COHRE Newsletter 10th Edition - 2009

COHRE-NEWS

N ews l e t t er o f t he C en t re on H o u sin g R i g h t s an d E v ic t ions - S ri Lan k a

Issue No.10 – April/June 2009

Protecting the Housing Rights of IDPs in the North:

applying past experiences from return, relocation1 and restitution schemes

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by Mr. Todd Wassel, South Asia Projects Coordinator, Centre on Housing Rights and Evictions

t is estimated that there are over 600,000 IDPs in Sri Lanka2, of which 270,000 have been displaced in the recent military campaign between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) in the Northern Province. Approximately 250,000 others were returned or relocated, following the Government’s military control of the Eastern Province, between 2007 and the present. The return and relocation that occurred in the East offers lessons, both negative and positive, on the critical issues that must be addressed if the housing rights of IDPs in the North are to be respected, and if all IDPs, both recent and long term, are to find durable solutions to displacement.

The end of military conflict does not spell the end of displacement, and if handled incorrectly land disputes can quickly lead to renewed conflict. The political and socio-economic complexities associated with displacement require a well-defined policy and programme to effectively address the problems associated

Currently, the Ministry of Resettlement and Disaster Relief is leading an initiative to establish an IDP resettlement policy. COHRE appreciates the Government of Sri Lanka’s commitment to such a policy. However, it is noted by COHRE that there is still much that needs to be done by the Government to ensure that a policy is adopted and implemented effectively in order to protect and promote the housing, land and property (HLP) rights of IDPs. Substantial planning must occur to ensure the human rights of IDPs are respected beyond the humanitarian phase, and the return and restitution of those displaced are carried out in a safe and dignified manner.

Recent announcements by the Government indicate plans are underway to return as many IDPs as possible by the end of 2009. Speed should not be the primary consideration in any return phase and an adequate HLP rights framework must be incorporated into any return and resettlement programme.

Without the protection of HLP rights, IDPs

EDITORIAL In this tenth edition of the COHRE - News, the front page highlights, protecting the Housing Rights of IDPs in the North: lessons learned from return and relocation in the East by Mr.Todd Wassel, South Asia Projects Coordinator, Centre on Housing Rights and Evictions.

Next there is an article by Mr. Herman Kumara -Convener, National Fisheries Solidarity Movement on Development Induced Displacement at Oluvil Harbour Site in Ampara District, Sri Lanka.

This article is followed by a brief summary of the new Praja Abhilasha and PPD publication: “Land Issues of Sri Lanka”.

This article is followed by an article which outlines the pramount importance of a rights based policy framework at the national level for that is able to specifically address Housing, Land and Property Restitution of persons displaced by the civil conflict in Sri Lanka by Ms. Rasika Mendis, Research and Policy Officer – Centre on Housing Rights and Evictions.

Finally there is a brief summary of a consultation which was organized by the Women and Housing Rights Programme of the Centre on Housing Rights and Evictions on 1st June 2009.

We hope you find this Newsletter useful in understanding the rights and problems faced in Sri Lanka and internationally on the right to housing. We welcome any comments, submission of any new case notes and articles and relevant events on the right to housing.

If you have any comments, require additional copies, or wish to subscribe to the mailing list for the Quarterly Newsletter on HLP-rights in Sri Lanka or for further information, please contact COHRE office, located at 106 1/1 Horton Place, Colombo 7. Sri Lanka. Telephone/Fax +94.11.2693143 or e-mail srilanka@cohre.org.

Editor - Nilanka Nanayakkara

with displacement and ensure that vulnerable groups’ human rights are respected and protected. Unfortunately, such a policy did not exist during the return phase in the East and it is uncertain whether one will be ready for implementation in the North.

can become more vulnerable to other forms of human rights abuses, including gender based violence, discrimination, inadequate housing, restrictions on freedom of movement, and inadequate water and sanitation, among others.

Based on extensive surveys by COHRE in the East with IDPs and returnees, and in line with Sri Lanka’s international human rights obligations the Government of Sri Lanka and international aid agencies should prioritise the following key areas in order to ensure and protect the HLP rights of conflict IDPs in the North during and after return to their homes and lands:

Housing Rights for Everyone, Everywhere...

