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Guiding Principle 29 and the right to restitution

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					FMR – GP10       TEN YEARS OF THE GUIDING PRINCIPLES                                                                                 23




     Guiding Principle 29 and the
     right to restitution
     Rhodri C Williams

     The emergence of a right to post-displacement property                               However, the acceptance of restitution
     restitution represents a significant development in human                            in principle has raised new challenges
                                                                                          in practice. The last decade has seen
     rights law in the ten years since the Guiding Principles were                        few examples of unambiguously
     submitted. While Guiding Principle 29 has contributed to                             successful restitution programmes,
     the development of this right, significant obstacles remain                          leaving Bosnia to represent as much
     to its consistent application in displacement settings.                              an aberration as a precedent. This
                                                                                          failure in implementation results in
                                                                                          part from politics. Land and property
                                                origin” and to “have restored to          are inherently valuable assets,
       Principle 29(2) states that:             them property of which they were          and local and national authorities
       “Competent authorities have the          deprived.” The next five years saw        may resist their recovery by IDPs.
       duty and responsibility to assist        a methodical push to restore the          In frozen conflicts, restitution is
       returned and/or resettled internally     property rights of Bosnia’s displaced,    usually impossible. Thus, while the
       displaced persons to recover, to the     resulting in the restitution of some      Security Council has issued a strong
       extent possible, their property and      200,000 homes, the return of up to        statement in favour of restitution
       possessions which they left behind       a million people and the first real       with regard to breakaway regions
       or were dispossessed of upon their       precedent for large-scale post-conflict   in Georgia,4 the recent incursion by
       displacement. When recovery of           property restitution as of right.         Russia has greatly complicated the
       such property and possessions is not                                               chances that it will be respected.
       possible, competent authorities shall    The Bosnia experience helped shape
       provide or assist these persons in       such important developments as the        Where political will exists, restitution
       obtaining appropriate compensation       2006 adoption by the UN General           programmes may demand a level
       or another form of just reparation.”     Assembly of ‘Basic Principles             of resources and legal capacity
                                                and Guidelines’ affirming rights          that many countries do not enjoy.
                                                to substantive remedies such              In countries such as Afghanistan,
     At the time that the Guiding               as restitution in addition to fair        where landlessness was widespread
     Principles were drawn up, the right of     hearings.1 The most specific support      prior to displacement, or Burundi,
     IDPs to reclaim abandoned property         for a post-displacement right             where the population has nearly
     was not beyond dispute. Human              to restitution came in 2005 with          outstripped the available supply of
     rights law guaranteed a ‘right of          release of the Pinheiro Principles,2      land, restitution proposals should
     return’ but it was limited to restoring    which confirmed restitution “as the       accommodate the imperative of
     people to the frontiers of their country   preferred remedy for displacement”        securing equitable access to land
     of origin – a destination often far from   and a “distinct right … prejudiced        for the population as a whole.
     their actual homes. Likewise, the right    neither by the return or non-return”
     to legal remedies for violations such      of those entitled to it. Like the         A further significant challenge to
     as property confiscation was defined       Guiding Principles, the Pinheiro          restitution efforts is the need to
     as a procedural entitlement to a fair      Principles set out to reflect accepted    integrate customary tenure systems.
     hearing, without pre-judging whether       principles of international law           In many countries, indigenous
     any specific substantive remedy            and have helped fill an important         or tribal groups hold land in
     such as restitution should result.         gap for countries serious about           accordance with unwritten rules.
                                                addressing displacement.                  While traditional systems should be
     Accordingly, while the drafters of                                                   respected, lack of state recognition
     the Guiding Principles were aware          The UN General Assembly and               and formal documentation often
     that durable solutions for IDPs were       Security Council have moved towards       complicate restitution claims.
     inconceivable without the possibility      recognition of a right to restitution     Customary systems are often non-
     of restitution and voluntary return,       and the Secretary-General has             transparent or even discriminatory,
     prevailing legal understandings            called for a more effective response      complicating efforts to ensure
     necessitated a formulation focusing        to post-conflict property issues.3        that respect for collectively held
     on state duties rather than individual     Restitution has also emerged as an        customary rights does not harm
     rights. However, important progress        increasingly standard component of        individuals. This tension is reflected
     on the ground came as a result of          conflict resolution, whether directly     in the Great Lakes Pact’s Protocol on
     the 1995 Dayton Peace Accords,             through peace agreements, as in           the Property Rights of Returnees,5
     which ended the war in Bosnia and          Darfur and Nepal, or through ad           which affirms the right of women to
     included rights for displaced persons      hoc mechanisms in Afghanistan,            own property without discrimination
     “freely to return to their homes of        Burundi, Kosovo and Turkey.               as well as the rights of rural and
24   TEN YEARS OF THE GUIDING PRINCIPLES                                                                                         FMR – GP10



     pastoral communities to special          in the wake of all displacement.     Displaced Persons: A Manual
     protection of their property but fails   The promise of Principle 29(2) has   for Law and Policy-Makers
     to provide clear guidance where          yet to be completely fulfilled but   while working as a consultant
     traditional inheritance systems          it is encouraging that a rule that   for the Brookings-Bern Project.
     discriminate against women.              was once judged to be ambitious
                                                                                   1. http://www2.ohchr.org/english/law/remedy.htm
                                              is fast becoming a routine part of   2. http://www.cohre.org/store/attachments/Pinheiro%20
     These complications notwithstanding,     the response to displacement.        Principles.pdf
     a great deal has been achieved.                                               3. See ‘Report of the Secretary-General on the protection
                                                                                   of civilians in armed conflict’,October 2007
     Ambitious restitution plans are          Rhodri C. Williams (rcw200@
                                                                                   http://www.un.org/Docs/journal/asp/
     under discussion for Colombia            yahoo.com) coordinated monitoring    ws.asp?m=s/2007/643
     and Iraq. Experience of the 2004         of property restitution in Bosnia    4. http://www.un.org/News/Press/docs/2007/sc9142.
                                                                                   doc.htm
     tsunami and other natural disasters      with the Organization for Security
                                                                                   5. http://www.brookings.edu/fp/projects/idp/GreatLakes_
     has led to increased awareness that      Cooperation in Europe (OSCE).        IDP protocol.pdf
     property rights must be respected        He drafted Protecting Internally

				
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