Gichd
Publication date
October 2015

The Pinheiro Principles

United Nations Principles on Housing and Property Restitution

for Refugees and Displaced Persons

 

Centre on Housing Rights and Evictions

www.cohre.org

 

Principle 2: All refugees and displaced persons have the right to have restored to them any

housing, land or property of which they were arbitrarily or unlawfully deprived...

- The Pinheiro Principles

 

TABLE OF CONTENTS

An Introduction to ‘The Pinheiro Principles’

 

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UN Principles on Housing and Property Restitution for Refugees

and Displaced Persons – The Pinheiro Principles

 

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Section I

 

Scope and application

Principle 1. Scope and application

 

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Section II

 

The right to housing and property restitution

Principle 2. The right to housing and property restitution

 

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Section III

 

Overarching principles

Principle 3. The right to non-discrimination

Principle 4. The right to equality between men and women

Principle 5. The right to be protected from displacement

Principle 6. The right to privacy and respect for the home

Principle 7. The right to peaceful enjoy ment of possessions

Principle 8. The right to adequate housing

Principle 9. The right to freedom of movement

 

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Section IV

 

The right to voluntary return in safety and dig nity

Principle 10. The right to voluntary return in safety and dig nity

 

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Section V

 

Legal, policy, procedural and institutional implementation mechanisms

Principle 11. Compatibility with international human rights,

refugee and humanitarian law and related standards

Principle 12. National procedures, institutions and mechanisms

Principle 13. Accessibility of restitution claims procedures

Principle 14. Adequate consultation and participation in decision-making

Principle 15. Housing, land and property records and documentation

Principle 16. The rights of tenants and other non-ow ners

Principle 17. Secondary occupants

Principle 18. Legislative measures

Principle 19. Prohibition of arbitrary and discriminatory laws

Principle 20. Enforcement of restitution decisions and judg ments

Principle 21. Compensation

 

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Section VI

 

The role of the international community, including international organizations

Principle 22. Responsibility of the international community

 

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Section VII

 

Interpretation

Principle 23. Interpretation

 

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Applying The Pinheiro Principles: Selected Unresolved Restitution Cases

 

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AN INTRODUCTION TO ‘THE PINHEIRO PRINCIPLES’

This booklet contains the full text of an important new international standard which outlines the rights

of refugees and displaced persons to return not only to their countries when they see fit to do so, but to

their original homes and lands as well. The Pinheiro Principles are the culmination of more than a decade of

international and local activities in support of the emerging right to housing and property restitution as a core

remedy to displacement.

Though few experiences can be more harrowing than being forced by circumstance or desig n from one’s home,

every year many millions of people are left with no other option than fleeing their homes, lands and properties

against their will. Whether caused by armed conflict, genocide, ‘ethnic cleansing’ or large-scale violations of

housing, land and property rights carried out by governments, rebel g roups or others, displacement is always

nasty, always brutish, but all too rarely is it short.

Official statistics now point to more than 12 million refugees worldwide, with an additional 25 million internally

displaced persons (IDPs) dispersed in camps, slums and temporary shelters within the borders of their ow n

countries. This g roup of some 37 million people, however, is only part of the displacement dy namic facing the

world today. If we add to this total those forced from their homes by politically-motivated forced evictions,

development-induced displacement, natural disasters or other means, the actual number of the world ’s displaced

is proba bly closer to 50-60 million, if not considera bly more.

Some of the most serious problems facing displaced people around the globe are the loss of land, housing and

property rights during their displacement and the consequent ina bility to return to their original homes and

lands once they choose to voluntarily repatriate. For virtually all of the worlds displaced, their main wish is to

return to their original homes in safety and dig nity.

These issues are at the centre of the entire restitution equation; whatever its cause, displacement must always

be treated as a phenomenon in need of remedy and redress when those forced from their places of ha bitual

residence determine the time is right. The process of housing and property restitution provides this remedy within

a legally sound, coherent and practical framework which should bring displacement – and often its causes - to

a permanent, sustaina ble and just end.

People displaced by forces beyond their control should never face the prospect of losing their housing, land

or property rights simply because they were violently forced to leave or otherwise fled an insecure situation in

search of protection. And even when actual return and repossession is not considered safe, desira ble or possible

by the displaced themselves (for instance, when refugees choose to seek asylum, resettlement and permanent

residence in a safe third country), few displaced persons willingly renounce their rights to the places they called

home before fleeing, even if they have no intention of actually returning. Nor should they have to.

And yet, housing, land and property disputes between the displaced and those currently living without their

consent in their homes (the process of secondary occupation), inadequate legal protection and remedies for

returnees and a range of other problems often act as strong impediments to the exercise of the right to return and

related rights to housing and property restitution. Consequently, millions of refugees and displaced persons who

desperately want to return to their original homes are una ble to do so because restitution rights are not treated

with due seriousness by the relevant authorities and international actors in the countries concerned.

Ultimately, the concept of restitution provides a source of hope and a wellspring of potential justice. Restitution

offers the displaced the promise that a history of injustice, the a buse of basic rights, or terror and harassment

can actually, at least in this one important respect, be reversed. In what must be seen, then, as a major advance

within the global human rights code, this aspiration to recover and repossess the dwelling, land or property the

displaced called home when their displacement began, has emerged in recent years as a distinct and claima ble

right applica ble to all displaced persons who wish to invoke it. The broader right to voluntary, safe and dig nified

return is now understood to encompass not merely returning to one’s country of origin, but to one’s original

home as well. This is one reason, for instance, why UNHCR and other international and national agencies are now

paying g reater attention to the restitution elements of return than ever before.

