Information Bulletin: Housing Rights The Right to Return and Restitution - Issue I: November 2006
Return and Restitution… IDPs were adopted with clear indication of the Awaiting Peace?1 rights and guarantees that displaced persons
T
he internal displacement caused by the recent resumption of hostilities in the North and East of Sri Lanka has far reaching humanitarian consequences.2 The problems of the recently displaced contribute to already existent and unaddressed problems of those who were displaced prior to the 2002 Cease Fire Agreement (CFA), and those displaced by the Tsunami. The humanitarian and protection concerns surrounding the displaced are increasingly more complex and include – severe shortage of food, shelter and other basic needs; the breakdown of community structures; polariasation of ethnic groups and intense physical and mental stress. The immediate focus, in view of the on – going hostility and recurrent displacement, is the provision of adequate and accessible humanitarian aid, and measures to better coordinate relief efforts between government and aid agencies. It is also necessary however, to focus on a long term strategy and plan that is better able to contain and redress the problem of displacement itself. It is important to consider in this regard, whether it is relevant to frame a strategy for addressing internal displacement without a peaceful solution to the conflict and whether a peaceful settlement is a pre – condition to resolving displacement. The more important consideration however, is whether there are adequate institutional, legal and policy mechanisms to address the problems of displacement in the event there is political or legal space within which it is possible to do so. This article attempts to bring to the attention of government and all those working with internal displacement, the urgent need to initiate a process of identifying long term solutions to internal displacement in terms of rights and remedies, which have a basis in international law. Internally displaced persons (IDPs) have until recently been relatively ignored by the international community where policy standards are concerned. It is only recently that a set of guiding principles on the treatment of
are entitled to. The Pinheiro Principles,3 adopted in August of 2005, articulate distinct remedies4 for housing and property restitution of displaced persons and refugees. They adopt a rights based approach to seeking durable solutions to displacement. With the adoption of these principles it is apparent that there is a clear shift in dealing with displacement at the international level, from a purely humanitarian approach to a more rights based approach that seeks to achieve restorative justice. The Pinheiro Prinicples (hereinafter referred to as ‘the principles’) are invaluable to both national and international policy making that attempts to address the question of – how may displacement be brought to an end.
“...It is also necessary however,
to focus on a long term strategy and plan that is better able to contain and redress the problem of displacement itself...
”
The principles outline two emerging human rights, namely the rights to return and restitution, which find their basis in other internationally recognised human rights. Both return and restitution are to be understood in terms of long term solutions that remedy displacement. More importantly, these two concepts are articulated as two distinct rights which must be available to the displaced. The right to restitution is in essence a component of the right to return, as it would not be possible for displaced persons to return to their original habitations unless there is a programme of restitution in place to ensure, among other things, - adequate housing, livelihood requirements and a safe environment to return to. Thus, the concept of restitution is a holistic one and includes a
Centre on Housing Rights and Evictions
host of considerations in order that persons are restored to their former lives. While the rights based approach has often been articulated as being unrealistic and without concrete points of reference, the principles contain standards that have derived from international and local activism. Thus these standards are not formulations in the abstract, but reflect a universal standard derived from instances in which the remedies of return and restitution have been implemented. It is encouraging that in Sri Lanka, the fundamental rights jurisprudence of the Constitution was utilized in the test case of Senathirajah vs. Minister of Defence and Others5 to articulate the rights of IDPs to return to their original homes and lands. The petitioner in this case was refused permission to return to his property, on the basis that the property was situated within the Palalay High Security Zone. The petitioner was forced to vacate his lands due to military action, but alleged that the demarcation of the above zone was arbitrary and unlawful. While there was no specific reference to the right to return, a breach of several of the fundamental rights in the Constitution were relied upon to recognize that the petitioner was deprived of his right to return and take possession of his property.6 While this case is still pending, the court has undertaken to monitor the return of persons displaced by the demarcation of the security zone, according to conditions laid down by the court. Thus, this case has given implicit recognition to the rights of return and restitution where displacement may be remedied by a process where the petitioners are allowed to return and be restored to their original property. It is to be noted however, that the right to return, as in the above case is to be exercised voluntarily by the returnees, without any coercion to return and must be based as far as possible on accurate and up to date information of the conditions of return.7 Given below are a few reasons that highlight the importance of initiating a
Contact – Ms. Rasika Mendis (Attorney at Law, LLM), Research and Policy Officer, Centre on Housing Rights and Evictions, Sri Lanka The total displaced by the recent hostilities are approximately 200,000, as per data collected from the field by the UNHCR The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons, E/CN.4/ Sub.2/2005/17 4 See below for further discussion on remedies. 5 SCFR Application 646/2003 6 The order relevant to this paper was made on 8th May 2006 7 See principle 10 of the Pinheiro Principles (Supra note 3) 1 2 3
Housing Rights for Everyone, Everywhere
coherent policy and strategy for restitution and return, which is able to secure adequate and long term remedies for displacement in Sri Lanka:
Restitution - a preferred remedy to resettlement and compensation
It is internationally recognized that restitution is the preferred remedy to displacement, and has been articulated as such by the principles. Most displaced persons languishing in make shift shelters, welfare camps and host families in Sri Lanka would also prefer to be restored to their former homes and lives. There is a distinct need therefore to give adequate recognition to restitution as a right in Sri Lanka, as it has been done in other conflict areas of the world. Restitution being the preferred remedy, the option of resettlement and compensation is to be explored where actual restitution may not be possible. While resettlement is a more viable option to those who been displaced for long periods of time, the international standards of best practice (articulated by the principles) does not preclude persons who choose to resettle from being restored to their original property at a later point in time. In view that there are at present initiatives to formulate resettlement policy for IDPs,8 it is hoped that resettlement of persons (with host communities and in separate geographical locations) are within a framework of restitution, in order that where it is possible and is the preferred option of the displaced, persons may avail of these rights and remedies. The principles articulate the right to full and effective compensation as an integral component of the restitution process. This is again an alternative remedy to restitution where restitution is not possible. Most often the appropriate course of action is to combine restitution with compensation, in order that the displaced are able to rebuild their homes and properties and be restored to their former lives.