1. Return and Restitution: After the cessation of hostilities national authorities have the primary duty and responsibility to facilitate the rebuilding of the lives of those displaced. Authorities must allow for the voluntary return of IDPs by providing them with accurate information about their areas of residence and making sure that those areas are safe for return. IDPs should never be forced to leave transitional camps if they feel the environment is unsafe or that there are inadequate housing options upon return.

Providing the conditions for a safe and dignified return also requires restitution, which should restore displaced persons as far as possible back to their original situations before the original displacement occurred. Restitution3 includes (amongst others) just and equitable compensation for the rebuilding of damaged homes as well as enabling the displaced to re-establish their previous livelihoods (e.g. rehabilitating business assets and agricultural land) or providing training for new forms of income generation. Return without restitution can never provide a complete durable solution to displacement.

In the East many families agreed to return on the condition that they would receive a permanent house. In many instances families have been waiting in temporary shelters on their lands for over one year, with many unable to access their traditional forms of livelihoods. Government officials in the area acknowledged that there was not sufficient funding secured for rebuilding houses before returns were initiated and were still seeking such funds.

Lessons Learned 1: Confusion and mistrust can spread quikly due to misinformation and the lack of transparency. No returns should occur against the will of IDPs. Independent monitors should be present during all returns and relocations, and IDPs should be provided with signed documents indicating timelines and benefits.

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Compensation schemes should be fully funded before displaced persons return to ensure funds are available immediately so that returnees are not subject to greater housing and food insecurities. These compensation schemes should adhere to realistic and timely implementation plans so that all affected persons are able to enjoy these benefits without prejudice, and are not subject to inequities that result from undue delay and political prioritisation.

Timelines should be developed so that IDPs know when they can expect help and can

judge for themselves if they are willing to wait for assistance in their former lands or someplace else.

2. Participation, consultation and non-discrimination: Special effort must be made to ensure the full participation of affected persons in the planning and management of their own return and restitution. Participatory, transparent and accountable structures should be developed to ensure that former residents, and especially the poorer residents, benefit from the rebuilding of homes and that their lands are not seized illegally by others. At the same time, the whole community should be consulted and infrastructure repairs and upgrades should benefit everyone so that inequities are not created which can lead to or exacerbate inter-communal tensions.

In the East there were many reported instances of IDPs agreeing to return based on incorrect information regarding timelines for rebuilding their destroyed homes. In other isolated cases IDPs were forced to return even if they wanted to remain at the IDP camp, and in other cases forcefully relocated to new transition camps. In certain other instances IDPs have been prevented from returning to their former lands due to formal and informal high security zones (HSZ) as well as planned development projects. The lack of transparency has fuelled fears and suspicions of colonization that have the potential to lead to instability and violence.

Lessons Learned 2: With respect to principles of ‘due procedure’ and transparency, all HSZs should be formally announced in writing, approved by the President’s Office, officially gazetted and posted publicly for affected families.

Adequate compensation and alternative housing should be provided for all affected persons. HSZs should be of limited duration and permanent land acquisition should follow established processes in accordance with the National Involuntary Resettlement Policy, the Land Acquisition Act and other laws. The Government should ensure that affected persons have clear access to judicial remedies and that land and property is returned to original owners as quickly as possible.

No development projects should be planned in HSZs and should only be carried out in full compliance with all domestic laws in consultation with IDPs, preferably after IDPs have been returned to their lands, providing for access to legal remedies.

3. Right to adequate housing and security of tenure: In view that conflict often destabilizes housing and living conditions, affected families should be provided access to adequate and affordable housing as promptly as it is possible. If a damaged house is uninhabitable, affected persons should be provided with adequate temporary shelter until repairs can be completed.

Security of tenure should be provided for all affected people, including vulnerable groups such as those from informal settlements who may not have title to the land they occupied. Attempts to resist the return of displaced persons to informal settlements or to declare the areas uninhabitable would constitute a constructive forced eviction, which is illegal under international human rights law.

In the East, and after the Tsunami many families were left with no documented assurance that they would receive a house, or be able to remain on lands for which they had no official documentation.

