Article 24 Individual Property Restitution From Deng.

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Individual Property Restitution: from Deng

to Pinheiro – and the Challenges Ahead
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GIULIA PAGLIONE*
Abstract
The issue of housing and property restitution for refugees and internally displaced
persons (IDPs) has received considerable attention in the past decade.1 Conflicts and
wars in different parts of the world have shown how housing and property rights are
systematically violated during armed strives. Intentional destruction of property, arbi-
trary confiscation of housing and secondary occupation are just some of the most com-
mon practices in violation of individual property rights. In addition to being an
individual’s right, the international community has increasingly considered post-
conflict housing and property restitution as a key component of the broader objective
of peace building, and as a means of promoting restorative justice within society. Both
at operational and at normative level, several initiatives have contributed to enforcing
property restitution rights: from the establishment in the mid 1990s of institutions
mandated to resolve conflicting property claims to the adoption in 2005 of the so-
called ‘Pinheiro Principles’, the first international standard exclusively addressing
property restitution rights.
This paper explores the strengthening of international norms in the field of individual
property restitution for refugees and IDPs over the past decade, and argues that the cur-
rently available normative standards reflect a partial understanding of displacement
and restitution. With an almost exclusive focus on individual real property restitution,
and an explicit preference for return among solutions to displacement, such standards
undervalue the importance of alternative remedies and overlook the rights of non-
returnees. After a brief overview on the emergence of a right to individual property res-
titution in international law and policy (part 1), this paper will concentrate its attention
on three legal documents addressing property and displacement: the Guiding Principles
on Internal Displacement of 1998, the International Law Association Declaration of
Principles on IDPs of 2000, and the Pinheiro Principles of 2005 (part 2). The first two
* LLM, University of Oslo, Norway (2004); MA, Philosophy, University La Sapienza, Rome, Italy
(2002). Formerly, Research Fellow, OSCE Parliamentary Assembly; currently, Adviser on EU Immi-
gration and Asylum affairs, Department of Migration, Norwegian Ministry of Labour and Social
Inclusion (AID). This article is based on research conducted in 2006 at the Norwegian Centre for
Human Rights, University of Oslo (Norway)
1 The term ‘property’ as used in this article refers to real and immovable property, and in par-
ticular to housing and land. Movable property and intellectual property are therefore excluded
from this analysis. Furthermore, the terms ‘housing and property restitution’, ‘housing, land and
property restitution’ and ‘property restitution’ will be used interchangeably. Even though early
provisions referred exclusively to ‘property restitution’, more recent standards, such as the Pin-
heiro Principles, favour the broader definition of ‘housing, land and property restitution’, as it
provides reference to both the right to property and the right to housing, and includes land and
land-related rights.
392 Giulia Paglione
documents confine their scope to displacement within national borders, whereas the
Pinheiro Principles encompass restitution rights for both IDPs and refugees and repre-
sent the most recent and comprehensive standard on the topic. Despite the remarkable
developments at normative level, epitomized by the approval of the Pinheiro Principles,
this paper highlights the following problematic areas: the role played by physical return
in the conceptualisation of property restitution; the supremacy given to individual real
property restitution over other types of remedies; and the impact of the passage of time
on restitution rights (part 3). The paper concludes by arguing that restitution must be
conceived independently from return and must consequently go beyond individual real
property restitution, in order to provide effective redress to refugees and displaced per-
sons (part 4).
1. Between law and policy: the emergence of a right to

