Beyond restitution: New book explores property rights and durable solutions for the displaced

by Anneke Smit

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor (Canada), where she teaches Property Law. She has worked on displacement and post-conflict property issues for more than a decade, including in Kosovo with OSCE and in Georgia with a grassroots human rights NGO. She is the author of The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution, published this year by Routledge.

Recent posts in TN by Roger Duthie and Megan Bradley as well as Rhodri Williams, highlight the importance of transitional justice in bringing displacement to an end and encouraging processes of reconciliation. Yuliya Alieva’s post on the two decades of internal displacement in Azerbaijan is a critical reminder of the intensifying need to consider the full range of durable solutions – local integration and resettlement in addition to return, in particular in protracted displacements. These discussions reinforce the importance of post-conflict housing, land and property (HLP) restitution to contribute to these processes, but they are also reminders of the limitations of the current international legal framework.

Regular readers of this blog will be aware of the enormous strides which have been taken in the last decades with respect to post-conflict HLP restitution. The international legal framework on HLP restitution is since 2005 dominated by the (non-binding) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles). Principle 2 of the Pinheiro Principles states in part:

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived[.]

As such, the Principles prioritize restitution “in kind” (or in rem) as the preferred remedy to conflict-related HLP rights deprivations. Other remedies, including but not limited to compensation, are possible but these are clearly subordinated to return of the actual property. Since their inception, the Pinheiro Principles have been discussed and publicized widely. At first, it seemed taboo to criticize the Pinheiro Principles, given the substantial and hard-won contribution they made to a critical area of post-conflict justice and solutions to displacement. Recently, however, it seems the floodgates of criticism have opened.

Rhodri’s recent blog post on the UN high level rule of law meeting alluded to the place of HLP restitution within the framework of rights-based humanitarianism; in what I find a particularly compelling warning about that movement, Hugo Slim wrote a few years ago in a paper for ODI that “as a debate essentially concerned with a political, moral and legal framework, rights-based humanitarianism may never leave the paper and seminar rooms where it is debated and find the means to have a practical effect.” This is, of course, the crux of the problem with the Pinheiro Principles – they are a lovely piece of work on paper but one which in many cases has had trouble achieving a significant practical outcome. Much of the criticism seems to point to this question: are refugees and internally displaced persons (IDPs) actually better off for the existence of the Pinheiro Principles?

I am a pragmatist at heart, but one who does not believe we should throw the human rights baby out with the bathwater. In Beyond Restitution my critique is two-fold. First, I argue, through a discussion that includes consideration of the development of the rights to HLP restitution and return, analysis of a dozen post-conflict case studies, and consideration of the meaning of “home” in the context of forced displacement, that the desired results of return and reintegration could not have been expected to flow directly from Pinheiro-style restitution. Second, I take this analysis as a springboard to address how the post-conflict HLP framework might continue to develop in a way which more effectively contributes to durable solutions, without losing a necessary link to transitional justice and reconciliation. I outline two of my primary arguments here; the book of course treats them in more detail:

In search of a duty-bearer: No remedy for destruction of property during Kosovo’s international supervision

by Milica Matijevic and Massimo Moratti

It is easy to guess that, as in most legal aid programmes implemented in post-conflict settings, the majority of cases handled by the EU funded legal aid project “Further support to refugees and IDPs in Serbia” concern repossession of property owned by IDPs and refugees. These are mostly cases of property restitution and/or compensation for property that can’t be repossessed. This topic has been the focus of a newly released report dealing with these aspects of the right to property restitution and/or compensation.

When dealing with competent officials in the field, be they international or domestic, we often hear the statement that the case of Kosovo is “specific” or “particularly complicated”. For those dealing with housing, land and property rights, this should be nothing new. Every displacement crisis has its own specific aspects and by their own inherent nature property cases are very often “particularly complicated”. Unfortunately, the rationale behind the explanation of this kind is that international human rights standards shouldn’t be applied, and possibly the status quo shouldn’t be touched.

In its most recent report the Project assesses a number of questions “specific” to the context of Kosovo and, in fact, shows how international standards are applicable to the Kosovo context.  Although it is not always clear who the duty bearers are, it is clear that IDPs and those forced from their homes by the conflict are the right holders and that the difficulty in identifying the duty bearer renders the rights of IDPs meaningless.

