COHRE Sources 7 - Housing Property Restitution for IDPS 2001

Centre on Housing Rights and Evictions International Secretariat tel/fax: + 41.22.734.1028 e-mail: sleckie@attglobal.net www.cohre.org ISBN 92-95004-04-3

COHRE May 2001

83 Rue Montbrillant 1202 Geneva Switzerland

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housing and property

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restitution for refugees

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and internally I nt e rn a t i o n a l , R e g i o n a l a n d N a t i o n a l Leg a l R e s o u rces

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displaced persons:

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Housing and Property Restitution for Refugees and Internally Displaced Persons : International, Regional and National Legal Resources (Sources 7) gathers valuable international, regional and national provisions regarding housing and property restitution in one user friendly document. It provides anyone working in the area of refugee and IDP return with the legal resources necessary to not only understand the concepts of housing and property restitution but to apply the concepts and practices in real world situations. While housing and property restitution is an emerging area of law, Sources 7 illustrates that the concept has been used to some degree for decades, first in specific ad hoc situations and later in more general statements of international law.

Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources

COHRE actively campaigns against forced evictions wherever they occur or are planned, and views forced evictions as a gross violation of a range of human rights, in particular the right to adequate housing.

CO H R E May 2001

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Sources 7

The Centre on Housing Rights and Evictions (COHRE) undertakes a wide variety of activities supporting the full realization of housing rights for everyone, everywhere.

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HOUSING and PROPERTY RESTITUTION for R E F U G E E S a n d I N T E R N A L LY DISPLACED PERSONS: I n t e r n a t i o n a l , R e g i o n a l a n d N a t i o n a l Le g a l R e s o u rce s

Sources 7 COHRE May 2001

Centre on Housing Rights and Evictions International Secretariat 83 Rue de Montbrillant 1202 Geneva Switzerland tel/fax: +41.22.734.1028 e-mail: sleckie@attglobal.net Housing and Property Restitution Programme 83 Rue de Montbrillant 1202 Geneva Switzerland tel/fax: +41.22.734.1028 e-mail: sleckie@attglobal.net Women and Housing Rights Programme 83 Rue de Montbrillant 1202 Geneva Switzerland tel/fax: +41.22.734.1028 e-mail: sleckie@attglobal.net

COHRE – U.S. Office and Americas Programme 208 Temple Bldg.

8 N. 2nd Avenue East Duluth, MN 55802 U.S.A. tel/fax: +1.218.724.9248 e-mail: Bret_Thiele@yahoo.com (U.S. Office) e-mail: Gomez_Mayra@yahoo.com (Americas Programme) COHRE – Africa Programme c/o The Social and Economic Rights Action Centre 16 Awori Crescent, Off Coker Rd./Obokun st.

Illupeiu-Lagos Nigeria tel: +234.1.4968605, fax: +234.1.4968606 e-mail: serac@linkserve.com.ng COHRE – Asia and Pacific Programme 124 Napier Street Fitzroy VIC 3065 Australia tel/fax: +61.3.98702206 e-mail: ken@cohre.minihub.org

© Copyright 2001 Centre on Housing Rights and Evictions (COHRE) Sources No. 7: Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources Centre on Housing Rights and Evictions, Geneva, Switzerland

All rights reserved The Centre on Housing Rights and Evictions is registered in the Netherlands as a not-for-profit organization.

Copies are available from: COHRE 83 Rue de Montbillant 1202 Geneva Switzerland tel/fax: 41.22.734.10.28 e-mail: sleckie@attglobal.net www.cohre.org ISBN 92-95004-04-3 Prepared by: Bret Thiele and Scott Leckie Graphic design: Ontwerpburo Suggestie & illusie, Utrecht, www.illusie.nl Print: Primavera in Amsterdam, The Netherlands Photos by: Scott Leckie Large: Destroyed housing in Kosovo, Small: Bhutanese refugees showing property records to a COHRE fact-finding team (1998)

TABLE OF CONTENTS 1.

Introduction

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2.

How to Use Sources No. 7

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I.

INTERNATIONAL AND REGIONAL LEGAL RESOURCES ON HOUSING AND PROPERTY RESTITUTION

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United Nations Standards

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3.1 UN Security Council 3.11 Bosnia and Herzegovina • Security Council Resolution 820 (1993) 3.12 Republic of Croatia • Security Council Resolution 1009 (1995) 3.13 Abkhazia and the Republic of Georgia • Security Council Resolution 1287 (2000) • Security Council Resolution 1036 (1996) • Security Council Resolution 971 (1995) • Security Council Resolution 876 (1993) 3.14 Kosovo • Security Council Resolution 1244 (1999) • Security Council Resolution 1199 (1998) 3.15 Kuwait • Security Council Resolution 687 (1991) 3.2 UN General Assembly 3.21 All Countries • General Assembly Resolution 35/124 (1980) 3.22 Algeria • General Assembly Resolution 1672 (1961) 3.23 Cyprus • General Assembly Resolution 3212 (1974) 3.24 Palestine/Israel • General Assembly Resolution 51/126 (1997) • General Assembly Resolution 194 (III) (11 December 1948) 3.25 Rwanda • General Assembly Resolution 51/114 (1997) 3.3 UN Commission on Human Rights 3.31 All Countries • Commission Resolution 2000/41 (the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms)

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REGIONAL AND NATIONAL LEGAL RECOURCES

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3.4

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3.6

3.7

3.8

4.

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3.32 Cyprus • Commission Resolution 4 (XXXII) (question of human rights in Cyprus) (1976) • Commission Resolution 4 (XXXI) (question of human rights in Cyprus) (1975) UN Sub-Commission on the Promotion and Protection of Human Rights • Sub-Commission Decision 1999/108 (housing and property restitution in the context of the return of refugees and internally displaced persons) (1999) • Sub-Commission Resolution 1998/26 (housing and property restitution in the context of the return of refugees and internally displaced persons) (1998) • Sub-Commission Resolution 1994/24 (on the right to freedom of movement) (1994) • Sub-Commission Resolution 1987/19 (on the human rights situation in Cyprus) (1987) • Sub-Commission Resolution 1(XXVIII) (on the question of the violation of human rights and fundamental freedoms) (1975) UN Covenants, Conventions, Treaties and Treaty Monitoring Committees • International Covenant on Economic, Social and Cultural Rights (1966) • Committee on Economic, Social and Cultural Rights General Comment No. 7 (1997) (forced evictions) • Committee on Economic, Social and Cultural Rights General Comment No. 4 (1991) (right to adequate housing) • Committee on the Elimination of Racial Discrimination General Recommendation No. 23 (1997) • Committee on the Elimination of Racial Discrimination General Recommendation No. 22 (1997) UN High Commissioner for Refugees • EXCOM Conclusion No. 40 (XXXVI)-1985, “Voluntary Repatriation” • EXCOM Conclusion No. 18 (XXXI)- 1980, “Voluntary Repatriation” Other International Standards and Relevant Documents • Rome Statute of the International Criminal Court (1998) • The Guiding Principles on Internal Displacement (1998) • The Comprehensive Human Rights Guidelines on Development-Based Displacement (1997) • The Declaration of Principles of International Law on Compensation to Refugees (International Law Association, 65th Conf., Cairo, April 1992) • ILO Convention No. 169: Concerning Indigenous and Tribal Peoples (1989) • Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force 21 October 1950 (1948) • Universal Declaration of Human Rights (1948) Draft International Standards • Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (1998) • Draft Declaration on the Rights of Indigenous Peoples (1993)

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Regional Standards

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4.1 Africa • Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) • Regional Conference on Assistance to Refugees, Returnees and Displaced Persons in the Great Lakes Region (12-17 February 1995)

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4.2 Americas • Cartagena Declaration on Refugees 4.3 Europe • European Convention for the Protection of Human Rights and Fundamental Freedoms

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II. UNITED NATIONS SPONSORED AGREEMENTS AND OTHER CO U N T R Y-S P EC I F I C STA N DA R DS 5.

Relevant Agreements and Standards

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5.1 Bosnia and Herzegovina • General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7 Agreement on Refugees and Displaced Persons (1996) 5.2 Cambodia • Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (1991) 5.3 Cyprus • Set of Ideas on an Overall Framework Agreement on Cyprus (1992) 5.4 Guatemala • Agreement on the Identity and Rights of Indigenous Peoples (Guatemala Peace Accords) (31 March 1995) • Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict (17 June 1994) 5.5 Kosovo • UNMIK Regulation No. 1999/23 (on the establishment of the Housing and Property Directorate and the Housing and Property Claims Commission) (15 November 1999) 5.6 Rwanda • Arusha Peace Agreement (4 August 1993)

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I I I . N AT I O N A L L EG A L P R OV I S I O N S O N H O U S I N G A N D P R O P E RTY R EST I T U T I O N 6.

Selected National Legal Provisions

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6.1 Bulgaria • Restitution of Ownership of Nationalised Real Property Act of 1992 6.2 Czech Republic • Law No. 116/1994 Coll.

• Law No. 87/1991 Coll.

6.3 Estonia • Law on the Fundamentals of Ownership Reform of 1991, as amended in 1993 and Land Reform Act of 1991, as amended in 1993 6.4 Germany • German Act Regulating Unresolved Property of 1990 • Federal Restitution Law of 1957

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6.5 Rwanda • Ministerial Order No. 01/96 of September 23, 1996 Regarding the Temporary Management of Land Property 6.6 Slovenia • Denationalisation Law (1991, amended 1998) 6.7 South Africa • Constitution, Article 25 (1996) • Restitution of Land Rights Act 22 of 1994 6.8 Tajikistan • Special Law on the Return of Illegally Occupied Houses • Resolution No. 542 of 22 August 1995 on Additional Measures Facilitating the Return of Refugees-Citizens of the Republic of Tajikistan and Forced Migrants to the Places of Permanent Residence and Their Social and Legal Protection • The Law of the Republic of Tajikistan on Forced Migrants (20 July 1994) 6.9 Former Republic of Yugoslavia • Law on the Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens (3 April 1998) (Bosnia and Herzegovina) • Law on the Cessation of the Application of the Law on Abandoned Apartments (1998) (Bosnia and Herzegovina) • Law on the Sale of Apartments with Occupancy Rights (6 December 1997) (Bosnia and Herzegovina) • Law on the Cessation of the Application of the Law on Abandoned Apartments (2 December 1998) (Republika Srpska)

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I V. O T H E R U S E F U L I N F O R M A T I O N

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7.

