COHRE Return Home Booklet - Bhutanese 2008

Hoping to Return Home

The Right to Housing, Land and Property Restitution Applying the Pinheiro Principles for Bhutanese Refugees and Displaced Persons The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons

C O H R E

Centre on Housing Rights and Evictions (COHRE) www.cohre.org

Canadian International Development Agency

Agence canadienne de dĂŠveloppement international

Funded by the Canadian International Development Agency (CIDA)

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INTRODUCTION Housing, Land and Property Restitution for Bhutanese Refugees and Displaced Persons

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I N T R O D U C T I O N

More than 107,000 people of ethnic Nepali origin (‘Lhotshampas’) have been displaced from their homes and lands in Bhutan. Most have been residing for many years in refugee camps in Nepal. After almost two decades of displacement there is still no realistic prospect of a safe and dignified return. In order to alleviate some of the suffering, in 2007, the United States proposed to resettle approximately 60,000 refugees. While resettlement may provide a solution to the situation of many refugees the hope and struggle to return one day to Bhutan is very much alive.

The right to return and the right to housing, land and property restitution as set out / enshrined in the ‘United Nations Principles on Housing and Property Restitution for Refugees and Displaces Persons’, in short the Pinheiro Principles, provide the Bhutanese refugees and displaced persons with a distinctive and genuine right to return and claim back their property, their land, and their houses in Bhutan. The Principles were named after the United Nations Special Rapporteur on Housing and Property Restitution, Mr. Paulo Sergio Pinheiro, and were endorsed by the United Nations Sub-Commission on the Promotion and Protection of Human Rights in August 2005.

The Pinheiro Principles are designed to provide guidance to States, displaced communities, international organisations and other relevant stakeholders on how best to address the complex legal, technical and practical issues surrounding housing, land and property restitution. The Principles are universally applicable and provide clear standards 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.

Housing, land and property restitution is essential to the idea of restorative justice. It makes sense: what was yours should be made available to you in the state it was in when you were forced to abandon it! Restitution touches upon one of humanity most precious goods, i.e. ones home and privacy. While restitution is essential in restoring the factual harm that has been done, the rationale behind the right to restitution is not so much ‘turning back the clock’, but to see justice done in or after a situation of forced displacement, and to provide for a just and viable solution that allows the country and its people to live in peace and harmony again.

Restitution is equally essential in restoring the emotional harm that has been done and to create a renewed trust in the country, its government and institutions. Restitution rights can contribute to a broader social and political stability and helps to ensure that the underlying reasons for the forced displacement do not surface

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again. In that regard, housing restitution is just one of the many issues that must be dealt with.

In the context of the Bhutanese refugees it is important not just to look at the restoration of housing rights, but also to the many underlying, often discriminatory, issues that resulted in their forced displacement in the first place. These issues include, the right to Bhutanese nationality and citizenship, land ownership and land use rights for Lhotshampas, secondary occupation and the lack of a clear non-discriminatory legal and institutional framework.

Consequently, housing and property restitution is just one piece in a fuller picture of restoration due to them. Moreover, the offer of resettlement to a third country, in spite of its good intentions, is making the issue of housing, land and property restitution more complex and is leading to serious tensions among the displacement community. According to the Pinheiro Principles, however, accepting the offer to be resettled does not affect the right to return to Bhutan or the right to claim restitution, but can be seen as an ability to start a new and better life outside the protracted misery of life in the refugees camps.

This booklet is meant to briefly explain each of the Pinheiro Principles and apply them – where possible – in the context of the Bhutanese refugees and displaced persons. In a separate booklet COHRE has made the text of the Pinheiro Principles available in English as well as in Nepali. In addition, a general and more detailed Handbook on Implementing the Pinheiro Principles – in English only – can be found on the internet, available at: h t t p : / / w w w . u n h c r . o r g / c g i bin/texis/vtx/refworld/rwmain?docid=4693432c2.