property restitution
The mass displacement of civilians is one of the most tragic and visible
aspect of contemporary conflicts. At the end of 2006 an estimated 24.5
million people were displaced within their own countries as a result of
conflicts and gross human rights violations.2 In addition, an estimated 9.9
million refugees had crossed international borders in order to flee from
violence.3 Forced displacement in the context of war and generalized
violence is often accompanied by intentional destruction of housing, and
housing and property rights violations. The Office of the High Commis-
sioner for Human Rights argues that the destruction of property is often
used as an instrument of warfare and ethnic cleansing, in an attempt to
wipe out signs of the presence of the enemy, as well as its national and
cultural identity.4
Historically, the right of the displaced to repossess their housing and
property upon return was essentially non-existent. The lands and homes
of the displaced were either destroyed or taken over by the winners of the
conflicts, and the attention of national governments and the international
community was primarily concentrated on the immediate needs of the
displaced, such as providing them with alternative shelter, food and medi-
cine, and searching for resettlement options.
2 See, Norwegian Refugee Council, Global IDP Project, Internal Displacement, Global Overview of
Trends and Developments in 2006, Geneva, Apr. 2007, 6. The countries with the highest numbers of IDPs
in 2006 were Sudan (5 million), Colombia (3.8 million), Iraq (1.7 million), Uganda (1.7 million) and the
Democratic Republic of the Congo (1.1 million).
3 See, United Nations High Commissioner for Refugees (UNHCR), 2006 Global Trends, Geneva,
June 2006, 4. The countries producing most refugees in 2006 were Afghanistan (2.1 million), Iraq (1.5
million), Sudan (686,000), Somalia (460,000), and the DRC and Burundi (about 400,000 each).
4 See, e.g., UN High Commissioner for Human Rights, Report of the High Commissioner for Human
Rights on the situation of human rights in Kosovo, Federal Republic of Yugoslavia, E/CN.4/2000/10, (Sept. 1999),
paras. 68-74.
Individual Property Restitution 393
However, as the focus on repatriation grew stronger during the late
1980s, so did the language on return and repossession.5 The strengthening
of the international norms on property restitution for returning refugees
and IDPs is evident by the proliferation of domestic and international pro-
visions on the issue. Although the majority of those provisions remain in
the area of soft law, and are therefore not legally binding, they nevertheless
have acquired political and legal relevance, and reflect a clear trend within
international human rights law.
An analysis of standards on property restitution adopted in the past
decade will disclose how the ‘right to leave and to return to one’s own
country’6 was increasingly interpreted as encompassing not simply a
right to return to one’s country or area of origin, but to actually return
to one’s original homes and lands. This interpretation had an excep-
tional impact on the displaced; the right to return to one’s former homes
necessarily implies a consequent right to reoccupy and repossess the
former properties.
Various international human rights bodies have repeatedly reaffirmed
the right of all refugees and displaced persons to freely return to their
countries and places of origin, and to have restored to them housing, land
and property of which they were deprived during the course of displace-
ment.7 By way of example, the Security Council affirmed in its Resolution
820 on Bosnia and Herzegovina of 1993 that ‘all displaced persons have
the right to return in peace to their former homes and should be assisted to
5 ‘Traditionally, the three solutions to refugee crises have been held to be integration into the asylum
country, resettlement to a third country, and voluntary repatriation to the county of origin. The emphasis
on which solution was ideal has changed numerous times throughout history, depending on the practicali-
ties of particular situations as well as the prevailing geo-political circumstances. For much of the post-war
period, resettlement was generally thought to be the most, indeed, the only viable option for refugees. Now
mainstream thought has changed, and since the late 1980s voluntary repatriation has been highlighted as
the best of durable solutions’. See, S. Takahashi, ‘The UNHCR Handbook on Voluntary Repatriation: the
Emphasis of Return over Protection’, 9 IJRL 593 (1997). See also, J. Milner, ‘Resettlement’ in M. Gibney
and R. Hansen (eds.), Immigration and Asylum: From 1900 to the Present (ABC-Clio, Santa Barbara, 2005).
6 The right to freedom of movement, and its complementary provision guaranteeing the right to
leave one’s own country and to return to it, is included in all major human rights documents. See, e.g.,
Universal Declaration of Human Rights [hereinafter UDHR], adopted 10 Dec. 1948, art. 13 (2);
International Covenant on Civil and Political Rights, [hereinafter ICCPR], adopted 16 Dec. 1966, art.
12(4); American Convention on Human Rights, entered into force 18 July 1978, art. 22; African Char-
ter on Human and People’s Rights, entered into force 21 Oct. 1986, art. 12.2; Geneva Convention
relative to the Protection of Civilian Persons in Time of War [hereinafter IV Geneva Convention],
entered into force 21 Oct. 1950, arts. 45, 132, 134 and 135. The 1951 Convention Relating to the
Status of Refugees, however, does not address refugee’s right to return to their country of origin;
return is conceptualized only in negative terms as prohibition against refoulement. See, Convention
Relating to the Status of Refugees, [hereinafter 1951 Convention], adopted 28 July 1951, art. 33.
7 A right to return specifically for refugees and displaced persons is recognized in numerous docu-
ments passed by different UN bodied See, e.g., Human Rights Committee, General Comment No. 27:
Freedom of Movement, UN doc. CCPR/C/21/Rev.1/Add.9 (1999); Sub-Commission on Prevention of
Discrimination and Protection of Minorities, resolution 1998/26 on Housing and property restitution in the
context of the return of refugees and internally displaced persons (1998); Committee on the Elimination of Racial
Discrimination, General Recommendation No. 22: Article 5 and refugees and displaced persons (1996).
394 Giulia Paglione
do so’.8 Provisions specifically dealing with housing and property restitu-
tion for displaced persons were also inserted in the Guiding Principles on
Internal Displacement of 19989 and in the Declaration of International
Law Principles on Internally Displaced Persons of 2000.10 2005 is,
however, the pivotal year within post-conflict property restitution, when
the first international standards comprehensively addressing property
restitution – the Pinheiro Principles – was approved.11
The restitution of housing and property to those forced to flee is not only
a crucial individual right, providing the victim with redress; it also enables
rebuilding livelihoods. At community level, it is a means of achieving social
reconciliation and stability among the population. Many voluntary repa-
triation agreements explicitly recognize the right of returning refugees and
IDPs to recover their original homes, land and properties that have been
expropriated or illegally occupied. Provisions on mass housing and prop-
erty restitution have also been included in several peace agreements deal-
ing with the return of displaced persons, the most well known example
being the Dayton Peace Agreement, ending the conflicts in former
Yugoslavia, where forced evictions, intentional destruction of property and
secondary occupations were widespread practices affecting all ethnic
groups. This was the international community’s first comprehensive
attempt to enforce individual property restitution rights through the setting
up of formal institutions and claims procedures. According to Annex 7 of
the Dayton Peace Agreement, displaced persons have the right ‘to have
restored to them property of which they were deprived during the course
of hostilities … and to be compensated for any property that cannot be
8 SC res. 820 (1993), emphasis added. Similar statements addressing the right to return specifically
to one’s home are included in various Security Council resolutions dealing with displacement in
numerous countries. Amongst them, e.g., res. 1716 on Georgia (of 2006), res. 1639 on Bosnia (2005),
res. 1244 on Kosovo (of 1999), and res. 999 on Tajikistan (of 1995).
9 Commission on Human Rights, ‘Guiding Principles on Internal Displacement’ [hereinafter Guid-
ing Principles], UN doc. E/CN.4/1998/53/Add.2.
10 International Law Association, ‘The Declaration of International Law Principles on Internally
Displaced Persons’ [hereinafter the ILA Declaration of Principles], London, Oct. 2000, 12 IJRL 672-9
(2000). Other standards containing references to property restitution rights for displaced persons are, e.g.,
the Comprehensive Human Rights Guidelines on Development-Based Displacement (1997); the Decla-
ration of Principles of International Law on Compensation to Refugees (International Law Association,
Cairo, Apr. 1992); the Geneva Convention relative to the Protection of Civilian Persons in Time of War,
(1948); the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Coun-
tries (1989); and the Draft United Nations Declaration on the Rights of Indigenous Peoples (1993).
11 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human
Rights, Housing and Property Restitution in the context of return of refugees and internally displaced
persons. Principles on housing and property restitution for refugees and displaced persons [hereinafter
Pinheiro Principles], UN doc. E/CN.4/Sub.2/2005/17 (2005). It should be noted that neither the Guid-
ing Principles nor the Pinheiro Principles were formally adopted by the General Assembly, Human Rights
Commission/Council or any other intergovernmental body. The Pinheiro Principles were adopted with-
out a vote by the Sub-Commission on the Promotion and Protection of Human Rights. The Guiding
Principles, however, unlike the Pinheiro Principles, have been referred to in resolutions of the UN General
Assembly and of the Human Rights Commission, and have found extensive acknowledgement by states.
restored to them’.12 As a result, the Commission for Real Property Claims of
Displaced Persons and Refugees (CRPC) was established. Similarily, the
United Nations Mission in Kosovo (UNMIK) set up the Kosovo Housing and
Property Directorate (HPD) and the Housing and Property Claims Commis-
sion (HPCC).13 These institutions were mandated to resolve conflicting prop-
erty claims by enforcing the individual right to property restitution.
Despite these legal and policy developments, tracking the legal source of
the right to housing and property restitution is a demanding task. This
right can be derived from both the right to property and the right to ade-
quate housing – with their respective protections against arbitrary interfer-
ence and evictions – and from the right to an effective remedy. The extent
of the right to property has, however, the most unclear position within
international human rights law – a lack of clarity that is consequently
reflected in the normative vagueness of the right to property restitution.
In fact, largely due to the ideological conflict of the Cold War period, no
right to individual ownership, that is, to private property, was included in
the two universal human rights conventions adopted by the United Nations
in 1966. Therefore, there is no main interpretation at international level of
the meaning and substance of the right to property. The right to property
was however included in the Universal Declaration of Human Rights,
which affirms the right to own property, alone or in association with others,
and the protection from arbitrary deprivation of property.14 Property
rights are furthermore recognized in regional human rights documents,
which guarantee the freedom to acquire property and the right to peace-
fully use and enjoy such property, that is, the protection against property
violations committed by the State or by private parties.15
12 See, General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Agreement
on Refugees and Displaced Persons (1995). The peace agreement was agreed in Dayton on 21. Nov
1995 and signed in Paris on 14 Dec. 1995. Other peace agreements containing provisions on property
restitution are, e.g.: Agreement on a Comprehensive Political Settlement of the Cambodia Conflict,
Annex 4, Repatriation of Cambodian Refugees and Displaced Persons (1991); Peace Agreement
between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, Protocol of
Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on
the Repatriation of Refugees and the Resettlement of Displaced Persons, (1993).
13 The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) was
established in 1995 under Annex 7 of the Dayton Peace Agreement. The Housing and Property Direc-
torate (HPD) and the Housing and Property Claims Commission were established in 1999 through
UNMIK Regulation 1999/23. In 2006 the HPD was subsumed into the Kosovo Property Agency
(KPA) under UNMIK Regulation 2006/10.
14 UDHR, above n. 6, art. 17. The right to property was also included both in the International
Convention on the Elimination of All Forms of Racial Discrimination, [hereinafter CERD], adopted
21 Dec. 1965, art. 5; and in the Convention on the Elimination of All Forms of Discrimination against
Women [hereinafter CEDAW], adopted 18 Dec. 1979, arts. 15 and 16.
15 The right to property is codified in the following regional instruments: art. XXIII of the American
Declaration of the Rights and Duties of Man; art. 21 of the American Convention on Human Rights;
art. 14 of the African Charter on Human and People’s Rights; art. 1 of the First Protocol to the European
Convention for the Protection of Human rights and Fundamental Freedoms [hereinafter ECHR].
396 Giulia Paglione
The right to housing, on the contrary, is recognized in all major human
rights documents, both at universal and regional level.16 Furthermore,
the Committee on Economic, Social and Cultural Rights dedicated two
General Comments to the right to housing.17 The principle of ‘restitu-
tion’ of housing had been referred to already in the early 1990s in several
documents addressing forced evictions. The Commission on Human
Rights, for example, recommended in its resolution 1993/77 on Forced
evictions that:
[a]ll Governments provide immediate restitution, compensation and/or appropri-
ate and sufficient alternative accommodation or land, consistent with their wishes
and needs, to persons and communities that have been forcibly evicted, following
mutually satisfactory negotiations with the affected persons or groups.18
As opposed to the right to property restitution or compensation as a
remedy for forced evictions, where considerable jurisprudence is available
on the issue,19 the right to property restitution or compensation as a rem-
edy for forced displacement remains an evolving area of law, as no specific
standards have been included within a binding instrument.20
16 The right to housing is codified in, e.g., UDHR, above n. 6, 25 (1); International Covenant on
Economic, Social and Cultural Rights, adopted Dec. 16, 1966, art. 11(1) [hereinafter ICESCR];
CERD, above n. 14, art. 5(e)(iii); Convention on the Rights of the Child, adopted Nov. 20, 1989, art.
27(3) [hereinafter CRC]; CEDAW, above n. 14, art. 14(2)h. Art. 14(2)h is however restricted to rural
women’s right to housing.
17 See, Committee on Economic, Social and Cultural Rights [hereinafter CESCR], ‘General Com-
ment 4: the Right to Adequate Housing’, UN doc. E/C.12/1991/4 (1991) and ‘General Comment 7:
Forced Evictions’, UN doc. E/C.12/1997/4 (1997). Although legally speaking these obligations apply
only to the ICESCR, they may be referred to for the interpretation of housing rights in other human
rights instruments.
18 Commission on Human Rights resolution 1993/77 on Forced Evictions, adopted on
10 Mar. 1993.
19 Cases of forced evictions have been adjudicated in many international and domestic Courts. At
national level, one can mention the case of Hajrizi Dzemajl et al. v. Jugoslavia, where the Committee
against Torture (CAT) held that the forced eviction and destruction of a Roma settlement in Serbia
and Montenegro violated the Convention against Torture. See, Hajrizi Dzemajl et al. v. Yugoslavia, Com-
mittee against Torture, Communication No. 161/2000, UN doc. CAT/C/29/D/161/2000 (11 Nov.
1999). For cases at the European Court of Human rights, see, e.g., Dulas v. Turkey, (25801/94), [2001]
ECHR 60, (30 Jan. 2001); Bilgin v. Turkey, (23819/94), [2000] ECHR 579, (16 Nov. 2000); Selçuk and
Asker v. Turkey, (23184/94), [1998], Eur.Ct.H.R. 36, (24 Apr. 1998).
20 Forced evictions and forced displacement resulting from international armed conflicts, internal
strife and communal or ethnic violence are strongly interlinked and overlapping phenomena. While
forced evictions might be the cause of forced displacement when the displaced cannot return and have
no access to alternative accommodation, forced evictions can also be a type of forced displacement per
se. Forced evictions are defined as ‘the permanent or temporary removal against their will of individu-
als, families and/or communities from the homes and/or land which they occupy, without the provi-
sion of, and access to, appropriate forms of legal or other protection’. The practice of forced evictions
might appear to occur primarily in heavily populated urban areas; however, ‘it also takes place in con-
nection with forced population transfers, internal displacement, forced relocations in the context of armed
conflict, mass exoduses and refugee movements’. CESCR, ‘General Comment 7: Forced Evictions’, above
n. 17, points 4 and 6 (emphasis added).
The ultimate goal of restitution is to provide a judicial remedy to human
rights violations,21 and to restore the victim to the conditions that existed
before the violation occurred.22 Legal definitions of restitution are estab-
lished in the 2001 ILC Articles on State Responsibility23 and in the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Violations of International Human Rights and Humanitarian
Law.24 According to these Principles, restitution is but one of the different
remedies, along with compensation, rehabilitation and satisfaction. While
restitution and compensation are traditionally regarded as remedies for
material injuries, rehabilitation and satisfaction mostly pertain to non-
material violations.
2. Property restitution from Deng to Pinheiro

