COHRE Applying the Pinheiro Principles in Sri Lanka - English

“Applying the Pinheiro Principles in Sri Lanka�

[The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons]

Centre on Housing Rights and Evictions (Sri Lanka)

Cover image: Taken in the Matara district

by Athula Pathirana Page 8: Damaged house in the Jaffna district

by Athula Pathirana Page 14: Built houses – Walahanduwa, Galle; Source – The Disaster Relief and Monitoring Unit (DRMU) of the Human Rights Commission of Sri Lanka Page 34: Constructed houses in the Tsunami affected areas in the South; Source – The Disaster Relief and Monitoring Unit (DRMU) of the Human Rights Commission of Sri Lanka

CONTENTS

Forward

01

Introduction

03

What is Restitution?

05

Section I

06

Scope and Application

Principle 1

Section II

To Whom do the Principles Apply?

The Right to Housing and Property Restitution

Principle 2

Section III

The right to Housing and Property Restitution

Overarching Principles

06 07 07 09

Principle 3

The Right to Non – Discrimination

09

Principle 4

The Right to Equality between Men and Women

09

Principle 5

The Right to be Protected from Displacement

11

Principle 6

The Right to Privacy and Respect for the Home

12

Principle 7

The Right to Peaceful Enjoyment of Possessions

12

Principle 8

The Right to Adequate Housing

13

Principle 9

The Right to Freedom of Movement

13

Section IV

The Right to Voluntary Return in Safety and Dignity

Principle 10

Section V

The Right to Voluntary Return in Safety and Dignity

Legal, Policy, Procedural and Institutional

15 15 17

Implementation Mechanisms Principle 11

Compatibility with International Human Rights, Refugee and Humanitarian Law and Related Standards

17

Principle 12

National Procedures, Institutions and Mechanisms

17

Principle 13

Accessibility of Restitution Claims Procedures

20

Principle 14

Adequate Consultation and Participation in Decision Making

23

Principle 15

Housing, Land and Property Records and Documentation

23

Principle 16

The Rights of Tenants and Other Non – Owners

26

Principle 17

Secondary Occupation

26

Principle 18

Legislative Measures

28

Principle 19

Prohibition of Arbitrary and Discriminatory Laws

29

Principle 20

Enforcement of Restitution Decisions and Judgments

30

Principle 21

Compensation

31

Section VI

The Role of the International Community,

33

including International Organisations Principle 22

Section VII

Responsibility of the International Community

Interpretation

Principle 23

Interpretation

33 35 35

Forward

Few events in one's life can be more terrifying than being forced to leave one's home or lands. Yet, as horrendous as this is, millions of people are forced to leave their homes each year as a result of crisis of all kind, very often including armed conflict and natural disaster.

For decades, when families or communities were forced from their homes by opposing armies or when natural forces destroyed their homes, it was accepted logic that the chances of returning one day to the lost homes was effectively out of the question. In recent years, however, a growing global consensus has emerged which increasingly supports the contention that if a community, a family or an individual is forced from their homes because of war, discrimination, disaster, or on any other arbitrary grounds, they should have a right to have their homes, property and land restored to them once conditions of safety and security permit. This emerging right to housing and property restitution is reflected in the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (in short: Pinheiro Principles).

The Centre on Housing Rights and Evictions (COHRE) has long worked to uphold the restitution rights of displaced persons in all parts of the world, and we have found that restitution is fundamental to sustaining long term stability and improving the living conditions of displaced persons, regardless of what initially triggered their displacement.

Housing and property restitution for refugees and displaced persons is based on long existing principles of international law, and the right to housing and property restitution is increasingly recognised as an essential element of the right to return for refugees and other displaced persons. In fact, the housing and property dilemmas and disputes facing returning refugees and other displaced persons are increasingly recognised as one of the key impediments to the exercise of the right to return. Today, millions of refugees and displaced persons - many of whom desperately want to return to their original homes - are unable or actively prevented from doing so due to serious housing and property disputes and other legal, political and economic problems negatively affecting the housing and property rights of these potential returnees. Without adequate legal standards and mechanisms to facilitate return to their original homes, the right to return cannot be adequately guaranteed and people will remain caught in the grip of displacement.

The Principles on Housing and Property Restitution provide important guidance to all relevant actors - national and international - in addressing the legal and technical issues surrounding housing, land and property restitution. We are hopeful that the Principles benefit those persons who today - regardless of whether as a result of conflict or as a result of disaster - remain displaced in Sri Lanka and are waiting to return home.

Mayra Gรณmez COHRE, Housing and Property Restitution Programme, Acting Coordinator

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2

Introduction

More than two decades of war in Sri Lanka have resulted in large scale internal displacement and refugee flows reaching over 900,000 persons. The figures for conflict displaced persons at the end of 2006 exceed 500,000 persons, comprising of around 137,200 families. This includes the persons who remained displaced, subsequent to the ceasefire agreement in 2002 between the Government of Sri Lanka and the LTTE. Resumption of hostilities in the middle of 2006 has seen large numbers fleeing their homes, properties and lands, for reasons of safety and security. In addition, the tsunami which struck Sri Lanka's coastal areas in December 2004 displaced tens of thousands more persons. Almost 15,000 families still languish in transitional shelters some two years later.

While the Government and other non-governmental organisations have achieved a lot in addressing the housing problems of the tsunami displaced, there is still much to be done to effectively resolve the plight of the displaced. The tsunami experience is demonstrative of the fact that restoring the housing and property of displaced persons in a timely and equitable manner requires substantial commitment on the part of Governments and other involved agencies. Restoring housing and property in the conflict areas of the North and East present other challenges apart from the hostile conditions (as will be discussed in this booklet). Given the current humanitarian crisis resulting from ongoing hostility, the immediate focus is on securing adequate humanitarian aid to manage the scale and flow of displaced persons. It is also necessary, however, to focus on long term solutions to ending displacement, in particular the housing, land and property restitution of displaced persons.

The ability of displaced persons to return to their original lands and have their houses and property restored to them continues to be hindered by a variety of practical and legal problems. Such problems include damaged and destroyed houses, insufficient institutional and legal frameworks, secondary occupation and incoherent and fragmented policies and practices.