The report proceeds from the general rule that internally displaced persons enjoy the same set of rights as any other citizen of the state within which they reside. When applied to the situation of an internally displaced person from Kosovo this would mean that they can assert their property rights on the same basis as any other resident of Kosovo.

Notwithstanding the fact that the applicable legal framework contains strong guarantees of the right to property, including the right to be compensated for unlawful damaging or destruction of one’s property, the position of IDPs is often not adequately taken into account by the relevant national and international authorities and their claims remain largely unattended.

The report deals with a specific caseload, the famous “18,000 compensation claims”. These are claims that were brought by IDPs from Kosovo against the UN Mission in Kosovo (UNMIK) and the Provisional Institutions of Self-Government in Kosovo for compensation of damages to private property that occurred as a result of the 1999 NATO air campaign and the March 2004 riots. Those claims were for long time “frozen” by a request of UNMIK, which later on was found in violation of the right to a fair trial by the UNMIK Human Rights Advisory Panel, in Opinions released on February 23, 2011 (Esat Berisa Case no. 27/08 and others v UNMIK) and March 24, 2010 (Petko Milogoric, Case no. 38/08 and others v UNMIK)

Colombia’s Victims’ Law enacted – Last stand or new beginning for programmatic property restitution?

by Rhodri C. Williams

In a signing ceremony attended by UN Secretary-General Ban Ki-moon, Colombian President Juan Manuel Santos ratified the Victims’ Law last Saturday, fulfilling his  unexpected and ambitious post-election pledge to enact a property restitution bill. Commentary on TN has highlighted both the unprecedented nature of this effort and the formidable obstacles it faces.

The fate of this legislation takes on additional significance against the background of current debates over the post-conflict ‘right to restitution’ proclaimed most prominently in the 2005 Pinheiro Principles. As early enthusiasm about restitution has faded, the need to respond to prevailing humanitarian trends such as urban vulnerability and protracted displacement has led to an increased emphasis on local integration as a durable solution. The extent to which programmatic restitution – and the promotion of voluntary return – remains seen as a viable complementary strategy to local integration efforts may depend on the outcome of the increasingly rare test cases, such as Colombia, that tackle this challenge head on.

Week in links – week 10/2011

First, the weblog equivalent of a moment of silence for the victims of the ongoing disaster in Japan. Six years after their adoption and sixteen years after the similarly devastating Kobe quake that gave rise to them, the Hyogo Declaration and Framework for Action on disaster risk reduction face a gruesomely concrete field test.

Second, on an administrative note, I should announce a likely hiatus in TN postings over the next ten days or so, during which I will be on mission in West Africa. I hope that a few guest-postings may land during that period (and they will be rushed to press) but its likely to be pretty quiet here otherwise.

Moving to news, UN housing rights rapporteur Raquel Rolnik focused on the right to housing in post-conflict and disaster reconstruction settings in her latest annual report. While I have not yet had the chance to review the report in detail, it is interesting to note that the press release focuses heavily on land rights for affected persons. From this perspective, there is likely to be some overlap with last year’s humanitarian guidance on post-disaster land issues (posted on by Esteban Leon here).

The FAO has released a new report on gender equality in agriculture that focuses on women’s unequal access to the various economic opportunities and inputs that would let them compete with men – and the enormous price tag of such bias in a hungry world where women make up 43 percent of the agricultural labour force in developing countries. If TN readers are willing to overlook one appalling pun (“a level ploughing field”), they will find much of interest.

The New York Times followed up on articles from October  2010 and January of this year with a more recent piece on the complications faced by NATO troops in Afghanistan attempting to compensate villagers for property destroyed in the course of counter-insurgency fighting.

Finally, following up on last week’s posting on the Economist’s special report on agriculture, I should point out that my plug for this week’s corresponding report on ‘property’ may have been a case of irrational exuberance. The new special report is a fascinating read on property as an investment, the ostensible safety of which appears increasingly fragile in an era of recurrent bubbles. Of great interest to me, but perhaps more in my capacity as a mortgage-holder in one of Europe’s few remaining bubble candidates than as a blogger.

Bridging the scholar-practitioner gap with dialogue: Megan J. Ballard responds to Massimo Moratti

by Megan J. Ballard

NB: This posting is written as a response to a piece by Massimo Moratti, entitled “Evictions and cookie-cutter approaches to restitution: a response to Megan J. Ballard”, published in TN on February 9, 2011.

