Individual Property Restitution: from Deng to Pinheiro - and the Challenges Ahead

The issue of housing and property restitution for refugees andinternally displaced persons (IDPs) has received considerableattention in the past decade.¹ Conflicts and wars in differentparts of the world have shown how housing and property rightsare systematically violated during armed strives. Intentionaldestruction of property, arbitrary confiscation of housing andsecondary occupation are just some of the most common practicesin violation of individual property rights. In addition to beingan individual's right, the international community has increasinglyconsidered post-conflict housing and property restitution asa 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 initiativeshave contributed to enforcing property restitution rights: fromthe establishment in the mid 1990s of institutions mandatedto resolve conflicting property claims to the adoption in 2005of the so-called ‘Pinheiro Principles’, the firstinternational standard exclusively addressing property restitutionrights. This paper explores the strengthening of international normsin the field of individual property restitution for refugeesand IDPs over the past decade, and argues that the currentlyavailable normative standards reflect a partial understandingof displacement and restitution. With an almost exclusive focuson individual real property restitution, and an explicit preferencefor return among solutions to displacement, such standards undervaluethe importance of alternative remedies and overlook the rightsof non-returnees. After a brief overview on the emergence ofa right to individual property restitution in internationallaw and policy (part 1), this paper will concentrate its attentionon three legal documents addressing property and displacement:the Guiding Principles on Internal Displacement of 1998, theInternational Law Association Declaration of Principles on IDPsof 2000, and the Pinheiro Principles of 2005 (part 2). The firsttwo documents confine their scope to displacement within nationalborders, whereas the Pinheiro Principles encompass restitutionrights for both IDPs and refugees and represent the most recentand comprehensive standard on the topic. Despite the remarkabledevelopments at normative level, epitomized by the approvalof the Pinheiro Principles, this paper highlights the followingproblematic areas: the role played by physical return in theconceptualisation of property restitution; the supremacy givento individual real property restitution over other types ofremedies; and the impact of the passage of time on restitutionrights (part 3). The paper concludes by arguing that restitutionmust be conceived independently from return and must consequentlygo beyond individual real property restitution, in order toprovide effective redress to refugees and displaced persons(part 4).