Jean du Plessis Deputy Director Centre on Housing Rights and Evictions (COHRE)

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SECTION I SCOPE AND APPLICATION

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Principle 1 – Scope and Application 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 standards for the implementation of restitution programmes and policies. The Principles 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 are not a treaty and as such not legally binding upon States. However, because of their basis in international law, their moral authority and their endorsement by the United Nations Sub-Commission on the Promotion and Protection of Human Rights, the Principles have proven to be of great value and influence when ensuring housing, land and property restitution.

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 the involuntary displacement originally occurred. No distinction is made as to the background, religion, political affiliation, age or gender of the displaced person, and – importantly – to the ethnicity or nationality of the displaced person. Therefore the

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Principles apply to Lhotshampas who had their places of residence in Bhutan and who where – because of various discriminatory measures – forced to leave Bhutan. The Principles apply equally to those who have been registered and living in refugee camps in Nepal, those who have not been registered and live outside the camps, those who live quietly among the local population in Nepal, those who have fled to other countries such as India and those who remain displaced inside Bhutan.

The term ‘refugee’ in the Pinheiro Principles is not limited to the technical legal definition that is contained in the 1951 Convention relating to the Status of Refugees or the Statute of the United Nations High Commissioner for Refugees. The term ‘refugee’ in the Pinheiro Principles is meant to include all those who were forced to leave their homes and have crossed an international border.

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SECTION II THE RIGHT TO HOUSING AND PROPERTY RESTITUTION

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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 nonreturn 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. Whenever possible, refugees and displaced persons must have the possibility of returning to their homes and have restored to them the situation before they were forced to leave, thereby taking into account the Overarching Principles mentioned in Section III (Principles 3-9). This means they have a right to use their property again, to have damage done to their property repaired or have property that has been destroyed rebuilt. In addition, it means restoration of title and, if necessary, financial assistance. If restoration of the old property is factually not possible – as needs to be decided by an independent and impartial tribunal - people have a right to get compensation for the loss of their property (see Principle 21). ‘Factual impossibility’ refers to those situations where actual physical damage or destruction of the property renders it impossible for the house or property to be restored. In no circumstances should factual impossibility be determined by political, social or economic 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 in the 1990s dated back to loss of land in 1913. In addition, factual impossibility may refer to circumstances in which the property has been put to use for the public interest during the absence of the displaced person or when the property brings considerable economic benefit to the area concerned. The threshold for such circumstances to occur is high. Moreover, factual impossibility

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must be determined through a legal or quasi-legal process involving an independent, impartial tribunal in order to avoid potential political bias which may influence the determination.

Full or return-based restitution is the preferred remedy for displacement. States are expected to demonstrably prioritise return-based restitution, and use compensation, i.e. providing an alternative for return-based restitution, as an exceptional substitute (see Principle 21). In theory, the idea is simple: either full (or return-based) restitution or compensation. The reality is often more stubborn. Certainly, in situations of long-term or protracted displacement ‘return’ may not be the preferred or best solution or may be impossible. Furthermore, new generations may be unfamiliar with – or not accustomed to - the places of residence of their parents (or grandparents); they may not know the way of life, the culture or language in their places of origin.

For them, local integration or resettlement to a third country may be the preferred solution, in which case, for example, they will be able to pursue better opportunities in terms of education or livelihood. As can be expected this may lead to tensions in displacement communities. It is thus important to keep an open mind, to know the possibilities of actual return, to know the preferred solution for each individual refugee, to allow flexibility within displaced communities to choose a different solution, and to understand and adopt a fair relation between providing for a durable solution to the displacement and to ensure the right to housing, land and property restitution. Moreover, it is important to provide sufficient objective information regarding the possible durable solutions and their affect on the right to housing and property restitution.

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SECTION III OVERARCHING PRINCIPLES

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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 standards firmly established in international law 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. 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.

The Pinheiro Principles guarantee such overarching rights as the right of non-discrimination, the right to equality between men and women, the right to be protected from displacement, the right to privacy and respect for the home, the right to peaceful enjoyment of possessions, the right to adequate housing, and the right to freedom of movement. The overarching principles prevent the restoration from returning to a situation that was unjust, unfair, or unlawful in the first place. For example, the prohibition of discrimination prevents the restoration of a situation in which women were discriminated and, for example, could not own land or have land use rights.