The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons ('Pinheiro Principles') are designed to provide practical guidance to States, including Sri Lanka, as well as to the International Community, including UN agencies, on how best to address the complex legal and technical issues surrounding housing, land and property restitution. The Principles, therefore, aim to ensure that the right to housing and property restitution is realised in practice. The Principles are universally applicable, and provide a clear standard based on international human rights, humanitarian and refugee law as well as best practices adopted around the world, for the implementation of restitution laws, programmes and policies.

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Finding effective, viable and just ways to secure housing and property restitution rights for refugees and internally displaced persons wishing to return to their places of habitual residence are emerging as some of the key challenges facing post-conflict and postdisaster countries. In particular, resolving restitution claims successfully are also increasingly seen as being fundamental to sustainable peace-building, in order to bring stability and development to countries ravaged by war.

Much has been achieved during the past decade or so, and as a result, refugees and internally displaced persons (IDPs) in countries ranging from Bosnia-Herzegovina to South Africa, and Tajikistan to Guatemala have returned not only to their countries of origin, but to the original homes and lands from which they were displaced. These previous successes can serve as a source of hope and strength for displaced Sri Lankans who have been forced to leave their homes and lands, either due to war or natural disaster, and who wish to return someday.

This booklet is meant to briefly explain the Pinheiro Principles in the context of Sri Lanka.

COHRE has also made available - in English, Sinhala and Tamil - a booklet containing the Pinheiro Principles as well as a more detailed and comprehensive Handbook on Implementing the Pinheiro Principles (currently available only in English).

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WHAT IS RESTITUTION?

The term 'restitution' refers to an equitable remedy, or a form of restorative justice, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position. What it means in the context of housing and property restitution is that persons who are arbitrarily and unlawfully displaced from their homes, properties and lands, are restored to their homes and properties (or other locations of their choosing) with a view to remedying their circumstances of displacement. The term 'equitable remedy' denotes that the restorative justice sought by the remedy of restitution is not entirely legalistic, and is based on precepts of what is fair and just in the circumstances.

For many refugees and displaced persons returning home in safety and dignity restitution is often seen as the most desired, sustainable and dignified solution to their displacement.

The loss of land housing and property, however, is an all too common reality for persons caught up in situations of displacement and forced migration and often presents itself as an obstacle to return. Not only are housing and property restitution programmes a pressing concern in light of the sheer numbers of displaced persons, but these also play a vital role in promoting stability, peace and security. In reality, the observance of these rights is central to the process of peace building and conflict resolution, thereby fostering an environment of security in which the promise of peace can be realised. Yet, the loss of land, housing and property frequently presents itself as a major obstacle to return, for many displaced persons through out the world. The right of displaced persons to return and reintegration cannot be ensured without first recognising and protecting the right of these persons to land, housing and property restitution.

At the international level, the right to land, housing and property restitution is increasingly recognised as an essential element of the right to return for both refugees and IDPs. The right to return is now understood to encompass not merely returning to one's country, but also to one's original home should one wish to return. Thus the remedy of restitution is significant to IDPs and refugees who seek to return to their original homes.

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SECTION I SCOPE AND APPLICATION

Principle 1 - Scope and Application: To Whom do the Principles Apply?

1.1 The Principles on housing and property restitution for refugees and displaced persons articulated herein are designed 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 habitual 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 habitual residence, regardless of the nature or circumstances by which displacement originally occurred.

The Principles are meant to be applied universally, and to provide a definitive standard - based on international human rights, humanitarian and refugee law - for the implementation of restitution programmes and policies. In this regard, they articulate concrete State obligations. More broadly, the Principles also provide useful guidance to 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 habitual residence.

The Pinheiro Principles apply to all refugees and displaced persons forcibly removed from or otherwise forced to flee their homes, lands, properties or places of habitual residence regardless of the nature or circumstances by which displacement originally occurred. Therefore the Principles apply to people who have been forced to leave because of the conflict as well as people who have been forced to leave because of the tsunami.

No distinction is made as to the background, ethnicity, religion, political affiliation, age or gender of the displaced person.

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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 demonstrably 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.

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. In other words, refugees and internally displaced persons have a right to return to the houses and land from which they were displaced and to have their houses and property restored to them.

The right of restitution derives from other internationally recognised human rights (see Principles 3 - 9). As in the case of all human rights, States have an obligation to facilitate and promote restitution as a durable solution to displacement.

Restitution is the preferred remedy for displacement. It is the favored means by which the problem of displacement may be brought to an end. Restitution as the preferred remedy for displacement does not mean that refugees or IDPs cannot choose other remedies for displacement such as resettlement and compensation. It means that restitution must be given priority over other remedies, especially if it is the preference of the displaced persons in question. Only in circumstances where restitution is factually not possible, should refugees and IDPs be compensated in lieu of having their property restored.

"Factual impossibility" refers to those situations where actual physical damage or destruction of the property renders it impossible for the house and property to be restored.

Whether or not restitution is or is not factually possible is to be decided by an independent and impartial tribunal. In no circumstances should factual impossibility be determined by political obstacles or time limitations. The right to restitution does not cease to exist after the lapse of a certain period of time. Even after decades of displacement people still have a right to have their houses and property restored. In South-Africa, for example, restitution claims dated back to loss of land in 1913. The reality of many displaced persons in Sri Lanka is that after decades of displacement they choose to reside permanently in their area of displacement over returning to the North or East. This is clearly the preference of IDPs residing in Puttalam. After 16 years of displacement they have built social and 7

economic ties in Puttalam and have attained a standard of living higher than in their predisplacement situation. In addition, they now have become accustomed to a more urban lifestyle, with the new generation no longer possessing the skills to live off the land as they did in their former locations. In this situation, accepting compensation for housing in the area of displacement is preferred by many over returning to the North or East and claiming restitution. In view of this situation, it is important to monitor compensation schemes, such as cash grant offers, designed to facilitate local integration in the places of displacement.