 

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From General Concepts and National Laws to a Comprehensive Global Standard

Housing, land and property restitution rights for refugees and displaced persons are firmly g rounded within

the core principles of many fields of international law. As a legal concept, of course, restitution has been treated

as a central (and often preferred) remedy for violations of legal obligations within many jurisdictions for more

than a century. Innumera ble United Nations Security Council and General Assembly resolutions adopted over

the past 60 years explicitly address housing and property restitution rights. In recent decades, a range of

international human rights bodies and national institutions have reaffirmed the right of all refugees and IDPs to

return freely to their countries and to have restored to them housing and property of which they were deprived,

or to be compensated for property that cannot be restored to them. The recog nition throughout the international

community of the direct links between housing, land and property restitution and peace, sta bility, reconciliation

and economic development have bolstered support for the human rights remedies offered to the displaced by

restitution rights, which are now widely viewed as key elements of any constructive peace-building strategy.

In recent decades, in post-conflict contexts such as Bosnia-Herzegovina, Kosovo and Tajikistan; in postauthoritarian countries like South Africa or Iraq; and in post-communist countries including East Germany,

Latvia and Albania, restitution rights have been recog nised, and laws and procedures developed and enforced.

In the process millions of displaced people have been a ble to return to repossess and reinha bit their original

homes, lands and properties. While many factors may account for the emergence of these new global standards

on housing and property restitution rights, perhaps the convergence of national-level restitution prog rammes,

combined with a widening global awareness of the plight of those who have thus far been left behind in the pursuit

of restitution rights, were the key driving forces behind the adoption of the Pinheiro Principles in August 2005.

The actual process within the United Nations leading up to what finally became the Pinheiro Principles

was initiated in 1997 when the Committee on the Elimination of Racial Discrimination (CERD) proposed to the

Su b-Commission on the Promotion and Protection of Human Rights (the body that su bsequently endorsed

the Principles) to study “the return of refugees’ or displaced persons’ property.” In the following year, the

Su b-Commission made its first foray into the area of restitution rights, and adopted resolution 1998/26 on

Housing and Property Restitution in the Context of the Return of Rights for Refugees and Internally Displaced

Persons, effectively sig naling the Su b-Commission’s serious attention to the restitution issue as a fundamental

human rights concern. In 1999, the UN Commission on Human Rights encouraged the Su b-Commission to

continue its work on housing and property restitution in the context of the return of refugees and IDPs.

In 2001, the Su b-Commission brought the process one step further and requested Su b-Commission expert,

Paulo Sérgio Pinheiro, of Brazil, to prepare a working paper on the topic.

After appointing Pinheiro as Special Rapporteur on Housing and Property Restitution for Refugees and

Internally Displaced Persons in 2002, and then considering his preliminary study in 2003, the Su b-Commission

asked the Special Rapporteur to prepare draft principles or guidelines on housing and property restitution

based on the initial conclusions of the preliminary study. In 2004, Pinheiro presented a preliminary set of

principles to the Su b-Commission for consideration and review. After providing detailed inputs, the

Su b-Commission then requested him to present a final draft of the text in August 2005. Following an intensive

series of consultations with legal experts, UN agencies, States and civil society g roups during the intervening

year, the final text was presented to the Su b-Commission and formally endorsed on 11 August 2005.

The Pinheiro principles are desig ned to provide practical guidance to States, UN agencies and the broader

international community on how best to address the complex legal and technical issues surrounding

housing, land and property restitution. For the first time, the Principles provide a consolidated and

universal approach to dealing effectively with outstanding housing and property restitution claims.

They aug ment the international normative framework in the area of housing and property restitution rights, and

are g rounded firmly within existing international human rights and humanitarian law.

Sections II-IV of the Principles (Principles 2-10) re-affirm existing human rights and apply them to the

specific question of housing and property restitution. National policy-makers, UN and NGO officials and

others involved in the practical transformation of restitution rights from paper to deed, will find Sections VVI (Principles 11-22) of particular relevance. In these sections, the Principles ela borate what States should do in

terms of developing national housing and property restitution procedures and institutions, and ensuring access

to these by all displaced persons. They stress the importance of consultation and participation in decision-making

by displaced persons, and then outline approaches to technical issues of housing, land and property records,

 

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the rights of tenants and other non-ow ners and the question of secondary occupants. Legislative measures, the

prohibition of arbitrary and discriminatory laws, the enforcement of restitution decisions and judg ments and

the issue of compensation are then explored. Finally, Principle 22 discusses the responsibility of the international

community to protect housing and property restitution rights.

COHRE will be carrying out an extensive series of promotional, training, legal advocacy, litigation and support

activities in the near future based on The Pinheiro Principles, and looks forward to continuing to work together

with our partners throughout the world to bring the promise of restitution rights to refugees and displaced

persons every where. COHRE would like to express its deep appreciation to the Royal Ministry of Foreig n Affairs

(Norway), the Foreig n and Commonwealth Office (United Kingdom), the UN High Commissioner for Refugees

(UNHCR), the Office of Humanitarian Coordination and Assistance (OCHA) - Internal Displacement Division

(IDD), Cordaid and the Norwegian Refugee Council for their generous support for COHRE’s work on housing

and property restitution rights.

 

Scott Leckie

Executive Director, COHRE

Coordinator, Housing and Property Restitution Prog ramme

 

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UNITED NATIONS PRINCIPLES ON HOUSING AND PROPERT Y RESTITUTION FOR REFUGEES AND DISPL ACED PERSONS

 

THE PINHEIRO PRINCIPLES

 

PREAMBLE

Recog nizing that millions of refugees and displaced persons worldwide continue to live in precarious and

uncertain situations, and that all refugees and displaced persons have a right to voluntary return, in safety and

dig nity, to their original or former ha bitual homes and lands,

Underscoring that voluntary return in safety and dig nity must be based on a free, informed, individual choice

and that refugees and displaced persons should be provided with complete, objective, up-to-date and accurate

information, including on physical, material and legal safety issues in countries or places of origin,

Reaffirming the rights of refugee and displaced women and girls, and recog nizing the need to undertake positive

measures to ensure that their rights to housing, land and property restitution are guaranteed,

Welcoming the many national and international institutions that have been esta blished in recent years to ensure

the restitution rights of refugees and displaced persons, as well as the many national and international laws,

standards, policy statements, ag reements and guidelines that have recog nized and reaffirmed the right to

housing, land and property restitution,

Convinced that the right to housing, land and property restitution is essential to the resolution of conflict and

to post-conflict peace-building, safe and sustaina ble return and the esta blishment of the rule of law, and that

careful monitoring of restitution prog rammes, on the part of international organizations and affected States, is

indispensa ble to ensuring their effective implementation,

Convinced also that the implementation of successful housing, land and property restitution prog rammes, as

a key element of restorative justice, contributes to effectively deterring future situations of displacement and

building sustaina ble peace.