Part of the job of a legal academic is to write law review articles. Many practicing lawyers suggest that these articles – often lengthy and theoretical — are rarely read by anyone other than fellow legal academics. It is, then, a pleasant surprise when someone outside the legal academy actually reads and comments on our work. And it is even more satisfying when the commentary comes from someone with practical experience in the subject matter of the article. This is true, in part, because the tensions and conflict inherent in practice cannot always be captured by scholarly writing, as Mr. Moratti points out. Accordingly, I am grateful for this dialogue.

While Mr. Moratti is critical of parts of my article, he does not seem to assail my primary claims: 1) the legal foundations on which property restitution rests are not entirely on solid ground (a claim acknowledged in our blog author’s November 18 discussion about stretching the existing rules of international law); and 2) many of the theoretical justifications for the Pinheiro Principles may not bear out in the long run, particularly if we fail to heed lessons learned by earlier “law and development” efforts.

Mr. Moratti does, however, take issue with at least two elements of what he calls my “debatable perception” of the restitution process in Bosnia and Herzegovina. For the record, I have no “perception” of that process. As the 26 footnotes to my three-page description illustrate, I relied on published articles and reports for my data — including seven citations to Charles Philpott, the author Mr. Moratti notes, and 12 citations to our blog author, Rhodri Williams.

Note on ECtHR Decision in Demopoulos v. Turkey

by Rhodri C. Williams

Along similar lines to my earlier piece on the UNRoD, I recently wrote an introductory note for the publication in International Legal Materials of a key decision on property rights in Cyprus by the European Court of Human Rights.

The Demopoulos decision is interesting from a number of perspectives, but not least for the new approach it brings to the issue of what standards should guide the question of when compensation can be provided in lieu of restitution (an issue I’ve opined on a number of times in the past, including here with regard to the IASC framework on durable solutions for IDPs).

The proper name of the final version of this article is “Introductory Note to the European Court of Human Rights: Demopoulos v. Turkey” and it was published in its final version in the Volume 49 No. 3 issue of International Legal Materials. The version reproduced below is an edited draft.

———————

INTRODUCTORY NOTE TO THE European Court of Human Rights: Demopoulos v. Turkey

BY RHODRI C. WILLIAMS

I.            Introduction

On March 1, 2010, the Grand Chamber of the European Court of Human Rights decided to reject the applications of seventeen Cypriot citizens against Turkey as inadmissible.[i] The applicants had alleged various violations of the European Convention of Human Rights, but the Court’s decision in Demopoulos turned on examination of their claims related to the right of property under Article 1 of the First Protocol to the European Convention on Human Rights, as well as the right to the home under Article 8 of the Convention.

All of the applicants in Demopoulos are Greek Cypriots who were displaced by the 1974 Turkish invasion and occupation of north Cyprus, and subsequently denied the use of their properties and access to homes they left behind. Essentially, this ruling is the latest in a fourteen-year line of decisions against Turkey related to the unresolved conflict in Cyprus. However, this ruling also breaks with its antecedents. First, it finds that the property claims process set up in Turkish-controlled northern Cyprus may constitute an effective domestic remedy; and, secondly, it requires Greek Cypriot applicants to demonstrate that they have exhausted this remedy before their applications to the Court will be found admissible.

The broader significance of the Court’s decision in Demopoulos is two-fold. On the one hand, the decision represents the most emphatic expression to date of the Court’s determination to implement a new “pilot case” procedure. This procedure is meant to relieve the Court of a large backlog of cases by encouraging States Parties to the Convention to adopt systematic approaches allowing the domestic resolution of repetitive, or “clone” cases pending before the Court. On the other hand, the decision appears to represent a conscious effort by the Court – as one of many international players involved in the protracted negotiations over the Cyprus issue – to strike a practical balance between heretofore irreconcilable Greek and Turkish Cypriot negotiating positions.

Note on the UN Register of Damage for the Occupied Palestinian Territory

by Rhodri C. Williams

I recently wrote an introductory note for publication in International Legal Materials related to a set of rules of procedure adopted last year by the UN Register of Damage (UNRoD). The Register was set up in order to develop a record of all damages resulting from the construction of Israel’s “security fence”, referred to by the UN General Assembly as the “Wall”, in the Occupied Palestinian Territory. As such, it represents an interesting development both in the attempt to resolve the Middle East conflict and in the evolution of institutional responses to mass claims for reparations.