The human rights contained in Principles 3 to 9 are intended to guide every stage of the restitution and return process. A number of prominent international legal standards refer to these rights and they are fundamental to the realisation of the right to return and restitution, as they are to the realisation of many other human rights. It is necessary that all negotiations leading to the restitution of property and lands, the formulation of restitution policies and legislation, and institutional mechanisms designed for the implementation of restitution programmes are grounded on these overarching Principles. Inadequate attention to the rights referred to therein, will have the effect of undermining the right to restitution and return.

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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, disability, birth of other status.

3.2 States shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law The right to non-discrimination in the context of restitution requires that restitution claims procedures apply uniformly and consistently to all persons with a right to restitution. All displaced persons, including vulnerable and marginalised groups, must be able to realise their restitution rights equally and without discrimination. Factors such as language, race and the circumstances under which displacement took place must not in anyway constitute a basis for discrimination.

There are concerns that persons displaced by the conflict are not treated equally to those persons who were displaced by the Tsunami in Sri Lanka. The Tsunami displaced have received substantial assistance which the conflict IDPs have not been entitled to, though they have similar needs and are entitled to the same rights as the Tsunami displaced. Thus, there has been a differentiation in the manner these two groups of displaced persons have been granted relief, on the basis of the circumstances that led to displacement. A programme of restitution that aims to secure durable solutions to displacement must ensure that all displaced persons have access to relief on an equal basis without overt or implicit discrimination. It must be noted that disadvantaged and marginalized groups may need special attention (or affirmative action) without which they will be subject to discrimination as a result of their deprived circumstances.

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 dignity, legal security of tenure, property ownership, 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 programmes, policies and practices recognize the joint ownership rights of both male and female heads of the household as an explicit component of the restitution process, and that restitution programmes, policies and practices reflect a gender-sensitive approach.

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4.3 States shall ensure that housing, land and property restitution programmes, policies and practices do not disadvantage women and girls.

States should adopt positive measures to ensure gender equality in this regard.

Although Principle 4 deals specifically with the right to equality between men and women, the idea that women should be involved in the entire process of restitution runs through the text of all the Principles. Women are particularly vulnerable in circumstances of displacement. Restitution claims procedures must ensure that women's restitution rights are substantively met. Positive measures need to be taken by the state authorities to ensure that the housing, land and property restitution rights of women and girls are guaranteed.

Certain laws, policies and practices relating to land and property tend to discriminate against women in their application, through a lack of focus on gender equality. For instance, the Principles stress that women have the right to inherit on an equal basis and be equally entitled to housing in restitution efforts. The criteria used by the state in allocating land in the post tsunami context, pose a threat to women's inheritance rights over property. This is the case in the Eastern Province where it is standard practice for women to pass on their property to their daughters. The Principles also require that restitution programmes, policies and practices promote and establish rights of joint ownership between male and female heads of households. This is in keeping with the requirement of the Principles that women and girls should not in anyway be disadvantaged by restitution programmes.

A gender sensitive approach to restitution must be adopted to ensure that women have access to their full entitlements. It is also important to provide women with adequate information that creates awareness and informs them of their entitlements and rights.

This is an important aspect of decision making as the ability to make informed choices only arises if adequate and accurate information is provided. Access to entitlements cannot be realised unless factors such as restitution claims forms are gender sensitive.

The opportunity for women to participate equally in all decision making processes is vital in restitution programmes that are gender sensitive. Women IDPs in Sri Lanka for various cultural and other reasons do not participate adequately and lack representation in state run restitution programmes. The gender sensitive provisions of the Pinheiro Principles provide a useful guide to ensure that women's concerns are met in the restitution process.

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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 habitual 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 agricultural 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 subjected 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.

The right to be protected from displacement is significant to the right to restitution as displaced persons are most often vulnerable to recurrent displacement. Restitution essentially involves remedial action by which all forms of displacement are reversed and persons restored to their original lives. States therefore have an obligation to ensure that a programme of restitution carries with it guarantees against all forms of displacement.

It is important for states to identify the causes of displacement and take appropriate action against arbitrary and unlawful displacement, and also identify those entities that are either directly or indirectly involved in the arbitrary and forced displacement of persons.

This Principle clearly places the primary responsibility on the State to ensure that persons are protected from all forms of displacement. A means by which the State can ensure protection from displacement is to make the arbitrary, illegal or unlawful displacement, a ground on which displaced persons are allowed to file a restitution claim.

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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.

The right to privacy and respect for the home is closely linked to the right to be protected from displacement and the right to restitution. States must adopt lawful means and due process if it is at all compelled to interfere with a person's right to privacy. Violation of the right to privacy entitles affected parties to compensation and other remedial measures.

It would constitute a legitimate basis on which to file a restitution claim if such violation leads to the destruction and damage of housing and property.

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 subordinate the use and enjoyment of possessions in the public interest and subject 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.

This Principle reflects a universally accepted right which persons have over property and land that they have possessed and occupied. The right to peaceful enjoyment of possessions is important as a basis on which persons are to return and be restored to their original homes and lands. States are obligated to protect abandoned property and lands from acts of pillage, indiscriminate attacks or other acts of violence, and politically instigated acts of deliberate destruction. The right to peaceful enjoyment of possessions extends to lands and property which persons have traditionally occupied and to which they have a right to return whenever it is possible to do so. The continued denial of access to property over which persons have ownership and possessory rights is a violation of the right to peaceful enjoyment of possessions. Limitations on this right can only be in circumstances where it can be established that it is in the greater interest of society at large.

The state, for instance, is obligated to review continued denial of access to areas demarcated as high security zones (HSZ) on the basis of this right, and has a duty to safeguard property and land from indiscriminate behaviour that results in the denial of eventually enjoying the peaceful enjoyment of one's property.

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Principle 8: The Right to Adequate Housing 8.1 Everyone has the right to adequate housing.

8.1 States should adopt positive measures aimed at alleviating the situation of refugees and displaced persons living in inadequate housing.