A rights based approach to policy and procedure
There is currently very little policy coherence where conflict IDPs are concerned. The recent Tsunami housing policy was a step forward in the right direction in attempting address restitution rights of a category of displaced persons; but in view that the civil conflict has spanned over 20 years, conflict IDPs have been relatively neglected. There is a distinct need for a coherent restitution policy to address the housing and property concerns of the displaced. Such a policy must be clear on the long term policy objectives
of housing for the displaced. The principles establish a standard, among other things, for a restitution policy that is compatible with standards of international human rights and humanitarian law. Institutions and agencies working with IDPs require clear policy guidance that takes into account the rights of displaced persons. Such a policy must be facilitative of equitable, timely, independent, transparent, and non – discriminatory procedures as required by the principles. The above requirement necessitates that other relevant rights (such as land rights, right to livelihood) is not viewed purely from a legalistic point of view, but from a point of policy that facilitates equitable and timely solutions to displacement. Other jurisdictions have also attempted to formulate policies by which the right to restitution is given adequate recognition and restitution claims are processed effectively, as in the case of Albania.
Necessary institutional structures and mechanisms
The regular institutional structures of the State may not be adequate to address the multi – faceted issues arising from restitution claims. It has been the case in other jurisdictions to appoint special and impartial bodies (usually restitution commissions) to determine restitution claims and oversee restitution procedure. The current institutions dealing with land and housing rights of IDPs in Sri Lanka are ad hoc and fragmented both in terms of subject matter and the geographical areas under their purview. For instance, the judicial and quasi – judicial authorities dealing in land rights require different procedural requirements depending on whether the land under consideration is state or private land. There is also some obscurity concerning the institutional mandates of the central ministries involved. The Ministries in charge of rehabilitation and resettlement activities of IDPs vary in different geographical areas. Despite the relative scale of displacement within the country, no distinct authority has overall responsibility for IDPs. There is a need for an institutional structure that has the capacity and skill to address multi faceted problems inherent in restitution claims, possibly in conjunction with existing authorities and agencies. The principles specify standards for institutions and restitution procedures that are independent, impartial and accessible to the displaced. The significance of such an independent and impartial authority does not in any way negate the importance of building on the capacity and resources of state institutional structures, which possess
The National Human Rights Commission of Sri Lanka is currently in the process of working on a National Resettlement Policy for all categories of IDPs in Sri Lanka. 9 As in where ethnic minorities living in a particular geographical location are subject to displacement by various methods, such as intimidation and threats of genocide. 8
the authority to implement determinations arising from restitution claims.
Conclusion
It is a feature all over the world that land has a variety of political connotations attached to it. Taking possession of land and property is a means to establishing political authority and wielding political power over groups of persons. Displacement often leads to the polarisation of ethnic groups, ethnic disharmony, and new power structures based on ethnicity.9 In such instances, a programme of restitution driven by individual rights, rather than the rights of ethnic groups, has proved to be an effective, impartial and equitable solution to displacement. Other jurisdictions have implemented programmes of restitution in conditions of post conflict peace building as well as during the progression of hostilities. It is important to learn from other country experiences, bearing in mind that a programme of restitution in no two situations can be the same, and may require a unique strategy that is able to address the particular issues and problems of the local context. This may include measures such as drafting restitution laws, to establishing restitution commissions. Identifying durable solutions to displacement requires a clear perspective of the rights to return and restitution. The realisation of these two rights necessitates that suitable legal, institutional and policy mechanisms are identified and constructed in the immediate term. The Centre on Housing Rights and Evictions (COHRE) is committed to working on a policy for the housing and property restitution of IDPs. COHRE is currently in the process of establishing a working group, consisting of agencies working in related areas. It is our intention to formulate a policy that gives due recognition to return and restitution as the preferred remedy to displacement, and which endorses internationally recognised standards of best practice as is suitable to the Sri Lankan context. COHRE is also committed to facilitating other policy efforts in the areas of housing and property restitution and return. We look forward to any contributions/ comments by interested parties/ agencies/ institutions.
Centre on Housing Rights and Evictions 106 1/1, Horton Place,Colombo 7, Sri Lanka Email: srilanka@cohre.org Tel: +94 11 2693143 www.cohre.org