The Pinheiro Principles take a licking (and keep on ticking?)

by Rhodri C. Williams

Based on my early experience of both, working on international soft law standards seems a bit like parenthood – you have a limited period to create a warm, protective space around the text that will give it the resilience and flexibility to make a difference in the world and then you let it go and watch its fitful progress with your heart in your mouth. Maybe you don’t hear from it in a while and then, for better or for worse, there it is in the morning paper.

My first brush with the ‘Pinheiro Principles’ on property restitution for displaced persons came during their infancy, when I sent comments on a draft and was invited to participate in a March 2005 expert consultation to groom the text for  presentation to the UN Sub-Commission on Human Rights. I was fresh from my prolonged engagement with Bosnian restitution and pleased to see so much of what we had struggled to articulate there being expressed in the draft. At the same time, a prior consultancy job with IPA had put me on notice that both the nature of post-conflict property issues and means of addressing them could take many forms.

All the basic questions about soft law standards that arose then have dogged the Pinheiro Principles since. How do you consolidate best practice without implying a cookie-cutter approach, for instance? Or how do you stretch the existing rules of international law to apply to emerging field scenarios without snapping them? Advocates for the Pinheiro Principles have yet to squarely address these concerns, though an effort by Displacement Solutions is now underway.

In the meantime, promotion of the Pinheiro Principles has tended to focus on advocacy for their application at the country and regional level without seeking or securing the global-level acceptance by  member-states that would allow an uncontroversial UN-prefix to adhere. This appears to have had something of a chilling effect on both donor states and international organizations that might otherwise have been inclined to put the Principles front and center in their policies.

The result of these developments has arguably been that the Pinheiro Principles have taken a few battles without clearly winning the war. High points have included reference to the Pinheiro Principles in the 2008 Iraqi IDP strategy and the 2006 Great Lakes Protocol on the Property Rights of Returning Persons, as well the attribution of constitutional weight to the Principles (among other international guidelines) in a 2007 decision by Colombia’s Constitutional Court.

However, the Principles have yet to take the central place intended for them in either international advocacy efforts or any fully fledged national restitution program. Indeed, criticism of the Principles has begun to mount up, most notably in the form of a recent book and policy brief by ODI that criticize their rigid application as counterproductive and even risky.

With all this in mind, the last months have brought a few particularly wild swings in the Pinheiro Principles’ fortunes. At the European level, the Pinheiro Principles were cited as a ‘relevant international document’ by the European Court of Human Rights in its decision in Dokic v. Bosnia last May (posted on in TN here). In this decision, the Court approvingly cited one of the Pinheiro Principles’ more progressive features, namely the admonition in Principle 16 to equate sub-ownership rights with ownership rights, insofar as is possible, in restitution programs.

However, Dokic came two months after the Court’s decision in Demopoulos v. Turkey, in which the Grand Chamber, without making any explicit reference to the Pinheiro Principles, panned another of their central tenets. As described in an earlier post here, one of the main rulings in Demopoulos involved a rejection of the material impossibility standard for substituting compensation for restitution. Even if one limits the ruling to situations, as in Cyprus, involving protracted displacement and failed peace negotiations, this ruling is still hard to square with the general assertion in Pinheiro Principle 1 that compensation is only appropriate in cases where property is “factually impossible to restore as determined by an independent, impartial tribunal.”

Returning to a more positive note, COHRE’s latest ESC Rights Quarterly reports on a recent decision regarding Darfur by the African Commission on Human and People’s Rights (ACHPR). In its decision (which I hope to post on in more detail later), the Commission draws on ECtHR jurisprudence in finding Sudan to have violated numerous provisions of the African Convention on Human and Peoples’ Rights. In finding violations of property rights under Article 14 of the Convention, the Commission

referred to the Pinheiro Principles as “emerging principles in international human rights jurisprudence” that, when “read together with the decisions of regional bodies, such as the citied european court decisions” provide “great persuasive value … to interpret the right to property under Article 14 of the African Charter.”

However, moving back to the negative side, the chorus of humanitarian and development critics of the Pinheiro Principles at ODI have been reinforced by legal academe. In the latest volume of the Berkeley Journal of International Law, Professor Megan J. Ballard has published an article criticizing both the legal and theoretical underpinnings of the Pinheiro Principles. In doing so, she compares advocacy of the Principles with earlier failed efforts to promote the “law and development” model of rule of law:

This Article identifies some of the possible unintentional outcomes of property restitution, including, ironically, that the U.N.‘s property restitution scheme may ultimately undermine development of the rule of law.  The Article seeks to spur further debate on the merits of property restitution so that unintended consequences might be avoided and the remedies to forced displacement can be strengthened to meet the needs of refugees and internally displaced people.

I expect that the controversy over the merits of the Pinheiro Principles will rumble on for some time to come. The outcome of this debate will ultimately determine the success or failure of the Principles in achieving their own implicit goal of providing authoritative guidance in post-displacement property disputes. However, one might argue that the sustained attention that the Pinheiro Principles have brought to these issues and the level of debate they have fostered may come to be seen as a success of a different but no less significant nature.

12 responses to “The Pinheiro Principles take a licking (and keep on ticking?)

  1. Rhodri – a very interesting and useful post. I had to smile at this idea of eliminating unintended consequences. Lawyers are often uncomfortable with the messiness of the real world. And it doesn’t get any messier than property restitution. Marcus

  2. Thanks Rhodri for the interesting post and for the reference to Professor Ballard’s article. The article is fascinating and caught my attention immediately. After a first quick read, I can’t help but having the following general reaction:

    Without being familiar with the origins of the Pinheiro Principles, but simply from reading them, I’m just not sure that the Principles and the concept of property restitution that they promote can be equated with legal exports promoted by past ‘rule of law’ and ‘law and development’ efforts. The Principles as written are more about redressing the rights of victims than about promoting any given view of what States should look like after conflict.

    Legal exports as those referenced in the second part of the article were more about promoting a certain view of state building, and originated in specific nations. The well-known criticism of the universality of human rights aside, aren’t international standards such as the Pinheiro Principles (which may have originated or been informed predominantly by certain specific cases such as Bosnia) about promoting certain natural rights of individuals, and, in the case of property restitution, of victims? If the criticism raised by Professor Balalrd were true, it would apply equally to, say, economic, social and cultural rights as a normative prescription of what States should promote. But don’t ESCR and the right to property restitution for victims have in common that they embody what humanity sees as basic natural rights of people?

  3. Hi Sebastian, Its a good question and I’ll have to be a bit careful in my answer as I have yet to be able to do a thorough read of the Ballard article myself. However, a problem with your very reasonable analysis seems to me to be that the right to a remedy – which is what we are basically talking about – is one that – as you point out – is triggered by victimhood. By promoting a purely corrective response to antecedent violations, however, the Pinheiro Principles do espouse a model that tends to assume that the situation prior to those violations was in compliance with broader human rights norms.

    However, a lot of the criticism by ODI has focused on situations where that is not the case (e.g. pre-displacement land relations were formed by discrimination and injustice) or whether it is the case or not, restitution interrupts long-term development efforts meant to contribute to more economically sustainable land relations. Perhaps I’m a bit jaded, but its hard for me to see rights as cabined off from politics and ideology. Even if they are conceived that way and should ideally function separately from politics, their application always has political implication.

    Your ESC rights example demonstrates this in a subversive way, in the sense that a lot of Western resistance to the justiciability of ESC rights tend to be based on ideological objections to the imposition of an ostensibly foreign regime (just ask Sarah Palin).

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