Contact Information

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Internet Resources

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Selected Bibliography

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10. COHRE Publications

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1

INTRODUCTION

Few events in one’s life can be more terrifying than being forced arbitrarily from one’s home or lands. Yet, as horrendous as this practice may be, millions of people are forced to leave their homes each year as a result of armed conflict, outright ethnic cleansing and other terror tactics or wanton violations of basic housing and property rights by enemy armies, aggressive neighbouring States or even one’s own Government.

Throughout most of human history, when families or communities were forced from their homes by opposing armies or dictatorships which desired their homes, it was accepted logic that the chances of returning one day to the lost homes was effectively out of the question, a non-starter. In the past several decades, and in particular, the past ten years, however, a growing global consensus has emerged which increasingly supports the contention that if a community, a family or an individual is forced from their homes because of war, discrimination or on any other arbitrary grounds, they should have a right to have their homes, property and land restored to them once conditions of safety and security permit. This emerging right to housing and property restitution is the subject of Sources 7.

The right to housing and property restitution is increasingly recognised as an essential element of the right to return for refugees and internally displaced persons (IDPs). The right of return is now understood to encompass not merely returning to one’s country, but to one’s original home as well.

This understanding is important if the right to return is to effectively protect refugees and IDPs, and if situations leading to instability and displacement are to be ameliorated. The right of return to one’s country of origin and the right to return to one’s original home are now increasingly viewed as core components of the voluntary repatriation process. This is one reason why the United Nations and other agencies are paying greater attention to the housing element of return than ever before.

At the same time, the housing and property dilemmas and disputes facing returning refugees and IDPs are increasingly recognized as one of the key impediments to the exercise of the right to return. Whether in terms of Bosnia and Herzegovina, Palestine, Georgia, Kosovo, Azerbaijan, East Timor, Guatemala, Croatia, Rwanda, Bhutan or many other countries and regions, millions of refugees and IDPs who desperately want to return to their original homes are unable or actively prevented from doing so due to serious housing and property disputes and other legal, political and economic problems negatively affecting the housing and property rights of these potential returnees. Without adequate legal standards and mechanisms to facilitate return to their original homes, the right to return cannot be adequately guaranteed and people will remain displaced.

Recent years have been witness to the establishment of various institutions such as the Commission on Real Property Claims in Bosnia and Herzegovina, the Housing and Property Directorate in Kosovo, the Land Claims Court in South Africa and others, all of which have been specifically created to ensure the enforcement of rights to housing and property restitution by people and communities subjected to displacement over the years. Despite the immense efforts made by these and other such bodies, however, recent history has shown that the restitution process – wherever it may be carried out – is never any easy one. Restitution brings with it a lengthy series of complex political, economic and legal challenges, all of which need to be overcome if this right is to be taken seriously and implemented universally. Restitution is clearly the right thing to do, but those supporting it – such as COHRE – must always be careful that the laws, procedures and institutions established to make restitution a reality do so in a fair and just manner, and in such a way that the wounds of the past are healed and not re-opened.

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COHRE has been actively involved in the promotion of rights to housing and property restitution for several years – in Kosovo, East Timor, the Republic of Georgia and elsewhere. Through its Housing and Property Restitution Programme, COHRE continues to work towards strengthening restitution rights throughout the world and to making the return of displaced persons to their original homes, should they so wish, a growing reality. COHRE plans to devote increasing attention to finding restitution solutions in Armenia and Azerbaijan, Palestine and elsewhere in the near future, and to expanding international legal attention to housing and property restitution by various UN institutions, including the UN High Commissioner for Refugees (UNHCR).

It is important to recall that while housing and property restitution is an emerging area of law, Sources 7 quite clearly illustrates that the concept has been used to some degree for decades, first in specific ad hoc situations and later in more general statements of international law. By gathering international, regional, and national provisions regarding housing and property restitution in one user-friendly document, Sources 7 aims to provide anyone working in the area of refugee and IDP return with a reasonably comprehensive collection of the legal resources necessary to not only understand the concepts of housing and property restitution, but to apply those concepts and practices in real world situations so that all people who have been deprived of their homes and lands can return to them on their terms.

COHRE would like to thank the Ford Foundation and DFID for their generous support towards the preparation of this document.

Scott Leckie Executive Director

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HOW TO USE SOURCES NO. 7

Housing and property restitution for returning refugees and IDPs may be an emerging concept, but it is based on long existing principles of international law. Sources 7 provides a comprehensive collection of that law as well as how it has been applied in real world post-conflict situations. Sources 7 is intended to be used and usable by everyone — including the layperson, educators, human rights lawyers and other advocates, and international and national policy makers — with an interest in facilitating the right of refugees and IDPs to return home voluntarily in safety and dignity. The relevant provisions of international, regional and national laws have been excerpted and appear in Sections I to III below. Where the texts of such laws are not readily available, COHRE has provided annotations. Italics have been added to explicit references to housing and property restitution.

There are many ways to use Sources 7, for example: 1. The general statements of law and principle regarding housing and property restitution can be used to inform individuals and groups of their rights, to inform governments of their obligations, and to interpret specific provisions such as those found in national legislation and peace agreements.

2. Human rights practitioners can use Sources 7 as a basis for applying pressure on governments to respect, protect and ensure the right to return, including to one’s original dwelling, and thereby meet their obligations under international law.

3. The provisions, and particularly those addressing particular situations (e.g., those found in peace agreements) or found in national legislation, can be used a models in formulating similar provisions consistent with international law.

4. The resources in Sources 7 can be used as the bases for comparative analyses in order to evaluate existing or proposed legal standards and provisions. In doing so, the resources in Sources 7 can be used as models to amend and strengthen existing law.

5. Sources 7 can be used as a comprehensive secondary research tool for those who desire to delve deeper into the topic of housing and property restitution. Indeed, Source 7 provides not only relevant excerpts but also the proper citations of the most important legal standards and provisions regarding housing and property restitution. Furthermore, the Internet resource section and the comprehensive bibliography provide a wealth of information for those who desire to learn more about this emerging and important topic.

6. Sources 7 can also be used to inform refugees and IDPs, politicians, lawyers and other advocates, policy makers, government and ministerial officials, and researchers.

In addition to these general uses there are a range of more specific activities that are arranged into the following categories: Distribution, translation and documentation; Legal uses; Utilizing the United Nations and regional organizations; Political and strategic uses; Campaigning and networking uses; and Academic and educational uses.

Many of the possible uses of Sources 7 indicated below might require the acquisition of the full texts of the legal instruments from which relevant provisions have been excerpted, therefore citations are provided where relevant.

In addition, COHRE can provide the documents listed throughout Sources 7. Please visit our website at www.cohre.org for more information. UN documents can be obtained either from the UN information office in your country or directly from the website of the Office of the UN High Commissioner for Human Rights <www.unhchr.ch>.

Distribution, Translation and Documentation The legal standards and provisions contained in Sources 7 can be widely publicised and distributed throughout all levels of society, in an effort to achieve wider public recognition and awareness of these important documents.

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The texts listed below can be translated into local languages in order to prepare accessible leaflets, brochures and booklets for wide distribution. Most of the UN resources are available in the six official UN languages (Arabic, Chinese, English, French, Russian and Spanish). If material is produced in languages other than these, please send these to COHRE and we will publicise these throughout our network.

Consideration could be given to establishing a housing rights documentation centre in your country. If human rights documentation centres already exist, COHREâ&#x20AC;&#x2122;s Sources series could be provide to them. The list of publications contained in the bibliography which appears in Chapter 9, as well as the comprehensive housing rights and forced evictions bibliography contained in COHREâ&#x20AC;&#x2122;s Sources No. 2, could also be useful for these purposes.

Legal Uses These texts should be brought to the attention of those working in the legal community, in particular to human rights organisations and lawyers and other advocates working for refugee or IDP rights. All legal initiatives that are underway dealing with housing and property restitution for refugees or IDPs should be informed of the legal sources contained in Sources 7.

The legal foundations contained in Sources 7 can be used to propose new national legislation, amend existing laws, and to ensure that national law is consistent with international human rights law, including refugee law.

Utilising the United Nations The texts contained in Chapter I can be used as a basis for preparing parallel reports to relevant UN or other human rights bodies charged with monitoring the implementation of and compliance with international obligations. The texts can also be used as the foundation on which to develop stronger international standards with respect to facilitating the voluntary and safe return of refugees and IDPs. Political and Strategic Uses The human rights standards in Sources 7 should be used to promote human rights approaches to the issue of refugee or IDP return. Bearing these goals in mind, the legal standards and provisions listed in this booklet should be brought to the attention of national, regional and local governments through whatever means are considered appropriate within your country. The government should be encouraged to respond to and respect these provisions and, in particular, should become duly aware of the legal obligations established in these texts, develop new policies or laws designed to further the standards embodied in these texts, and to encourage the UN and regional organisations to develop further standards and norms with respect to housing and property restitution for returnees.

The texts in Sources 7 should also be brought to the attention of policy-makers and political parties within your country. In particular, they should be brought to the attention of government agencies mandated to facilitate the resettlement of returning refugees and IDPs. Campaigning and Networking Uses The texts should be brought to the attention of non-governmental organisations, inter-governmental agencies and other entities dealing with refugee or IDP return. If procedures for housing and property restitution are in place in your country, these texts should be used to ensure that those procedures comply with international standards.

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Academic and Educational Uses The legal resources in Sources 7 can be sent to research institutes and universities within your country or region.

Requests can be made to these institutions to provide their own commentary about these legal standards and their suggestions for their further development. To this end, legal activists, academics and scholars can be asked to carry out detailed research on the existing legal standards with the aim of strengthening the right of returnees to housing and property restitution.

TERMINOLOGY Section I of Sources 7 provides a compilation of international sources regarding housing and property restitution in the context of refugees and IDPs. Many terms which appear throughout this publication, and which may be unfamiliar to some readers, appear here for the first time. In order to ensure that this document is useful to everyone, we have included short explanations to some of the more frequently used terms in Sources 7.