Beneficiary lists were kept with the Grama Niladaris and the District Secretaries, with no provision for security of tenure included in the agreement between aid agencies- who were building the housesand local government officials, who would release the houses to the beneficiaries.

Thus many families to whom permanent housing has been promised have still not received deeds and titles, and at times the process has resulted in the loss of benefits for vulnerable persons.

Lessons Learned 3: All beneficiaries should receive a certified letter detailing their entitlements and where their names are indicated on the beneficiary list. Those without title to land should be prioritized

4. Women’s and children’s rights Women and children require special attention and protection during displacement and after return due to their higher vulnerability to sexual and genderbased violence, and higher need for health services and reproductive health. Women and children are also vulnerable to the loss of property rights either through exploitation or policies that favour males.

Consultation and participation should be accessible to and include women and children at all levels. Government agents should establish clearly who holds title to the land and property before financial compensation is given and ensure that

beneficiary lists match with ownership records. After the Tsunami many women lost the rights to their properties as State allocated land only allows for one signature. Special care should be taken not to use the term “head of the household” on any legally binding forms as the tendency is for the husband to sign even in instances where the wife is the original title holder.

Many children also lost their rightful inheritances after the Tsunami, as policies and procedures focused on adult ownership and compensation without developing systems to identify orphaned children and prioritize their housing and land rights.

Lessons Learned 4: The term “head of the household” should not be used on compensation forms, beneficiary lists or any other forms that could inadvertently dispossess women of their legal property. In cases where families come from informal settlements where ownership titles do not exist, both husband and wife should be given the opportunity to share the compensation equally (or jointly own a new house).

Special procedures should be developed to identify, consult and advise orphaned children on their housing, land and property rights. In these ways women will not be excluded from their housing and property rights, nor will children lose title to their land through a lack of attention to their inheritance rights.

5. Documentation and property issues Lack of documents can lead to the denial of property rights, access to health care, education and other essential public services. Authorities should ensure the prompt registration of any lost documentation. In cases where residents may not have formal evidence of land ownership, or documents have been destroyed, authorities must establish easy to access mechanisms that ensure no one is rendered homeless.

In the East, and especially after the Tsunami, many people are yet to receive official grants and permits for State allocated lands. In other instances families have been waiting for over one year to receive replacement documents for their private property titles. The delay has ignited many fears of land grabbing and distrust of government structures and intentions.

In other instances owners of tsunami houses have sold their houses against the conditions of their grant. The new owners are often unaware of these restrictions and that legally they are not entitled to the house.

Lessons Learned 5: Dedicated mobile legal aid units should be created to handle property claims with access to legal remedies provided when necessary. Special care should be made to educate beneficiaries on their legal position with regards to State land permits and grants and the nature of their entitlement to take possession of and occupy the relevant lands.

6. Secondary Occupation Secondary occupants are persons who take up residence in a home or on land after the legitimate owners or users have fled due to, inter alia, forced displacement, forced eviction, violence or threat of violence, and present an impediment to return for displaced persons. Secondary occupation is common to all post conflict situations and care must be made to not only protect the rights of the original inhabitants but also protect secondary occupants against homelessness, unreasonable eviction or any other human rights violation.

In the East many instances of secondary occupation are due to the occupation of houses and public buildings by the security forces. In other instances civilians have encroached on lands and utilized the prescription ordinance to claim adverse possession and title against the original owner. There are significant challenges for alleviating secondary occupation in the North due to the ethnically motivated displacement of Muslims over 16 years ago.

As effective measures are yet to be taken in the East to remedy secondary occupation (by either civilians or the security forces) the following lessons learned are drawn from international best practices.

Lessons Learned 6: An independent and impartial land council should be established to hear cases of secondary occupation. The council should be empowered to take decisions regarding principle ownership of lands as well as have the power (and budget) to compensate secondary occupants so that they do not become homeless. To prevent the regularisation of ethically motivated displacement, the Prescription Ordinance should be quickly amended to allow for the exceptional circumstance of forced displacement4.