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.

Under international law, Bhutan is obliged to pursue all appropriate means to eliminate discrimination against women

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and children, being a State party to the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

There are major concerns that ethnic Nepalis who are no longer considered Bhutanese nationals or citizens will be discriminated against. While Lhotshampas from Bhutan have every right to regain Bhutanese nationality, their nationality is not be a relevant factor in ensuring their restitution rights. Not only do they have a right to return to their own country Bhutan, they also have a distinct right to claim back their old property irrespective of their nationality.

In addition, there are concerns that Lhotshampas who have been forced to leave their homes and land and who have not been registered by UNHCR and reside in one the refugee camps in Nepal will be ‘forgotten’. This would include those who have fled to Nepal, but are living – unregistered - outside the camps, or who are living quietly among the local population in Nepal. It also includes those who have fled to other countries such as India, those who may have married a Nepali or Indian national and those who have remained inside Bhutan.

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.

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.

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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 Principles also require that restitution programmes, policies and practices promote and establish rights of joint ownership of both 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 or by traditionally existing male heads of households.

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.

Bhutan is obliged to ensure equality between men and women in accordance with the Convention on the Elimination of Discrimination Against Women. Bhutanese society is matriarchal and women have equal right to inherit, acquire, own and use land.

Such equality must be maintained and acknowledged when allocating ownership or land use rights in the process of restitution.

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.

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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 (renewed) 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.

In the context of Bhutan issues such as nationality, citizenship, land ownership, land use, access to land and secondary occupation must be addressed. This Principle clearly places the primary responsibility on the State, in this case Bhutan, to ensure that Lhotshampas in Bhutan have equal rights as other Bhutanese to housing, land and property use and ownership and that they are protected from all forms of displacement, including forced evictions. In this regard, particular vulnerable are the approximately 81,000 so-called ‘non-nationals’ residing in Bhutan; the majority of which are Lhotshampas and relatives of the refugees residing in the camps in Nepal. Many of them own land in Nepal, but are facing increasing difficulties in getting their land ownership recognised.

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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.

Any interference with the right to privacy and respect for the home must be in accordance with the law, including due process requirements, and necessary to serve a legitimate aim. In addition, any interference must include a fair balance between the aim employed and the aim sought to be realised (principle of proportionality).

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.

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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 (for example land use rights) is a violation of the right to peaceful enjoyment of possessions. Limitations on this right can only be as prescribed by law and in circumstances where it can be established that it is in the greater interest of society at large, thereby taking into account issues of reasonableness and proportionality. The threshold for applying such limitation is high; the phrase “interest of society� must be read restrictively so as to mean only a temporary or limited interference.

In the case of the Bhutanese displaced persons being deprived of a peaceful enjoyment of their property, Bhutan is obliged to review the use of such property now demarcated for public use.

Principle 8 - The Right to Adequate Housing 8.1

Everyone has the right to adequate housing.

8.2

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

Circumstances of displacement do not affect or diminish the right of displaced persons to adequate housing. The right to adequate housing obliges states to provide housing with security of tenure, access to and availability of services, materials, facilities and infrastructure, which is affordable, habitable and is culturally appropriate. An important obligation for States derived from this right is the duty to take measures to confer security of tenure and the consequent protection against forced evictions and arbitrary confiscation or expropriation of housing. Security of tenure is an essential component of the right to adequate housing as well as of the right to be protected from displacement (Principle 5) and the right to housing restitution in general. Although security of tenure is most commonly associated with the ownership of land or property, it can include a wide variety of arrangements whereby the ability to reside and use the property is secured.

These include, among others, rental or lease accommodation, cooperative housing, long-term use, occupancy, residence or possession (including encroachment), de facto use or use based on customs or traditions.

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

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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 sanitation as well as other essential services. 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)". In this regard, the offer to resettle Bhutanese refugees to third countries, including the United States, should be seen as a way of fulfilling the refugees’ right to adequate housing while being displaced.