Circumstances of displacement do not affect or diminish the right of displaced persons to adequate housing. The right to adequate housing obligates states to provide housing with security of tenure, access to services, facilities and infrastructure, which is affordable, habitable and is culturally appropriate. Displaced persons have a right to adequate housing during displacement as well as when durable solutions for housing restitution are planned and implemented. It is often the case that while in displaced circumstances, persons with legitimate claims for housing restitution live in conditions which are not adequate as is envisaged by the right to housing. For instance, they may not have security of tenure and may be subject to arbitrary and indiscriminate removal and eviction from the shelters and temporary housing they occupy. Others may not have access to water and other essential supplies. The Pinheiro Principles reiterate the Guiding Principles on Internal Displacement in its specific reference to the right to adequate housing for displaced persons, which specify that - "all IDPs have the right to adequate standard of living‌ competent authorities shall provide IDPs with and ensure safe access to basic shelter and housing (Principle 18)". Housing and property restitution will require amongst other legal and institutional considerations, that programmes of restitution include rebuilding and housing improvement measures that promote the right to adequate 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 subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with international human rights, refugee and humanitarian law and related standards.

The right to freedom of movement and the right to choose one's residence require that persons are protected from displacement and recurrent displacement, as well as from 13

being coerced or forced to return. Persons may choose to leave their homes and properties for reasons of security and safety; in the event they are forced to remain in a geographical area against their wishes, or if Governments take action which makes it unreasonably difficult for persons to leave, it would amount to a violation of this right.

Deliberate attempts by Governments, political groups and rebels to restrict the movement of persons or oust persons from their lands and properties for political reasons, or without proper legal grounds also violate this right. All such violations have the potential to lead to wide ranging problems, such as threats to security, limited access to basic needs, and the violation of numerous other rights including the right to livelihood, employment and the enjoyment of family life and the right to peaceful enjoyment of property.

There is substantial concern expressed by the international community, UN agencies and human rights organisations, concerning incidents of forced return following rapid increases in displaced persons resulting from the recent hostilities. Other concerns relate to various restrictions on the movement of persons in areas of conflict which potentially infringe on the right of these persons to freedom of movement (see discussion on Principle 10). All persons, groups and parties, including the state, who are perceived as restricting this right, should have a legitimate basis on which they either restrict or compel the movement of persons.

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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 Dignity 10.1 All refugees and displaced persons have the right to return voluntarily to their former homes, lands or places of habitual residence, in safety and dignity. Voluntary return in safety and dignity must be based on a free, informed, individual choice. 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.

10.2 States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands or places of habitual residence to do so. This right cannot be abridged under conditions of State succession, nor can it be subject 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 habitual residence. Refugees and displaced persons should be able to effectively pursue durable 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 dignity, of refugees and displaced persons.

The right to return is guaranteed by numerous international treaties and has been reaffirmed by several United Nations agencies. The expression of this right has been mostly in the context of refugees seeking voluntary repatriation. In the recent past however, it is increasingly used in relation to returning not only to one's country of residence, but also to one's home and land if displaced within one's country. The right to return is a free standing, autonomous right by itself, and is not dependent on the recognition and realisation of other related rights. It is considered the most dignified solution to the problem of displacement as it recognises, among other things, the value of one's home and possessions, means of livelihood and other social and cultural aspects of one's original life.

The right to return does not mean, however, that it is compulsory for displaced persons to return to their homes. The right to return does not at any point legitimise action taken to force or coerce displaced persons to return by entities such as agents of Government, rebel groups, and political parties. The choice to return must be entirely voluntary, and 15

return must be realised in conditions of safety and dignity. Displaced persons have the capacity to make a voluntary decision to return if they have access to accurate and up to date information on the conditions of return. Governments are called upon to outline legitimate grounds by which persons are required to return without violating the spirit of the right to return. It is to be noted that the sustainability of the return process can only be achieved when there is a concurrent recognition of the right to restitution, and a process of remedial measures that seeks to restore homes and lands to displaced persons (see Principle 2).

Displaced persons should also be allowed to pursue other remedial measures that provide durable solutions to their housing problems, such as resettlement in another location and/or adequate compensation for their loss. Once displaced, persons may be subject to such physical, emotional and economic pressures, which may dissuade them from returning to their homes and properties. The right to return does not envisage any situation where displaced persons are disallowed from pursuing other solutions on the basis of this right; neither does the entitlement to other remedies prejudice the right of displaced persons to return to their original homes and lands. Displaced persons may choose to address their condition of displacement without returning to their homes. Governments need to be sensitive to the fact that while conditions of displacement itself may be brought to an end by the implementation of resettlement programmes, it does not take away the right of displaced persons to return to their original homes. It is to be noted, however, that under certain conditions, these persons may forfeit their right to claim restitution of their former houses.

The rapid internal displacement caused by the resumption of hostilities in the middle of 2006 and the burden caused by rapidly increasing numbers of displaced persons have had many implications for the right to return in Sri Lanka. There have been alleged incidents in which IDPs have been subject to pressure and coercion to return to their homes, despite concerns of safety and sustainability of return (some of these allegations include forced return to the areas of Muttur and Kebitigollewa). IDPs who have returned voluntarily for various reasons (including the severe conditions at displacement sites) have been unable to remain in their homes due to fear and insecurity. There is much concern of the sustainability of conditions to which IDPs return (either voluntarily or through force), partly due to the damage and destruction of their homes.

The demarcation of high security zones (HSZ) by both the Government and the LTTE constitute another impediment to return. The demarcation of HSZ in the North and East cover large areas of land where IDPs own houses, property and land, and sources of livelihood. Many IDPs (and persons taking refuge in India) wish to return and take control of their homes and lands, but this is not possible even in areas where it is relatively safe to do so, due to the HSZ demarcations. While it may be necessary for the Government to make these demarcations in conflict areas, for reasons of safety and strategy, it is also obligated where possible to uphold the right to return and other rights which support the right to return (see Principles 3 to 9).

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SECTION V LEGAL, POLICY, PROCEDURAL AND INSTITUTIONAL IMPLEMENTATION MECHANISMS

Principles 11 to 21 These Principles are a consolidation of best practices that have been adopted to overcome common obstacles to restitution. Some of these obstacles include - secondary occupation, property destruction, loss or destruction of property, ineffectual institutional support, and discriminatory restitution procedures. The following Principles provide specific guidance for the implementation of restitution programmes and procedures for the effective implementation of housing, land and property restitution.

