by Rhodri C. Williams
A short piece I wrote on the relationship between ‘housing, land and property’ (HLP) rights and durable solutions for displaced persons has been published in the Global Protection Cluster Digest, vol. 1/2014, and can be accessed in pdf form here. I have also added the last draft before final edits just below.
The thrust of the piece will be pretty familiar to any regular readers of this blog. I’ve been going on about the steady demise of the Pinheiro Principles and their exclusive focus on restitution (over other forms of reparation) for some time now. As precedents like the ECHR Demopoulos decision and humanitarian changes in tack like the IDP Durable Solutions Framework crowded in, it became ever more clear that a more balanced approach was justified.
Indeed, even before the spike in global displacement seen since 2011, growing awareness of the problem of protracted displacement had put local integration front and center in international discussions of durable solutions. Where displacement persists because return is not on the table, continuing to emphasize the future hope of restitution can distract both displaced persons and host communities from practical steps to ameliorate the here and now. Meaning that a more balanced approach was also necessary.
My most comprehensive academic treatment of these themes came with the chance to write a chapter on restitution at the nexus of humanitarian response and transitional justice discourses in a 2012 volume published by ICTJ. But the most practical insights came with research for NRC the same year on how to secure tenure security for protracted IDPs in Georgia as well as Palestinian refugees in Lebanon.
The focus on security of tenure, rather than restitution represented a clear effort to develop approaches that responded to realities rather than rhetoric surrounding the situation and future prospects of both groups. But in a nutshell, the research showed that meaningful local integration is complicated even where the political will exists (Georgia) and well nigh impossible where it did not (Lebanon). And in both cases, asking hard-pressed humanitarian workers to develop expertise in areas like landlord-tenant law or housing finance and urban planning was a stretch.
I suspect that my sponsors at NRC were far from surprised that one of my main recommendations was to build bridges with development actors, which is in fact what they have done with aplomb. And returning to the latest issue of GPC Digest, the overall trend toward development partnerships in favor of durable solutions oriented toward forms of local integration appears to have strengthened significantly. So much so that some of the initiatives mentioned in the Digest such as the 2014 Solutions Alliance appear to have moved beyond loaded discussions of outcome (return or integration) altogether, favoring an emphasis on criteria for processes (flexible, evidence-based, partnership-oriented).
Although it is clear where this new approach is coming from, the pragmatic departure from specifying any favored durable solutions or even mentioning them at all seems slightly desperate. Surely local integration by any other name would smell just as politically controversial? But given the shrinking parameters within which humanitarian response is operating, who am I to second-guess?
Housing, Land and Property in connection with Durable Solutions
Where property issues were nearly invisible during the Cold War-era development of international refugee law, they burst onto the scene as part of the response to the global crisis of internal displacement in the 1990s. The link between HLP rights and durable solutions was forged with the inclusion of restitution in the 1998 Guiding Principles on Internal Displacement. However the high point of HLP advocacy came with the 2005 adoption of dedicated standards on restitution for the displaced, the Pinheiro Principles.
In the last ten years, however, there has been a sea change in how the link between HLP rights and durable solutions are understood. While property rights undoubtedly remain a central anchor of durable solutions, the emphasis on restitution of lost property espoused in earlier guidance has been quietly abandoned, with equal or greater emphasis now placed on development-oriented, prospective interventions to secure access and secure tenure to land and housing. Understanding the reasons for this change can help in assessing its implications for humanitarian action.
The inclusion of restitution in the IDP Guiding Principles was one of the boldest assertions of the new rights-based, protection-oriented approach to humanitarian assistance. The Guiding Principles reframed forced displacement as a human rights violation and proposed restitution of lost property as the primary legal remedy. At the same time, restitution was also seen as a practical precondition for durable solutions amid a nearly exclusive focus on repatriation and return. Practice in Bosnia, where 200,000 properties were returned to displaced owners in accordance with the 1995 Dayton Peace Agreement presented evidence that restitution was practicable even under difficult post-conflict circumstances.
The subsequent retreat from restitution to a broader view of HLP issues in displacement has taken place for a number of related reasons. Most obviously, the success in Bosnia has been difficult to repeat in other contexts. In protracted displacement situations, meaningful restitution and return are often dependent on political resolutions, and may not be achievable even then. Development actors note that restoring pre-displacement property relations may either be impracticable (where landlessness was widespread) or undesirable (where unjust or unsustainable land relations were a root cause of conflict). These actors have called for a greater emphasis on transforming property relations, with corrective restitution-based approaches as the exception rather than the rule. And from both a protection and a human rights perspective, there is greater awareness of the need for sensitivity to the needs of host communities, as well as the rights of some occupants of claimed property.
While development actors provide an important analysis, their greatest contribution may yet come in the form of field partnership. Humanitarians cannot address these politically and technically complicated issues on their own. HLP approaches based on the pooling of available humanitarian, human rights and development expertise may represent the best path to realistic and fair durable solutions.