Secondary occupation by the security forces of housing and land should end as soon as the immediate security need for it has ceased to exist. Instances of current secondary occupation should be based on necessity, recorded by the Government Agent and the military, and

the owner(s) of the house or land should be able to claim a fair rent for the use of the premises until they are allowed to return. Alternative adequate housing and livelihoods should be provided, without prejudice to the owner’s right to return and restitution.

Conclusion

Housing, land and property rights are often overlooked due to their complexity and the tendency to focus only on the immediate humanitarian need. However, HLP rights are fundamental to ensuring a successful and sustainable recovery process and the prevention of renewed conflict. Without a stable family unit with access to adequate housing, recovery will not be possible in the long run as insecurity will prevail and returnees will be vulnerable to a host of other human rights abuses.

The Government is obligated, with the assistance and the expertise of I/NGOs and international agencies, to ensure that return and restitution programmes address key human rights concerns. With over 600,000 IDPs the Government of Sri Lanka faces an enormous task of finding durable housing solutions for its displaced population. A coherent policy and plan for return and restitution is urgently needed to address the complex socio-economic issues facing almost 3% of Sri Lanka’s population and to help build and consolidate peace.

The above housing, land and property rights issues are just of a few of the concerns that must be addressed to adequately protect IDPs in Sri Lanka from human rights violations. COHRE has produced two new publications on recommendations for a return and restitution policy in Sri Lanka and on high security zones as barriers to effective return and restitution. Both publications are forthcoming and will include and elaborate on some of the concepts and principles detailed above.

The term “resettlement” is used by international human rights law and the Government of Sri Lankan to mean the exact opposite effect. The Government of Sri Lankan uses the term to mean: “the return to one’s original home and lands”; while the accepted international usage means: “the movement to a home and land different from where one was originally displaced.”

To bridge these differences and to avoid further confusion this article will use the following definitions: Return: “the movement of displaced persons back to their original home and lands.”

Relocation: “the movement of displaced persons to a new location that is not their original home or land.”

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Figures for IDPs have been gathered from a variety of sources including UNHCR, OCHA, CHAP, government agencies, and independent fact finding missions. Accurate figures are difficult to determine, however, it is generally agreed that the actual number of IDPs is greater than 600,000 persons.

3 According to the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law, restitution includes, “…as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence, restoration of employment and return of property.”

4 The Law Commission has already proposed relevant amendments to the Prescription Ordinance and they are in the process of being endorsed.

However, it is unclear how long this process will take, and if approved how far back the amendments will cover.

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Development Induced Displacement at Oluvil Harbour Site in Ampara District, Sri Lanka Fifty three persons face eviction from their homes and cultivation lands in Ampara District due to the construction of the Oluvil Port Development Project being carried out under the guidance of the Minister of Port, Aviation Irrigation & Water Management.

The proposed Oluvil Port Development Plan comprises the construction of a commercial port and a basin for fishing crafts. The Port will be located at Oluvil on the east coast of Sri Lanka, 8 km north of Akkaraipatthu and 17km south of Kalmunai.

The project, which had been discussed for a long time period, has recently commenced, due to the “Negenahira Nawodaya” which was launched for the expedited development of the Eastern region of the Sri Lanka. The project is reportedly being financed by Danish Government.

The land rights network Praja Abhilasha conducted a fact finding mission in March 2009 to assess the level of housing rights violations of some families due to the project.

Praja Abhilasha found that the Government had acquired the residential land and cultivation fields of 29 persons in Palamuani and 24 persons in Oluvil for the harbour construction. Out of the 29 families in Palamunai, only one person possessed a deed, nine persons have government permits, and others have letters which were issued by the local mosque and the justice of the peace.

The Grama Niladari rejected certification of their entitlement documents on the basis that they were encroachers. As a result, these families have not received any relocation assistance from the government.

During the fact finding mission the community stated that the relevant authorities have failed to grant an equitable remedy for them even though they registered their grievances and have been living on the land for several decades.

The communities stated that the following actions would be effective and fair remedies to address their grievances: • Compensation for the people who lost their lands and the livelihoods due to the project; • Reasonable resettlement program for the victims, including women; • The principle of right to equality should be adhered to among all the displaced communities; and

• Prevent forced evictions without consultation and consent of the potential victims.