Compensation The term “compensation” refers to a legal remedy by which a person receives monetary payment for harm suffered, for example the destruction of housing. Compensation should not be seen as an alternative to restitution, and should only be used when restitution is not possible. For example, a person should receive compensation to remedy the wrongful dispossession of housing only if that particular housing no longer exists.

Covenant, Convention and Treaty The terms “Covenant”, “Convention” and “Treaty” are synonymous and refer to legally binding instruments for the Governments that have ratified or acceded to them, thus becoming States Parties. Governments that have signed but not yet ratified a Covenant, Convention or Treaty are not legally bound to enforce that respective instrument but are under an obligation not to undertake activities that violate the object and purpose of the instrument. If your Government is a State Party to any of the Covenants, Conventions or Treaties listed below then it has clearly identifiable legal obligations to fulfil the provisions of that instrument.

Declarations and Recommendations “Declarations and Recommendations” are generally documents of intent, but do not in most circumstances create legally binding obligations on the countries that have voted for or signed onto them. Declarations cannot be ratified in the same way Covenants, Conventions and Treaties can. In some instances, however, declarations may gain the force of binding law if the declaration in question achieves the status of customary international law. One notable example in the Universal Declaration of Human Rights, which most agree has ripened into such a legal status.

Entered into Force The term “entered into force” indicates the date that the respective Covenant, Convention or Treaty gained the force of law and thus became legally binding upon all States Parties thereto.

General Comments and General Recommendations “General Comments and General Recommendations” are official interpretations or elaborations on a specific right enumerated in an international instrument such as a covenant, convention or treaty. “General Comments and General Recommendations” are issued by treaty monitoring committees established to enforce and monitor the implementation of specific covenants, conventions or treaties.

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Regional Human Rights Instruments “Regional Human Rights Instruments” are those treaties and declarations adopted under the auspices of a particular regional inter-governmental organisation. The most notable examples of such regional organisations are: The Organization of African Unity (OAU), an inter-governmental organisation comprised of 53 member States from Africa.

The Organization of American States (OAS), an inter-governmental organisation comprised of 35 member States from the Caribbean, Central America, North America and South America.

The Council of Europe (COE), is comprised of most countries in Western Europe and an increasing number of Governments of Eastern Europe and the Commonwealth of Independent States. At present, there are 41 member Governments active within the Council of Europe.

Resolutions “Resolutions” are generally adopted by bodies comprised of governments, with the exception of the UN Sub-Commission on the Promotion and Protection of Human Rights (formerly known as the Sub-Commission on the Prevention of Discrimination and Protection of Minorities) and some others that are composed of independent experts acting in their own personal capacity. For the most part, resolutions are not considered to be legally binding. Resolutions are, however, considered persuasive views on international law and often affirm customary international legal principles or articulate emerging international legal norms. Furthermore, when a Government votes for a resolution it indicates at the very least a political willingness to work towards the achievement of its contents. Exceptions to the general rule that resolutions are non-binding are resolutions adopted by the UN Security Council, which are legally binding according to the UN Charter. In any event, the adoption of a resolution constitutes a significant political pledge of the international community towards a particular aim.

Restitution “Restitution” refers to an equitable remedy, or a form of restorative justice, by which a person or persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position. The remedy includes, for example, the return of arbitrarily or illegally confiscated housing or property. Housing and property restitution is increasingly viewed as a right of displaced persons under international human rights law, and as the key means to returning situations involving displacement to their original state.

State Party: The term “State Party” refers to a Government that has ratified or acceded to a particular Covenant, Convention or Treaty, thereby voluntarily creating for itself legally binding obligations.

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I. INTERNATIONAL AND REGIONAL LEGAL RESOURCES ON HOUSING AND PROPERTY RESTITUTION

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3

UNITED NATIONS STANDARDS

The UN Charter authorizes the establishment of various bodies including the General Assembly, the Security Council, the Economic and Social Council, and any such subsidiary bodies deemed necessary. One such subsidiary body is the Commission on Human Rights, which in turn established a subsidiary body known as the SubCommission on the Promotion and Protection of Human Rights. Chapters 3.1 through 3.4 contain relevant excerpts of resolutions adopted by these Charter-based bodies.

Certain UN Covenants, Conventions and Treaties contain provisions with respect to housing and property restitution in the context of refugee and IDP return. Those provisions are legally binding upon the States Parties to those respective instruments. Furthermore, certain treaty monitoring committees have been established to enforce and monitor the implementation of certain Covenants and Conventions. One task of these committees is to adopt General Comments or General Recommendations which are considered official interpretations or elaborations on specific rights enumerated in the respective Covenant or Convention. Chapter 3.5 below contains excerpts of relevant Covenant, Convention or Treaty language, as well as excerpts from General Comments and Recommendations.

Chapter 3.6 includes relevant official conclusions of the UNHCR Executive Committee. Although not formally legally binding, these conclusions are considered persuasive interpretations of the rights protected by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Chapters 3.7 and 3.8 contain other international standards and documents and draft international standards, respectively.

3.1 UN SECURITY COUNCIL The UN Security Council has adopted a number of resolutions regarding housing and property restitution in the context of refugee and IDP return. According to the UN Charter, Security Council resolutions are legally binding on UN Member States. Most of these resolutions were adopted in reaction to specific country or regional situations.

3.11

BOSNIA AND HERZEGOVINA

Resolution 820 (1993)1 UN Doc. S/RES/820 (1993) Adopted 17 April 1993 The Security Council, Reaffirming all its earlier relevant resolutions, 7. Reaffirms its endorsement of the principles that all statements or commitments made under duress, particularly those relating to land and property, are wholly null and void and that all displaced persons have the right to return in peace to their former homes and should be assisted to do so.

1 UN Doc. S/RES/820 (1993), adopted 17 April 1993.

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REPUBLIC OF CROATIA

Resolution 1009 (1995)2 The Security Council, Deeply concerned at the grave situation of persons displaced from their homes as a result of the conflict and at reports of violations of international humanitarian law, 2.Demands further that the Government of the Republic of Croatia, in conformity with internationally recognized standards and in compliance with the agreement of 6 August 1995 between the Republic of Croatia and the United Nations Peace Forces (a) respect fully the rights of the local Serb population including their rights to remain, leave or return in safety, (b) allow access to this population by international humanitarian organizations, and (c) create conditions conducive to the return of those persons who have left their homes.

3.13

ABKHAZIA AND THE REPUBLIC OF GEORGIA

Resolution 1287 (2000)3 The Security Council, 8. Reaffirms the unacceptability of the demographic changes resulting from the conflict and the imprescriptible right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions, in accordance with international law and as set out in the Quadripartite Agreement of 4 April 1994 (S/1994/397, annex II), and calls upon the parties to address this issue urgently by agreeing and implementing effective measures to guarantee the security of those who exercise their unconditional right to return, including those who have already returned.

Resolution 1036 (1996)4 The Security Council, Reaffirming also the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law and as set out in the Quadripartite Agreement of 14 April 1994 on voluntary return of refugees and displaced persons (UN Doc. S/1994/397, annex II), Deploring the continued obstruction of such return by the Abkhaz authorities, 5.Demands that the Abkhaz side accelerate significantly the process of voluntary return of refugees and displaced persons by accepting a timetable on the basis of that proposed by the Office of the United Nations High Commissioner for Refugees, and further demands that it guarantee the safety of spontaneous returnees already in the area and regularize their status in accordance with the Quadripartite Agreement; 6.Calls upon the Abkhaz side in that context to promote, as a first step, the return of refugees and displaced persons to the Gali region, in safety and dignity; 2 UN Doc. S/RES/1009 (1995), adopted 10 August 1995.

3 UN Doc. S/RES/1287 (2000), adopted 31 January 2000.

4 UN Doc. S/RES/1036 (1996), adopted 12 January 1996.

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8.Calls upon the parties to improve their cooperation with UNOMIG and the CIS peace-keeping force in order to provide a secure environment for the return of refugees and displaced persons and also calls upon them to honour their commitments with regard to the security and freedom of movement of all United Nations and CIS personnel and with regard to UNOMIG inspections of heavy weapons storage sites; 9.Welcomes the additional measures implemented by UNOMIG and the CIS peace-keeping force in the Gali region aimed at improving conditions for the safe and orderly return of refugees and displaced persons, and all appropriate efforts in this regard.

Resolution 971 (1995)5 The Security Council, Reaffirming also the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law and as set out in the Quadripartite Agreement on voluntary return of refugees and displaced persons (S/1994/397, annex II), signed in Moscow on 4 April 1994, Deeply concerned about the lack of progress regarding a comprehensive political settlement as well as the slow pace of return of refugees and displaced persons, 5. Calls upon the parties to comply with their commitments with regard to the return of refugees and displaced persons, as undertaken in the Quadripartite Agreement and in particular calls upon the Abkhaz side to accelerate the process significantly; 6. Decides to undertake, on the basis of a report from the Secretary- General submitted by 4 May 1995 and in the light of any progress achieved towards a political settlement and the return of refugees and displaced persons, a thorough review of the situation in Abkhazia, Republic of Georgia; 7. Requests also the Secretary-General to examine, within UNOMIGâ&#x20AC;&#x2122;s existing mandate, in cooperation with the relevant Representatives of the CIS peace-keeping force the possibility of additional steps to contribute to conditions conducive to the safe and orderly return of refugees and displaced persons.

Resolution 876 (1993)6 The Security Council, 5. Affirms the right of refugees and displaced persons to return to their homes, and calls on the parties to facilitate this.

5 UN Doc. S/RES/971 (1995), adopted 12 January 1995.

6 UN Doc. S/RES/876 (1993), adopted 19 October 1993.

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Destroyed housing in Kosovo (1999) Š Scott Leckie

3.14

KOSOVO

Resolution 1244 (1999)7 The Security Council, Determined to resolve the grave humanitarian situation in Kosovo, Federal Republic of Yugoslavia, and to provide for the safe and free return of all refugees and displaced persons to their homes, Reaffirming the right of all refugees and displaced persons to return to their homes in safety, 9. Decides that the responsibilities of the international security presence to be deployed and acting in Kosovo will include: (c) Establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; 11. Decides that the main responsibilities of the international civil presence will include: (k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo; 13. Encourages all Member States and international organizations to contribute to economic and social reconstruction as well as to the safe return of refugees and displaced persons, and emphasizes in this context the importance of convening an international donorsâ&#x20AC;&#x2122; conference, . . ., at the earliest possible date.

