add the author's name where applicable and the following credit: "Reprinted with permission of BADIL Resource Center for Palestinian Residency and Refugee Rights. For more information visit the BADIL website, www.badil.org." Please send us an email if you republish material from the BADIL website so we can more effectively monitor use and distribution of BADIL materials. BADIL Resource Center for Palestinian Residency and
Refugee Rights |
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