2.1 Property restitution for IDPs
The two most far-reaching international documents addressing IDPs
rights are the 1998 Guiding Principles on Internal Displacement and the
2000 ILA Declaration of Principles of International Law on Internally
Displaced Persons. The Guiding Principles were drafted by a Committee
headed by the former Representative of the UN Secretary-General on
Internally Displaced Persons, Francis M. Deng, while the Declaration of
Principles was elaborated by the International Law Association.25 They
are the first international standards for IDPs, applicable to those up-
rooted and displaced by conflicts and natural disasters. A first reading will
however reveal a surprising feature of both documents: despite the fact
that dispossession is a defining characteristic of displacement, only a few
provisions on property rights have been included in these documents.
The two documents operate with a parallel definition of IDPs. Accord-
ing to the Guiding Principles:
21 The right to a remedy is codified in various international and regional instruments. See, e.g.,
UDHCR, above n. 6, art. 8; ICCPR, above n. 6, art. 2.3, CERD above n. 14, art. 6, ECHR above
n. 15, art. 13, African Charter on Human and People’s Rights, above n. 6, art. 7, American Convention
on Human Rights, above n. 6, art. 25.
22 Commission on Human Rights, Civil and Political Rights, Including the Questions of: Independ-
ence of the Judiciary, Administration of Justice, Impunity, ‘The right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and fundamental freedoms’, Final Report
of the Special Rapporteur, Mr M. Cherif Bassiouni, submitted in accordance with Commission Reso-
lution 1999/33, E/CN.4/2000/62 (2000).
23 James Crawford, The International Law Commission’s Articles on State Responsibility, (University of
Cambridge, Feb. 2002), Introduction, Text and Commentaries.
24 ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law’, A/RES/60/147, 21 Mar. 2006.
25 The International Law Association is an international association founded in 1873, which aims
at the study, clarification and development of international law, and the furtherance of international
understanding and respect for international law. The ILA has consultative status, as an international
non-governmental organisation, with a number of the United Nations specialised agencies.
398 Giulia Paglione
(…) internally displaced persons are persons or groups of persons who have
been forced or obliged to flee or to leave their homes or places of habitual resi-
dence, in particular as a result of or in order to avoid the effects of armed con-
flict, situations of generalized violence, violations of human rights or natural or
human-made disasters, and who have not crossed an internationally recognized
State border.26
Similarly, the definition of IDPs given by the ILA Declaration of Principles
states that:
(…) the term ‘internally displaced persons’ refers to ‘persons or groups of persons
who have been forced to flee or leave their homes or places of habitual residence
as a result of armed conflicts, internal strife or systematic violations of human
rights, and who have not crossed an internationally recognized State border’.
Furthermore:
This Declaration applies also to persons internally displaced by whatever causes,
such as natural or man-made disasters or large-scale developmental projects,
whenever the responsible State or de facto authority fails, for reasons that violate
fundamental human rights, to protect and assist those victims.27
The Guiding Principles are a comprehensive collection of thirty principles
covering all phases of internal displacement: from pre-displacement (includ-
ing the recognition of the right not to be arbitrarily displaced), to the actual
period of displacement to the phase of return or resettlement and reintegra-
tion, with a clear focus on the rights of IDPs during displacement.28 They set
forth the rights of IDPs and the obligations of governments, and all other
authorities, groups and persons that are involved with IDPs, to protect and
assist them. The Guiding Principles were followed in 2000 by Annotations,
indicating the legal sources that provide the basis of the Principles.29
Even though the Guiding Principles include provisions on IDPs’ prop-
erty, only one of its thirty principles specifically addresses the issue of prop-
erty restitution, namely Principle 29.30 This Principle refers to the return,
resettlement and reintegration of IDPs and states that:
Competent authorities have the duty and responsibility to assist returned and/or
resettled internally displaced persons to recover, to the extent possible, their prop-
erty and possessions, which they left behind or were dispossessed of upon their
displacement. When recovery of such property and possessions is not possible,
26 Guiding Principles, above n. 9, Introduction.