7 UN Doc. S/RES/1244 (1999), adopted 10 June 1999.

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Resolution 1199 (1998)8 The Security Council, Gravely concerned at the recent intense fighting in Kosovo and in particular the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army which have resulted in numerous civilian casualties and, according to the estimate of the Secretary-General, the displacement of over 230,000 persons from their homes, Deeply concerned by the flow of refugees into northern Albania, Bosnia and Herzegovina and other European countries as a result of the use of force in Kosovo, as well as by the increasing numbers of displaced persons within Kosovo, and other parts of the Federal Republic of Yugoslavia, up to 50,000 of whom the United Nations High Commissioner for Refugees has estimated are without shelter and other basic necessities, Reaffirming the right of all refugees and displaced persons to return to their homes in safety, and underlining the responsibility of the Federal Republic of Yugoslavia for creating the conditions which allow them to do so, 4. Demands further that the Federal Republic of Yugoslavia, in addition to the measures called for under resolution 1160 (1998), implement immediately the following concrete measures towards achieving a political solution to the situation in Kosovo as contained in the Contact Group statement of 12 June 1998: . . . (c) facilitate, in agreement with the UNHCR and the International Committee of the Red Cross (ICRC), the safe return of refugees and displaced persons to their homes and allow free and unimpeded access for humanitarian organizations and supplies to Kosovo; 5. Notes, in this connection, the commitments of the President of the Federal Republic of Yugoslavia, in his joint statement with the President of the Russian Federation of 16 June 1998: . . . (e) to facilitate the unimpeded return of refugees and displaced persons under programmes agreed with the UNHCR and the ICRC, providing State aid for the reconstruction of destroyed homes, and calls for the full implementation of these commitments.

3.15

KUWAIT

Resolution 687 (1991)9 The Security Council, Welcoming the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate Government, Noting that despite the progress being made in fulfilling the obligations of resolution 686 (1991), many Kuwaiti and third country nationals are still not accounted for and property remains unreturned, (D) 15. Requests the Secretary-General to report to the Security Council on the steps taken to facilitate the return of all Kuwaiti property seized by Iraq, including a list of any property that Kuwait claims has not been returned or which has not been returned intact;

8 UN Doc. S/RES/1199 (1998), adopted 23 September 1998.

9 UN Doc. S/RES/687 (1991), adopted 2 March 1991.

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(E) 16. Reaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait; 18. Decides also to create a fund to pay compensation for claims that fall within paragraph 16 above and to establish a Commission that will administer the fund; 19. Directs the Secretary-General to develop and present to the Security Council for decision, no later than thirty days following the adoption of the present resolution, recommendations for the fund to meet the requirement for the payment of claims established in accordance with paragraph 18 above and for a programme to implement the decisions in paragraphs 16, 17 and 18 above, including: administration of the fund; mechanisms for determining the appropriate level of Iraq’s contribution to the fund based on a percentage of the value of the exports of petroleum and petroleum products from Iraq not to exceed a figure to be suggested to the Council by the Secretary-General, taking into account the requirements of the people of Iraq, Iraq’s payment capacity as assessed in conjunction with the international financial institutions taking into consideration external debt service, and the needs of the Iraqi economy; arrangements for ensuring that payments are made to the fund; the process by which funds will be allocated and claims paid; appropriate procedures for evaluating losses, listing claims and verifying their validity and resolving disputed claims in respect of Iraq’s liability as specified in paragraph 16 above; and the composition of the Commission designated above.

3.2 UN GENERAL ASSEMBLY The UN General Assembly has adopted a number of resolutions regarding housing and property restitution in the context of refugees and IDP return. Most of these resolutions were adopted in reaction to specific country or regional situations.

3.21

ALL COUNTRIES

Resolution 35/124 (1980)10 The General Assembly, Gravely concerned over the increasing flows of refugees in many parts of the world, Deeply disturbed by the human suffering affecting millions of men, women and children who flee or are forcibly expelled from their homelands and seek refuge in other countries, Reaffirming the right of refugees to return to their homes in their homelands, 2. Invites all Member States to convey to the Secretary-General their comments and suggestions on international co-operation to avert new flows of refugees and to facilitate the return of those refugees who with to return.

10 UN Doc. A/RES/35/124 (1980), adopted 11 December 1980.

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3.22

ALGERIA

Resolution 1672 (XVI) (1961)11 The General Assembly, Recognizing that the living conditions of those refugees, and in particular those of the children, remain precarious and require constant improvement, Considering the temporary nature of the situation of those refugees, Requests the United Nations High Commissioner for Refugees to: . . . (b) Use the means at this disposal to assist in the orderly return of those refugees to their homes and consider the possibility, when necessary, of facilitating their resettlement in their homeland as soon as circumstances permit.

3.23

CYPRUS

Resolution 3212 (1974)12 The General Assembly, 5. Considers that all the refugees should return to their homes in safety and calls upon the parties concerned to undertake urgent measures to that end.

3.24

PALESTINE/ISRAEL

Resolution 51/126 (1997) (on persons displaced as a result of the June 1967 and subsequent hostilities in Israel/Palestine)13 The General Assembly, Concerned about the continuing human suffering resulting from the June 1967 and subsequent hostilities, 1. Reaffirms the right of all persons displaced as a result of the June 1967 and subsequent hostilities to return to their homes or former places of residence in the territories occupied by Israel since 1967; 2. Expresses the hope for an accelerated return of displaced persons through the mechanism agreed upon by the parties in article XII of the Declaration of Principles on Interim Self-Government Arrangements.

11 UN Doc. A/RES/1672 (XVI) (1961), adopted 18 December 1961.

12 UN Doc. A/RES/3212 (XXIX) (1974), adopted 1 November 1974.

13 UN Doc. A/RES/51/126 (1996), adopted 13 December 1996.

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Resolution 194 (III) (Palestine)14 The General Assembly, Having considered further the situation in Palestine, 1. Expresses its deep appreciation of the progress achieved through the good offices of the late United Nations Mediator in promoting a peaceful adjustment of the future situation of Palestine, for which cause he sacrificed his life; and Extends its thanks to the Acting Mediator and his staff for their continued efforts and devotion to duty in Palestine; 2. Establishes a Conciliation Commission consisting of three States Members of the United Nations which shall have the following functions: (a) To assume, in so far as it considers necessary in existing circumstances, the functions given to the United Nations Mediator on Palestine by resolution 182;(S-2) of the General Assembly of 14 May 1948; (b) To carry out the specific functions and directives given to it by the present resolution and such additional functions and directives as may be given to it by the General Assembly or by the Security Council; (c) To undertake, upon the request of the Security Council, any of the functions now assigned to the United Nations Mediator on Palestine or to the United Nations Truce Commission by resolutions of the Security Council; upon such request to the Conciliation Commission by the Security Council with respect to all the remaining functions of the United Nations Mediator on Palestine under Security Council resolutions, the office of the Mediator shall be terminated; 3. Decides that a Committee of the Assembly, consisting of China, France, the Union of Soviet Socialist Republics, the United Kingdom and the United States of America, shall present, before the end of the first part of the present session of the General Assembly, for the approval of the Assembly, a proposal concerning the names of the three States which will constitute the Conciliation Commission; 4. Requests the Commission to begin its functions at once, with a view to the establishment of contact between the parties themselves and the Commission at the earliest possible date; 5. Calls upon the Governments and authorities concerned to extend the scope of the negotiations provided for in the Security Councilâ&#x20AC;&#x2122;s resolution of 16 November 1948 and to seek agreement by negotiations conducted either with the Conciliation Commission or directly, with a view to the final settlement of all questions outstanding between them; 6. Instructs the Conciliation Commission to take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them; 7. Resolves that the Holy Places - including Nazareth - religious buildings and sites in Palestine should be protected and free access to them assured, in accordance with existing rights and historical practice; that arrangements to this end should be under effective United Nations supervision; that the United Nations Conciliation Commission, in presenting to the fourth regular session of the General Assembly its detailed proposals for a permanent international regime for the territory of Jerusalem, should include recommendations concerning the Holy Places in that territory, that with regard to the Holy Places in the rest of Palestine the Commission should call upon the polit-

14 UN Doc. A/RES/194 (III) (1948), adopted 11 December 1948.

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ical authorities of the areas concerned to give appropriate formal guarantees as to the protection of the Holy Places and access to them, and that these undertakings should be presented to the General Assembly for approval; 8. Resolves that, in view of its association with three world religions, the Jerusalem area, including the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem, the most western, Ein Karim (including also the built-up area of Motsa); and the most northern Shuâ&#x20AC;&#x2122;fat, should be accorded special and separate treatment from the rest of Palestine and should be placed under effective United Nations control; Requests the Security Council to take further steps to ensure the demilitarization of Jerusalem at the earliest possible date; Instructs the Commission to present to the fourth regular session of the General Assembly detailed proposals for a permanent international rĂŠgime for the Jerusalem area which will provide for the maximum local autonomy for distinctive groups consistent with the special international status of the Jerusalem area; The Conciliation Commission is authorized to appoint a United Nations representative, who shall co-operate with the local authorities with respect to the interim administration of the Jerusalem area; 9. Resolves that, pending agreement on more detailed arrangements among the Governments and authorities concerned, the freest possible access to Jerusalem by road, rail or air should be accorded to all inhabitants of Palestine; Instructs the Conciliation Commission to report immediately to the Security Council, for appropriate action by that organ, any attempt by any party to impede such access; 10. Instructs the Conciliation Commission to seek arrangements among the Governments and authorities concerned which will facilitate the economic development of the area, including arrangements for access to ports and airfields and the use of transportation and communication facilities; 11. Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible; Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations; 12. Authorizes the Conciliation Commission to appoint such subsidiary bodies and to employ such technical experts, acting under its authority, as it may find necessary for the effective discharge of its functions and responsibilities under the present resolution

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The Conciliation Commission will have its official headquarters at Jerusalem. The authorities responsible for maintaining order in Jerusalem will be responsible for taking all measures necessary to ensure the security of the Commission. The Secretary-General will provide a limited number of guards for the protection of the staff and premises of the Commission; 13. Instructs the Conciliation Commission to render progress reports periodically to the Secretary-General for transmission to the Security Council and to the Members of the United Nations; 14. Calls upon all Governments and authorities concerned to co-operate with the Conciliation Commission and to take all possible steps to assist in the implementation of the present resolution; 15. Requests the Secretary-General to provide the necessary staff and facilities and to make appropriate arrangements to provide the necessary funds required in carrying out the terms of the present resolution.