 

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SECTION I.

SCOPE AND APPLICATION

Principle 1.

 

Scope and application

1.1 The Principles on housing and property restitution for refugees and displaced persons articulated herein

are desig ned to assist all relevant actors, national and international, in addressing the legal and technical issues

surrounding housing, land and property restitution in situations where displacement has led to persons being

arbitrarily or unlawfully deprived of their former homes, lands, properties or places of ha bitual residence.

1.2 The Principles on housing and property restitution for refugees and displaced persons apply equally to all

refugees, internally displaced persons and to other similarly situated displaced persons who fled across national

borders but who may not meet the legal definition of refugee (hereinafter “refugees and displaced persons”)

who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of ha bitual

residence, regardless of the nature or circumstances by which displacement originally occurred.

 

SECTION II.

THE RIGHT TO HOUSING AND PROPERTY RESTITUTION

Principle 2.

 

The right to housing and property restitution

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or

property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/

or property that is factually impossible to restore as determined by an independent, impartial tribunal.

2.2 States shall demonstra bly prioritize the right to restitution as the preferred remedy for displacement and

as a key element of restorative justice. 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 housing,

land and property restitution.

 

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SECTION III.

OVERARCHING PRINCIPLES

Principle 3.

 

The right to non-discrimination

3.1 Everyone has the right to be protected from discrimination on the basis of race, colour, sex, language,

religion, political or other opinion, national or social origin, property, disa bility, birth or other status.

3.2 States shall ensure that de facto and de jure discrimination on the a bove g rounds is prohibited and that all

persons, including refugees and displaced persons, are considered equal before the law.

Principle 4.

 

The right to equality between men and women

4.1 States shall ensure the equal right of men and women, and the equal right of boys and girls, to housing,

land and property restitution. States shall ensure the equal right of men and women, and the equal right of boys

and girls, inter alia, to voluntary return in safety and dig nity, legal security of tenure, property ow nership, equal

access to inheritance, as well as the use, control of and access to housing, land and property.

4.2 States should ensure that housing, land and property restitution prog rammes, policies and practices

recog nize the joint ow nership rights of both male and female heads of the household as an explicit component

of the restitution process, and that restitution prog rammes, policies and practices reflect a gender-sensitive

approach.

4.3 States shall ensure that housing, land and property restitution prog rammes, policies and practices do not

disadvantage women and girls. States should adopt positive measures to ensure gender equality in this regard.

Principle 5.

 

The right to be protected from displacement

5.1 Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place

of ha bitual residence.

5.2 States should incorporate protections against displacement into domestic legislation, consistent with international human rights and humanitarian law and related standards, and should extend these protections to

everyone within their legal jurisdiction or effective control.

5.3 States shall prohibit forced eviction, demolition of houses and destruction of ag ricultural areas and the

arbitrary confiscation or expropriation of land as a punitive measure or as a means or method of war.

5.4 States shall take steps to ensure that no one is su bjected to displacement by either State or non-State actors.

States shall also ensure that individuals, corporations, and other entities within their legal jurisdiction or effective

control refrain from carrying out or otherwise participating in displacement.

 

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Principle 6.

 

The right to privacy and respect for the home

6.1 Everyone has the right to be protected against arbitrary or unlawful interference with his or her privacy and

his or her home.

6.2 States shall ensure that everyone is provided with safeguards of due process against arbitrary or unlawful

interference with his or her privacy and his or her home.

Principle 7.

 

The right to peaceful enjoyment of possessions

7.1 Everyone has the right to the peaceful enjoyment of his or her possessions.

7.2 States shall only su bordinate the use and enjoy ment of possessions in the pu blic interest and su bject to

the conditions provided for by law and by the general principles of international law. Whenever possible, the

“interest of society” should be read restrictively, so as to mean only a temporary or limited interference with the

right to peaceful enjoyment of possessions.

 

Principle 8.

 

The right to adequate housing

8.1 Everyone has the right to adequate housing.

8.2 States should adopt positive measures aimed at alleviating the situation of refugees and displaced persons

living in inadequate housing.

Principle 9.

 

The right to freedom of movement

9.1 Everyone has the right to freedom of movement and the right to choose his or her residence. No one shall

be arbitrarily or unlawfully forced to remain within a certain territory, area or region. Similarly, no one shall be

arbitrarily or unlawfully forced to leave a certain territory, area or region.

9.2 States shall ensure that freedom of movement and the right to choose one’s residence are not su bject to

any restrictions except those which are provided by law, are necessary to protect national security, pu blic order,

pu blic health or morals or the rights and freedoms of others, and are consistent with international human rights,

refugee and humanitarian law and related standards.

 

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SECTION IV.

THE RIGHT TO VOLUNTARY RETURN IN SAFETY AND DIGNITY

Principle 10.

 

The right to voluntary return in safety and dig nity

10.1 All refugees and displaced persons have the right to return voluntarily to their former homes, lands or places

of ha bitual residence, in safety and dig nity. Voluntary return in safety and dig nity must be based on a free,

informed, individual choice. Refugees and displaced persons should be provided with complete, objective, upto-date, and accurate information, including on physical, material and legal safety issues in countries or places

of origin.