The proper name of the final version of this article is “Introductory Note to the United Nations Register of Damage (UNRoD) Rules and Regulations Governing the Registration of Claims” and it was published in its final version in the Volume 49 No. 2 issue of International Legal Materials. The version reproduced below is an edited draft.

____________

Introduction

On June 16, 2009, the Board of the United Nations Register of Damage (UNRoD) issued a set of “Rules and Regulations Governing the Registration of Claims” (Rules). The Office of the UNRoD is a subsidiary organ of the General Assembly operating under the administrative authority of the Secretary General, with a mandate to develop “a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem.”[i]

The issuance of the Rules comes over two years after the January 2007 establishment of the Office of the UNRoD by UN General Assembly Resolution ES-10/17[ii] and the subsequent May 2007 appointment by the Secretary General of the Office’s Board.[iii] The length of time it has taken to issue the Rules, combined with the fact that they do not fully resolve a number of open questions surrounding the scope and nature of the registration process, is likely to fuel concerns about the effectiveness of the Office. On the other hand, the fact that the Rules have been issued at all confirms that the UNRoD is evolving from a recommendation into a real institution. This development will inevitably influence not only the ongoing efforts to resolve the conflict in the Middle East, but also broader debates related to the role of reparations for individual victims of international law violations in the context of protracted peace negotiations.

News from Bosnia – ECtHR Dokic decision and guest blogger Massimo Moratti’s view from the field

It can be hard to get around Bosnia in looking at post-conflict housing, land and property (HLP) issues. For better or for worse, Bosnia set the post-Cold War paradigm of mass administrative restitution that laid the ground for the 2006 Pinheiro Principles, and which has since been roundly criticized as raising false expectations in settings with weaker national capacities, vaguer international commitments and less tidy, uniform and (relatively) equitable land and property relations. However, despite the importance of looking beyond the Balkans in developing a clear-eyed view of the HLP challenges that lurk in such heterogeneous settings as Sudan, Afghanistan and Colombia, yet Bosnia refuses to be silent.

Late last week, the Fourth Section of the European Court of Human Rights released its judgment in the Case of Dokic v. Bosnia and Herzegovina (see the press release here and the full text of the decision here). This decision awards compensation for pecuniary and non-pecuniary damages to a military school lecturer who had begun the process of privatizing his socially-owned flat prior to the conflict in Bosnia and was subsequently denied a remedy for the loss of his rights due to a quirk in the restitution laws of one of Bosnia’s two post-war federal “entities” that created special rules for “military apartments” from the pre-war housing fund of the Yugoslav National Army (for a more detailed description of this controversy see section VI.D of a 2005 article I wrote on Bosnian restitution).

In issuing this decision, the Court ties up one of the many legal loose ends that continue to haunt the former Yugoslavia a decade after the fighting stopped. The judgment also further rounds out the restitution and compensation-related jurisprudence of the Court under Article 1 of the first Protocol to the European Convention on Human Rights and – upon becoming final – is likely to have significant political and financial implications in Bosnia and possibly the wider region. Among many of its interesting aspects (to be discussed in more detail in a subsequent post), the judgment also cites not only the Pinheiro Principles but also the more recent Resolution 1708 (2010) of the Parliamentary Assembly of the Council of Europe (see TN posting here) as ‘relevant international documents’.

The Dokic decision carries with it a number of personal associations for me. At the end of my time with the OSCE in Bosnia, I drafted and presented an amicus curiae brief to the Bosnian Constitutional Court that asserted one of the three arguments – failure to demonstrate use of confiscated military apartments for the asserted humanitarian aims – that the ECtHR relies on in finding a violation (see para. 61). And more recently, I had the privilege of assisting the CoE PACE Rapporteur, Jorgen Poulsen, in developing a report that helped lead to the adoption of Resolution 1708.

In this context, it seems fitting that the Dokic decision was nearly simultaneously brought to my attention today by former Bosnia colleagues Massimo Moratti and Javier Leon Diaz, and that the former will be guest-blogging later this week on his view of the longer term repercussions of restitution in Bosnia. Massimo was one of the architects of Bosnian restitution, with  experience opening the process up in Prijedor, the site of notorious ethnic cleansing during the war, as well as managing monitoring and policy formulation at both the regional and national level with the OSCE. Having gotten a bit of perspective as an international consultant and more recently returned to work again in Bosnia, Massimo’s forthcoming observations provide a strong and locally grounded complementary note to the legal conclusions in the Dokic case.