3.25

RWANDA

Resolution 51/114 (1997)15 The General Assembly, Welcoming the fact that considerable numbers of refugees have recently returned to Rwanda, and affirming the readiness of the international community to assist the Government of Rwanda in reintegrating these returnees, Welcoming also the commitment of the Government of Rwanda to protect and promote respect for human rights and fundamental freedoms, to eliminate impunity and to facilitate the process of the voluntary and safe return, resettlement and reintegration of refugees, as reaffirmed in the agreements reached at Nairobi, Bujumbura and Cairo in 1995 and at Tunis and Arusha in 1996, and urging Governments in the region to work, in cooperation with the international community, to find durable solutions to the refugee crisis, Stressing its concern that the United Nations should continue to play an active role in assisting the Government of Rwanda in facilitating the voluntary and orderly return of refugees and the reintegration of returnees, in promoting reconciliation, in consolidating a climate of confidence and stability, and in promoting the rehabilitation and reconstruction of Rwanda, Reaffirming the link between the voluntary return of refugees to their homes and the normalization of the situation in Rwanda, and concerned that acts of intimidation and violence directed against refugees, particularly by the former Rwandan authorities, have prevented refugees from returning to their homes, 7. Invites all States, the organizations and bodies of the United Nations system and intergovernmental and nongovernmental organizations to continue and to intensify their contributions of financial and technical support to accelerate the efforts of the Government of Rwanda to, inter alia, restore the judicial system, promote reconciliation through the recently established Commission for National Reconciliation and safely reintegrate returning refugees in conditions of safety and dignity, including addressing competing claims to housing and property;

15 UN Doc. A/RES/51/114 (1996), adopted 12 December 1996.

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14. Welcomes the efforts of the Government of Rwanda, neighbouring countries, the Office of the United Nations High Commissioner for Refugees and the international community to resolve the ongoing humanitarian crisis, and calls upon all parties to take all appropriate measures to ensure the return, resettlement and reintegration of former refugees in conditions of safety and dignity; 15. Commends and encourages the efforts of the United Nations High Commissioner for Human Rights and the United Nations High Commissioner for Refugees as well as the United Nations Development Programme and other United Nations offices and organizations to coordinate their efforts to ensure respect for and protection of the human rights of refugees during their return, resettlement and reintegration.

3.3 UN COMMISSION ON HUMAN RIGHTS The Commission is composed of 53 member-governments and meets annually to discuss and take action on human rights situations around the world. The mandate of the Commission includes standard-setting as well as human rights monitoring. Each year the Commission adopts resolutions on certain countries and regions in order to address human rights concerns.

3.31

ALL COUNTRIES

Resolution 2000/41 on the right to restitution, compensation and Rehabilitation for victims of grave violations of human rights and fundamental freedoms (2000) 16 The Commission on Human Rights, Guided by the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Human Rights, other relevant human rights instruments and the Vienna Declaration and Programme of Action, Reaffirming that pursuant to internationally proclaimed human rights principles, victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation and rehabilitation, Reiterating the importance of addressing the question of restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms in a systematic and thorough way at the national and international levels, . . .

Noting with satisfaction the positive experience of countries that have established policies and adopted legislation on restitution, compensation and rehabilitation for victims of grave violations of human rights, 1. Calls upon the international community to give due attention to the right to restitution, compensation and rehabilitation for victims of grave violations of human rights...

16 UN Doc. E/CN.4/RES/2000/41 (2000).

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3.32

CYPRUS

Resolution 4 (XXXII) (question of human rights in Cyprus) (1976)17 The Commission on Human Rights, 1. Renews its call upon the parties concerned to undertake urgent measures to facilitate the voluntary return of all refugees and displaced persons to their homes in safety and to settle all other aspects of the refugee problem.

Resolution 4 (XXXI) (question of human rights in Cyprus) (1975)18 The Commission on Human Rights, 1. Calls upon all parties concerned to adhere strictly to the principles of the United Nations Charter, international instruments in the field of human rights, and the relevant resolutions of the General Assembly and the Security Council and to undertake urgent measures for the return of all refugees to their homes in safety.

3.4 UN SUB-COMMISSION ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS The UN Sub-Commission on the Promotion and Protection of Human Rights (formerly known as the Sub-Commission on the Prevention of Discrimination and Protection of Minorities) has been at the forefront within the UN system to develop and strengthen the rights of refugees and IDPs to return voluntarily in safety and dignity to their original homes. The Sub-Commission is a subsidiary body of the UN Commission on Human Rights and consists of 26 international human rights experts acting in their personal capacity. As such, decisions and resolutions of the Sub-Commission, often adopted by consensus, are considered important and persuasive statements of international standards by one of the UNâ&#x20AC;&#x2122;s key bodies of independent experts.

Decision 1999/108 (housing and property restitution in the context of the return of refugees and internally displaced persons) (1999)19 At its 32nd meeting, on 25 August 1999, the Sub-Commission on the Promotion and Protection of Human Rights, recalling its resolution 1998/26 of 26 August 1998 on housing and property restitution in the context of the return of refugees and internally displaced persons and considering this subject to be of increasing importance, decided, without a vote, to continue its consideration of this question at its fifty-second session and to recommend the following draft decision to the Commission on Human Rights for adoption: The Commission on Human Rights, noting resolution 1998/26 of 26 August 1998 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on housing and property restitution in the context of the return of refugees and internally displaced persons and Sub-Commission decision 1999/108 of 25 August 1999, and recalling Commission resolution 1999/47 of 27 April 1999 in which the Commission encouraged the SubCommission to continue its work on this matter, requests the Secretary-General to transmit Sub-Commission resolution 1998/26 of 26 August 1998 to States, the Representative of the Secretary General on internally displaced persons, the United Nations High Commissioner for Refugees, intergovernmental organizations and nongovernmental organizations for their comments.

17 UN Doc. E/CN.4/RES/1976/4 (1976).

18 UN Doc. E/CN.4/RES/1975/4 (1975).

19 UN Doc. E/CN.4/Sub.2/DEC/1999/108 (1999).

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Resolution 1998/26 (housing and property restitution in the context of the return of refugees and internally displaced persons) (1998)20 The Sub-Commission on Prevention of Discrimination and Protection of Minorities, Conscious that human rights violations and breaches of international humanitarian law are among the reasons why refugees, as defined in relevant international legal instruments, and internally displaced persons flee their homes and places of habitual residence, Recognizing that the right of refugees and internally displaced persons to return freely to their homes and places of habitual residence in safety and security forms an indispensable element of national reconciliation and reconstruction and that the recognition of such rights should be included within peace agreements ending armed conflicts, Recognizing also the right of all returnees to the free exercise of their right to freedom of movement and to choose oneâ&#x20AC;&#x2122;s residence, including the right to be officially registered in their homes and places of habitual residence, their right to privacy and respect for the home, their right to reside peacefully in the security of their own home and their right to enjoy access to all necessary social and economic services, in an environment free of any form of discrimination, Conscious of the widespread constraint imposed on refugees and internally displaced persons in the exercise of their right to return to their homes and places of habitual residence, Also conscious that the right to freedom of movement and the right to adequate housing include the right of protection for returning refugees and internally displaced persons against being compelled to return to their homes and places of habitual residence and that the right to return to their homes and places of habitual residence must be exercised in a voluntary and dignified manner, Aware that intensified international, regional and national measures are required to ensure the full realization of the right of refugees and internally displaced persons to return to their homes and places of habitual residence and are indispensable elements of reintegration, reconstruction and reconciliation, 1. Reaffirms the right of all refugees, as defined in relevant international legal instruments, and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish; 2. Reaffirms also the universal applicability of the right to adequate housing, the right to freedom of movement and the right to privacy and respect for the home, and the particular importance of these rights for returning refugees and internally displaced persons wishing to return to their homes and places of habitual residence; 3. Confirms that the adoption or application of laws by States which are designed to or result in the loss or removal of tenancy, use, ownership or other rights connected with housing or property, the active retraction of the right to reside within a particular place, or laws of abandonment employed against refugees or internally displaced persons pose serious impediments to the return and reintegration of refugees and internally displaced persons and to reconstruction and reconciliation;

20 UN Doc. E/CN.4/Sub.2/RES/1998/26 (1998), adopted without a vote 26 August 1998.

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4. Urges all States to ensure the free and fair exercise of the right to return to one’s home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal, administrative and other procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms designed to resolve outstanding housing and property problems; 5. Invites the United Nations High Commissioner for Human Rights, in consultation with the United Nations High Commissioner for Refugees, within her mandate, to facilitate the full implementation of the present resolution; 6. Invites the United Nations High Commissioner for Refugees, in consultation with the United Nations High Commissioner for Human Rights, to develop policy guidelines to promote and facilitate the right of all refugees and, if appropriate to her mandate, internally displaced persons, to return freely, safely and voluntarily to their homes and places of habitual residence; 7. Decides to consider the issue of return to place of residence and housing for refugees and internally displaced persons at its fifty-first session, under the agenda item entitled “Freedom of movement” to determine how most effectively to continue its consideration of these issues.

