Housing, Land and Property

International Law on Housing, Land and Property Rights

Housing, land and property (HLP) rights are about people having a home, free from the fear of forced eviction – a place that offers shelter, safety and the ability to secure a livelihood. In post-conflict situations, respecting legitimate pre-war HLP rights is of the utmost importance. Such rights can be held by owners, tenants, cooperative dwellers, customary land tenure owners and users, and informal dwellers without secure tenure, who have been displaced or forced to flee.

International law on HLP is based on covenants and conventions, customary international law, UN resolutions, international declarations, principles and guidelines, and various regional frameworks. HLP rights can be classified into two groups: general rights and those that apply specifically in post-conflict situations. Since the early 1990s humanitarian organisations have been drawing attention to the importance of HLP rights in providing durable solutions for internally displaced people (IDPs) and refugees.

Apart from human rights, international HLP law also deals with states’ obligations and responsibilities, as well as the duties of non-state actors, including business enterprises.

Relevance

Identifying the legitimate HLP rights holders who have been displaced or forced to flee from armed conflict, and returning their HLP assets to them, rank among the biggest challenges of post-conflict reconstruction. In addition, where people displaced from other locations have settled in a historic city centre, the rights of such secondary occupants also have to be respected. While these settlers do not have any local HLP rights, they still have rights to adequate housing somewhere.

Given that the restitution of property rights is a national issue, actors wishing to support the reconstruction of historic city centres need to take action at national, city and neighbourhood level.

In the absence of acceptable national policies and legal conditions, any intervention exclusively at local level entails the risk of favouring the party that prevailed in the conflict, and negating the legitimate rights belonging to others.

Users and target audience

The main users of international HLP law in a post-conflict situation should be the national government institutions responsible for organising the return of refugees and IDPs, and for planning and managing reconstruction. It would be these institutions’ responsibility to give consideration to, and apply, the HLP principles acknowledged and agreed upon by the international community.

Where a state party has not signed relevant conventions or agreements, or refuses to apply their provisions because of diverging political interests, it is the role of the international community to make a case for the application of basic HLP principles and rights. The main actors in this context are the relevant UN organisations, such as UNHCR, IOM and UN-Habitat, and aid donors, who can make their engagement in reconstruction conditional upon the application of HLP rights. Non-governmental organisations supporting refugees and IDPs, and other champions of restorative justice and reconstruction based on human rights can also play an important role in promoting HLP rights.

Approaches and instruments

The Pinheiro Principles outline the UN principles on housing and property restitution for refugees and displaced persons. Guidance on implementing the principles are contained in the Handbook on Housing and Property Restitution for Refugees and Displaced Persons.

In addition, the Global Protection Cluster provides essential HLP guidance and tools on its website. The HLP Coordination Toolkit contains a set of key tools for coordinating the HLP wyckhamporteous.org response in emergencies. It is available in English and French, and aims specifically to support country-level HLP coordination mechanisms.

From an operational perspective, the actions and approaches described below can also promote the application of HLP rights in the context of recovering and restoring urban cultural heritage.

Documentation of pre-conflict HLP rights

HLP rights existing in historic city centres should be assessed as early as possible, initially by examining and documenting all pre-war legitimate HLP rights and their holders.

As a general rule, official land registers are not reliable sources of information because pre-war documents may have been destroyed or falsified.

Information is best gathered from IDPs and refugees living in camps or communities in other countries. Even those who left home without documents can, by way of personal testimony, be a primary source of the information required not only to document their claims, but also to establish their rights once the conflict has been resolved by a political solution.

Information can also be furnished by international, grassroots and local non-governmental organisations that are supporting reconstruction or otherwise engaging with local neighbourhoods. They may not have access to HLP data, but often accumulate information about the individuals and families who formerly lived in the relevant areas.

HLP rights should be documented on the basis of pre-war maps and/or satellite images, and the pre-war names of streets, squares, parks etc. should be used.

HLP rights in peace agreements

The best way of ensuring that HLP rights are given adequate consideration when historic city centres are being reconstructed is to make provision for them in peace agreements. In particular, at least the following HLP-related rights should be included in these agreements:

Refugees and IDPs’ rights to return voluntarily in safety and dignity
Everyone’s right to freedom of movement, to choose their residence, to participate fully and equally in public affairs, and to have equal access to public services
Equal rights to the restitution of property
Right to full, effective and prompt compensation – only as a last resort if restitution is impossible
Equal rights to adequate housing
Protection from arbitrary and unlawful displacement and forced eviction

These rights should be underpinned by additional provisions on programmes, procedures and mechanisms governing the process of return and restitution. These should define at least:

Bodies and procedures for identifying, verifying and processing restitution claims
Bodies, procedures and financial mechanisms for handling compensation
Programmes to ensure adequate housing

Supporting HLP dispute resolution mechanisms

In view of the lack of trust in the state and its institutions in many post-conflict situations, it is important to establish dispute resolution bodies that can deal with HLP claims.

