- by Rhodri C. Williams
In a report on protracted displacement in Europe last May, the IDMC pointed out stalled and moribund property restitution commitments as one of the key hurdles to achieving durable solutions for some 2.5 million European IDPs, many of whom have not seen their homes in a decade or more. Not long afterwards, the Parliamentary Assembly of the Council of Europe (PACE) identified the same issues in its Recommendation 1877 (2009) on “Europe’s forgotten people: protecting the human rights of long-term displaced persons”, in which it encouraged member-states to take a number of steps, including restitution:
15.3.6. restitute property or occupancy/tenancy rights and/or provide prompt, effective and fair compensation where restitution is not possible, and repair or rebuild restituted houses or construct alternative adequate accommodation;
On the 28th of January, PACE significantly clarified this obligation through the passage of a new Resolution 1708 (2010) and Recommendation 1901 (2010) on “solving the property issues of refugees and displaced persons”. Both documents built on a report drafted by Parliamentarian Jorgen Poulsen and adopted by the PACE Committee on Migration, Refugees and Population the previous month. Wolfgang Petritsch, the former High Representative to Bosnia during the heyday of property restitution there and current Austrian Ambassador to the OECD, made several presentations in favor of the Resolution and Recommendation, and they were passed by a vote of 93-1.
The Resolution and Recommendation were initially conceived of perhaps primarily as an endorsement of the 2005 “Pinheiro Principles”, in a similar manner to that in which the PACE had previously endorsed the 1998 Guiding Principles on Internal Displacement. However, in order to reflect the extensive body of regional practice and jurisprudence in this area, the Resolution was drafted in a manner that set out a series of Europe-specific restitution principles recommended to CoE member states (para. 10). Meanwhile, the accompanying Recommendation requested that the Committee of Ministers of the CoE undertake a study on European post-conflict restitution practice with a view to creating detailed guidelines that would focus on “issues of particular relevance in the European context”.
In discussing the European restitution context, it is not really possible to get around the influence of the European Court on Human Rights (ECtHR) and the “Poulsen Principles” can be seen as a product of this influence, both for better and for worse. In terms of substance, the Court’s decisions have often been quite progressive in areas such as the obligation to provide remedies for individual violations notwithstanding ongoing peace talks, recognition of de facto possessory rights, and compensation for income lost as a result of displacement. In fact, the Court’s extensive jurisprudence on the right to property under Protocol One to the ECHR initially led to a knee-jerk tendency among practitioners in restitution settings to assume that no circumstances were so novel or complicated that they might not one day be resolved through a dispositive ruling from Strasbourg.
On the other hand, many of the protracted displacement situations in Europe date back to the early 1990s, when most of the affected countries had not yet joined the CoE and become subject to the Court’s jurisdiction. In this context, expectations that the Court could entertain such cases risked being dashed on a strict interpretation of their admissibility rationae temporis. In the 2006 Blecic v. Croatia ruling, the Grand Chamber took a hard line, accepting referral of a case involving the wartime confiscation of minority Serbs’ socially-owned apartments only to rule that the original admissibility ruling – made four years previously – had been incorrect. Parties that had looked to the Court for a binding legal fiat in this question presumably included not only advocates for dispossessed Croatian Serbs but also EU enlargement bureaucrats groping to understand what weight to give the issue in Croatia’s accession talks and Croatian officials with a legitimate need to understand what liabilities the state had incurred. In a sense, all these actors had, after pinning their hopes on a single leading case, effectively landed back on square one.
The report underlying last month’s Resolution and Recommendation draws a lesson that is particularly relevant to protracted displacement situations dating back to the early 1990s; namely that the Court can usually provide the rules for interpreting restitution obligations in abstract but cannot always apply them in specific displacement cases. As such, the ‘Poulsen Principles’ can be said to affirm rules derived from ECtHR jurisprudence as well as international law and standards, but may signal a shift to a process in which political bodies such as PACE insist on their application, ending a tradition of reliance (some might say over-reliance) on the Court to untangle problems that were always just as much political as legal. For instance, in its discussion of occupancy rights to the type of apartments at issue in Blecic, the report notes the following:
56. It is undeniable that apartments held in occupancy and tenancy rights were viewed as homes and valuable assets by thousands of persons who currently remain displaced; that their displacement in situations of armed conflict or human rights violations was involuntary; and that but for their displacement, many would have long since acquired full legal ownership of their apartments. Redress for these losses should be seen as a legal obligation and a benchmark of European integration in the spirit of the European Convention on Human Rights and the Copenhagen Criteria.
Practitioners concerned with property conflicts in developing countries have been known to object to the imposition of European models. As they note, restitution scenarios like Bosnia presuppose a degree of legal capacity, resources and international leverage that cannot be replicated in much of the rest of the world. However, these factors also imply a special responsibility for European countries to resolve the displacement that still affects millions of their citizens. Among all the tools Europe has at its disposal to resolve displacement, the stick of regional human rights law and the carrot of European integration loom perhaps largest. The Poulsen Principles may serve as a reminder that the former will always be limited without being harnessed to the latter.