During discussion some of the victims explained their vulnerable situations: “We have been living here for decades and we developed this barren land by our own strength. Now, we need to leave this place and nobody cares about our situation. We were forced to vacate the area and there is no other alternative. Even though some people have received compensation we have been neglected on the basis that we do not have legal entitlement to the land. That is impossible; I have my papers which were issued by the Divisional Secretary. So, why should we not be entitled for compensation for our lands, our cultivations, our homes?” -M B F“If we loose the coastal land, it is not only land we loose but also our traditional fishing grounds, our access to water, and our livelihoods. We will loose everything in our life. We heard that the government has paid the compensation for the beach seine owners and operators, though most of us got nothing” -A D A C“We will not give up the fight till we get a just solution for our problem. We lost our land, our jobs, our customary rights and our culture of fishing.” -SWithout proper protection of housing, land and property (HLP) rights, these families have become more vulnerable to other forms

of human rights abuses, including limiting their right to work, right to remedy and right to adequate housing.

It is noted by COHRE that, forced eviction, or the removal of people from their homes and lands against their will, and without access to remedies, is recognized as a gross violation of international human rights law. Those affected by forced evictions often belong to the poor and marginalized sections of society, and their lives usually become even harder after a forced eviction.

As a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Government of Sri Lanka is legally obligated to respect the right to adequate housing, including the prohibition on forced evictions, as guaranteed under Article 11(1) ICESCR, for everyone within Sri Lanka. According to General Comment No. 7 of the Committee on Economic, Social and Cultural Rights, which is mandated to monitor compliance with the Covenant, forced evictions can only be justified in very rare and exceptional circumstances and even then must occur in the context of specific procedural and due process protections.

According to international human rights law, for evictions to be considered as lawful, they may only occur in very “exceptional circumstances” and “all feasible alternatives” must be explored. If and only if such “exceptional circumstances” exist and there are no feasible alternatives, can evictions be deemed justified.

However, in those rare cases where eviction is considered justified, it must be carried out in strict compliance with international human rights law and in accordance with general principles of reasonableness and proportionality. The relevant principles include: • Genuine consultation affected;

with

those

• Adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; • Provision of legal remedies; and • Provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

This article encapsulates some of the issues that came up during the fact finding mission conducted by Mr. Herman Kumara in the Ampara District. For more information on this article, please contact - Herman Kumara, Convener, National Fisheries Solidarity Movement, No.10, Malwatta Road, Negombo.

Sri Lanka. hermankumara@gmail.com, fishmove@slt.lk

Furthermore, forced evictions shall not result in rendering individuals homeless or vulnerable to the violation of other human rights. Indeed, the Government is obligated to ensure that adequate alternative housing and compensation for all losses is made available to affected persons.

A new publication from Praja Abhilasha & People to People Dialogue (PPD) Praja Abhilasha (“People’s Aspirations”) is a network member of the Presbyterian Church’s (USA) international program, Joining Hands. Nine networks in various countries around the world were formed to study grassroots issues of hunger and poverty in their respective countries, gather interested community based groups around these issues, and form a people’s based campaign to work for sustainable change in the country. Praja Abhilasha was formed shortly after the tsunami, in November, 2005 in Sri Lanka.

The network is comprised of twenty-two community groups, including fisheries, women, labourers, and tea estate workers.

As a network, we have decided to study and build a campaign around the land issues of Sri Lanka, with a focus on displacement.

To help ensure the housing, land and property rights of thousands of vulnerable

people, Praja Abhilasha decided to construct a systematic approach to organize the people for a campaign around these issues, based on clear evidence, facts and figures.

human elephant conflict, security of tenure issues and other natural disasters.

To order your free English, Sinhalese or Tamil copies please contact: Francis Raajan, Praja Abhilasha’s Local Coordinator at fraajan@gmail.com or Praja Abhilasha’s Companionship Facilitator, Chenoa Stock at chenoas@gmail.com

Praja Abhilasha identified six key issues of displacement, and carried out an islandwide research in collaboration with a network of associations including Praja Abhilasha Network and People to People Dialogue (PPD), Professor L.M. Abeywickrama, head of the Socio Economic Department of the Faculty of Agriculture at the University of Ruhuna wrote the research report “Land Issues of Sri Lanka”, which was launched on the 30th of June 2009, in Colombo, Sri Lanka.