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 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,

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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

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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 to one’s own country 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 former residence, but also to one's original home, land or property. The right to return is a free standing, autonomous right, 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

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Government, rebel groups, and political parties. The choice to return must be entirely voluntary, and 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 claim restitution in the form of compensation without returning to their homes (see Principle 21).

At the same time it must be accepted that dire conditions of displacement may be brought to an end by the implementation of resettlement or local integration programmes, but that this does not take away the right of displaced persons to return to their original homes and claim restitution. Resettlement schemes may provide a solution to the situation of displacement, as is the case in the context of Bhutan; it does not necessarily provide a solution to the loss of one’s house, land and/or property.

Resettlement does not preclude the right to return-based housing, land and property restitution. Importantly, the right to return cannot be subjected to arbitrary or unlawful time limitations.

Principle 10.4 addresses the important question of who pays for voluntary return and restitution. The financial burden not just rests on the shoulders of the State, but also on other States and international organisations.

The protracted and dire displacement situation of most Bhutanese refugees may be resolved by accepting resettlement to a third country. Although such an offer has led to tensions among the displacement community and may result in understandable fears that return to Bhutan will no longer be possible, it is important to reiterate that the right to return and the right to have

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one’s house, land and/or property restored will not cease to exist because of the length of the displacement or because of the resettlement offer. All relevant stakeholders, including the United States, have repeatedly made it clear that the resettlement is meant to resolve the protracted displacement situation and is neither part of a restitution policy nor meant as an alternative to returnbased restitution. Consequently, the international community must take responsibility for continuing to pressure the Bhutanese government in allowing at some point return-based restitution for the Bhutanese refugees, including those who have been resettled. Furthermore, the international community must provide financial assistance in that regard.

In order for the Bhutanese displaced persons to be able to return it is imperative that they regain their Bhutanese nationality or citizenship and that land ownership or land use rights in Bhutan is no longer the sole prerogative of the State or of Bhutanese nationals.

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SECTION V

LEGAL, POLICY, PROCEDURAL AND INSTITUTIONAL IMPLEMENTATION MECHANISMS

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The Principles 11 to 21 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 legal standards will require, among other things, a review of relevant legislation and the development of required skills and expertise to effectively implement and enforce restitution procedures in keeping with prescribed standards.

The Pinheiro 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. The fact that Bhutan is a State Party to only very few treaties does not alter their obligation to recognise the rights to return and restitution. These rights are generally accepted by the international community and may even qualify as international customary law. 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.

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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.

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 decision-making, 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

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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 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

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guidelines impacting a wide range of activities such as institutional organisation, investigations and complaints, and enforcement and appeals mechanisms.

In Bhutan effective and competent administrative and judicial procedures and institution for considering restitution claims are absent. It will therefore be important to establish such procedures and institutions in close consultation with the Bhutanese government and the affected displacement community and with the help relevant international agencies. The newly formed National Land Commission Secretariat, in close cooperation with local authorities, could be used as a central administrative institution, provided it acts non-discriminatory and is independent and impartial.

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.

In order to establish an effective and competent restitution process, guidelines must be developed that address the complexity of challenges faced to fully implement the right to restitution. In the context of Bhutan such challenges relate to the actual return of displaced persons to their former homes and land, dealing with the issue of secondary occupation (see Principle 17), to resolving disputes on land ownership and land use rights, including issues relating to property records and land documentation (see Principles 15 and 16), addressing underlying issues such as nationality and citizenship rights and discriminatory laws and practices against Lhotshampas (see Principle 19). Furthermore, it includes the challenge of ensuring the various overarching Principles contained in Section III of the Pinheiro Principles as well as guaranteeing both judicial and nonjudicial effective remedies in the case of a violation of one’s right to 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

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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".

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 claimsprocessing 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.

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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.

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, nondiscrimination, 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 unconditional access to restitution claims procedures in order to vindicate their restitution rights.

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

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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.