Housing, land and property issues central to new Durable Solutions Framework for IDPs

by Rhodri Williams

The international response to internal displacement marshaled under the auspices of the Brookings Institution in the early 1990s has, over time, provided convincing answers to many of the vexing questions this issue initially raised. The 1998 Guiding Principles on Internal Displacement, in particular, shed light on the status of internally displaced persons (IDPs), provided a descriptive definition of who they are and grounded a theory on why they require protection and assistance on the notion that sovereignty entails responsibility (which was so successful at overcoming state reluctance to allow international scrutiny of their internal affairs that it was eventually cribbed by the founders of R2P).

However, one lingering question related to when IDPs stopped being “displaced”. Did it matter, for instance, that Greek Cypriots displaced from the north in 1974 still didn’t have the option to return when they were firmly established in the south and often enjoyed a higher standard of living than their non-displaced neighbors? When, on the other hand, return was encouraged through the withdrawal of assistance at displacement sites, could those who nevertheless remained behind still claim to be displaced?

Whereas refugees receive a special international status based on loss of the protection of their country of origin – and can lose this status once such protection resumes – IDPs generally remain citizens throughout and are entitled to special protection based on their factual vulnerability rather than any change in legal status. When does this state of vulnerability end?

The Brookings-Bern Project on Internal Displacement took an initial stab at this question with a research project initiated in 2002. The first draft of a Framework for Durable Solutions was published five years later (helpfully, along with many of the documents that led to its preparation). The document was welcomed by the Inter-Agency Standing Committee, which recommended in March 2007 that it be field-tested and finalized on the basis of practitioners’ feedback. In the meantime, the UN Development Group published a 2004 Guidance Note on durable solutions for “displaced persons” (including refugees and returnees as well as IDPs) meant to assist UN country teams in incorporating these issues into common country assessments and UN development assistance frameworks.

Both the UNDG Note and particularly the draft Framework were heavily drawn on by the Global Protection Cluster Working Group in developing a chapter on durable solutions in the December 2007 provisional release of the IDP Protection Handbook, which was meant to provide guidance to the staff of international organizations in the field. Now a revision process led by the current Representative of the UN Secretary General (RSG) on the Human Rights of IDPs, Walter Kälin, has concluded with the publication of an advance draft of the final Framework, as an attachment to Mr. Kälin’s final report to the UN Human Rights Council. The Framework includes a great deal of interest for housing, land and property (HLP) practitioners, but it may be useful to begin with a few of the more general features of the document.

First, the Framework represents an interesting variant on the RSG’s longstanding focus on encouraging states affected by displacement to recognize their responsibility to address the issue and providing tools, such as the IDP Law and Policy Manual, that directly build their capacity to do so. In this case, the Framework “assists” states indirectly, by providing a tool aimed at allowing international and non-governmental actors to more effectively monitor their efforts (see para. 7). The section on monitoring (paragraphs 44 to 47) makes the accountability function of the Framework explicit, but presents it in a manner that stresses the need for states and civil society actors to seek complementarity rather than conflict:

Scrutiny by independent actors complements the efforts of national and local authorities and humanitarian and development actors in monitoring their own work. Independent mechanisms should ensure the transparency of their work through public reporting.  The scope of the monitoring work should be determined in memoranda of understanding signed by national and local authorities and the monitoring institution. (para. 46)

Second, the Framework settles the issue of how the various options for durable solutions are defined. The Guiding Principles themselves refer only to return to homes or places of origin and resettlement elsewhere in the country. Resettlement has subsequently broken down into two options – local integration at the site where displaced persons find initial shelter or resettlement at some third location within the country or abroad. While this tripartite formulation – return, local integration and resettlement – provided greater descriptive coherence, it also perpetuated terminological confusion, with UNHCR noting that ‘resettlement’, in particular, had a specific and entirely different meaning in international refugee law. As a result, the new formulation maintains the three options but reframes them in a new, IDP-specific terminology of integration (para. 9):

A durable solution can be achieved through:
● Sustainable reintegration at the place of origin (hereinafter referred to as “return”);
● Sustainable local integration in areas where internally displaced persons take refuge (local integration);
● Sustainable integration in another part of the country (settlement elsewhere in the country).