Resolution 1994/24 (on the right to freedom of movement) (1994)21 The Sub-Commission on Prevention of Discrimination and Protection of Minorities, Reaffirming the right of everyone lawfully within the territory of a State to liberty of movement and freedom to choose his residence, and the prohibition of arbitrary deprivation of the right to enter one’s own country as set out in article 12 of the International Covenant on Civil and Political Rights and article 13 of the Universal Declaration of Human Rights, 1. Affirms the right of persons to remain in peace in their own homes, on their own lands and in their own countries; 2. Also affirms the right of refugees and displaced persons to return, in safety and dignity, to their country of origin and/or within it, to their place of origin or choice.

Resolution 1987/19 (on the human rights situation in Cyprus)(1987)22 The Sub-Commission on Prevention of Discrimination and Protection of Minorities, Gravely concerned about the continuation of gross and systematic violations of human rights in Cyprus, Recalling its resolutions 1(XXVIII) and 8(XXXI) relating to the return of the refugees and displaced persons to their homes in safety and the full restoration of human rights in Cyprus, respectively, and regretting the delay in the implementation of these resolutions,

21 UN Doc. E/CN.4/Sub.2/RES/1994/24 (1994), adopted without a vote 26 August 1994.

22 UN Doc. E/CN.4/Sub.2/RES/1987/19 (1987).

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Resolution 1(XXVIII) (on the question of the violation of human rights and fundamental freedoms) (1975)23 The Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Recalling General Assembly resolution 3212 (XXIX) and in particular paragraph 5 thereof, calling for the safe return of all refugees in Cyprus to their homes, Recalling further Commission on Human Rights resolution 4 (XXXI) and in particular paragraph 1 thereof, calling upon all parties concerned to adhere strictly to the principles of the United Nations, international instruments in the field of human rights and the relevant resolutions of the General Assembly and the Security Council and to undertake urgent measures for the return of all refugees in Cyprus to their homes in safety, Noting that the above-mentioned resolutions have not as yet been implemented, 2. Invites the parties concerned to do their utmost for a just solution and the return of the displaced persons to their homes in safety in accordance with the above-mentioned resolutions of the United Nations.

3.5 UN COVENANTS, CONVENTIONS, TREATIES AND TREATY MONITORING COMMITTEES INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS The International Covenant on Economic, Social and Cultural Rights contains some of the most significant international legal provisions establishing economic, social and cultural rights, including rights relating to work in just and favourable conditions, to social protection, to an adequate standard of living including the right to adequate housing and food, to the highest attainable standards of physical and mental health, to education and to enjoyment of the benefits of cultural freedom and scientific progress. The Covenant entered into force on 3 January 1976. For information on ratification see: <http://www.unhchr.ch/pdf/report.pdf>.

The Committee on Economic, Social and Cultural Rights (CESCR) is the UN treaty monitoring committee which monitors implementation of the International Covenant on Economic, Social and Cultural Rights. The Committee is comprised of 18 members who are experts with recognised competence in the field of human rights. Members of the Committee are independent and serve in their personal capacity, not as representatives of Governments. The Committee has issued two General Comments relevant to housing and property restitution. These General Comments, No. 4 and No. 7 respectively, are included below.

International Covenant on Economic, Social and Cultural Rights (1966)24 Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

23 UN Doc. E/CN.4/Sub.2/RES/1975/1 (1975).

24 G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 entered into force 3 January 1976.

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Committee on Economic, Social and Cultural Rights General Comment No. 7 (1997) (forced evictions)25 1. In its General Comment No. 4 (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirements of the Covenant. Having considered a significant number of reports of forced evictions in recent years, including instances in which it has determined that the obligations of States Parties were being violated, the Committee is now in a position to seek to provide further clarification as to the implications of such practices in terms of the obligations contained in the Covenant.

2. The international community has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to “undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made”. In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in its resolution 43/181, the “fundamental obligation [of Governments] to protect and improve houses and neighbourhoods, rather than damage or destroy them” was recognized. Agenda 21 stated that “people should be protected by law against unfair eviction from their homes or land”. In the Habitat Agenda Governments committed themselves to “protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided”. The Commission on Human Rights has also indicated that “forced evictions are a gross violation of human rights.” However, although these statements are important, they leave open one of the most critical issues, namely that of determining the circumstances under which forced evictions are permissible and of spelling out the types of protection required to ensure respect for the relevant provisions of the Covenant.

3. The use of the term “forced evictions” is, in some respects, problematic. This expression seeks to convey a sense of arbitrariness and of illegality. To many observers, however, the reference to “forced evictions” is a tautology, while others have criticized the expression “illegal evictions” on the ground that it assumes that the relevant law provides adequate protection of the right to housing and conforms with the Covenant, which is by no means always the case. Similarly, it has been suggested that the term “unfair evictions” is even more subjective by virtue of its failure to refer to any legal framework at all. The international community, especially in the context of the Commission on Human Rights, has opted to refer to “forced evictions”, primarily since all suggested alternatives also suffer from many such defects. The term “forced evictions” as used throughout this general comment is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights.

4. The practice of forced evictions is widespread and affects persons in both developed and developing countries.

Owing to the interrelationship and interdependency which exist among all human rights, forced evictions frequently violate other human rights. Thus, while manifestly breaching the rights enshrined in the Covenant, the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions.

25 UN Doc. E/1998/22, Annex IV (1998), adopted 20 May 1997.

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Bhutanese refugees showing property records to a COHRE fact-finding team (1998) © Scott Leckie

5. Although the practice of forced evictions might appear to occur primarily in heavily populated urban areas, it also takes place in connection with forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements. In all of these contexts, the right to adequate housing and not to be subjected to forced eviction may be violated through a wide range of acts or omissions attributable to States Parties. Even in situations where it may be necessary to impose limitations on such a right, full compliance with article 4 of the Covenant is required so that any limitations imposed must be “determined by law only insofar as this may be compatible with the nature of these [i.e. economic, social and cultural] rights and solely for the purpose of promoting the general welfare in a democratic society.”

6. Many instances of forced eviction are associated with violence, such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence.

7. Other instances of forced eviction occur in the name of development. Evictions may be carried out in connection with conflict over land rights, development and infrastructure projects, such as the construction of dams or other large-scale energy projects, with land acquisition measures associated with urban renewal, housing renovation, city beautification programmes, the clearing of land for agricultural purposes, unbridled speculation in land, or the holding of major sporting events like the Olympic Games.

8. In essence, the obligations of States Parties to the Covenant in relation to forced evictions are based on article 11.1, read in conjunction with other relevant provisions. In particular, article 2.1 obliges States to use “all appropriate means” to promote the right to adequate housing. However, in view of the nature of the practice of forced evictions, the reference in article 2.1 to progressive achievement based on the availability of resources will rarely be relevant. The State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions (as defined in paragraph 3 above). Moreover, this approach is reinforced by article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognizes, inter alia, the right to be protected against “arbitrary or unlawful interference” with one’s home. It is to be noted that the State’s obligation to ensure respect for that right is not qualified by considerations relating to its available resources.

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9. Article 2.1 of the Covenant requires States Parties to use “all appropriate means”, including the adoption of legislative measures, to promote all the rights protected under the Covenant. Although the Committee has indicated in its General Comment No. 3 (1990) that such measures may not be indispensable in relation to all rights, it is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection. Such legislation should include measures which (a) provide the greatest possible security of tenure to occupiers of houses and land, (b) conform to the Covenant and (c) are designed to control strictly the circumstances under which evictions may be carried out. The legislation must also apply to all agents acting under the authority of the State or who are accountable to it. Moreover, in view of the increasing trend in some States towards the Government greatly reducing its responsibilities in the housing sector, States Parties must ensure that legislative and other measures are adequate to prevent and, if appropriate, punish forced evictions carried out, without appropriate safeguards, by private persons or bodies. States Parties should therefore review relevant legislation and policies to ensure that they are compatible with the obligations arising from the right to adequate housing and repeal or amend any legislation or policies that are inconsistent with the requirements of the Covenant.

10. Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction. Women in all groups are especially vulnerable given the extent of statutory and other forms of discrimination which often apply in relation to property rights (including home ownership) or rights of access to property or accommodation, and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. The non-discrimination provisions of articles 2.2 and 3 of the Covenant impose an additional obligation upon Governments to ensure that, where evictions do occur, appropriate measures are taken to ensure that no form of discrimination is involved.

11. Whereas some evictions may be justifiable, such as in the case of persistent non-payment of rent or of damage to rented property without any reasonable cause, it is incumbent upon the relevant authorities to ensure that they are carried out in a manner warranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected.

12. Forced eviction and house demolition as a punitive measure are also inconsistent with the norms of the Covenant. Likewise, the Committee takes note of the obligations enshrined in the Geneva Conventions of 1949 and Protocols thereto of 1977 concerning prohibitions on the displacement of the civilian population and the destruction of private property as these relate to the practice of forced eviction.

13. States Parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders. States Parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. In this respect, it is pertinent to recall article 2.3 of the International Covenant on Civil and Political Rights, which requires States Parties to ensure “an effective remedy” for persons whose rights have been violated and the obligation upon the “competent authorities (to) enforce such remedies when granted”.

14. In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality. In this regard it is especially pertinent to recall General Comment 16 of the Human Rights Committee, relating to article 17 of the International Covenant on Civil and Political Rights, which states that interference with a person’s home can only take place “in cases envisaged by the law.” The Committee observed that

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the law “should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.” The Committee also indicated that “relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted.”

15. Appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognized in both the International Covenants on Human Rights. The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

16. Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State Party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.

17. The Committee is aware that various development projects financed by international agencies within the territories of States Parties have resulted in forced evictions. In this regard, the Committee recalls its General Comment No. 2 (1990) which states, inter alia, that “international agencies should scrupulously avoid involvement in projects which, for example ... promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation. Every effort should be made, at each phase of a development project, to ensure that the rights contained in the Covenant are duly taken into account.”

18. Some institutions, such as the World Bank and the Organisation for Economic Cooperation and Development (OECD) have adopted guidelines on relocation and/or resettlement with a view to limiting the scale of and human suffering associated with forced evictions. Such practices often accompany large-scale development projects, such as dam-building and other major energy projects. Full respect for such guidelines, insofar as they reflect the obligations contained in the Covenant, is essential on the part of both the agencies themselves and States Parties to the Covenant. The Committee recalls in this respect the statement in the Vienna Declaration and Programme of Action to the effect that “while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights” (Part I, para. 10).