A crucial element of restitution claims procedures is the types of evidence admissible in such procedures. The Pinheiro Principles do not specify the admissible types of evidence. Arguably, a wide variety of documentary evidence is admissible to proof ownership or use of land or property. This does not necessarily have to be a clear ownership, title deed, or land registration certificate, but may include other forms of evidence of use or ownership (i.e. secondary documentation) such as tax receipts, house insurance receipts, building permits, mortgage contracts, testimonies, census records, or photographs. In some cases displaced persons will not be able to submit any documentary evidence because they either had to leave documents behind when fleeing their homes or their documentation had been lost or destroyed during their displacement. What is important, in particular in the absence of documentary evidence, is the credibility of the restitution claim (see Principle 15.7).

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 decisionmaking 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.

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An effective housing, land and property restitution policy requires to know the preferred solution to the displacement situation of each displaced person, to allow flexibility within displaced families as well as within the displacement community at large, to collect land and property documentation and to gather and document restitution claims. Here, participation and consultation of all affected parties, both inside and outside the country as well as both primary and secondary occupants, 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 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.

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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.

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

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ensuring that documents relating to housing, land and property rights are preserved during the displacement. 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, for example during a 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 do 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 (see Principle 13).

The Principle also highlights the fact 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.

The focus of this Principle is on the State being the duty bearer.

In many displacement situations the State will not be able or willing to ensure adequate housing, land and property registration and documentation. In such cases it is the responsibility of the displaced persons and the international community to collect, compile and secure land and property documentation and claims.

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Principle 16 - The Rights of Tenants and Other Non-owners 16.1 States should ensure that the rights of tenants, socialoccupancy 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: tenants, social-occupancy rights holders and other legitimate occupants or users of housing. Often in restitution programmes the focus is on ownership and the land and property rights of these categories of persons are overlooked. This Principle requires that in designing and implementing restitution programmes, States must ensure that land and property rights of non-owners are also 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 nonowners inequitably vis-Ă -vis owners.

In Bhutan land is either owner by the State or by Bhutanese nationals. Most Lhotshampas have been unlawfully deprived of their Bhutanese nationality. Consequently, they have lost their land ownership rights under Bhutanese law. Furthermore, many Lhotshampas who were forcibly displaced not only were, in most cases, deprived of their Bhutanese citizenship, but were coerced in singing ‘voluntary migration forms’ saying that they left Bhutan of their own free will. Consequently, they were unable to sell their land, thereby allowing the government to confiscate their land in accordance with the Bhutanese Land Act of 1991. Arguably, these practices are not in accordance with the Pinheiro Principles.

Lhotshampas who lost Bhutanese citizenship and their ownership rights and whose land, that they originally owned, used and occupied, has been confiscated remain entitled to restitution.

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

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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.

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, preempting the formation of bona fide property interests in such cases.

One of the most challenging issues in any restitution process is resolving the problem of secondary occupants. Secondary occupants are persons who take up residence, either voluntarily or involuntarily and either in good or in bad faith, in a home or on land after the legitimate primary occupants were forced to leave.

This Principle attempts to strike a balance between the rights of secondary occupants and rightful occupants or owners of property. The Principle approaches the issue of secondary occupation with the understanding that secondary occupation of displaced persons' homes and lands often presents itself as an impediment to return.

This Principle contains two key elements. First, secondary occupants have a right to be protected against arbitrary or unlawful forced evictions, and to be protected against becoming landless or homeless. Second, the primary occupant is the

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principal lawful occupant. Therefore, the eviction of secondary occupants may be deemed justifiable and unavoidable for the purpose of ensuring the right to restitution, even if the secondary occupant has been occupying the home or land in good faith.

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 particular the prohibition of forced eviscions. 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 landlessor homeless, or place them in a situation where their human rights would be violated. States have a duty to 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 occupants to repossess their lands and properties in a just and timely manner.

The Pinheiro Principles do not address the issue of secondary occupants having invested in the property. It may be fair to expect in cases where the secondary occupant has acted in good faith and has made substantial improvements to the property it may be fair to provide some form of compensation.

The issue of subsequent occupancy becomes more problematic when secondary occupants have sold the property to a third party.

In such case the primary occupants remain the legitimate users and may claim restitution. However, this Principle clearly states that where secondary occupants have sold properties to bona fide third parties States may consider the payment of compensation to the third parties.