10.2 States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands

or places of ha bitual residence to do so. This right cannot be a bridged under conditions of State succession, nor

can it be su bject to arbitrary or unlawful time limitations.

10.3 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 ha bitual residence. Refugees and displaced persons should be

a ble to effectively pursue dura ble solutions to displacement other than return, if they so wish, without prejudicing

their right to the restitution of their housing, land and property.

10.4 States should, when necessary, request from other States or international organizations the financial and/or

technical assistance required to facilitate the effective voluntary return, in safety and dig nity, of refugees and

displaced persons.

 

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SECTION V.

LEGAL, POLICY, PROCEDURAL AND INSTITUTIONAL IMPLEMENTATION MECHANISMS

Principle 11.

 

Compatibility with international human rights, refugee and

humanitarian law and related standards

11.1 States should ensure that all housing, land and property restitution procedures, institutions, mechanisms

and legal frameworks are fully compatible with international human rights, refugee and humanitarian law and

related standards, and that the right to voluntary return in safety and dig nity is recog nized therein.

Principle 12.

 

National procedures, institutions and mechanisms

12.1 States should esta blish and support equita ble, timely, independent, transparent and non-discriminatory

procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims.

In cases where existing procedures, institutions and mechanisms can effectively address these issues, adequate

financial, human and other resources should be made availa ble to facilitate restitution in a just and timely

manner.

12.2 States should ensure that housing, land and property restitution procedures, institutions and mechanisms

are age and gender sensitive, and recog nize the equal rights of men and women, as well as the equal rights of

boys and girls, and reflect the overarching principle of the “ best interests of the child ”.

12.3 States should take all appropriate administrative, legislative and judicial measures to support and facilitate

the housing, land and property restitution process. States should provide all relevant agencies with adequate

financial, human and other resources to successfully complete their work in a just and timely manner.

12.4 States should esta blish guidelines that ensure the effectiveness of all relevant housing, land and property

restitution procedures, institutions and mechanisms, including guidelines pertaining to institutional organization,

staff training and caseloads, investigation and complaints procedures, verification of property ow nership or other

rights of possession, as well as decision-making, enforcement and appeals mechanisms. States may integ rate

alternative or informal dispute resolution mechanisms into these processes, insofar as all such mechanisms act in

accordance with international human rights, refugee and humanitarian law and related standards, including the

right to be protected from discrimination.

12.5 Where there has been a general breakdow n in the rule of law, or where States are una ble to implement

the procedures, institutions and mechanisms necessary to facilitate the housing, land and property restitution

process in a just and timely manner, States should request the technical assistance and cooperation of relevant

international agencies in order to esta blish provisional regimes for providing refugees and displaced persons

with the procedures, institutions and mechanisms necessary to ensure effective restitution remedies.

12.6 States should include housing, land and property restitution procedures, institutions and mechanisms in

peace ag reements and voluntary repatriation ag reements. Peace ag reements should include specific

undertakings by the parties to appropriately address any housing, land and property issues that require

remedies under international law or threaten to undermine the peace process if left unaddressed, while

demonstra bly prioritizing the right to restitution as the preferred remedy in this regard.

 

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Principle 13.

 

Accessibility of restitution claims procedures

13.1 Everyone who has been arbitrarily or unlawfully deprived of housing, land and/or property should be

a ble to su bmit a claim for restitution and/or compensation to an independent and impartial body, to have a

determination made on their claim and to receive notice of such determination. States should not esta blish any

preconditions for filing a restitution claim.

13.2 States should ensure that all aspects of the restitution claims process, including appeals procedures, are

just, timely, accessible, free of charge, and are age and gender sensitive. States should adopt positive measures

to ensure that women are a ble to participate on a fully equal basis in this process.

13.3 States should ensure that separated and unaccompanied children are a ble to participate and are fully

represented in the restitution claims process, and that any decision in relation to the restitution claim of separated

and unaccompanied children is in compliance with the overarching principle of the “ best interests of the child ”.

 

13.4 States should ensure that the restitution claims process is accessible for refugees and other displaced persons

regardless of their place of residence during the period of displacement, including in countries of origin, countries

of asylum or countries to which they have fled. States should ensure that all affected persons are made aware of

the restitution claims process, and that information a bout this process is made readily availa ble, including in

countries of origin, countries of asylum or countries to which they have fled.

13.5 States should seek to esta blish restitution claims-processing centres and offices throughout affected areas

where potential claimants currently reside. In order to facilitate the g reatest access to those affected, it should

be possible to su bmit restitution claims by post or by proxy, as well as in person. States should also consider

esta blishing mobile units in order to ensure accessibility to all potential claimants.

13.6 States should ensure that users of housing, land and/or property, including tenants, have the right to

participate in the restitution claims process, including through the filing of collective restitution claims.

13.7 States should develop restitution claims forms that are simple and easy to understand and use and make

them availa ble in the main language or languages of the g roups affected. Competent assistance should be made

availa ble to help persons complete and file any necessary restitution claims forms, and such assistance should be

provided in a manner that is age and gender sensitive.

13.8 Where restitution claims forms cannot be sufficiently simplified owing to the complexities inherent in the

claims process, States should engage qualified persons to interview potential claimants in confidence, and in a

manner that is age and gender sensitive, in order to solicit the necessary information and complete the restitution

claims forms on their behalf.

 

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13.9 States should esta blish a clear time period for filing restitution claims. This information should be widely

disseminated and should be sufficiently long to ensure that all those affected have an adequate opportunity

to file a restitution claim, bearing in mind the number of potential claimants, potential difficulties of collecting

information and access, the extent of displacement, the accessibility of the process for potentially disadvantaged

g roups and vulnera ble individuals, and the political situation in the country or region of origin.

13.10 States should ensure that persons needing special assistance, including illiterate and disa bled persons, are

provided with such assistance in order to ensure that they are not denied access to the restitution claims process.