In this context, durable solutions are defined as achieved “when former IDPs no longer have specific assistance and protection needs that are linked to their displacement and such persons can enjoy their human rights without discrimination resulting from their displacement” (para. 8).

Finally, the Framework abandons earlier efforts to define “when displacement ends” – an inquiry that was both practically unnecessary and potentially condescending to those who had found durable solutions but would reasonably consider themselves marked by displacement for the rest of their lives – in favor of guidance and criteria explicitly designed to be translated, on a case by case basis, into indicators sensitive to local context (para. 45).

In terms of structure, the Framework is divided in to four sections, comprising (1) the definition of durable solutions, (2) key background principles guiding the search for durable solutions, (3) rights-based organizing principles for developing processes to support durable solutions, and (4) criteria for the achievement of durable solutions. The criteria are further broken down into four applicable in all situations (security, adequate standard of living, livelihoods and – never fear – HLP rights) and four discretionary categories (documentation, family unity, participation and remedies).

Treatment of HLP rights in the Framework is interesting at two levels. First, the Framework places HLP rights in a broader context without conflating them with related issues. The section on housing, land and property rights clearly focuses on the recovery of property left behind by IDPs, or compensation where this is not feasible. However, some of the other criteria discussed address situations in which restitution is not possible or not relevant in a manner that is responsive to some of the current debates surrounding standards such as the Pinheiro Principles, while others set out principles applicable to both HLP restitution and broader reparations efforts.

For instance, the discussion of “long term safety and security” notes that situations involving significant risks of recurring disasters militate against rebuilding the status quo before displacement and may even require permanent relocation of affected populations (paragraphs 59 and 61). The subsequent section on “adequate standard of living” notes that housing assistance should be provided to IDPs regardless of their choice of durable solutions where they “did not have property prior to displacement” (paragraph 66).

Meanwhile, discussion of the (discretionary) criterion of access to effective remedies and justice describes the broader transitional justice framework in which property restitution, along with other relevant forms of reparation should be situated. As such, it points out a number of important principles such as the utility of programmatic approaches (para. 98), the need to distinguish between assistance and compensation (para. 99), and the importance of accessibility and the informed participation of IDPs in the design and implementation of such measures (paras. 101-3).

A second interesting HLP-relevant feature of the Framework is the nuanced manner in which HLP rights are themselves defined. Because the Framework does not simply reiterate any of the prior formulations, it represents a new iteration in a long line of articulations of the right, ranging from Annex 7 of the Bosnian Dayton Accords to Guiding Principle 29 to the Pinheiro Principles. As such it is likely to trigger further debate over how HLP restitution itself should be defined and how it relates to alternative remedies such as compensation. Two basic features are of particular interest.

First the scope of the right is defined very broadly, to include “not only … all residential, agricultural and commercial property, but also … lease and tenancy agreements” entitling displaced claimants to remedies for “lost ownership, tenancy rights or other access entitlements to their housing, land and property, whether they have formal or informal titles or rights on the basis of mere uncontested use or occupation ….” (para. 76).

This formulation corresponds roughly with European Court of Human Rights jurisprudence broadly defining property rights, as well as standards such as the Pinheiro Principles whereby for instance, holders of tenancy rights should “to the maximum extent possible” be able to repossess their properties on the same basis as owners (Principle 16). However, such a broad scope can lead to practical difficulties as, by definition, rights held on the basis of less exclusive forms of tenure are more likely to be contested by other parties that can credibly claim to have an interest.

On the other hand, the nature of the remedy is described unusually flexibly, with restitution remaining preferred “in principle”, but compensation permitted in lieu of restitution where this would be “more equitable, after weighing the different interests” (para. 78). With this formulation, the Framework departs fairly radically from the “impossibility” standard for allowing compensation in other HLP-related texts such as the Pinheiro Principles and moves closer to the case-by-case approach advocated for remedying human rights violations of a more general nature in texts such as the Van Boven/Bassiouni Principles, which states in relevant part that:

In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation … which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. (Principle 18).