These may be local authorities or other traditional agencies that are trusted by the people, and in particular by returning refugees and IDPs. State parties would need to ensure that the decisions of these bodies are legally recognised and enforced, with oversight from international organizations where needed. Such bodies should generally be temporary, and their functions limited to war-related HLP claims.

Promotion of HLP rights without a peace agreement

If the peace agreement does not provide for the restoration of rights, actors supporting the reconstruction of historic city centres can nonetheless push for such restitution as follows:

Making financial and technical support conditional on the restitution of all formerly privately held HLP assets to their legitimate pre-war owners, tenants or other legitimate occupants.
Promoting a moratorium on sales, concessions and leases of public HLP assets in historic city centres pending clarification as to whether the state or public authority claiming ownership acquired them without violating any human rights.

Avoiding gentrification

Even if restitution initially takes place, there remains a risk that some people may be either unable to return or driven out again later. These circumstances typically arise if restoration and improvement of the urban landscape conforms to middle-class taste while alienating the original residents, either because of public policy – displacement and/or eviction justified by urban planning goals or excessive formal building standards, or through the abuse of market forces – exemplified by increasing rents and the cost of services, or even general living costs.

Successful reconstruction therefore requires instruments to limit gentrification and speculation, as well as mechanisms to protect the original legitimate HLP asset owners against the adverse effects of manipulative increases in housing, land and property prices. Action also has to be taken to ensure that planning and building standards are not misused as instruments of displacement or ethnic cleansing.

A distinct and sometimes large group of people warranting special protection are secondary occupants. These can be new legal owners, whose original home has been requisitioned by one of the fighting parties or temporarily occupied by people displaced from elsewhere. Although such displaced persons do not hold any HLP rights in the area, they have a general right to adequate housing which needs to be respected.

Mostar: Right of return and property restitution

The 1995 Dayton Peace Agreement gave refugees and IDPs in Bosnia and Herzegovina the ‘right to return’ and ‘the right to have restored to them the property of which they were deprived in the course of hostilities since 1991, and to be compensated for any property that cannot be restored’. A comprehensive strategy for property repossession was established in 1999 and applied by way of an interagency Property Law Implementation Plan (PLIP) that was supervised by the OHR, OSCE, UNHCR and CRPC. The PLIP was largely completed by late 2006.

In this process more than 200,000 claims were filed for the repossession of housing, property and tenancy rights. More than 94% of the claims were accepted.

In view of this outcome, Bosnia and Herzegovina is seen as a good example of how to address the complex property rights issues that arise after a prolonged conflict. The property law regime upheld the principle of restoring rights that existed prior to forcible migration. It set the rights of returnees above any occupancy rights that accrued later. In particular, local authorities could not deny the tenancy rights attached to apartments in social ownership, even if the tenants did not intend to return or were assumed to have abandoned their flats for reasons other than the war.

Compensation was not considered an option, partly because of a lack of funding, but also in order to avoid legitimising the ethnic cleansing that took place during the conflict. In the absence of compensation, the only option for displaced persons and refugees was to apply for repossession and reconstruction of their pre-war homes.

In the city of Mostar, this treatment of refugees, IDPs and returnees by the administration and the international donor community attracted criticism from some of those who had stayed in the city during the war. Although their houses had also been destroyed as well, they received less support.

Thanks to the restitution policy, the historic central zone of Mostar, where comprehensive ethnic cleansing occurred during the conflict, once again became an ethnically mixed area. Joint administration of the central zone by Bosnians and Croatians, however, proved difficult. In addition to the enormous financial resources required to repair physical damage, political reconciliation was a major challenge. Many of the apartment buildings had been inhabited by Bosnian and Croatians before the conflict, for example, but even after the successful restitution process, the two dominant Bosnian and Croatian nationalist political parties showed little interest in reconstructing these buildings because that would have entailed sharing the benefits with their ethno-national opponents.

Moreover, international donors investing in the reconstruction of Mostar’s historic city centre seldom supported the rebuilding of apartment blocks, but for a few exceptions on the main boulevard. They focused their attention on reconstructing basic technical and social infrastructure, and eventually the Old Bridge.

Although the principle of comprehensive property restitution prevailed, both the return of those who had fled and social reconciliation remained problematic. In May 2016, more than seven years after completion of the restitution process, the Institution of Ombudsman for Human Rights of Bosnia and Herzegovina reported that current and potential returnees were pointing to the numerous difficulties being faced on a daily basis – entire families were unemployed and being denied their rights to health care, disability pensions, social assistance and the like. The position of the Serbs in Mostar and Herzegovina-Neretva was described as extremely difficult; they lacked the fundamental requirements of a constituent people and were unable to share the fate of all citizens and to have an arranged and dignified life. Among the other highlighted shortcomings were the absence of the material resources required to continue with the renewal of Mostar, and a lack of political will, communication and cooperation.