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 dignity is recognized therein.

Compatibility with international human rights, refugee and humanitarian law ensures that the standard of restitution procedures, institution mechanisms, and legal frameworks are adequate and are fully able to meet the requirements of a just and equitable restitution process. Ensuring compatibility with international standards will require, among other things, a review of relevant legislation and the development of required skills and expertise to effectively operationalise restitution procedures in keeping with prescribed standards.

The Principles set a standard for restitution law, policy and procedure that derive from international treaties and related standards, as well as from restitution policies and practices of other national jurisdictions. In view that Sri Lanka is a State Party to many of the treaties that supports the recognition of the rights to return and restitution, it is imperative that all regulation, policies, procedures, institutions and agencies involved in restitution programmes recognise the right to voluntary return and reflect the understanding that restitution is often the most dignified long term solution to displacement.

Principle 12 - National Procedures, Institutions and Mechanisms 12.1 States should establish and support equitable, 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 available to facilitate restitution in a just and timely manner.

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12.2 States should ensure that housing, land and property restitution procedures, institutions and mechanisms are age and gender sensitive, and recognize 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 establish 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 ownership or other rights of possession, as well as decisionmaking, enforcement and appeals mechanisms. States may integrate 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 breakdown in the rule of law, or where States are unable 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 establish 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 agreements and voluntary repatriation agreements. Peace agreements 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 demonstrably prioritizing the right to restitution as the preferred remedy in this regard.

The focus of Principle 12 is on the implementation of restitution policies and the enforcement of restitution claims. A restitution claim is an application made to relevant authorities by persons who have been forced to leave their lands and properties, to 18

have their lands and properties restored to them. All restitution claims procedures must at all times be equitable, timely, independent, transparent and non - discriminatory.

The institutional structures that determine and enforce decisions arising from restitution claims are to be impartial, and independent from any outside influence. They must be guided by standards and procedures that do not discriminate on the grounds of race, religion, political affiliation, gender or other status. Where existing institutions are not able to process restitution claims due to a break down of law and order and political chaos, other jurisdictions have established institutional structures such as restitution commissions with the help and cooperation of the international community. It is widely recognised, however, that national institutions play a pivotal role in the restitution process and are the cornerstones of successful restitution programmes. This is true especially in light of the fact that the ultimate power of enforcement most often lies with national institutions. Thus, States are called upon to make available adequate financial, human and other resources to build the capacity of local institutions and facilitate restitution in a just and timely manner.

The standard for appropriate administrative, legislative and judicial measures is that they are consistent and reliable, and are able to address complex restitution claims.

Effective judicial mechanisms and procedures, including impartial appeals procedures, are particularly important to ensure credibility and fairness of the restitution process. In certain cases, the use of innovative and informal dispute resolution mechanisms has also proven effective in resolving disputes that arise from restitution claims.

The use of guidelines is important to give clear policy direction to a restitution procedure.

States are called upon to formulate guidelines impacting a wide range of activities such as institutional organisation, investigations and complaints, and enforcement and appeals mechanisms.

There are a number of institutions, including judicial and quasi - judicial entities, in Sri Lanka that are mandated by legislation and regulations to determine land and property claims. Procedures to reclaim land, and mechanisms to resolve disputes arising from restitution claims are dispersed among these entities depending on whether the land or property in question is state land or privately owned land. For instance, the Land Commissioner's office is mandated to determine claims and disputes over state land, whereas disputes over private land are determined either by mediation or by the courts.

A number of Government institutions and NGOs are involved in assisting the restitution of IDPs, including the Legal Aid Commission, Bar Association of Sri Lanka and the Human Rights Commission of Sri Lanka. While a number of IDPs have benefited from Government initiatives in restitution (especially following the ceasefire agreement in 2002), there is a need to streamline the institutional framework for processing restitution claims in order to maintain consistency and accessibility of the restitution process. This may be 19

done by identifying an independent institutional structure or restructuring an existent institution with the capacity to coordinate overall restitution and work in collaboration with the different institutions dealing with land and property, both at the central and peripheral levels.

In view that there are several ministries at the central level involved in restitution, resettlement and rehabilitation work, the policy framework directing housing and property restitution is somewhat ambiguous. The mandates of the several ministries are operationalised at the district level by the District Secretary and the Grama Niladhari at the local (village) level. These entities coordinate resettlement and relocation programmes (involving restitution), and are called upon to implement the bulk of the remedial measures for the loss and destruction of housing and property. Given the substantial responsibility and discretion of these entities to make determinations on housing entitlements and coordinate remedial measures for restitution, it is important that they are guided by clear and consistent policy for the implementation of restitution programmes. Policies should be designed to address a variety of issues, including landlessness, the payment of compensation, the reconstruction of damaged property and the criteria by which different remedies for housing restitution are applied.

It is also important to ensure that there are inbuilt mechanisms in programmes of restitution that guarantee the impartiality and transparency of all institutions involved in housing and property restitution.

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 able to submit 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 establish 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 able to participate on a fully equal basis in this process.

13.3 States should ensure that separated and unaccompanied children are able 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".

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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 about this process is made readily available, including in countries of origin, countries of asylum or countries to which they have fled.

13.5 States should seek to establish restitution claims-processing centres and offices through out affected areas where potential claimants currently reside. In order to facilitate the greatest access to those affected, it should be possible to submit restitution claims by post or by proxy, as well as in person.

States should also consider establishing 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 available in the main language or languages of the groups affected. Competent assistance should be made available 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.

13.9 States should establish 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 groups and vulnerable individuals, and the political situation in the country or region of origin.

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13.10 States should ensure that persons needing special assistance, including illiterate and disabled 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.

This is a very important Principle as it deals with the means by which the restitution process is mobilised. Persons who have been arbitrarily and unlawfully deprived of housing, land and/ or property must have access to restitution claims procedures in order to vindicate their restitution rights. There should not be any conditions attached to the filing of a restitution claim if it is established that a person has been arbitrarily and unlawfully displaced.

The State must ensure that restitution claims procedures are accessible in order to ensure meaningful implementation of the restitution process. A number of factors can adversely affect the accessibility of restitution claims procedures. Insufficient dissemination of information on restitution claims procedures is one such factor.