19. In accordance with the guidelines for reporting adopted by the Committee, States Parties are requested to provide various types of information pertaining directly to the practice of forced evictions. This includes information relating to (a) the “number of persons evicted within the last five years and the number of persons currently lacking legal protection against arbitrary eviction or any other kind of eviction”, (b) “legislation concerning the rights of tenants to security of tenure, to protection from eviction” and (c) “legislation prohibiting any form of eviction.”

20. Information is also sought as to “measures taken during, inter alia, urban renewal programmes, redevelopment projects, site upgrading, preparation for international events (Olympics and other sporting competitions,

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exhibitions, conferences, etc.) ‘beautiful city’ campaigns, etc. which guarantee protection from eviction or guarantee rehousing based on mutual consent, by any persons living on or near to affected sites”. However, few States Parties have included the requisite information in their reports to the Committee. The Committee therefore wishes to emphasize the importance it attaches to the receipt of such information.

21. Some States Parties have indicated that information of this nature is not available. The Committee recalls that effective monitoring of the right to adequate housing, either by the Government concerned or by the Committee, is not possible in the absence of the collection of appropriate data and would request all States Parties to ensure that the necessary data is collected and is reflected in the reports submitted by them under the Covenant.

Committee on Economic, Social and Cultural Rights General Comment No. 4 (1991) (right to adequate housing)26 1. Pursuant to article 11 (1) of the Covenant, States Parties “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights.

2. The Committee has been able to accumulate a large amount of information pertaining to this right. Since 1979, the Committee and its predecessors have examined 75 reports dealing with the right to adequate housing. The Committee has also devoted a day of general discussion to the issue at each of its third (see E/1989/22, para.

312) and fourth sessions (E/1990/23, paras. 281-285). In addition, the Committee has taken careful note of information generated by the International Year of Shelter for the Homeless (1987) including the Global Strategy for Shelter to the Year 2000 adopted by the General Assembly in its resolution 42/191 of 11 December 1987. The Committee has also reviewed relevant reports and other documentation of the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

3. Although a wide variety of international instruments address the different dimensions of the right to adequate housing article 11 (1) of the Covenant is the most comprehensive and perhaps the most important of the relevant provisions.

4. Despite the fact that the international community has frequently reaffirmed the importance of full respect for the right to adequate housing, there remains a disturbingly large gap between the standards set in article 11 (1) of the Covenant and the situation prevailing in many parts of the world. While the problems are often particularly acute in some developing countries which confront major resource and other constraints, the Committee observes that significant problems of homelessness and inadequate housing also exist in some of the most economically developed societies. The United Nations estimates that there are over 100 million persons homeless worldwide and over 1 billion inadequately housed. There is no indication that this number is decreasing. It seems clear that no State Party is free of significant problems of one kind or another in relation to the right to housing.

5. In some instances, the reports of States Parties examined by the Committee have acknowledged and described difficulties in ensuring the right to adequate housing. For the most part, however, the information provided has been insufficient to enable the Committee to obtain an adequate picture of the situation prevailing in the State concerned. This General Comment thus aims to identify some of the principal issues which the Committee considers to be important in relation to this right.

26 Contained in UN Doc. E/1992/23 (1992), adopted 13 December 1991.

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6. The right to adequate housing applies to everyone. While the reference to “himself and his family” reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to female-headed households or other such groups. Thus, the concept of “family” must be understood in a wide sense. Further, individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors. In particular, enjoyment of this right must, in accordance with article 2 (2) of the Covenant, not be subject to any form of discrimination.

7. In the Committee’s view, the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity. This is appropriate for at least two reasons. In the first place, the right to housing is integrally linked to other human rights and to the fundamental principles upon which the Covenant is premised. This “the inherent dignity of the human person” from which the rights in the Covenant are said to derive requires that the term “housing” be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all persons irrespective of income or access to economic resources. Secondly, the reference in article 11 (1) must be read as referring not just to housing but to adequate housing. As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: “Adequate shelter means ... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities - all at a reasonable cost”.

8. Thus the concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute “adequate housing” for the purposes of the Covenant. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. They include the following: (a) Legal security of tenure. Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States Parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups; (b) Availability of services, materials, facilities and infrastructure. An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services; (c) Affordability. Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by States Parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. States Parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of

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Destroyed housing in East Timor (2000) Š Scott Leckie

affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increases. In societies where natural materials constitute the chief sources of building materials for housing, steps should be taken by States Parties to ensure the availability of such materials; (d) Habitability. Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well. The Committee encourages States Parties to comprehensively apply the Health Principles of Housing prepared by WHO which view housing as the environmental factor most frequently associated with conditions for disease in epidemiological analyses; i.e. inadequate and deficient housing and living conditions are invariably associated with higher mortality and morbidity rates; (e) Accessibility. Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups. Within many States Parties increasing access to land by landless or impoverished segments of the society should constitute a central policy goal. Discernible governmental obligations need to be developed aiming to substantiate the right of all to a secure place to live in peace and dignity, including access to land as an entitlement; (f) Location. Adequate housing must be in a location which allows access to employment options, health-care services, schools, child-care centres and other social facilities. This is true both in large cities and in rural areas where the temporal and financial costs of getting to and from the place of work can place excessive demands upon the budgets of poor households. Similarly, housing should not be built on polluted sites nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants; (g) Cultural adequacy. The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing. Activities geared

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towards development or modernization in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed, and that, inter alia, modern technological facilities, as appropriate are also ensured.

9. As noted above, the right to adequate housing cannot be viewed in isolation from other human rights contained in the two International Covenants and other applicable international instruments. Reference has already been made in this regard to the concept of human dignity and the principle of non-discrimination. In addition, the full enjoyment of other rights - such as the right to freedom of expression, the right to freedom of association (such as for tenants and other community-based groups), the right to freedom of residence and the right to participate in public decision-making - is indispensable if the right to adequate housing is to be realized and maintained by all groups in society. Similarly, the right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence constitutes a very important dimension in defining the right to adequate housing.

10. Regardless of the state of development of any country, there are certain steps which must be taken immediately. As recognized in the Global Strategy for Shelter and in other international analyses, many of the measures required to promote the right to housing would only require the abstention by the Government from certain practices and a commitment to facilitating “self-help” by affected groups. To the extent that any such steps are considered to be beyond the maximum resources available to a State Party, it is appropriate that a request be made as soon as possible for international cooperation in accordance with articles 11 (1), 22 and 23 of the Covenant, and that the Committee be informed thereof.

11. States Parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others. The Committee is aware that external factors can affect the right to a continuous improvement of living conditions, and that in many States Parties overall living conditions declined during the 1980s. However, as noted by the Committee in its General Comment 2 (1990) (UN Doc. E/1990/23, annex III), despite externally caused problems, the obligations under the Covenant continue to apply and are perhaps even more pertinent during times of economic contraction. It would thus appear to the Committee that a general decline in living and housing conditions, directly attributable to policy and legislative decisions

by States Parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant.

12. While the most appropriate means of achieving the full realization of the right to adequate housing will inevitably vary significantly from one State Party to another, the Covenant clearly requires that each State Party take whatever steps are necessary for that purpose. This will almost invariably require the adoption of a national housing strategy which, as stated in paragraph 32 of the Global Strategy for Shelter, “defines the objectives for the development of shelter conditions, identifies the resources available to meet these goals and the most costeffective way of using them and sets out the responsibilities and time-frame for the implementation of the necessary measures.” Both for reasons of relevance and effectiveness, as well as in order to ensure respect for other human rights, such a strategy should reflect extensive genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives. Furthermore, steps should be taken to ensure coordination between ministries and regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy, etc.) with the obligations under article 11 of the Covenant.

13. Effective monitoring of the situation with respect to housing is another obligation of immediate effect. For a State Party to satisfy its obligations under article 11 (1) it must demonstrate, inter alia, that it has taken whatever steps are necessary, either alone or on the basis of international cooperation, to ascertain the full extent of home-

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lessness and inadequate housing within its jurisdiction. In this regard, the revised general guidelines regarding the form and contents of reports adopted by the Committee (UN Doc. E/C.12/1991/1) emphasize the need to “provide detailed information about those groups within ... society that are vulnerable and disadvantaged with regard to housing.” They include, in particular, homeless persons and families, those inadequately housed and without ready access to basic amenities, those living in “illegal” settlements, those subject to forced evictions and lowincome groups.

14. Measures designed to satisfy a State Party’s obligations in respect of the right to adequate housing may reflect whatever mix of public and private sector measures considered appropriate. While in some States public financing of housing might most usefully be spent on direct construction of new housing, in most cases, experience has shown the inability of Governments to fully satisfy housing deficits with publicly built housing. The promotion by States Parties of “enabling strategies,” combined with a full commitment to obligations under the right to adequate housing, should thus be encouraged. In essence, the obligation is to demonstrate that, in aggregate, the measures being taken are sufficient to realize the right for every individual in the shortest possible time in accordance with the maximum of available resources.

15. Many of the measures that will be required will involve resource allocations and policy initiatives of a general kind. Nevertheless, the role of formal legislative and administrative measures should not be underestimated in this context. The Global Strategy for Shelter (paras. 66-67) has drawn attention to the types of measures that might be taken in this regard and to their importance.

16. In some States, the right to adequate housing is constitutionally entrenched. In such cases the Committee is particularly interested in learning of the legal and practical significance of such an approach. Details of specific cases and of other ways in which entrenchment has proved helpful should thus be provided.

17. The Committee views many component elements of the right to adequate housing as being at least consistent with the provision of domestic legal remedies. Depending on the legal system, such areas might include, but are not limited to: (a) legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions; (b) legal procedures seeking compensation following an illegal eviction; (c) complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; (d) allegations of any form of discrimination in the allocation and availability of access to housing; and (e) complaints against landlords concerning unhealthy or inadequate housing conditions. In some legal systems it would also be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness.

