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.
Questions have arisen regarding the sincerity of the Colombian authorities, as well as their dedication to doing what it takes to see the program through. Similar questions have arisen regarding the practicability of the Pinheiro Principles. In both cases, one of the principle risks that arises is of raising expectations on the parts of victims of displacement that ultimately cannot be fulfilled.
However, as I have argued recently in analysing displacement in Serbia, it would be a mistake for international actors to throw out the objective along with the modality. Even if ‘Bosnia-style’ programmatic restitution turns out to be an awkward fit in settings characterized by long histories of contested property relations and legal pluralism, the aim of giving effect to the rights that displaced people feel in their bones remains relevant. This is particularly the case for indigenous peoples and others with particular attachment to and dependence on their land – as most vividly reflected in last year’s groundbreaking ‘Endorois Case‘ in Africa.
However, it still applies even in other settings where land and property are no less significant by way of commodity than in terms of identity. A counterintuitive example is the European Court of Human Rights (ECtHR) decision in Demopoulos v. Turkey, which, as many observers (including myself) have noted, rejected the strict standard for allowing compensation over restitution proposed in standards such as the Pinheiro Principles.
Aggrieved observers such as former ECtHR judge Loukis Loucaides have questioned whether the Court can still be seen as principled in the wake of such a decision. However, given the Court’s demonstrated reluctance to deal with the residual property disputes that continue to bubble up from the depths of many of its’ states-parties’ Cold War-era histories (as evoked here in the case of the Czech Republic), one might as easily be grateful for the silver lining in Demopoulos – namely, the clearly established principle that compensation alone cannot constitute an effective remedy for wrongful property confiscations.
The right to restitution, having come of age in the nineties, has been undergoing an extensive rethink since the noughts. The extent to which a right to restitution will continue to presuppose extensive programmatic responses such as that to be rolled out in Colombia will depend on the results of this and other current post-conflict reparative efforts. If, as seems inevitable, some degree of retrenchment will prove necessary, so be it. But it appears by now to be clear (as ESI eloquently pointed out as early as 2004) that the Lausanne Principle that guided the 1921 Greek-Turkish population exchange is dead. Loss of control of territory by a government cannot legitimately entail the extinguishment of all property rights of its inhabitants.