In the context of Bhutan 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 of Lhotshampas in southern Bhutan has been confiscated by the government and has been used to relocate people from northern Bhutan. This hinders the ability of the rightful owners and users to reclaim their land upon return.

Clearly, in any restitution programme for the displaced people of Bhutan the right to restitution of the Lhotshampas as primary occupants should be guaranteed. At the same time the right to adequate housing of the secondary occupants must be ensured.

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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.

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 Bhutan. In essence, laws and policies must be adopted within the legal framework of Bhutan 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. Therefore, the focus should not only be on the refugee registered by UNHCR and living in the camps in Nepal, but also those who are not registered and live outside the camps both in Nepal as well as in other countries, and those displaced inside Bhutan (see Principle 1). Principle 18 in essence 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.

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The adoption of relevant laws and policies is essential to successful reconciliation 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 stable multi-ethnic 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 issues of nationality, citizenship, land use and ownership and the existing institutional and legal framework, issues of secondary occupation, the administration of land, the administration of deeds and other documentation and issues of compensation and discrimination. Such problems may also be of a more practical nature, for example regarding accessibility of land and livelihood options.

Finally, heirs of refugees and displaced persons do inherit restitution rights. In cases where the original owner, occupant or rights holder has died, heirs maintain and inherit their restitution rights if they have not accessed any other durable solution and as long as they expressly indicate their continued assertion over the restitution rights.

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.

In line with Principle 18 as well as Principle 3 and 4, 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

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and application of arbitrary and discriminatory laws and policies that may prejudice the restitution process. Given the practices of discrimination of Lhotshampas in Bhutan 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. In the context of Bhutan land ownership and land use rights should be made available to Lhotshampas who had or have their home in Bhutan, irrespective of whether or not they qualify as Bhutanese nationals. Furthermore, laws that are discriminatory must be repealed. Land confiscations based on discriminatory laws must be made undone, including confiscations based on the abandonment prescription contained in the Land Act of Bhutan. Hereby confiscation of land is allowed if a Bhutanese national has left Bhutan of his own free will. While in principle abandonment laws may be reasonable and legitimate, they are often used and utilised to punish displaced persons. In the context of Bhutan many Lhotshampas were forced to sign so-called ‘voluntary migration forms’ saying that they had left Bhutan of their own free will, thereby allowing the State to confiscate their land.

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.

20.5 States should implement public information campaigns

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aimed at informing secondary occupants and other relevant parties of their rights and of the legal consequences of noncompliance 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 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.

Furthermore, Principle 20 is important as it obliges States to designate specific Government agencies to be entrusted with enforcing housing, land and property restitution and that a collective effort is made within the government to address various housing issues, including issues of return and restitution (see Principle 12).

Importantly, the government must inform displaced persons and secondary occupants as well as other relevant persons of their rights and the legal consequences of non-compliance with restitution decisions prior to the actual recovery and repossession of homes and lands.

Finally, it must be acknowledged that every restitution process is complex and must be given the flexibility necessary to be effective. As such, often a more flexible administrative procedure is called for rather than a time-consuming and legaltechnical judicial procedure. Nevertheless, Courts should still have final oversight under these procedures, but are only to be used when claimants feel they did not receive fair and equitable redress.

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.

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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.

Governments are first obliged to do all that is possible to restore displaced persons to their former homes through programmes of restitution, rehabilitation and reconstruction, including by providing financial assistance that enables the reparation or reconstruction of a house. Compensation as an alternative for return-based restitution should be used as a last resort.

Compensation is only an option (1) when it is factually impossible to physically restore housing and property due to extensive damage and destruction or when the property has been made to use for the public interest (see Principle 2), (2) when a displaced person knowingly and voluntarily accepts compensation instead of return-based restitution, or, (3) when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.

The latter situation is not applicable in the context of the Bhutanese refugees. The first situation may be applicable, but refers to a situation of actual destruction or ruin of the property and does not depend on political, social or economic difficulties or unwillingness of the Bhutanese government to allow for return and restitution. 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 the case that property of displaced persons is now used for public purposes it is important to balance the public interest against the individual right of return and restitution; a balance that often weighs in favour of the individual.