27 ILA Declaration of Principles, above n. 10, art. 1.
28 Only three Principles (28-30) refer to the post-displacement phase.
29 W. Kälin, Guiding Principles on Internal Displacement, Annotations [hereinafter Annotations], Studies in
Transnational Legal Policy No. 32 (The American Society of International Law and the Brookings
Institution Project on Internal Displacement, 2000).
30 The Guiding Principles contain two provisions on IDPs property: one provision on the protection
of property during displacement (Principle 21) and one provision on property restitution (Principle 29).
competent authorities shall provide or assist these persons in obtaining appropri-
ate compensation or another form of just reparation.
The Guiding Principles therefore address restitution rights only margin-
ally. They call for general protection of property during displacement31
and restitution upon return, but there are no further discussions on practi-
cal issues regarding protection and restitution. In addition, as they are only
applicable to IDPs, refugees are excluded from the scope of Principle 29.
The ILA Declaration of Principles, which contains eighteen articles set-
ting forth the rights of IDPs and the obligations of States, de facto authori-
ties, and governmental and non-governmental organizations towards
them, goes one step further than the Guiding Principles. Contrary to the
Guiding Principles, which recognize only a right to be protected from dis-
placement, and a consequent duty on the side of the state to establish
conditions and to provide the means allowing IDPs to return,32 the ILA
Declaration of Principles recognizes the right of all IDPs ‘to return to their
homes or places of habitual residence freely and in security and dignity, as
soon as the conditions giving rise to their displacement have ceased’.33
Specifically on housing and property restitution, the ILA Declaration of
Principles states that:
Internally displaced persons shall be entitled to restitution or adequate compensa-
tion for property losses or damages and for physical and mental suffering resulting
from their forced displacement.34
Compared to the Guiding Principles, the ILA Declaration of Principles
uses much stronger language when identifying IDPs restitution rights.
Where the Guiding Principles adopt the perspective of the state and
affirm that the authorities have a duty to assist IDPs in recovering their
property to the extent possible,35 the ILA Declaration of Principles reflects
the perspective of the victims, and affirms that IDPs are entitled to restitu-
tion or compensation, without restrictions of any kind. Furthermore, the
31 Guiding Principles, above n. 9, Principle 21. According to Principle 21:

1. No one shall be arbitrarily deprived of property and possessions.
2. The property and possessions of internally displaced persons shall in all circumstances be protected,
in particular, against the following acts:
(a) Pillage;
(b) Direct or indiscriminate attacks or other acts of violence;
(c) Being used to shield military operations or objectives;
(d) Being made the object of reprisal; and
(e) Being destroyed or appropriated as a form of collective punishment.
3. Property and possessions left behind by internally displaced persons should be protected against
destruction and arbitrary and illegal appropriation, occupation or use.
32 Guiding Principles, above n. 9, Principles 6 and 28. The Guiding Principles only include a refer-
ence to IDPs right to liberty of movement and freedom to choose their residence (Principle 14).
33 ILA, Declaration of Principles, above n. 10, art. 5, emphasis added.
34 Ibid., art. 9.
35 Guiding Principles, above n. 9, Principle 29.
400 Giulia Paglione
ILA Declaration of Principles establishes the right to compensation not
only for physical, but also for mental suffering occurred in connection to
displacement. The Guiding Principles limit the provision of compensa-
tion only to lost property.36 Both instruments incorporate a call for resti-
tution or compensation of lost property, but they are silent on technical
and procedural aspects surrounding restitution mechanisms. While rec-
ognizing IDPs formal right to a remedy, they do not address how this
right can be implemented. Even though they were drafted at a time when
the first property restitution institutions were fully operational, for exam-
ple, in the Balkans, none of these instruments incorporate reference to
these operational developments, nor do they require states to set up dis-
pute resolution mechanisms for solving conflicting restitution claims.
Article 12 of the ILA Declaration of Principles does briefly mention the
need for cooperation between governmental and non-governmental
organizations in order to ‘establish and maintain appropriate institu-
tional arrangements to implement the provisions of the Declaration’.
However, how these arrangements should look and function is never
addressed.
Both the Guiding Principles and the ILA Declaration of Principles
therefore provide only general statements on IDPs restitution rights, and
they are consequently only partially relevant in enforcing displaced per-
sons’ legal rights to resume their lost property.
2.2 The Pinheiro Principles