13.11 States should ensure that adequate legal aid is provided, if possible free of charge, to those seeking to make a

restitution claim. While legal aid may be provided by either governmental or non-governmental sources (whether

national or international), such legal aid should meet adequate standards of quality, non-discrimination, fairness

and impartiality so as not to prejudice the restitution claims process.

13.12 States should ensure that no one is persecuted or punished for making a restitution claim.

 

Principle 14.

 

Adequate consultation and participation in decision-making

14.1 States and other involved international and national actors should ensure that voluntary repatriation and

housing, land and property restitution prog rammes are carried out with adequate consultation and participation

with the affected persons, g roups and communities.

14.2 States and other involved international and national actors should, in particular, ensure that women,

indigenous peoples, racial and ethnic minorities, the elderly, the disa bled and children are adequately

represented and included in restitution decision-making processes, and have the appropriate means and

information to participate effectively. The needs of vulnera ble individuals including the elderly, single

female heads of households, separated and unaccompanied children, and the disa bled should be given

particular attention.

Principle 15.

 

Housing, land and property records and documentation

15.1 States should esta blish or re-esta blish national multipurpose cadastral or other appropriate systems for

the registration of housing, land and property rights as an integ ral component of any restitution prog ramme,

respecting the rights of refugees and displaced persons when doing so.

15.2 States should ensure that any judicial, quasi-judicial, administrative or customary pronouncement regarding

the rightful ow nership of, or rights to, housing, land and/or property is accompanied by measures to ensure

registration or demarcation of that housing, land and/or property as is necessary to ensure legal security of

tenure. These determinations shall comply with international human rights, refugee and humanitarian law and

related standards, including the right to be protected from discrimination.

 

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15.3 States should ensure, where appropriate, that registration systems record and/or recog nize the rights of

possession of traditional and indigenous communities to collective lands.

15.4 States and other responsible authorities or institutions should ensure that existing registration systems

are not destroyed in times of conflict or post-conflict. Measures to prevent the destruction of housing, land

and property records could include protection in situ or, if necessary, short-term removal to a safe location or

custody. If removed, the records should be returned as soon as possible after the end of hostilities. States and

other responsible authorities may also consider esta blishing procedures for copying records (including in digital

format), transferring them securely and recog nizing the authenticity of said copies.

15.5 States and other responsible authorities or institutions should provide, at the request of a claimant or his or

her proxy, copies of any documentary evidence in their possession required to make and/or support a restitution

claim. Such documentary evidence should be provided free of charge, or for a minimal fee.

15.6 States and other responsible authorities or institutions conducting the registration of refugees or displaced

persons should endeavour to collect information relevant to facilitating the restitution process, for example

by including in the registration form questions regarding the location and status of the individual refugee’s

or displaced person’s former home, land, property or place of ha bitual residence. Such information should be

sought whenever information is gathered from refugees and displaced persons, including at the time of flight.

15.7 States may, in situations of mass displacement where little documentary evidence exists as to ow nership or

rights of possession, adopt the conclusive presumption that persons fleeing their homes during a given period

marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to

housing, land and property restitution. In such cases, administrative and judicial authorities may independently

esta blish the facts related to undocumented restitution claims.

15.8 States shall not recog nize as valid any housing, land and/or property transaction, including any transfer

that was made under duress, or which was otherwise coerced or forced, either directly or indirectly, or which was

carried out contrary to international human rights standards.

 

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Principle 16.

 

The rights of tenants and other non-owners

16.1 States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate

occupants or users of housing, land and property are recog nized within restitution prog rammes. To the maximum

extent possible, States should ensure that such persons are a ble to return to and repossess and use their housing,

land and property in a similar manner to those possessing formal ow nership rights.

 

Principle 17.

 

Secondary occupants

17.1 States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction.

States shall ensure, in cases where evictions of such occupants are deemed justifia ble and unavoida ble for

the purposes of housing, land and property restitution, that evictions are carried out in a manner that is

compatible with international human rights law and standards, such that secondary occupants are afforded

safeguards of due process, including an opportunity for genuine consultation, adequate and reasona ble notice,

and the provision of legal remedies, including opportunities for legal redress.

17.2 States should ensure that the safeguards of due process extended to secondary occupants do not prejudice

the rights of legitimate ow ners, tenants and other rights holders to repossess the housing, land and property in

question in a just and timely manner.

17.3 In cases where evictions of secondary occupants are justifia ble and unavoida ble, States should take positive

measures to protect those who do not have the means to access any other adequate housing other than that

which they are currently occupying from homelessness and other violations of their right to adequate housing.

States should undertake to identify and provide alternative housing and/or land for such occupants, including

on a temporary basis, as a means of facilitating the timely restitution of refugee and displaced persons’ housing,

land and property. Lack of such alternatives, however, should not unnecessarily delay the implementation and

enforcement of decisions by relevant bodies regarding housing, land and property restitution.

17.4 In cases where housing, land and property has been sold by secondary occupants to third parties

acting in good faith, States may consider esta blishing mechanisms to provide compensation to injured third

parties. The eg regiousness of the underlying displacement, however, may argua bly give rise to constructive

notice of the illegality of purchasing a bandoned property, pre-empting the formation of bona fide property

interests in such cases.

 

17

 

Principle 18.

 

Legislative measures

18.1 States should ensure that the right of refugees and displaced persons to housing, land and property restitution

is recog nized as an essential component of the rule of law. States should ensure the right to housing, land and

property restitution through all necessary legislative means, including through the adoption, amendment,

reform, or repeal of relevant laws, regulations and/or practices. States should develop a legal framework for

protecting the right to housing, land and property restitution which is clear, consistent and, where necessary,

consolidated in a single law.