The report inter alia reviews six key displacement issues of the island, including development projects, tsunami, war,

National Policy for the Restitution of Displaced Persons

by Ms. Rasika Mendis Research and Policy Officer, Centre on Housing Rights and Evictions- Sri Lanka The end of the civil conflict in May of 2009 hails the beginning of peace and much hope for rehabilitation and reconciliation in Sri Lanka. Foremost among the communities of concern are persons who have been displaced, both internally and across national borders. Displacement is an inevitable feature of all civil conflicts and wars. In Sri Lanka, patterns of displacement have varied over the duration of the conflict which has spanned almost 30 years. In

certain instances, displacement has been protracted over time periods of more than ten years; in others it has been sporadic and of short term duration, while some have seen successive and recurrent displacement. The complexities associated with displacement, whether it is protracted or sporadic and recurrent, are immense and touches on the very core of one’s socio - economic and civil life and the future prospects of development and well being. Some of the more prominent issues associated with displacement pertain to personal security, property, land and livelihoods.

Adequately resolving displacement will require specific policy provisions that outline the fundamental basis on which the different circumstances of displacement are addressed. There is currently no comprehensive policy that takes a holistic approach to addressing displacement and to bringing conditions of displacement to an end. In this regard, COHRE has worked to promote the ‘rights to return and restitution’ as the basis on which a holistic policy for ending displacement may be founded.

Restitution is a legal remedy by which persons who have suffered loss are returned to their pre – loss position. In the context of displacement, it refers to a process by which the indignity and loss that has been suffered during displacement is remedied, and displaced persons are returned to their pre – displacement lives as far as it is practicably possible. The right of all displaced persons to return to their original lands cannot be effectively realised in a sustainable manner unless the right to restitution is simultaneously realised and implemented.

The above rights are universally recognised as a natural progression of the realisation and implementation of human rights which are often violated in the course of conflict.

For instance, those who are involuntarily deprived of their housing are entitled to an adequate house based on the human right to adequate housing, in the course of having their normal pre – displacement lives restored to them.

While restitution is a holistic concept and extends to all aspects of a displaced person’s life, COHRE’s work has emphasised Housing, Land and Property Restitution (HLPR).

Housing is an integral component of durable and sustainable solutions to displacement.

The Tsunami Housing Policy (THP) formulated in the aftermath of the Tsunami natural disaster in December 2004 comprises the only explicit national policy in Sri Lanka that addresses housing restitution following large scale displacement. While the THP is not directly applicable to the restoration of conflict affected housing, the policy positions contained therein may provide useful policy precedents for addressing HLPR in a context of conflict induced involuntary displacement. Some of the salient features of the policy are the following: • the policy position of a ‘house for a house’ regardless of ownership; • community participation in the restoration process; • equity between beneficiaries; • the use of owner driven housing schemes; • the formulation of minimum standard specifications for housing for use by all projects and programmes involved in the restoration of permanent housing; and • guidelines for those without documentation who were occupying or encroaching on state and private lands to secure redress for the loss of housing.

Prior to the tsunami however, various programmes, projects and institutional measures initiated made provision for housing restitution. They include - large scale donor supported development programmes such as the Emergency Rehabilitation and Reconstruction Programme (ERRP – I) implemented between 1988 and 1996, which made allocations for compensation and relief measures, for housing grants, production enterprise grants and settling in allowances; the institution of the Rehabilitation of Persons, Properties and Industries Authority

(REPPIA) in 1987, with a mandate to assist persons affected by ‘riot or civil unrest’ provided for the implementation of a Unified Assistance Scheme which includes financial grants for temporary and permanent housing assistance and compensation; the North – East Housing Reconstruction Programme (NEHRP) implemented on a project basis and funded by the World Bank for the reconstruction of housing for low – income families affected by the conflict. The NEHRP project is implemented on established criteria for the selection of beneficiaries and vulnerable groups.