The most recent standard on property restitution for displaced persons is
the Pinheiro Principles, endorsed by the UN Sub-Commission on the
Promotion and Protection of Human Rights in August 2005.37 The Pin-
heiro Principles were supplemented in March 2007 by the ‘Handbook on
Property Restitution for Refugees and Displaced Persons. Implementing
the “Pinheiro Principles”’.38
The Pinheiro Principles are unprecedented in the field of property res-
titution for a variety of reasons: because of their operational approach;
because of their exclusive focus on property restitution; and because they
address a wider group of beneficiaries than earlier standards. By adopting
a definition of ‘displaced’ that does not distinguish between internal and
36 Ibid.
37 Pinheiro Principles, above n. 11.
38 Inter-Agency, Handbook on Property Restitution for Refugees and Displaced Persons. Implementing the ‘Pinheiro
Principles’ [hereinafter Handbook], Mar. 2007. The Handbook is the result of collaboration between
UNHCR, FAO, UN HABITAT, OCHA, OHCHR, the Norwegian Refugee Council (NRC) and
NRCs Internal Displacement Monitoring Centre (IDMC). The substantive draft of the Handbook
was, however, prepared by Scott Leckie, Executive Director of the Centre on Housing Rights and
Evictions (COHRE). See, Handbook, 8.
cross-boundary displacement, the Pinheiro Principles are applicable to
IDPs and refugees alike. They:
(…) apply equally to all refugees, internally displaced persons and to other simi-
larly situated displaced persons who fled across national borders but who may not
meet the legal definition of refugee (…) who were arbitrarily or unlawfully deprived
of their former homes, lands, properties or places of habitual residence, regardless
of the nature or circumstances by which displacement originally occurred.39
Furthermore, the Pinheiro Principles have the ambition to cover not only
formal ownership rights, but also tenure and users rights.40
The difference between the Pinheiro Principles, on the one hand, and
the Guiding Principles, on the other, is not surprising, as the two docu-
ments had very different raison d’être. While Francis Deng was asked by the
UN Commission on Human Rights to identify a normative framework
that could enhance the protection of internally displaced persons, on the
basis of already existing provisions of international human rights law,
humanitarian law and refugee law, Paulo Sérgio Pinheiro was entrusted to
develop a common operational framework on restitution mechanisms.
Building upon the variety of restitution mechanisms that had been imple-
mented in previous years in a number of post-conflict countries, the Pin-
heiro Principles elaborate procedures and institution-building approaches
aimed at harmonizing future property restitution mechanisms. Further-
more, they provide governments and organizations with specific policy rec-
ommendations in order to ensure that such mechanisms are in conformity
with international standards. The Principles are non-binding, and their
origin can be traced back to 1997, when Sub-Commission Expert Paulo
Sérgio Pinheiro was requested by the Committee on the Elimination of
Racial Discrimination (CERD) to prepare a working paper on ‘the return
of refugees’ or displaced persons’ property’.
39 Pinheiro Principles, above n. 11, Principle 1.2. As stated in the Commentary to the Draft Princi-
ples: ‘While the mandate given to the Special Rapporteur refers to “refugees and internally displaced
persons”, it should be noticed that the issues, norms and standards regarding housing and property
restitution also pertain to persons in similar situations. The phrase “refugees and internally displaced
persons” unfortunately overlooks those persons displaced across borders, e.g., following a conflict or
disaster, who may not meet the legal definition of a refugee under international law. Because such
populations have the right to housing and property restitution, as internally displaced persons do, the
Draft Principles incorporates the language “refugees and displaced persons”’. See, Commission on
Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, ‘Progress
Report of the Special Rapporteur, Paulo Sérgio Pinheiro, Addendum, Commentary to the Draft Prin-
ciples on Housing and Property Restitution for Refugees and Displaced Persons’, UN Doc. E/CN.4/
Sub.2/2004/22/Add.1 (2004), par 3.
40 ‘States should ensure that the rights of tenants, social-occupancy rights holders and other legiti-
mate occupants or users of housing, land and property are recognized within restitution programmes.
To the maximum extent possible, States should ensure that such persons are able to return to and
repossess and use their housing, land and property in a similar manner to those possessing formal
ownership rights’. Pinheiro Principles, above n. 11, Principle 16.
402 Giulia Paglione
The first document paving the way for the actual Pinheiro Principles is
a Working Paper adopted in June 2002.41 The paper plays a fundamental
role in the future development of the Pinheiro Principles themselves, as it
defines the terminology that would subsequently be used. According to the
Working Paper, ‘housing and property’ is intended to mean housing, land
and real property; ‘restitution’ is meant as an equitable remedy, or a form
of restorative justice, by which persons who suffer loss or injury are returned
as far as possible to their original pre-loss or pre-injury position, that is, to
the status quo ante; while ‘compensation’ refers to a legal remedy by which a
person receives monetary payment for harm suffered, for example, result-
ing from the impossibility of restoring the person’s property or house. The
Working Paper fully embraces the interpretation that the right to return is
not fulfilled by the simple return to one’s country, but should encompass
return to one’s actual home; that housing and property restitution is a nec-
essary step towards implementing the right to return to one’s home; and
that property restitution as a remedy for forced displacement is a free-
standing, autonomous right.42 The importance of the Working Paper lies
also in the fact that it recommends undertaking a comprehensive study on
housing and property restitution for refugees and displaced persons – a
study that would ultimately lead to the drafting of the Pinheiro Principles.
Pinheiro was later appointed as Special Rapporteur of the UN Sub-Com-
mission on the Promotion and Protection of Human Rights on housing
and property restitution in the context of the return of refugees and inter-
nally displaced persons.43
Subsequent to the 2002 Working Paper is the Preliminary Report of
2003, which contains a comparative analysis of housing and property
restitution programs established in several countries that had experi-
enced mass displacement as a result of conflicts.44 The Preliminary
Report identifies best practices and common obstacles to the imple-
mentation of restitution programs, addressing many of the practical
issues concerning housing and property restitution. Some of the most
widespread difficulties identified are: secondary occupation; property

Rights, ‘The return of refugees’ or displaced persons’ property. Working paper submitted by Paulo
Sérgio Pinheiro pursuant to Sub-Commission decision 2001/122’ [hereinafter Working Paper], UN
doc. E/CN.4/Sub.2/2002 /17.
42 Ibid., 4-7.
Rights, resolution 2002/7 on ‘Housing and Property Restitution in the Context of Refugees and Other
Displaced Persons’, UN doc. E/CN.4/SUB.2/RES/2002/7.
Rights, ‘Housing and property restitution in the context of return of refugees and internally displaced
persons. Preliminary Report of the Special Rapporteur, Paulo Sérgio Pinheiro, submitted in accord-
ance with Sub-Commission resolution 2002/7’, [hereinafter Preliminary Report], UN doc. E/CN.4/
Sub.2/2003/11.
destruction; loss or destruction of housing and property records; and
discriminatory restitution programmes.45 The comparative overview
of restitution mechanisms is the first of its kind, and represents a valu-
able hands-on tool for policy-makers and national and international
officials engaged in designing future restitution mechanisms.
A comparison of the Guiding Principles and the Pinheiro Principles
reveals how the conceptualization of property restitution for the displaced
has undergone remarkable refinement in the period between the two docu-
ments. Property restitution has been clearly defined so as to also cover land
and housing; duties of states have been identified; and so has the need to
establish a consistent restitution-mechanism. Nevertheless, the Pinheiro
Principles did not engage in a principled discussion on the meaning and
substance of property restitution, but instead built upon mainstream posi-
tions on displacement and restitution. By reiterating the exclusive focus on
return amongst possible solutions, and on individual real property restitu-
tion amongst possible remedies, the Pinheiro Principles have entirely
neglected any other types of redress. The question of whether property
restitution is the best solution in providing an effective remedy at individual
level and in reconstructing the social fabric is never asked, nor are best
practices on alternative remedies addressed. These theoretical shortcom-
ings are by no means restricted to the Pinheiro Principles, as they ulti-
mately embody preceding standards and views. The Pinheiro Principles
will nevertheless be used as the main reference in the next section, given
their central position among standards on property restitution.
3. The Pinheiro Principles in context

3.1 Physical return as the preferred solution
The best solution to the plight of millions of refugees and displaced persons
around the world is to ensure they attain the right to return freely to their coun-
tries and to have restored to them housing and property of which they were
deprived during the course of displacement, or to be compensated for any prop-
erty that cannot be restored to them. It is the most desired, sustainable, and digni-
fied solution to displacement.46
The Pinheiro Principles place themselves squarely within the tradition
that identifies return as the favorite solution to displacement. This view
can be traced back to the origins of the Pinheiro Principles: Pinheiro was,
after all, mandated by the Sub-Commission to prepare a study on hous-
ing and property restitution in the context of the return of refugees and
45 Ibid., part III.