Importantly, the existence of ‘factual impossibility’ must be determined by an independent and impartial tribunal.

The second situation is potentially applicable on the situation of the Bhutanese refugees. In order for a refugee the accept resettlement as a form of compensation in lieu of (return-based) restitution the refugee must do so (1) knowingly, (2) voluntarily, and (3) explicitly accept resettlement as an alternative for returnbased restitution. The refugee must be given sufficient relevant information that will enable him/her to make a free decision.

Important in the context of Bhutan is the fact that the United States have emphasised on various occasions that resettlement is not meant to be an alternative for return.

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In general, compensation that is accepted as an alternative for return-based restitution 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.

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

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Principle 22 - Responsibility of the International Community 22.1 The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and 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

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

The international community and international organisations have a responsibility in overseeing a successful implementation of the right to restitution, including international financial organisations such as the World Bank, the International Monetary Fund, the Asian Development Bank, United Nations agencies such as UNHCR, UNICEF and UNDP, and international peace operations and international nongovernmental organisations . 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 the context of Bhutan it is essential to keep the plight of the situation of the displaced Lhotshampas on the agenda of the international community. The member States of the so-called Core Group, in particular the United States, as well as the United Nations and Nepal must continue their efforts to have the displaced persons returned to Bhutan and have a restitution process established. Resettlement schemes do not alter this important obligation.

Furthermore, when return will be possible the international community will inevitably play an important role in drafting and facilitating the return and restitution process.

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SECTION VII INTERPRETATION

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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 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. 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.

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

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 the 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

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Accords, the Liberia Peace Agreement, the Guatemala Peace Accords, the Comprehensive Peace Agreement on Sudan and 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.

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The Centre on Housing Rights and Evictions (COHRE) is an independent and international non-governmental, not-for-profit human rights organisation. COHRE has Special Consultative status to the Economic and Social Council of the United Nations (ECOSOC), the Organisation of American States, observer status with the African Commission on Human and Peoples’ Rights and participatory status with the Council of Europe.

COHRE is registered as a not-for-profit foundation or ‘Stichting’ in the Netherlands (No. 41186752) and in the United States as a 501(c)(3) not-for-profit organisation. COHRE is also registered in Australia, Brazil, Ghana and Sri Lanka.

COHRE’s international Secretariat is based in Geneva, Switzerland, from where it oversees COHRE’s global housing rights campaigns and manages its regional and thematic programmes. Regional programmes currently cover Africa, the Americas and the AsiaPacific region, while thematic programmes focus on Women and Housing Rights, Forced Evictions, Litigation, the Right to Water, and Housing and Property Restitution.

COHRE and Housing and Property Restitution Since 1998 COHRE has worked closely with governments, UN bodies, NGOs, community based groups and refugees and IDPs to systematically address the immense housing, land and property restitution challenges facing refugees and IDPs in numerous post-conflict and postdisaster settings. Three key activities define the HPRP’s work: Promoting Restitution – COHRE has designed laws, mechanisms, institutions and programmes to support restitution claims by displaced persons in Albania, Georgia, Iraq, Kosovo, Sri Lanka, and Timor Leste. Additional restitution efforts have been carried out in or concerning Bhutan, Guatemala, the Maldives, Myanmar (Burma), Palestine/Israel, Serbia and Montenegro. COHRE is regularly called on by UNHCR, UNHABITAT, UNDP, OCHA and other UN agencies for policy and legal advice on restitution issues.

Research – COHRE has produced more than ten publications, including ‘Returning Home. Housing and Property Restitution Rights of Refugees and Displaced Persons’, published by Transnational Publishers in 2003.

Training – COHRE regularly provides indepth and practical training on housing, and property restitution issues to refugee and IDP groups, NGOs and government officials.

For further information on COHRE, please contact: cohre@cohre.org

C O H R E

CENTRE ON HOUSING RIGHTS AND EVICTIONS International Secretariat 83 rue de Montbrillant 1202 Geneva Switzerland Asia and Pacific Programme (CAPP) PO Box 2061 Phnom Penh Cambodia Email: bhutan@cohre.org www.cohre.org/bhutan