Individual Property Restitution: from Deng to Pinheiro - and the Challenges Ahead

Abstract

The issue of housing and property restitution for refugees and internally displaced persons (IDPs) has received considerable attention in the past decade. Conflicts and wars in different parts of the world have shown how housing and property rights are systematically violated during armed strives. Intentional destruction of property, arbitrary confiscation of housing and secondary occupation are just some of the most common practices in violation of individual property rights. In addition to being an individual's right, the international community has increasingly considered post-conflict housing and property restitution as a key component of the broader objective of peace building, and as a means of promoting restorative justice within society. Both at operational and at normative level, several initiatives have contributed to enforcing property restitution rights: from the establishment in the mid 1990s of institutions mandated to resolve conflicting property claims to the adoption in 2005 of the so-called ‘Pinheiro Principles’, the first international standard exclusively addressing property restitution rights. This paper explores the strengthening of international norms in the field of individual property restitution for refugees and IDPs over the past decade, and argues that the currently available normative standards reflect a partial understanding of displacement and restitution. With an almost exclusive focus on individual real property restitution, and an explicit preference for return among solutions to displacement, such standards undervalue the importance of alternative remedies and overlook the rights of non-returnees. After a brief overview on the emergence of a right to individual property restitution in international law and policy (part 1), this paper will concentrate its attention on three legal documents addressing property and displacement: the Guiding Principles on Internal Displacement of 1998, the International Law Association Declaration of Principles on IDPs of 2000, and the Pinheiro Principles of 2005 (part 2). The first two documents confine their scope to displacement within national borders, whereas the Pinheiro Principles encompass restitution rights for both IDPs and refugees and represent the most recent and comprehensive standard on the topic. Despite the remarkable developments at normative level, epitomized by the approval of the Pinheiro Principles, this paper highlights the following problematic areas: the role played by physical return in the conceptualisation of property restitution; the supremacy given to individual real property restitution over other types of remedies; and the impact of the passage of time on restitution rights (part 3). The paper concludes by arguing that restitution must be conceived independently from return and must consequently go beyond individual real property restitution, in order to provide effective redress to refugees and displaced persons (part 4).