46 Paulo Sérgio Pinheiro, quoted in S. Leckie, ‘New housing, land and property restitution rights’,
(2006) 25 Forced Migration Review 52.
404 Giulia Paglione
IDPs.47 This is not surprising, as the overwhelming majority of standards
on property restitution preceding the Pinheiro Principles repeatedly as-
sociate language of restitution with return.48 However, associating ‘resti-
tution’ and ‘return’ can have unfortunate consequences, as it might lead
to the assumption that property restitution is dependent on the actual
return of the displaced.
The relationship between physical return and property restitution has
certainly been quite ambiguous throughout the drafting process of the
Pinheiro Principles. However, a conceptual development is clearly visible:
where early drafts strongly connected return and restitution, at the time of
their adoption, in 2005, the Pinheiro Principles had distanced themselves
from this viewpoint and the phrase ‘in the context of the return’ had actu-
ally disappeared from the title. Going even further in this direction, the
Pinheiro Principles state that:
The right to restitution exists as a distinct right, and is prejudiced neither by the
actual return nor non-return of refugees and displaced persons entitled to hous-
ing, land and property restitution.49
According to this paragraph, refugees and displaced persons have the right
to property restitution independently from their physical return to their
homes and lands. The right to restitution is thereby identified as a self-
standing right, enforceable regardless of the choices a refugee might take
about her future. The aforementioned principle should be read in con-
junction with Principle 10.3, which affirms that:
Refugees and displaced persons shall not be forced, or otherwise coerced, either
directly or indirectly, to return to their former homes, lands and places of habitual
residence. Refugees and displaced persons should be able to effectively pursue
durable solutions to displacement other than return, if they so wish, without
prejudicing their right to restitution of their housing, land and property.
These principles represent a fundamental shift compared to both previous
standards on property restitution and to earlier drafts of the Pinheiro Princi-
ples. The Draft Principles, for example, issued only one year before the
endorsement of the final 2005 Pinheiro Principles, approached restitution
rights for non-returnees from a very different perspective. They state that:
47 Paulo Sérgio Pinheiro was appointed Special Rapporteur of the Sub-Commission in Aug. 2002
following para. 6 of the Sub-Commission on the Promotion and Protection of Human Rights resolu-
tion 2002/7 ‘Housing and Property Restitution in the Context of Refugees and Other Displaced Per-
sons’, UN doc. E/CN.4/SUB.2/RES/2002/7. His mandate was concluded with the adoption of the
Pinheiro Principles.
48 See, e.g., CERD General Recommendation No. 22, above n. 7, where it is stated that: ‘… [a]ll
such refugees and displaced persons have, after their return to their homes of origin, the right to have
restored to them property of which they were deprived in the course of the conflict …’ (emphasis
added).
49 Pinheiro Principles, above n. 11, Principle 2.2.
States shall ensure that those refugees and displaced persons who choose not to
return to their former homes, lands or places of origin are provided with all assist-
ance necessary to ensure them an adequate standard of living, including the reali-
zation of their right to adequate housing.50
According to this paragraph, refugees and displaced persons choosing not
to return – as opposed to those who cannot return – have a right to adequate
housing, but not to property restitution. They are thereby excluded from
restitution mechanisms and accorded a lower protection.
The acknowledgment of a right to housing and property restitution
which is conceptually independent from return, as stated in the Pinheiro
Principles, represents an important normative achievement, a vital step
forward for a displaced persons’ right to an effective remedy. Although
return and property restitution are often closely linked in practice, it is
important to distinguish them in theory, in order not to create a false
assumption that restitution only applies to returnees. Despite the assertion
on the independency of the right to property restitution, there is surpris-
ingly only one reference to ‘durable solutions’51 in the Pinheiro Principles
and property restitution is not integrated within the broader framework of
durable solutions.
Turning back to the Guiding Principles, they include a timid reference
to the situation of IDPs who choose not to return when stating that the
authorities have ‘the duty and responsibility to assist returned and/or resettled
internally displaced persons to recover, to the extent possible, their prop-
erty and possessions’.52 The reference to resettled IDPs might indicate that
the drafters interpreted property restitution as applying also to non-return-
ees. Unfortunately, the issue is not further addressed, neither in other parts
of the Guiding Principles nor in the Annotations.
Leaving the right to property restitution so tightly linked to the issue of
return as it was in the 2004 Draft Principles to the Pinheiro Principles,
might wrongfully suggest that restitution is available only upon return,
and is thereby not a remedy that applies to all displaced who have been
unlawfully dispossessed of their belongings. The Pinheiro Principles have
therefore added an important contribution on this matter. Their stance is
however unclear: notwithstanding the statements on the independency
of restitution from return, they still clearly show their preference for
voluntary return as the most favourable durable solution, as technical

Rights, ‘Progress Report of the Special Rapporteur, Paulo Sérgio Pinheiro’, above n. 39, at 9.5.
51 Pinheiro Principles, above n. 11, Principle 10.3. The Principle reads as follows: ‘Refugees and
displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to
their former homes, lands or places of habitual residence. Refugees and displaced persons should be
able to effectively pursue durable solutions to displacement other than return, if they so wish, without
prejudicing their right to the restitution of their housing, land and property’.
52 Guiding Principles, above n. 9, Principle 29.2.
406 Giulia Paglione
challenges related to restitution in the case of resettlement, for example,
are not addressed. It is therefore fundamental to restate that the right to
restitution should not be conditional on the physical return of the dis-
placed. Return may be impossible or may not be the preferred solution,
but a displaced should maintain the right to repossess lost properties, or
alternatively to participate in restitution programmes that enable the sale
or rent of their houses or lands on equal footing with a displaced who
returns. The 2007 Handbook uses a much stronger and clearer language
than the Principles on the issue of property restitution for non-returnees.
When commenting on the Principles, it states, for example, that: ‘Long-
term displacement does not extinguish or de-legitimize restitution claims
– nor does a decision to resettle or integrate locally’ and that ‘Restitution
can play a critical role for those refugees and displaced persons choosing
not to return’.53
From the 1998 Guiding Principles to the 2007 Handbook, a trend is
clearly visible: property restitution is increasingly recognized as a free-
standing right that transcends durable solutions. This acknowledgment is
however left incomplete: practical challenges and possible implementation
of restitution programs for resettled displaced persons remain unaddressed
by all currently available standards on property restitution. The reasons for
this shortcoming might be several: one reason might lie in the fact that the
Pinheiro Principles, as all preceding standards, pursue the very traditional
view that believes that the displaced ontologically belong to where they
came from, and that they are inexorably meant to return there. This reduc-
tive view disregards the complexity of human nature and reinforces the
misconception of refugees as helpless victims, rather than individuals who
develop during their flight and who are radically transformed by exile. The
Pinheiro Principles have not taken onboard the results of the abundant
academic research highlighting the complexities involved with the return
and ‘reintegration’ of refugees at home.54 Another reason might lie in the
fact that the Pinheiro Principles, in line with mainstream thinking, still
seem to view return as the barometer of success for any displacement cri-
sis. Property restitution is thereby – whether consciously or not – used as
an incentive to encourage returns.
Recognizing the independency of the right to restitution from return,
and the centrality of the voluntariness of return, as achieved by the Pinheiro
Principles, should have lead to the contextualization of property restitution
within a range of durable solutions. The Pinheiro Principles leave the busi-
53 Handbook, above n. 38, 18-20.