A notable development in the overall policy framework relating to displacement was the ‘triple R framework’ initiated in 1999, which sets out a ‘policy and strategy framework’ for relief, rehabilitation and reconstruction of the North and East. The triple R framework was designed to address the deteriorating conditions of the resettlement and rehabilitation process at the time, and was integrated within the Government’s Framework for Poverty Reduction, issued in the year 2000. A notable feature of the Triple R is that it incorporates for the first time, a human rights dimension into a policy framework affecting displacement.

The policy positions adopted include a commitment to the application of international humanitarian law, recognition of the rights of displaced persons to protection, liberty, security of the person, to return, resettlement and integration, and the adherence to transparent procedures and uniform standards. The guiding ‘standard’ for the policies articulated in the triple R was the United Nations Guiding Principles on Internal Displacement (or the ‘Deng Principles’).

Thus, there is substantial policy precedent on the basis of which a HLPR policy framework that is relevant to the particular context of displacement in Sri Lanka can be adopted, which endorses the precepts and standards of humanitarian and human rights law. A rights based approach to policy formulation is supported by the endorsement of fundamental rights jurisprudence in Chapter III of the Constitution of Sri Lanka.

While the rights to return and restitution and human rights that are supportive of these rights are not specifically articulated in the Constitution of Sri Lanka, the fundamental rights contained in the Constitution, such as the right to equality and non – discriminatory treatment provides an overarching framework and impetus for a rights based approach to policy formulation. Further, Sri Lanka is signatory to many of the Covenants that articulate civil and political rights and

socio – economic rights, on which the rights to restitution and return are grounded.

In addition to the Deng Principles, the United Nations Principles on Housing and Property Restitution for Internally Displaced Persons and Refugees (the Pinheiro Principles), formulated in 2005 provides a framework of standards which are relevant to a rights based approach to HLPR policy formulation and a programme of implementation. These standards have been developed based on the study and experience of different contexts of displacement around the world. The principles outline a set of standards that are applicable irrespective of the context, for the realisation and implementation of the rights to return and restitution. The challenge is to incorporate and apply these standards in national policy, in a manner that is relevant to the context of Sri Lanka. The applications of these standards are important to ensure that the rights of displaced persons are addressed and remedied through a process of return and HLPR. The right to return cannot be fully realised without due regards to an equitable and timely process of HLPR, by which displaced persons are able to be restored to their houses, lands and properties.

Following the establishment of government control of the East in early 2007, the Government of Sri Lanka initiated a programme of “resettlement” to return and reintegrate displaced persons to their homes and lands. The term ‘resettlement’ in this context refers to the process which is referred to in international parlance as ‘return’. Displaced persons, upon return to their places of origin, are entitled to a resettlement package of financial and non – financial assistance and are usually referred to as ‘returnees’. The financial package is intended to assist in carrying forward a process of post – return reintegration.

COHRE designed and implemented a fact finding programme in 2007 – 2008 with a view to making an assessment of the above resettlement programme from a perspective of the international standards of HLPR articulated in the Pinheiro Principles. The principle objective of this exercise was to identify gaps and issues in the process that fall short of the standards required to implement a rights based programme of restitution, and to make policy recommendations for a

national policy framework that is in keeping with these universal standards. Some of the overarching policy issues that follows:

were apparent are as

• The need for clear indicators and benchmarks for bringing displacement to an end: in certain instances, displaced persons who have returned to their original locations continue to live in conditions of displacement. While some have received the resettlement package, others have not. Permanent housing programmes are yet to be implemented.

There is no guarantee that those who have returned are living under conditions that are sustainable and durable over time. A guarantee of sustainable return and restitution would require relevant administrative procedures that are able to monitor a process of bringing displacement to an end; • Sufficient access to information and an adequate process by which displaced persons are empowered to actively participate in decisions that affect HLPR and their post – displacement lives: informed participation is ‘key’ if there is to be an effective amelioration of conditions that hinder progress and development.

Displaced persons need to have as much information as is available of the conditions of return, so that they are better prepared to re – establish themselves to their pre – loss lives, without being overly dependent on different institutional entities for their well being and progress; • The need for a comprehensive system of compensation, defined with due regard to the different losses that result from displacement; losses arising from displacement are numerous and varied.

