When people are
left with no option but to flee by forces beyond their control, they are
forced to take flight not only from their country or place of origin, but
from their homes, lands and property – often ancestral ones – as well. For
the displaced – whether within or beyond borders – returning home in safety
and dignity is almost invariably their primary objective.
Recognising the
inherent moral and legal logic in this widely held sentiment, in
recent years various international human rights bodies have repeatedly
reaffirmed the right of all refugees and displaced persons to return freely
to their countries and places of origin, and to have restored to them
housing and property of which they were deprived during the course of
displacement. Displacement, therefore, is seen by its very nature to be
temporary; unless a refugee freely chooses otherwise and opts to forego
return for a new life in a foreign land. The legitimate expectation of the
displaced, (and any ‘international community’ which is serious about
resisting ‘ethnic cleansing’ or other illegal attempts to alter the
demographics of a given territory) is to eventually return home.
Consequently, when the displaced deem it appropriate to do so, thus, they
should be accorded the rights and remedies required to enable them to
exercise not simply the right to return to their original homeland, but the
equally vital rights to recover their lands of origin, their housing of
origin and their property of origin – their rights to restitution.
On 11 August
2005, the United Nations Sub-Commission on the Promotion and Protection of
Human Rights took a major step in this direction with the endorsement of
Principles on Housing and Property Restitution for Refugees and Displaced
Persons. The ‘Pinheiro Principles’ (named after their author, Paulo-Sergio
Pinheiro) are an important advancement in the
fieldofrestitutionrights,andprovideimportant guidance in addressing the
legal and technical issues surrounding housing, land and property
restitution in situations where displacement has led to persons being
arbitrarily or unlawfully deprived of their former homes, lands, properties
or places of habitual residence.
The Principles
recognize the right of all refugees and displaced persons to have
restored to them any housing, land and/or property of which they were
arbitrarily or unlawfully deprived, or to be compensated for any housing,
land and/or property that is factually impossible to restore. The Principles
also stipulate that “States shall demonstrably prioritize the right to
restitution as the preferred remedy to displacement and as a key element of
restorative justice,” and that “[t]he right to restitution exists as a
distinct right, and is prejudiced neither by the actual return nor
non-return of refugees and displaced persons entitled to housing, land and
property restitution.”
The endorsement
of the Principles by the UN represents the end of a four-year process by
Pinheiro in his capacity as UN Special Rapporteur on Housing and Property
Restitution. The impetus for drafting a universally applicable standard on
restitution arose in part from the conclusions of his preliminary study in
2003, which recognized that serious problems still exist in the
implementation of post-conflictrestitution programmes. All too often,
restitution programmes are neither uniform in their approach, nor do they
treat all human rights equitably. Restitution programmes have been
implemented in varying situations with varying results, and this
inconsistency in approach is at least partly attributable to the lack of a
comprehensive and universal approach to restitution policy,
firmlygroundedininternationalhuman rights law.
Certainly, for
displaced persons in all corners of the world, returning home is still all
too often fraught with political, legal and economic uncertainty, even in
situations where violence has ceased. Common obstacles to the successful
implementation of restitution rights surely exist, suggesting that there may
be room to advance a more standardized approach to the restitution process.
Pinheiro focused particularly on finding ways to overcome hindrances to
restitution, including the loss or destruction of housing and property
records and documentation, discriminatory national legislation, secondary
occupation, property destruction, the existence of ineffectual institutions,
and the adoption of discriminatory restitution programmes and policies.
The Pinheiro
Principles incorporate a forward-looking and holistic approach to housing,
land and property restitution under international law. This approach is at
the same time rooted in the lessons learned by restitution practitioners in
the field, and the ‘best practices’ which have emerged in previous
post-conflict situations where restitution has been treated as a key
component of restorative justice. As such, the Principles incorporate some
of the most useful provisions from various pre-existing national restitution
policies and programs, including elements of those developed for Bosnia and
Herzegovina, Burundi, Cambodia, Cyprus, Guatemala, Kosovo, South Africa and
Rwanda.
The real
advancement for restitution advocates, however, lays in the articulation of
concrete standards related to legal, policy, procedural and institutional
implementation mechanisms to secure these rights. As such, the Pinheiro
Principles provide
specificguidanceregardinghowbesttoensuretherighttohousing, land and property
restitution in practical terms.
The new
standard also recognizes that in situations where restitution has been tried
in post-conflictsettings, effective and competent national institutions have
been the cornerstone of successful restitution programmes. A focus on
promoting institutional capacity and fairness is therefore at the heart of
the Principles, including a focus on proper enforcement mechanisms for
housing, land and property restitution decisions and judgments. The
Principles contain extensive sections on national procedures, institutions
and mechanisms; accessibility of restitution claims procedures; adequate
consultation and participation in decision-making; housing, land and
property records and documentation; the rights of tenants and other
non-owners; and secondary occupants, among other issues critical to the
creation and implementation of just and effective restitution programmes.
The Principles
also note that States should ensure that the right of refugees and displaced
persons to housing, land and property restitution is recognized as an
essential component of the rule of law. States should ensure the right to
housing, land and property restitution through all necessary legislative
means, including through the adoption, amendment, reform, or repeal of
relevant laws, regulations and/or practices. States should develop a legal
framework for protecting the right to housing, land and property restitution
which is clear, consistent and, where necessary, consolidated in a single
law. Likewise, States should ensure that all relevant laws clearly delineate
every person and/or affected group that is legally entitled to the
restitution of their housing, land and property. Subsidiary claimants should
similarly be recognized, including resident family members at the time of
displacement, spouses, domestic partners, dependents, legal heirs and others
who should be entitled to claim on the same basis as primary claimants.
The Principles
are an important contribution to the protection of the rights of refugees
and displaced persons throughout the world. Better yet, the Principles are,
in fact, an international normative milestone that should develop into a
living, breathing document; claimed by the displaced, implemented by
Governments and enforced by courts of law.
It is clear
that conflict and disaster situations have led to, and continue to lead to
humanitarian crises which can only be adequately repaired through the
application of just remedies. Now that the Pinheiro Principles have been
adopted, much work remains to be done with respect to dissemination,
publicity and implementation. In order for the promise of this new standard
to be realized, the Principles must begin to be used by practitioners at
local, national and international levels. Like all human rights standards,
the life of the Principles must extend beyond the words on paper to
penetrate living political structures, judicial decisions, and
administrative policies.
The next stage
for the Pinheiro Principles will involve restitution practitioners at all
levels developing new and innovative strategies to secure restitution rights
for all of the world’s displaced, be they Bhutanese, Serb, Roma, Burundian,
Sudanese, Sri Lankan, Iraqi, or Palestinians.