54 See, e.g., D. Warner, ‘Voluntary Repatriation and the Meaning of Return to Home’, (1994) 7 JRS
160-76; R. Zetter, ‘Reconceptualizing the Myth of Return: Continuity and Transition Amongst the
Greek-Cypriot Refugees of 1974’, (1999) 12 JRS 1-22.
ness unfinished, and they remain conventional in their essence, despite
being largely publicized as groundbreaking and innovative.55
3.2 Individual property restitution as the preferred remedy
States shall demonstrably prioritize the right to restitution as the preferred remedy
for displacement and as a key element of restorative justice.56
The notion that return is the preferred solution is strongly connected to
another notion: that property restitution is the preferred remedy, because
of its inherent capacity of turning the clock back to pre-displacement.
All the available norms and policy guidelines on property restitution for
refugees and displaced persons portray individual restitution of real prop-
erty as the favourite outcome of displacement because of its inherent
capacity of re-establishing the status quo ante, that is, the conditions that
existed prior to the violation. Neither the Guiding Principles, the ILA
Declaration of Principles or the Pinheiro Principles, or any other stand-
ard on property restitution, analyse alternative remedies, nor do they
confer on refugees and IDPs the right to choose among types of reme-
dies. This is surprising, as both the Guiding Principles and the Pinheiro
Principles clearly mention the importance of the involvement of dis-
placed people in all decisions connected to their return. The Guiding
Principles state, for example, that:
Special efforts should be made to ensure the full participation of internally dis-
placed persons in the planning and management of their return or resettlement
and reintegration.57
Using similar language, the Pinheiro Principles call upon states and other
involved actors to:
[e]nsure that voluntary repatriation and housing, land and property restitution
programmes are carried out with adequate consultation and participation with
the affected persons, groups and communities.58
Despite the abundant references to the notions of voluntariness and par-
ticipation, the consequences that a voluntary choice not to return has on
the right to restitution are not addressed. Would it, for example, be pos-
sible for a displaced person choosing resettlement over return to raise a
compensation claim instead of a restitution claim?59 The focus on physical
55 See, e.g., <http://www.cohre.org/store/attachments/COHRE%20Media%20Release%

20Pinheiro%20Principles.doc>.
57 Guiding Principles, above n. 9, Principle 28.2.
58 Pinheiro Principles, above n. 11, principle 14.1.
59 This obviously presupposes the recognition that property restitution applies to all displaced, inde-
pendently from their return.
408 Giulia Paglione
return, and consequently on property restitution, has overshadowed all
other remedies, such as compensation, rehabilitation and satisfaction,
which are neither analysed nor addressed in the legal standards on prop-
erty restitution.
Both the Guiding Principles and the Pinheiro Principles state, for exam-
ple, that financial compensation should be offered only when destroyed
housing and property are materially impossible to restore.60 The Pinheiro
Principles adopt a very rigid framework, affirming that displaced persons
have the right to be compensated for any land, housing and property that
is materially impossible to restore as determined by an independent, impartial tri-
bunal 61 and that restitution is considered as factually impossible only when
land, housing and property has been destroyed or no longer exists.62 This
was most probably meant as a safeguard protecting returnees from dis-
criminatory restitution mechanisms, but the power to define the viability
of property restitution, and consequently the type of remedy, lies entirely
in the hands of the State, and the displaced are excluded from participat-
ing in such an assessment.
At the same time, in a very ambiguous statement, the Pinheiro Princi-
ples also declare that monetary compensation could be offered when the
injured person ‘knowingly and voluntarily accepts compensation in lieu of
restitution’ – implying that individuals do have a choice, and that compen-
sation is an alternative even when housing is not destroyed.63 Using even
more contradictory language, the 2003 Preliminary Report states that
compensation should be given in lieu of restitution when it is either impos-
sible or impracticable to restore the person’s property or house.64 However,
who should decide which conditions have to be met in order for restitution
to be ‘practical’? This question is left unanswered, and a literal interpreta-
tion of the Pinheiro Principles suggests that practicality is defined by the
pure material existence of the housing and property, that is, if it still stands
there.
It is not the intention of this paper to call for financial compensation
instead of property restitution as a remedy to displacement. Financial
compensation for human rights abuses raises a series of well-known prob-
lematic implications: it entrenches displacement; it risks providing support
to ethnic, religious and ideological cleansing; and it is often economically
unfeasible, as States undergoing post-conflict reconstruction usually find
themselves in conditions of financial constraint, and would often not be
able to afford economic compensation. However, financial compensation
60 Guiding Principles, above n. 9, Principle 29.2; Pinheiro Principles, above n. 11, par. 10.
62 Ibid., Principle 21.2.
63 Ibid., Principle 21.1.
64 Preliminary Report, above n. 44, par 10.
may be made available not only to returnees who cannot reoccupy their
original homes due to material impediments, but also to those who volun-
tarily choose not to return. As suggested previously, the notion that return
is the solution preferred by refugees and displaced persons might not reflect
reality.65 Therefore, it is essential to address the issue of alternative reme-
dies for voluntary non-returnees.
The Pinheiro Principles do not mention other types of available reme-
dies and construe restitution as limited to individual, real property restitution.
It is, however, important to adopt a broader approach to restitution, so to
include, for example, group restitutions and non-material reparations. As
the post-conflict events in Bosnia and Kosovo demonstrate, the ultimate
goal of restitution at societal level – reconciliation and peaceful coexist-
ence – is not achieved simply by real property restitution.66 For example,
official apologies, assurances of non-repetition of the offence, trials and
truth and reconciliation commissions might be particularly relevant in
reconstructing a lacerated social fabric by acknowledging the violations
committed against the displaced and ensuring accountability.67
3.3 An endless right to property restitution?