18.2 States should ensure that all relevant laws clearly delineate every person and/or affected g roup that

is legally entitled to the restitution of their housing, land and property, most nota bly refugees and displaced

persons. Su bsidiary claimants should similarly be recog nized, including resident family members at the time of

displacement, spouses, domestic partners, dependents, legal heirs and others who should be entitled to claim on

the same basis as primary claimants.

18.3 States should ensure that national legislation related to housing, land and property restitution is internally

consistent, as well as compatible with pre-existing relevant ag reements, such as peace ag reements and voluntary

repatriation ag reements, so long as these ag reements are themselves compatible with international human

rights, refugee and humanitarian law and related standards.

 

Principle 19.

 

Prohibition of arbitrary and discriminatory laws

19.1 States should neither adopt nor apply laws that prejudice the restitution process, in particular through

arbitrary, discriminatory, or otherwise unjust a bandonment laws or statutes of limitations.

19.2 States should take immediate steps to repeal unjust or arbitrary laws and laws that otherwise have a

discriminatory effect on the enjoyment of the right to housing, land and property restitution, and should ensure

remedies for those wrongfully harmed by the prior application of such laws.

19.3 States should ensure that all national policies related to the right to housing, land and property restitution

fully guarantee the rights of women and girls to be protected from discrimination and to equality in both law and

practice.

 

18

 

Principle 20.

 

Enforcement of restitution decisions and judg ments

20.1 States should desig nate specific pu blic agencies to be entrusted with enforcing housing, land and property

restitution decisions and judg ments.

20.2 States should ensure, through law and other appropriate means, that local and national authorities are

legally obligated to respect, implement and enforce decisions and judg ments made by relevant bodies regarding

housing, land and property restitution.

20.3 States should adopt specific measures to prevent the pu blic obstruction of enforcement of housing, land

and property restitution decisions and judg ments. Threats or attacks against officials and agencies carrying out

restitution prog rammes should be fully investigated and prosecuted.

20.4 States should adopt specific measures to prevent the destruction or looting of contested or a bandoned

housing, land and property. In order to minimize destruction and looting, States should develop procedures to

inventory the contents of claimed housing, land and property within the context of housing, land and property

restitution prog rammes.

20.5 States should implement pu blic information campaig ns aimed at informing secondary occupants and other

relevant parties of their rights and of the legal consequences of non-compliance with housing, land and property

restitution decisions and judg ments, including failing to vacate occupied housing, land and property voluntarily

and damaging and/or looting of occupied housing, land and property.

Principle 21.

 

Compensation

21.1 All refugees and displaced persons have the right to full and effective compensation as an integ ral

component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply

with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of

restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation

in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution

and compensation.

21.2 States should ensure, as a rule, that restitution is only deemed factually impossible in exceptional

circumstances, namely when housing, land and/or property is destroyed or when it no longer exists, as determined

by an independent, impartial tribunal. Even under such circumstances the holder of the housing, land and/or

property right should have the option to repair or rebuild whenever possible. In some situations, a combination

of compensation and restitution may be the most appropriate remedy and form of restorative justice.

 

19

 

SECTION VI.

THE ROLE OF THE INTERNATIONAL COMMUNITY, INCLUDING INTERNATIONAL ORGANIZATIONS

Principle 22.

 

Responsibility of the international community

22.1 The international community should promote and protect the right to housing, land and property restitution,

as well as the right to voluntary return in safety and dig nity.

22.2 International financial, trade, development and other related institutions and agencies, including member

or donor States that have voting rights within such bodies, should take fully into account the prohibition against

unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and

related standards on the practice of forced evictions.

22.3 International organizations should work with national Governments and share expertise on the development

of national housing, land and property restitution policies and prog rammes and help ensure their compatibility

with international human rights, refugee and humanitarian law and related standards. International organizations

should also support the monitoring of their implementation.

22.4 International organizations, including the United Nations, should strive to ensure that peace ag reements

and voluntary repatriation ag reements contain provisions related to housing, land and property restitution,

including through the esta blishment of national procedures, institutions, mechanisms and legal frameworks.

22.5 International peace operations, in pursuing their overall mandate, should help to maintain a secure and

sta ble environment wherein appropriate housing, land and property restitution policies and prog rammes may

be successfully implemented and enforced.

22.6 International peace operations, depending on the mission context, should be requested to support the

protection of the right to housing, land and property restitution, including through the enforcement of restitution

decisions and judg ments. Members of the Security Council should consider including this role in the mandate of

peace operations.

22.7 International organizations and peace operations should avoid occupying, renting or purchasing housing,

land and property over which the rights holder does not currently have access or control, and should require that

their staff do the same. Similarly, international organizations and peace operations should ensure that bodies or

processes under their control or supervision do not obstruct, directly or indirectly, the restitution of housing, land

and property.

 

20

 

SECTION VII.

INTERPRETATION

Principle 23.

 

Interpretation

23.1 The Principles on housing and property restitution for refugees and displaced persons shall not be interpreted

as limiting, altering or otherwise prejudicing the rights recog nized under international human rights, refugee

and humanitarian law and related standards, or rights consistent with these laws and standards as recog nized

under national law.

 

21

 

APPLYING THE PINHEIRO PRINCIPLES: SELECTED UNRESOLVED RESTITUTION CASES

Millions of refugees and displaced persons are currently struggling to exercise their rights to housing and property

restitution, but are actively prevented from doing so. In some cases, Governments very consciously and explicitly

prevent return and restitution by annulling property titles, adopting new laws desig ned to quash restitution

claims and by placing citizens (often from other ethnic, religious and other g roups favoured by those in power)

within the homes and upon the lands from which refugees and displaced persons fled. In other instances,

such as unresolved or still active territorial and other conflicts, the lack of economic options availa ble in areas

of potential return or lingering security concerns may be responsible.

The following cases illustrate just how extensive the problem of unresolved restitution claims is throughout the

world, and provide examples of situations where applying the Pinheiro Principles may provide a constructive

means of facilitating their just resolution.