Information should be in simple language that is easy to understand. It must be designed to effectively communicate to the groups and communities it aims to benefit, and inform them of what their entitlements are. The general approachability of restitution procedures, whether they are simple and non-intimidating, is another factor that affects accessibility.

It is important that restitution claims documentation is simple and not overly legalistic.

However, it is often inevitable that restitution claims involve complex legal issues that the claimant may not be able to express adequately in claims documents. In this regard, Governments must provide necessary assistance in the way of competent and trained personal, legal aid clinics and other measures to assist claimants to collect necessary evidence and articulate their problems in getting back their houses and land. This would help make restitution claims procedures more accessible to persons deprived of their housing and property.

The implementation of restitution procedures must necessarily be a national exercise, with the involvement of appropriate national agencies and experts. International involvement in restitution claims procedures have been of much assistance, where there is political bias against groups of persons, and where a third party involvement makes the return and restitution process more secure in the context of post conflict tension.

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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 programmes are carried out with adequate consultation and participation with the affected persons, groups 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 disabled 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 vulnerable individuals including the elderly, single female heads of households, separated and unaccompanied children, and the disabled should be given particular attention.

The participation and consultation of affected parties is paramount if implementing agencies are to get a good sense of how restitution programmes should be designed and implemented. Consultations must be conducted at all stages of the restitution process, in order that the affected parties can contribute to a restitution programme that is able to resolve their housing problems.

The consultation process must provide a forum for all categories of persons - women, indigenous persons, minorities, and vulnerable and marginalised persons - to voice their concerns. Women for instance, may have different priorities which male members of their families and communities may not be able to express sufficiently. Effort must be made to ensure that the views of different groups are incorporated into the design and implementation of restitution programmes and translated into practical measures.

Principle 15 - Housing, Land and Property Records and Documentation 15.1 States should establish or re-establish national multipurpose cadastral or other appropriate systems for the registration of housing, land and property rights as an integral component of any restitution programme, 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 ownership 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 23

comply with international human rights, refugee and humanitarian law and related standards, including the right to be protected from discrimination.

15.3 States should ensure, where appropriate, that registration systems record and/or recognise 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 establishing procedures for copying records (including in digital format), transferring them securely and recognising 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 habitual 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 ownership 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 establish the facts related to undocumented restitution claims.

15.8 States shall not recognise 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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The loss of deeds and other title documents relating to land and property have proven to be an issue of grave concern which has significantly impeded the ability of displaced persons to regain title and/or possession of their properties. This Principle aims at ensuring that documents relating to housing, land and property rights are preserved during times of conflict. It does so primarily by encouraging States to establish national multipurpose cadastral or other systems of registration of housing, land and property rights. Where registration procedures already exist, the Principle suggests measures to ensure that they are not destroyed during the conflict. Measures to ensure that existing registration systems are not destroyed during conflict include the short term removal of the documents to a safe location or custody.

Where pronouncements relating to ownership of or rights to housing and land are made by judicial, quasi-judicial or administrative bodies, such pronouncements should be backed by mechanisms to register or demarcate that housing or land.

This Principle notes the importance of developing appropriate registration systems to register rights over lands which are often not contained in official cadastres, such as the land of indigenous peoples and rights of possession of collectively held lands.

Where land registries and other forms of registration exist, records should be made publicly available at the local level and subject to inspection without unreasonable expense or administrative barriers. Access to such records is crucial for transparent and accountable functioning of restitution processes.

The Principle builds a necessary degree of flexibility into questions surrounding the registration of housing and property rights by recognising that due to the circumstances of flight, refugees and displaced persons frequently does not possess documentary evidence of their rights to their original homes and, consequently, that this do not limit their rights to restitution. Because displacement often occurs in situations of conflict, this Principle is designed to make invalid any transfer of rights carried out under duress.

The Principle also highlights that registration systems should form an integral part of any restitution programme and should be designed in such a way to respect the rights of refugees and displaced persons. Similarly, pronouncements on land and housing rights by judicial, quasi-judicial and administrative bodies must comply with international human rights and humanitarian law standards.

In Sri Lanka, a system of registering title documents is already in place. Though registration of title documents is not mandatory, the law provides greater protection to those with registered title documents. A registered title document takes priority over an unregistered one. Nevertheless, except in a few geographical areas, there are no national cadastral systems in place. Thus, details of ownership and/or rights relating to lands will be available with the Government authorities only where they have been submitted for registration by the individuals.

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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 recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights.

This Principle aims to ensure the rights of three categories of persons, namely, tenants, social-occupancy rights holders and other legitimate occupants or users of housing.

Often, land and property rights of these categories of persons are overlooked in restitution programmes. This Principle requires that in designing and implementing their restitution programmes, States must ensure that land and property rights of these categories of persons are recognised. Such persons should be able to return, repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights and States must ensure this to the maximum extent possible. In doing so, it must be ensured that restitution laws, procedures and institutions do not discriminate against or otherwise treat non-owners inequitably vis-Ă -vis owners.

In Sri Lanka, this means that restitution programmes and projects aimed at restoring damaged or destroyed houses due to the tsunami and conflict must take into account the rights of tenants, other legitimate occupants of housing and other categories of people falling within the meaning of this Principle, to return to their lands and houses and to repossess and use them. They should, to the maximum extent possible, be treated in a similar manner to those possessing formal ownership rights. The Tsunami Housing Policy of the Government unfortunately fails to make any provision as to tenants or other legitimate occupants of housing, whereas it entitles encroachers of lands and houses to receive alternate accommodation. Even where their rights are recognised within restitution programmes of the Government, the people face difficulty in proving their tenancy rights and other social-occupancy rights due to the loss of documentation.

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 justifiable and unavoidable for the purpose 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 of genuine consultation, adequate and reasonable notice, and the provision of legal remedies, including opportunities for legal redress.