This departure from the impossibility standard for compensation set out in the Guiding Principles themselves (GP 29.2) is likely to be seen as a step backwards by some HLP rights advocates. However, from a practical perspective, it may also be a necessary corollary to the broad substantive scope of the right articulated in the Framework, as discussed above.

Many of the other recommendations for HLP restitution made in the Framework are more conventional, such as contextual approaches to institutional solutions (para. 77), alternative accommodation for occupants (para. 78), recognition of women and children’s property rights (para. 79), rejection of unfair application of abandonment rules and a call for systematic enforcement (para. 80). However, some further novel elements include a reminder that “returnees without property rights” and others still enjoy the prospective right to adequate housing (para. 80, as discussed above) and an assertion of states’ legal obligation to reconstruct wrongfully destroyed homes, as well as more negotiable duties to reconstruct homes under circumstances in which they are not directly liable (para. 81).

By including HLP remedies as one of the non-discretionary criteria for achieving durable solutions, the Framework firmly anchors HLP rights as a crucial element in post-conflict and post-disaster recovery. However, by defining these rights in a manner that departs from previous formulations, the Framework indicates the extent to which debates regarding their scope and nature remain open. While the persistence of this debate may blunt their advocacy impact in the short term, the fact that it has now been joined between parties that may disagree on many fronts but are united on the fundamental importance of HLP rights to vulnerable individuals is itself a form of progress.

The African Commission “Endorois Case” – Toward a Global Doctrine of Customary Tenure?

by Rhodri C. Williams

Every now and then, a judicial decision comes along that seems to snap a fuzzy area of law into crisp focus. One such decision is the communication released this month by the African Commission on Human and Peoples’ Rights in what will probably come to be known as the “Endorois Case” (full title: “Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya”). The Endorois people were evicted from their traditional lands near Lake Bogoria in central Kenya in the 1970s, relocated to an area unsuitable for their pastoral way of life and granted only sporadic access to sites central to their spiritual beliefs. In the wake of the eviction, promises to provide compensation and a share of the proceeds from the nature reserve established on the Endorois’ traditional lands were broken.

In its decision, the African Commission finds violations of the rights to freedom of religion, property, health, culture, religion and natural resources under the African Convention on Human and Peoples’ Rights (ACHPR). The Commission accordingly “recommends” restitution of the Endorois’ traditional lands, recognition of their ownership rights, compensation for harm suffered during the community’s displacement and other measures. There are many noteworthy features of this decision; not least, as Human Rights Watch notes, it is the first time that any international tribunal has found a violation of the right to development. However, it is likely to be most interesting for the current readership in light of the approach the Commission takes to the right of property under Article 14 of the ACHPR – particularly in cases where it is alleged to be held collectively by an entire community. As such, it is worth summarizing the relevant portions of the decision in some detail.

The communication begins with a summary of facts and relatively short discussion of the admissibility of the complaint. After an extended treatment of the allegations and legal arguments made by the complainants, the Commission unfolds its decision on the merits in a cascade of holdings that would seem like self-evident restatements of Kenya’s commitments under international and regional law – except that no tribunal has ever laid them out with such precision and grounded in such a concrete scenario before. First, the Commission rejects the assertion by Kenya that the conditions of modern life and the existence of segments of the Endorois community who do not live according to customary precepts means that the Endorois can no longer be meaningfully distinguished from broader tribal categories and are not a “people” in the sense of the ACHPR. In doing so, they clearly anchor the collective enjoyment of indigenous rights in the protection of ancestral lands:

The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands (para. 162).

After finding a violation of the right to freedom of religion under Article 8 of the Convention – again, based in large part on the failure of the Kenyan authorities to provide access as of right to religious sites located on the Endorois’ traditional lands (para. 173), the Commission goes on to consider the property issue under Article 14 directly. The Commission first confirms that the lands in question are the traditional territory of the Endorois, based on centuries of uncontested pre-1973 occupation and use as well as the failure of the respondent Government to dispute this point:

The Complainants argue that apart from a confrontation with the Masai over the Lake Bogoria region three hundred years ago, the Endorois have been accepted by all neighbouring tribes, including the British Crown, as bona fide owners of their land. The Respondent State does not challenge those statements of the Complainants. The only conclusion that could be reached is that the Endorois community has a right to property with regard to its ancestral land, the possessions attached to it, and their animals (para 184).