Afghanistan

Ongoing land disputes, illegal land confiscations of returnee lands, unclear ow nership rights, dual legal

systems (customary and modern), landlessness, land shortages, discrimination against women, and the

prevailing lack of effective restitution procedures have left hundreds of thousands of returnees una ble to return

to their original lands.

Azerbaijan

More than 525,000 ethnic Azeri IDPs, forced to flee their homes and lands during the 1992-1994 conflict over

Nagorno-Kara bakh, remain displaced. A further 200,000 ethnic Azeris who fled Armenia have been offered

naturalization within Azerbaijan. Both g roups retain as yet unresolved housing and property restitution claims to

their original homes.

Bhutan

Some 105,000 Bhutanese refugees have lived for almost two decades in refugee camps in eastern Nepal. Many

were arbitrarily stripped of their nationality prior to their expulsion from Bhutan. The Government of Bhutan

refuses to allow the refugees to return to their original homes, and recent reports indicate that many refugee

homes and lands have been allocated by the Government to secondary occupants.

Burundi

More than 200,000 IDPs are dispersed throughout Burundi, while 100,000 refugees have returned to the country

since 2003, primarily from neighbouring Tanzania. The large-scale returns, combined with the large number of

IDPs, have led to dramatic increases in the price of land, land disputes and related tensions which have prevented

the exercise of housing and property restitution rights.

Colombia

Some 3 million persons have become internally displaced in Colombia due to the ongoing armed conflict between

Government armed forces, left-wing guerrilla g roups, and right-wing paramilitary organizations. Another

250,000 have fled to nearby Ecuador, Venezuela and Panama. Colombia’s displaced often reside in the informal

slums and shantytow ns which surround many of Colombia’s major cities – most nota bly Bogotá, Medellín, Cali

and Cartagena.

Croatia

More than 100,000 ethnic Serb refugees are una ble to return to their original homes in Croatia due to a

combination of unwilling ness by the authorities in Croatia to remove secondary occupiers from refugee homes

and legislation that effectively excludes Serbs from accessing Government housing repair prog rammes, despite

the fact that thousands of Serb homes were damaged or destroyed as a result of the conflict in the 1990s.

 

22

 

Cy prus

The Turkish invasion of Cy prus in 1974 led to the forced displacement of more than 170,000 Greek Cypriots from the

northern part of the island to the South, while a smaller number of Turkish Cypriots, some 45,000, fled northwards.

Vocal demands for the restitution of housing and property have ensured that this remains a major political issue

in the country. Many analysts view the proposed arrangements within the draft peace accords addressing these

restitution claims as a key reason for the massive rejection of the peace plan in the 2004 referendum.

DR Congo

Though as many as 700,000 IDPs may have returned to their areas of origin in recent years, DR Congo still has

one of the world ’s largest internally displaced populations with over 1.5 million IDPs living in extremely poor

conditions. Dual land systems, ina bility to access courts to recover property and the occupation of IDP land by

secondary occupants continue to prevent sustained return and restitution.

Iraq

Some 37,000 housing and property restitution claims from those displaced between 1968-2003 have been

su bmitted to the Iraq Property Claims Commission (IPCC). The vast majority of claimants are Kurds from northern

Iraq (75%), with additional claims su bmitted by Turkmen and Ara b minorities. According to various reports,

however, the IPCC has been hampered by understaffing and lack of resources. Of the claims su bmitted thus far,

only 600 cases have been adjudicated and over 150 appeals have been filed.

Kosovo (UNMIK /Serbia & Monteneg ro)

Although the Housing and Property Directorate in Kosovo, which is administered by the UN Mission in Kosovo,

has issued decisions on some 28,000 of the 29,000 restitution claims it has received, with 40% of these decisions

already implemented, more than 200,000 Kosovar Serbs remain displaced within so-called safe enclaves in

Kosovo, or in Serbia & Monteneg ro. Thousands of Kosovo’s Roma community remain displaced throughout the

region, often forced to live in appalling conditions in slums and municipal waste dumps.

Liberia

Up to 500,000 IDPs within Liberia continue to live in poor conditions in camps, squatter settlements and remote

areas throughout the country. Despite the 2003 peace ag reement, many displaced are prevented from returning

home due to land disputes, unequal access by women to inheritance rights, the lack of housing in their areas of

origin, continuing insecurity, insta bility and the lack of economic opportunities.

Myanmar (Burma)

Nearly 500,000 refugees from Myanmar (Burma) continue to reside in border camps and in urban areas in

Thailand. An additional 1,000,000 IDPs are estimated to remain displaced within the country. Forced relocations

carried out by Government troops have particularly targeted the various ethnic g roups in the East and South of

the country. Land confiscations, the intentional destruction of villages and the denial of customary land rights

have all contributed to the displacement crisis in the country.

Palestine (Israel)

In what is by far the world ’s largest unresolved housing, land and property restitution problem, some five million

Palestinian refugees retain valid restitution claims over their original homes and lands from which they have been

expelled since 1948. These rights have been repeatedly re-affirmed by UN Security Council and General Assembly

resolutions. Virtually all Palestinian refugees still possess title deeds, keys, photog raphs and other documentary

evidence proving their rights to their original homes. Similar information is kept on file at the UN Headquarters in

New York. Many experts ag ree that there can be no prospect of a worka ble peace ag reement between Israel and

the Palestinians until all outstanding housing and property restitution issues are properly addressed.

Sri Lanka

More than two decades of civil war in Sri Lanka between Government forces and the Liberation Tigers of Tamil

Eelam have led to large-scale displacement, with some 350,000 conflict IDPs still una ble to return home. Detailed

proposals for the esta blishment of a housing and land commission to resolve outstanding restitution claims of the

displaced are currently under consideration by the parties to the conflict.