It may not be possible to compensate

displaced persons for all losses arising from displacement. The losses for which compensation is payable needs to be defined based on considerations that are both legal and equitable. Some of the losses for which compensation should be made available as matter of policy priority have been identified by the COHRE research study to be – loss by damage, loss by looting, and loss by secondary occupation of land and property that has been abandoned as a result of displacement; • The need to improve institutions and procedures that can ensure better access to property rights documentation: there are distinct needs to re-establish and regularize the different property rights over lands that are affected by displacement. Documentation is vital to the processes and procedures of restitution and re-integration, without which other entitlements, such as housing, may not be accessible. Access to property rights documentation may be improved by enhancing the capacity of the current institutional structure, or by establishing additional institutional capacities;

The policy issues raised above are some of the many issues that need to be addressed with respect to HLPR at the national policy making level. Other overarching policy issues include – provision for the development of institutional capacity and skills that are specific to the context of displacement and HLPR; and specific policy provisions for vulnerable groups including women, children and the disabled.

A comprehensive analysis of the data of COHRE’s fact finding programme and recommendations for HLPR policy is due to be published as a report in July 2009.

A national policy for restitution, and in particular for HLPR, would provide a clear point of reference by which a comprehensive programme of restitution may be implemented, and will provide a framework within which practitioners and implementers may define the parameters of their work. The Government’s ‘Plan for Emergency Assistance and Early Recovery for Resettled Areas in Batticoloa District’ formulated in September 2007, outlines a programme of emergency assistance to ‘resettled displaced persons in Batticaloa’, to be extended to other parts of the East. The early recovery plan makes links to the ‘longer term development

Joint Ownership of Title in State Allocation of Land: Advocacy by COHRE Shyamala Gomez, Women and Housing Rights Officer, COHRE The Women and Housing Rights Programme of the Centre on Housing Rights and Evictions organized a consultation on 1st June 2009 at the Cinnamon Grand Hotel.

The objective of the consultation was to bring together government officials from relevant ministries to brainstorm on the granting of joint ownership in land titles in the state allocation of land with a view to building support among the Ministries. Another objective was to build a strong lobbying platform within the state machinery to push this initiative forward.

Government officials from the Ministry of Resettlement, National Housing Development Authority, Ministry of Public Administration, Ministry of Plantation Industries, Land Commissioner General’s Department and the Ministry of Child Development and Women’s Empowerment participated in the consultation.

A presentation was made by the Chairperson of the National Committee on

Women, Dr. Neela Gunersekera on the advantages of granting joint ownership of land titles.

The discussion focused on the possible strategies to be adopted to take the issue of joint ownership forward. Many recommendations were made by those who attended. There was consensus that many avenues could be explored. These included the presenting of a paper to the Cabinet on joint ownership, the drafting of an amendment to the State Lands Ordinance on joint ownership, and approaching the Department of the Law Commission through the Ministry of Child Development and Women’s Empowerment to look into the granting of joint ownership.

programmes for the Eastern Province’. The process of ‘relief to recovery’ outlined for resettlement comprises four different stages – the relief stage; early recovery; recovery and medium term development and the development phase. HLPR is an integral component of the resettlement that has been planned by the Government, and it is essential to outline at the policy level the degree to which a programme of restitution links through these different stages of post conflict rehabilitation and development.

The challenges for post conflict rebuilding and reconciliation are substantial. Over 600,000 displaced persons require solutions and redress for their displacement.

There has been much progress in the past in the way of displacement related policy, programmes and institutional developments, and many lessons that have been learned. It is paramount to synthesise the experience of the past and build upon the progress that has been made thus far.

A comprehensive national policy can greatly avoid the anomalies and difficulties that are inherent in the inevitable complexities associated within a context of post conflict return and restitution.

A report of the proceedings of the discussion is to be circulated among the participants who attended as well as to women’s groups and to the INGO and NGO sector. Another consultation will be held soon with these groups to garner their support and also to assist in the drafting of a possible amendment

to the State Lands Ordinance which will take into consideration the varied situations that may arise. COHRE will also look at the possibility of lobbying for a national policy on joint ownership in state land allocation which will become a necessity in the process of returning and relocating the hundreds of thousands of people displaced by the conflict.