Separating restitution from return poses, however, a significant dilemma:
if the right to restitution is unconditional to the physical return – as the
Pinheiro Principles state- does this imply that the right to restitution is
enforceable without time-limitations? Do all displaced have an endless
right to housing and property restitution? Or does the passage of time
affect restitution rights?
The property restitution mechanisms that have been implemented in var-
ious parts of the world have adopted divergent approaches towards the issue
of time-constrain. The Housing and Property Directorate (HPD) in Kosovo
and the Commission for Real Property Claims (CRPC) in Bosnia, for exam-
ple, both operated in the immediate aftermath of a conflict that had led to
property disputes: the HPD was mandated to decide on property claims
covering the period from 1989 to 1999, while the CRPC was mandated to
rule on property claims covering the period from 1992 to 1995. There have
been other instances, however, where restitution mechanisms were designed
to redress property violations perpetrated decades before. One might turn,
for instance, to the examples provided by Iraq and South Africa.
65 Above n. 49.
66 Despite the establishment the Housing and Property Directorate (HPD), the return of non-
Albanians to Kosovo, which started in 2000, has been painfully slow due to recurrent violence and ethnic
tensions. UNHCR estimates that some 17,000 minority returns have been registered, out of the esti-
mated 200,000 ethnic Serbs, Roma and others who left the province after the withdrawal of Serbian
forces in 1999. See, UNHCR, ‘Last family leaves camp for displaced in Kosovo’, 9 Nov. 2007, available
at: <http://www.unhcr.org/news/NEWS/47342a822.html>.
67 Basic Principles, above n. 24, point 18.
410 Giulia Paglione
The Iraqi Commission for Resolution of Real Property Disputes
(CRRPD) was established in 2004 in order to provide redress to wrongful
takings of real property that occurred during the former Baathist regime,
covering a well-defined 25-year time-span, from the 17 July 1968 to 9 April
2003.68 According to its statute, where restitution is not possible or appro-
priate, the rightful owner, possessor or user may receive other types of
redress, such as monetary compensation. Following a revision of the stat-
ute in June 2004, Arab settlers who lost the properties allocated to them by
the former regime as a result of the return of the previous owners after 18
March 2003, were also enabled to submit claims to the CRRPD.
Similarly, South Africa’s reconciliation process allowed for restitution
dating back to the 1913 Native Land Act. According to the 1996 South
African Constitution:
A person or community dispossessed of property after 19 June 1913 as a result of
past racially discriminatory laws or practices is entitled, to the extent provided by
an Act of Parliament, either to restitution of that property, or to equitable
redress.69
The government of Rwanda decided instead that remedy would only be
provided for property violations committed within the previous 10 years,
even though earlier waves of violence that had affected the country also
included serious violations of property rights. The Arusha Peace Agree-
ment and the accompanying Protocol on the Repatriation of Rwandese
Refugees and the Resettlement of Displaced Persons does recognize hous-
ing and land restitution rights to Rwandan refugees, provided they had not
been out of the country for longer than 10 years. Those who had lived in
exile for longer were, however, authorized to receive alternative lands and
other assistance allowing them to resettle within the country. According to
article 4 of the Protocol:
The right to property is a fundamental right for all the people of Rwanda. All refu-
gees shall therefore have the right to repossess their property on return.
The two parties recommend, however, that in order to promote social harmony
and national reconciliation, refugees who left the country more than 10 years ago
should not reclaim their properties, which might have been occupied by other
68 The CRRPD is an independent agency of the Government of Iraq. Formerly the Iraq Real
Property Claims Commission (IPCC), replaced in Mar. 2006 with the Commission for the Resolution
of Real Property Disputes (CRRPD). Two important changes are introduced by the new law: (1) good
faith secondary occupants now have a right to compensation from the government if the property they
currently live in is returned to the original owner; (2) compensation amounts will now be calculated
with reference to the value of the property on the date on which the claim was filed rather than the
date of the wrongful taking by the former regime, a change which will often result in higher levels of
compensation (IOM, 17 May 2006). More information on the work of the Commission is available on
their website: http://ipcciraq.org/
69 The Constitution of the Republic of South Africa, Chapter II, Bill of Rights, art. 25(7), 1996.
people. The Government shall compensate them by putting land at their disposal
and shall help them to resettle.
As for estates that have been occupied by the Government, the returnee shall have
the right for an equitable compensation by the Government.70
The governments of Bosnia, Kosovo, Iraq, South Africa and Rwanda all
applied different approaches when drawing the time constrains that allow
claiming redress for property violations. Every country has its own history,
and it is clearly impossible to set artificial dates applicable to all restitution-
programs. However, the issue of how to address complex historical claims
is fundamental, and needs further elaboration. Neither the Guiding Princi-
ples nor the ILA Declaration of Principles or the Pinheiro Principles place
restitution rights in a chronological perspective. The time-limitations set by
the Rwandan government are nevertheless vigorously criticized in Pinhei-
ro’s Preliminary Report, where the Rwandan example is illustrated as:
[a]nother example of how unjust policies often serve to deny certain persons their
right to restitution, in this case through the imposition of arbitrary and discrimi-
natory time limitations.71
Even if the issue of time might be divisive, the resistance to engage in a
discussion on property restitution within a chronological perspective is
regrettable. A plain interpretation of the Pinheiro Principles seems to sug-
gest that the right to property restitution is enforceable without time limita-
tions – unless the specified property is destroyed. The Principles state, in
fact, that the right of refugees and displaced persons to return voluntarily
to their former homes, lands or places of habitual residence ‘cannot be
abridged under conditions of State succession, nor can it be subject to
arbitrary or unlawful time limitations’.72
Notwithstanding the fact that every violation should unquestionably be
remedied, a mixed approach might be a valid solution. If restitution in
kind might be the preferred remedy after a short period of displacement,
the longer displacement lasts, the more complex it is to advocate for an
exclusive property restitution policy, both from a practical and a human
rights perspective, with reference to the rights of bona fide secondary occu-
pants. The most commonly applied framework for property restitution
foresees restitution for the returnee and possibly compensation for the bona
fide secondary occupant, which often is a returnee herself. However, in the
case of conflicting claims after decades of absence, one might question
70 Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandese
Patriotic Front on the Repatriation of Rwandese Refugees and the Resettlement of Displaced Persons
(1993), art. 4.
71 Preliminary Report, above n. 44, point 31.
412 Giulia Paglione
whether it is the secondary occupant or the returning refugee who should
be granted compensation.
Neither the preparatory documents nor the Pinheiro Principles them-
selves establish a connection between type of redress and the passage of
time. The Handbook, as well, is rather vague on the issue. It merely states
that restitution rights do not lapse on the basis of a displaced person not
being able to physically exercise these rights, and that restitution rights do
not lapse if and when unreasonable, disproportionate or unfair date restric-
tions are imposed.73
The drafting of the Pinheiro Principles provided a good opportunity for
addressing these complex issues surrounding property restitution, and their
silence on the topic is regrettable.
4. Conclusion
Triggered by the numerous displacement crises, the operational and legal
framework on property restitution for refugees and IDPs has rapidly de-
veloped in the past decade. Several restitution programs have been im-
plemented in various countries, and the international normative
framework has been further strengthened by the adoption of the Pinheiro
Principles. These Principles, together with their implementing Hand-
book, represent a valuable contribution to the theoretical debate on res-
titution rights. However, by placing an excessive emphasis on return
amongst possible solutions, and on judicially-based solutions at individual
level amongst possible remedies, the current normative framework has
entirely neglected other types of remedies that might ultimately prove to
be more effective in reconstructing the social fabric and in providing re-
dress.
Future debates on property restitution need to address how resettle-
ment or local integration affect restitution rights. Moreover, stronger
emphasis should be placed on non-material remedies such as truth
commissions, official apologies and guarantees of non-repetition.
Finally, the development of guidelines and best practices on how to
enforce restitution rights after long periods of displacement – including
an analysis of the possibility of combining property restitution with
other remedies – could prove to be extremely helpful when designing
future property restitution mechanisms.
73 Handbook, above n. 38, 27.

Article 24 Individual Property Restitution From Deng.

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Individual Property Restitution: from Deng

1. Between law and policy: the emergence of a right to

2. Property restitution from Deng to Pinheiro

26 Guiding Principles, above n. 9, Introduction.

31 Guiding Principles, above n. 9, Principle 21. According to Principle 21:

2.2 The Pinheiro Principles

41 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human

3. The Pinheiro Principles in context

45 Ibid., part III.

50 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human

53 Handbook, above n. 38, 18-20.

55 See, e.g., <http://www.cohre.org/store/attachments/COHRE%20Media%20Release%

3.3 An endless right to property restitution?

73 Handbook, above n. 38, 27.

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