 

23

 

Sudan

The conflict ravaging Sudan has generated the world ’s largest internally displaced population and has created

what the UN has called the worst humanitarian situation in the world. An estimated six million people have fled

their homes to escape fighting between Government troops, the Sudan People’s Liberation Army and several

smaller militia g roups alig ned with the Government. The crisis in Darfur alone has resulted in the deaths of at

least 50,000 people, and left some 1.6 million left homeless. Despite a peace ag reement ending the conflict in

southern Sudan, the lack of restitution mechanisms, emerging land disputes, discrimination against women

and non-recog nition of customary rights are all preventing many returnees from returning to their original

homes and lands.

Tibet (China)

Approximately 100,000 Tibetan refugees reside in tow ns and settlements throughout India, while a further

25,000 refugees live in exile in Nepal. Though the immediate likelihood of return to Tibet by the refugees is

remote, the refugees retain housing and property restitution rights to their former homes and lands in areas now

under Chinese jurisdiction, which they were forced to flee since 1959.

Tsunami-Affected Nations in South and Southeast Asia

In Sri Lanka the devastating tsunami of 26 December 2004 destroyed 80,000 homes and displaced one million

people. Almost a year later, as many as 500,000 remain displaced. In Indonesia, the tsunami displaced over

500,000 people in Aceh, while in India, 150,000 people were left homeless. Thousands more were similarly

affected in Thailand, the Maldives, Myanmar (Burma) and elsewhere. The Pinheiro Principles are applica ble in

this and other post-disaster contexts and may be used to support the rights of the displaced to voluntarily return

to the land on which they originally lived.

Turkey

Two million (or more) Kurds who were forcibly relocated or who otherwise fled the violent conflict

in Kurdish areas of the country during the 1980s and 1990s, remain internally displaced within Turkey. Despite

numerous judg ments by the European Court on Human Rights seeking to enforce the housing and property

rights of the displaced, most have not been a ble to return to their original homes and lands due to severe

restrictions imposed by local military officials, the occupation of IDP lands by ‘village guards’ and general fear of

discrimination and insecurity.

Uganda

More than 1,300,000 IDPs are now sheltering in some 200 camps, villages and cities throughout Uganda,

fleeing fighting between the Ugandan Army and rebels of the Lord ’s Resistance Army. Until the conflict ends, the

prospects for sustained return and restitution remain distant.

Western Sahara

Nearly 100,000 refugees from Western Sahara are confined to four camps in Algeria. Displaced for three

decades, the refugees continue to retain restitution claims to their former homes, lands and properties which

will not likely be resolved until a permanent peace settlement between Western Sahara and Morocco is reached.

 

24

 

Only by dealing upfront with restitution can wars and conflicts come to a permanent end.

- Theo Van Boven 1

 

1

 

From the foreword to Retur ning Home: Hou sing and P roper ty Restitution Rights of Refugees

and Displaced Persons, (Scott Leckie, ed), Transnational Pu blishers, 2003.

 

The Centre on Housing Rights and Evictions (COHRE) is an independent and international non-governmental,

not-for-profit human rights organisation. COHRE is an NGO with Special Consultative status to the Economic

and Social Council of the United Nations (ECOSOC), the Organisation of American States, observer status with

the African Commission on Human and People’s Rights and participatory status with the Council of Europe.

COHRE is registered as a not-for-profit foundation or Stichting in the Netherlands (No. 41186752) and in the United

States as a 501 (c)(3) not-for-profit organisation. COHRE is also registered in Australia, Brazil and Ghana.

COHRE’s International Secretariat is based in Geneva, Switzerland, from where it oversees COHRE’s global housing

rights campaig ns and manages its regional and thematic prog rammes. Regional prog rammes currently cover

Africa, the Americas and the Asia-Pacific region, while thematic prog rammes focus on Women and Housing

Rights, Forced Evictions, Litigation, the Right to Water, and Housing and Property Restitution.

COHRE’s Housing and Property Restitution Prog ramme

Since 1998 COHRE’s Housing and Property Restitution

Prog ramme (HPRP) has worked closely with gover nments,

UN bodies, NGOs, community-ba sed g roups and refugees

and IDPs to systematically address the immense housing,

land and property restitution challenges facing refugees

and IDPs in numerous post-conflict and post-disa ster

settings. Three key activities define the HPRP’s work:

Promoting Restitution - The HPRP ha s desig ned laws,

mechanisms, institutions and prog rammes to support

restitution claims by displaced persons in Albania, Georgia,

Iraq, Kosovo, Sri Lanka, and Timor Leste. Additional

restitution efforts have been carried out in or concer ning

Bhutan, Guatemala, the Maldives, Myanmar (Bur ma),

Palestine/Israel and Serbia & Monteneg ro. COHRE is

regularly called on by UNHCR, UN-Ha bitat, UNDP, OCHA and

other UN agencies for policy and legal advice on restitution

is sue s .

 

Research - The HPRP has produced more than ten

pu blications, including Retur ning Home: Housing and

Property Restitution Rights of Refugees and Displaced

Persons, pu blished by Transnational Pu blishers in 2003.

Volumes 2 and 3 of Retur ning Home will be pu blished

by Transnational and Cambridge University Press,

respectively. The HPRP recently completed a Proposed

New UN Institutional and Policy Framework on Housing,

Land and Property Rights in Post-Conflict Societies.

A comparative sur vey of UN peace operations and their

involvement in housing, land and property rights issues

will be pu blished in 2007.

Training - The HPRP regularly provides in-depth and

practical training on housing and property restitution

issues to refugee and IDP g roups, NGOs and gover nment

officials.

For further infor mation on the HPRP, please contact:

restitution@cohre.org

 

Centre on Housing Rights and Evictions

COHRE International Secretariat

83 rue de Montbrillant

1202 Geneva

Switzerland

Tel: + 41 22 734 1028

Fax: + 41 22 733 8336

Email: cohre@cohre.org

 

www.cohre.org

 

Source
ITEP webstie (archive)

Record updated on : 04 July 2012
Record id : 9789