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17.2 States should ensure that the safeguards of due process extended to secondary occupants do not prejudice the rights of legitimate owners, 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 justifiable and unavoidable, 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 alternate housing and/or land for such persons, including on a temporary basis, as a means of facilitating the timely restitution of refugee and displaced persons' housing, land and property. Lack of alternatives, however, should not unnecessarily delay the implementation and enforcement of decisions by the 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 establishing mechanisms to provide compensation to injured third parties. The egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegality of purchasing abandoned property, pre-empting the formation of bona fide property interests in such cases.

This Principle attempts to strike a balance between the rights of secondary occupants and rightful occupants or owners of property and approaches the issue of secondary occupation with the understanding that secondary occupation of displaced persons' homes often presents itself as an impediment to return. Secondary occupants are persons who take up residence in a house after its rightful owner or occupant has fled due to, inter alia, forced eviction, violence or threat of violence, natural or human-made disasters.

Secondary occupants have a right to be protected against arbitrary or unlawful forced evictions. However, eviction of secondary occupants may be deemed justifiable and unavoidable for the purpose of ensuring the right to restitution. Where evictions of secondary occupants take place, States must ensure that it is carried out in a manner which is compatible with international human rights law and standards. In carrying out the evictions, proper or due process must be adhered to and the evictees must be consulted, be given adequate and reasonable notice of eviction and the provision of legal remedies.

Eviction of secondary occupants should not render them homeless or place them in a situation where their right to adequate housing would be violated. States have a duty to 27

provide alternate housing for them as a means of facilitating the timely restitution of refugees and displaced persons. However, the lack of such alternatives should not unnecessarily delay the implementation of restitution programmes. Similarly, safeguards of due process to which the secondary occupants are entitled, must not prejudice the rights of legitimate owners and tenants to repossess their lands and properties in a just and timely manner. States may consider the payment of compensation where secondary occupants have sold properties to bona fide third parties.

In the Northern and Eastern parts of Sri Lanka, secondary occupation is a major obstacle to the just and timely restitution of legitimate owners and rights holders of property. A large number of houses and properties in these areas are occupied by secondary occupants and in many cases, for lengthy periods of time. This hinders the ability of the legal owners to reclaim their land upon return especially in view of the prescription laws operating against them and in view of the loss of documentation to prove their title.

Principle 18 - Legislative Measures 18.1 States should ensure that the right of refugees and displaced persons to housing, land and property restitution is recognized 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 group that is legally entitled to the restitution of their housing, land and property, most notably refugees and displaced persons. Subsidiary claimants should similarly be recognized, 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 agreements, such as peace agreements and voluntary repatriation agreements, so long as these agreements are themselves compatible with international human rights, refugee and humanitarian law and related standards.

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The right to housing, land and property restitution must be recognised in national law and must be in accordance with international legal standards. The Government must adopt and implement necessary legislation, policies and practices to make sure the right to restitution is clearly, consistently and fairly applied and enforced in Sri Lanka. In essence, laws and policies must be adopted within the legal framework of Sri Lanka that enables a comprehensive implementation and enforcement of the right to housing, land and property restitution. The State must make sure that every affected person or group of persons is able to claim his or her right to restitution. Principle 18 in principle calls for the adoption of a national housing, land and property restitution policy that is based on the Pinheiro Principles and other relevant standards of international law.

The adoption of relevant laws and policies is essential to successful peace-building and restoration of what was lost or damaged. Providing people with a clear statement of their housing and property restitution rights and a concrete legal remedy for the violations that they have suffered is one of the most concrete steps to building a functioning justice system and a society built on the rule of law To be able to adopt the necessary legislative and policy measures it is important that the Government has a clear understanding of the specific problems regarding return and restitution and the scale of these problems. Such problems may be of a legal nature, for example, regarding the existing institutional and legal framework, issues of secondary occupation, the administration of state lands, the administration of title deeds and other documentation and issues of compensation and discrimination. Such problems may also be of a more practical nature, for example regarding landmines, livelihood options, High Security Zones, construction materials, destroyed documentation, land grabbing, and availability of habitable land.

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 abandonment 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.

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In line with Principle 18, this Principle prohibits any law or policy that will undermine or is in violation of the right to housing, land and property restitution or may have such an effect. Principle 19 in particular prohibits the adoption and application of arbitrary and discriminatory laws and policies that may prejudice the restitution process. Given the diversity of the people of Sri Lanka and the often inequality faced by women this is an important principle.

Principle 19 demands that existing laws and policies that leave room for discrimination of returning refugees and displaced persons be changed. One example in Sri Lanka is the Prescription Ordinance, whose provisions entitle unauthorised secondary occupants who have ten years of undisturbed and uninterrupted possession of immovable property to claim legal ownership, adverse to or independent to the legal title of the real owner who was forced to leave the property. Another example concerns the permits or licenses issued under the Land Development Ordinance, State Lands Ordinance and the Land Grants (Special Provisions) Act. Many displaced persons who have been occupying state lands before the conflict by virtue of permits and licenses given under the above laws have been forced to leave their lands and properties due to the conflict and now reside elsewhere in the country. The mere fact of abandoning the land due to displacement and resulting inability to develop the land often breaches the conditions stipulated in the permits, rendering them liable for cancellation.

Principle 20 - Enforcement of Restitution Decisions and Judgments 20.1 States should designate specific public agencies to be entrusted with enforcing housing, land and property restitution decisions and judgments.

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 judgments made by relevant bodies regarding housing, land and property restitution.

20.3 States should adopt specific measures to prevent the public obstruction of enforcement of housing, land and property restitution decisions and judgments. Threats or attacks against officials and agencies carrying out restitution programmes should be fully investigated and prosecuted.

20.4 States should adopt specific measures to prevent the destruction or looting of contested or abandoned 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 programmes.

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20.5 States should implement public information campaigns 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 judgments, including failing to vacate occupied housing, land and property voluntarily and damaging and/or looting of occupied housing, land and property.

The State has the responsibility to enforce the right to housing, land and property restitution. This includes the central Government and its agencies based in Colombo as well as regional and local Government agencies. The Government must ensure that displaced people can actually claim their restitution rights and that decisions made in their favour are actually carried out by the relevant Government agencies. Principle 20 also makes the Government responsible for preventing abandoned houses from being destroyed or looted. Finally, Principle 20 is important as it obliges States to designate specific Government agencies to be entrusted with enforcing housing, land and property restitution. In Sri Lanka a multitude of Government institutions and Ministries is currently dealing with housing issues. It is desirable that clarity is given to the mandate and responsibilities of each of these Ministries and agencies and that a collective effort is made to address various housing issues, including issues of return and restitution (see discussion on Principle 12).