The Commission goes on to cover a number of preliminary issues, including the appropriate scope and nature of ‘property rights’ in indigenous settings. Here, the Commission takes explicit notice of the informal, unwritten nature of such rights and the vulnerability this gives rise to in cases where they are not given some degree of formal recognition (para. 187). It then rejects Kenyan government objections on the basis of positive discrimination, noting that special measures (in this case, recognition of collectively held indigenous land rights) are not discriminatory where they serve to redress imbalances:

The African Commission shares the Respondent State’s concern over the difficulty involved; nevertheless, the State still has a duty to recognise the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law (para. 196).

The Commission then observes, almost drolly, that the fact of the Endorois’ eviction without process or compensation tends to undermine the Kenyan Government claim that the existing Land Trust system constitutes an adequate measure to protect the Endorois’ rights (para. 199) and goes on to make a pointed argument on the necessity of domestic guarantees of ownership rights for indigenous communities, rather than mere access rights:

The African Commission notes that if international law were to grant access only, indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. Ownership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries (para. 204, citation omitted).

From here, the Commission asserts that mere settled possession of ancestral lands by indigenous groups (rather than any showing of formal title) is sufficient to trigger the state obligation to provide legal recognition. However, the Commission also explicitly draws the consequence of the above reasoning in cases, such as the present one, where recognition has been withheld: namely , that where the concerned groups have subsequently faced wrongful eviction from their lands, their loss of possession cannot then be invoked to deny their rights, including restitution and compensation. In a nutshell, traditional possession must be recognized as title and wrongful dispossession cannot extinguish it (para. 209).

Having set up this impressive legal architecture, the Commission goes on to make fairly short work of the actual proportionality analysis. The interference (“encroachment”) is crystal clear  in the form of evictions, denied access, and subsequent construction, concession and extraction activities on the affected land (para. 210). The public need for a game reserve is given heightened scrutiny in light of the significance of the land to the affected community (para. 212). Accordingly, the means used by the Kenyan government – forced evictions without consultation onto land that denied dignity and livelihood to those affected – were found disproportionate to “any public need served by the Game Reserve” (para. 214). And, for good measure, the Commission finds numerous violations related to the separate requirement of legality, both in relation to the failure to consult the affected community and the paltriness of the compensation proffered. All this, and then the Commission goes on to find violations to the Endorois rights to enjoyment of their culture and development under Article 17. The resulting prescription is sweeping:

The African Commission recommends that the Respondent State:
(a) Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land.
(b) Ensure that the Endorois community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle.
(c) Pay adequate compensation to the community for all the loss suffered.
(d) Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve.
(e)  Grant registration to the Endorois Welfare Committee.
(f) Engage in dialogue with the Complainants for the effective implementation of these recommendations.
(g) Report on the implementation of these recommendations within three months from the date of notification.

Much of the “padding” between the key observations and holdings summarized above consist of extensive reference to international and regional human rights standards and jurisprudence, and particularly that of the Inter-American Court and Commission. It might be surmised that the Commission sensed the extent to which it was breaking new ground and took pains to ground its decision as thoroughly as possible in emerging understandings of indigenous rights. One might hope that this will also increase the likelihood of the Commission’s decision  influencing other regional human rights interpretations in turn, though this would perhaps be less relevant to Inter-American system, where recognition of indigenous community rights are relatively advanced.

However, it could be of interest in the European system, particularly if the logic behind the decision survives the leap from indigenous communities (few of which are recognized in Europe, the main exception being the Nordic Sami people) to national minority communities; the latter are both common and recognized in Europe and share many of the key criteria discussed in the Endorois case as markers both of indigenous identity and vulnerability, such as attachment to specific traditional lands, self-identification, and historical persecution. Indeed the key question more broadly speaking may revolve around whether international law will ultimately make the leap of faith reflected in the formulation of Principle 9 of the Guiding Principles on Internal Displacement:

States are under a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands.

In other words, notwithstanding the achievement the Commission’s decision represents, there is an arguable case that international law should move from protecting land rights based on a formal finding that a community is “indigenous”, as in the Endorois Case, to protecting land rights based on the underlying dynamic of dependence on and attachment to informally held land seen among many of the world’s poorest and most vulnerable citizens, “indigenous” or not. But that said, the most interesting thing for the time being will be to watch what happens as governments throughout Africa begin to come to terms with their new acquaintance, the “P” in ACHPR.