Principle 21 - Compensation 21.1 All refugees and displaced persons have the right to full and effective compensation as an integral 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.

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The payment of compensation is an important aspect of housing and property restitution, but should not at any event take priority over restitution as the preferred remedy to displacement. Therefore, Governments are first obligated to do all that is possible to restore displaced persons to their former homes through programmes of restitution, rehabilitation and reconstruction. The payment of compensation should be an option only when it is factually impossible to physically restore housing and property due to extensive damage and destruction, when a displaced person knowingly and voluntarily accepts compensation instead of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation. This does not necessarily mean that those whose houses are destroyed or damaged are not entitled to make a claim for restitution. Any dispute relating to the factual impossibility of restitution should ideally be determined by an impartial and independent official or tribunal.

In some cases where there is extensive damage and destruction, the more equitable solution may be to combine a process of restitution (by which persons can recover their homes) with a predetermined package of compensation that is adequate for the purpose of rebuilding and repairing damaged houses.

Compensation must never be preferred over restitution because it is the more convenient option or the political environment is not conducive to the implementation of restitution rights. In all cases, compensation must be given with the same intention as in the case of restitution, which is to restore aggrieved persons to their original pre-loss condition, if not in better condition. The aggrieved parties must be positioned to knowingly and voluntarily decide whether to accept the remedy of compensation in lieu of restitution.

When compensation is payable, it must be adequate and provided in a manner that is reasonable, timely and effective. For instance, a predetermined compensation package must be revised to make allowance for factors such as escalating prices of building materials, labour and transportation costs.

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SECTION VI THE ROLE OF THE INTERNATIONAL COMMUNITY, INCLUDING INTERNATIONAL ORGANISATIONS

Principle 22 - Responsibility of the International Community and International Organisations 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 dignity.

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 programmes 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 agreements and voluntary repatriation agreements contain provisions related to housing, land and property restitution, including through the establishment 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 stable environment wherein appropriate housing, land and property restitution policies and programmes 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 judgements. 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.

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The international community and international organisations, including financial organisations such as the World Bank, the International Monetary Fund, the Asian Development Bank, United Nations agencies such as UNHCR, UNICEF and UNDP, but also international peace operations and international non - governmental organisations have a responsibility in overseeing a successful implementation of the right to restitution.

This means a responsibility to advocate a proper implementation of the Pinheiro Principles and make sure that any type of peace agreement or voluntary repatriation agreement contains provisions related to the establishment of national procedures, institutions, mechanisms and legal frameworks for facilitating the restitution process.

In Sri Lanka this means that the various projects aimed at restoring damaged or destroyed houses by the conflict or the tsunami must take into account the right to return and restitution of the displaced people. This is a responsibility not just of the Government of Sri Lanka but also of the donor agencies such as the World Bank, UNDP, IOM or the many NGOs providing cash grants for people displaced by the tsunami. In addition, the international community, and the United Nations Country Team in particular, should advocate a proper implementation of the Pinheiro Principles which may include the amendment of laws and policies affecting the right to return and restitution and the establishment of a Restitution Commission. Finally, international peace facilitators in Sri Lanka should work in collaboration with the Government of Sri Lanka on the development of national housing, land and property restitution policies and programmes and ensure that the objective standards contained in the Pinheiro Principles form an integral part of any future peace agreement.

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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 recognized under international human rights, refugee and humanitarian law and related standards, or rights consistent with these laws and standards as recognized under national law.

This principle provides the guidelines for the interpretation of the Pinheiro Principles. It prohibits any interpretation which limits, alters or otherwise prejudices the rights recognized under international human rights, refugee and humanitarian law and related standards, or rights consistent with these laws and standards as recognized under national law.

The underlying feature of the Pinheiro Principles is that it draws from and is based upon existing international human rights and humanitarian law. Many international human rights instruments recognize the right to property, right to adequate housing, freedom from forced evictions and guarantee the enjoyment of these rights without discrimination.

These instruments include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, International Convention on the Elimination of All Forms of Discrimination Against Women, Convention of the Rights of the Child and the International Convention Relating to the Status of Refugees. In addition, there are many international covenants which are aimed at protecting the rights of refugees and internally displaced persons, especially their right to return and restitution.

Numerous resolutions of the United Nations Security Council and General Assembly have addressed housing and property restitution rights and General Comments issued by the United Nations Treaty Bodies have set standards relating to restitution and return of refugees and internally displaced persons.

Similarly, several national instruments have reaffirmed the rights of all refugees and internally displaced persons to freely return to their countries and homes and to have restored to them housing and property of which they were deprived.

A range of post-conflict peace operations have been directly involved in housing and property restitution efforts. For example the UN Mission in Kosovo (UNMIK) established, administered and managed the Kosovo Housing and Property Directorate (HPD) and Housing and Property Claims Commission, while detailed proposals for similar bodies emerged within the UN Transitional Authority in East Timor (UNTAET) and other operations.

A range of peace agreements such as the Dayton Accords, the Liberia Peace Agreement, the Guatemala Peace Accords, the Comprehensive Peace Agreement on Sudan and 35

others recognise varying degrees of housing, land and property restitution rights for refugees and displaced persons.

Coordinated voluntary repatriation operations, and the agreements upon which they are based, have also included explicit housing and property restitution activities and provisions in support of returnees. Voluntary repatriation agreements concerning Vietnam, Guatemala, DR Congo, Mozambique, Rwanda, Cambodia, Angola, Georgia, Burundi and many others have enshrined derivations of housing and property restitution rights.

This principle ensures that the interpretation of the Pinheiro Principles does not affect or limit any of the rights recognized and protected by the aforementioned international human rights and humanitarian law, standards or national instruments.

It also ensures that the Pinheiro Principles will not be misused in any way to justify the violation of human rights or other international legal provisions in unforeseen circumstances which may arise in the future.

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