18. In this regard, the Committee considers that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.

19. Finally, article 11 (1) concludes with the obligation of States Parties to recognize “the essential importance of international cooperation based on free consent”. Traditionally, less than 5 per cent of all international assistance has been directed towards housing or human settlements, and often the manner by which such funding is provided does little to address the housing needs of disadvantaged groups. States Parties, both recipients and providers, should ensure that a substantial proportion of financing is devoted to creating conditions leading to a higher number of persons being adequately housed. International financial institutions promoting measures of structural adjustment should ensure that such measures do not compromise the enjoyment of the right to ade-

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quate housing. States Parties should, when contemplating international financial cooperation, seek to indicate areas relevant to the right to adequate housing where external financing would have the most effect. Such requests should take full account of the needs and views of the affected groups.

COMMITTEE ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION The UN Convention on the Elimination of All Forms of Racial Discrimination specifies the measures to States Parties are obligated to undertake in order to eliminate racial discrimination. The Convention entered into force on 4 January 1969. For information on ratification see: <http://www.unhchr.ch/pdf/report.pdf>. The Committee on the Elimination of Racial Discrimination (CERD) is the UN treaty monitoring committee which monitors implementation of the Convention. The Committee has issued General Recommendations No. 22 and No. 23, which touch upon restitution issues.

Committee on the Elimination of Racial Discrimination General Recommendation No. 23 (1997) 27 The Committee on the Elimination of Racial Discrimination, 3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.

5. The Committee especially calls upon States Parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

Committee on the Elimination of Racial Discrimination General Recommendation No. 22 (1997) 28 The Committee on the Elimination of Racial Discrimination, Conscious of the fact that foreign military, non-military and/or ethnic conflicts have resulted in massive flows of refugees and the displacement of persons on the basis of ethnic criteria in many parts of the world, Recalling the 1951 Convention and the 1967 Protocol relating to the status of refugees as the main source of the international system for the protection of refugees in general, 2.Emphasizes in this respect that: (a) All such refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety;

27 Contained in UN Doc. A/52/18, Annex V (1998), adopted 18 August 1997.

28 Contained in UN Doc. A/51/18 (1997), adopted 23 August 1996.

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(b) States Parties are obliged to ensure that the return of such refugees and displaced persons is voluntary and to observe the principle of non-refoulement and non-expulsion of refugees; (c) All such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void; (d) All such refugees and displaced persons have, after their return to their homes of origin, the right to participate fully and equally in public affairs at all levels and to have equal access to public services and to receive rehabilitation assistance.

3.6 UN HIGH COMMISSIONER FOR REFUGEES The UNHCR Executive Committee (EXCOM) is made up of government representatives and is the main policy body within UNHCR. The EXCOM expresses its views through the issuance of EXCOM Conclusions. Though not strictly legally binding upon States Parties to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol, EXCOM Conclusions are considered persuasive interpretations of the rights protected by those treaties.

EXCOM Conclusion No. 40 (XXXVI)-1985, â&#x20AC;&#x153;Voluntary Repatriationâ&#x20AC;?29 The Executive Committee, Reaffirming the significance of its 1980 conclusion on voluntary repatriation as reflecting basic principles of international law and practice, adopted the following further conclusions on this matter: (a) The basic rights of persons to return voluntarily to the country of origin is reaffirmed and it is urged that international co-operation be aimed at achieving this solution and should be further developed; (b) The repatriation of refugees should only take place at their freely expressed wish; the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin, should always be respected; (c) The aspect of causes is critical to the issue of solution and international efforts should also be directed to the removal of the causes of refugee movements. Further attention should be given to the causes and prevention of such movements, including the co-ordination of efforts currently being pursued by the international community and in particular within the United Nations. An essential condition for the prevention of refugee flows is sufficient political will by the States directly concerned to address the causes which are at the origin of refugee movements; (d) The responsibilities of States towards their nationals and the obligations of other States to promote voluntary repatriation must be upheld by the international community. International action in favour of voluntary repatriation, whether at the universal or regional level, should receive the full support and co-operation of all States directly concerned. Promotion of voluntary repatriation as a solution to refugee problems similarly requires the political will of States directly concerned to create conditions conducive to this solution. This is the primary responsibility of States; 29 UN Doc. A/AC.96/673, para. 115(5) (1985).

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(e) The existing mandate of the High Commissioner is sufficient to allow him to promote voluntary repatriation by taking initiatives to this end, promoting dialogue between all the main parties, facilitating communication between them, and by acting as an intermediary or channel of communication. It is important that he establishes, whenever possible, contact with all the main parties and acquaints himself with their points of view. From the outset of a refugee situation, the High Commissioner should at all times keep the possibility of voluntary repatriation for all or for part of a group under active review and the High Commissioner, whenever he deems that the prevailing circumstances are appropriate, should actively pursue the promotion of this solution; (f) The humanitarian concerns of the High Commissioner should be recognized and respected by all parties and he should receive full support in his efforts to carry out his humanitarian mandate in providing international protection to refugees and in seeking a solution to refugee problems; (g) On all occasions the High Commissioner should be fully involved from the outset in assessing the feasibility and, thereafter, in both the planning and implementation stages of repatriation; (h) The importance of spontaneous return to the country of origin is recognized and it is considered that action to promote organized voluntary repatriation should not create obstacles to the spontaneous return of refugees.

Interested States should make all efforts, including the provision of assistance in the country of origin, to encourage this movement whenever it is deemed to be in the interests of the refugees concerned; (i) When, in the opinion of the High Commissioner, a serious problem exists in the promotion of voluntary repatriation of a particular refugee group, he may consider for that particular problem the establishment of an informal ad hoc consultative group which would be appointed by him in consultation with the Chairman and the other members of the Bureau of his Executive Committee. Such a group may, if necessary, include States which are not members of the Executive Committee and should in principle include the countries directly concerned. The High Commissioner may also consider invoking the assistance of other competent United Nations organs; (j) The practice of establishing tripartite commissions is well adapted to facilitate voluntary repatriation. The tripartite commission, which should consist of the countries of origin and of asylum and UNHCR, could concern itself with both the joint planning and the implementation of a repatriation programme. It is also an effective means of securing consultations between the main parties concerned on any problems that might subsequently arise; (k) International action to promote voluntary repatriation requires consideration of the situation within the country of origin as well as within the receiving country. Assistance for-the reintegration of returnees provided by the international community in the country of origin is recognized as an important factor in promoting repatriation. To this end, UNHCR and other United Nations agencies as appropriate, should have funds readily available to assist returnees in the various stages of their integration and rehabilitation in their country of origin; (l) The High Commissioner should be recognized as having a legitimate concern for the consequences of return, particularly where such return has been brought about as a result of an amnesty or other form of guarantee. The High Commissioner must be regarded as entitled to insist on his legitimate concern over the outcome of any return that he has assisted. Within the framework of close consultations with the State concerned, he should be given direct and unhindered access to returnees so that he is in a position to monitor fulfilment of the amnesties, guarantees or assurances on the basis of which the refugees have returned. This should be considered as inherent in his mandate;

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(m) Consideration should be given to the further elaboration of an instrument reflecting all existing principles and guidelines relating to voluntary repatriation for acceptance by the international community as a whole.

EXCOM Conclusion No. 18 (XXXI)- 1980, â&#x20AC;&#x153;Voluntary Repatriationâ&#x20AC;?30 The Executive Committee, (a) Recognized that voluntary repatriation constitutes generally, and in particular when a country accedes to independence, the most appropriate solution for refugee problems; (b) Stressed that the essentially voluntary character of repatriation should always be respected; (c) Recognized the desirability of appropriate arrangements to establish the voluntary character of repatriation, both as regards the repatriation of individual refugees and in the case of large-scale repatriation movements, and for UNHCR, whenever necessary, to be associated with such arrangements; (d) Considered that when refugees express the wish to repatriate, both the government of their country of origin and the government of their country of asylum should, within the framework of their national legislation and, whenever necessary, in co-operation with UNHCR take all requisite steps to assist them to do so; (e) Recognized the importance of refugees being provided with the necessary information regarding conditions in their country of origin in order to facilitate their decision to repatriate; recognized further that visits by individual refugees or refugee representatives to their country of origin to inform themselves of the situation there-without such visits automatically involving loss of refugee status-could also be of assistance in this regard; (f) Called upon governments of countries of origin to provide formal guarantees for the safety of returning refugees and stressed the importance of such guarantees being fully respected and of returning refugees not being penalized for having left their country of origin for reasons giving rise to refugee situations; (g) Recommended that arrangements be adopted in countries of asylum for ensuring that the terms of guarantees provided by countries of origin and relevant information regarding conditions prevailing there are duly communicated to refugees, that such arrangements could be facilitated by the authorities of countries of asylum and that UNHCR should as appropriate be associated with such arrangements; (h) Considered that UNHCR could appropriately be called upon-with the agreement of the parties concerned-to monitor the situation of returning refugees with particular regard to any guarantees provided by the governments of countries of origin; (i) Called upon the governments concerned to provide repatriating refugees with the necessary travel documents, visas, entry permits and transportation facilities and, if refugees have lost their nationality, to arrange for such nationality to be restored in accordance with national legislation; (j) Recognized that it may be necessary in certain situations to make appropriate arrangements in co-operation with UNHCR for the reception of returning refugees and/or to establish projects for their reintegration in their country of origin.

30 UN Doc. A/AC.96/588, para. 48(3) (1980).

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3.7

OTHER INTERNATIONAL STANDARDS AND RELEVANT DOCUMENTS

Rome Statute of the International Criminal Court31 Article 75 - Reparations to victims 1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.

3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.

The Guiding Principles on Internal Displacement (1998)32 Introduction - Scope and Purpose 1. These Guiding Principles address the specific needs of internally displaced persons worldwide. They identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration.

2. For the purposes of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Section V. Principles Relating to Return, Resettlement and Reintegration Principle 28 1. Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.

2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.

Principle 29 1. Internally displaced persons who have returned to their homes or places of habitual residence or who have resettled in another part of the country shall not be discriminated against as a result of their having been displaced. They shall have the right to participate fully and equally in public affairs at all levels and have equal access to public services.

31 UN Doc. A/CONF.183/9 (1998), adopted 17 July 1998.

32 UN Doc. E/CN.4/1998/53/Add.2 (1998).

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2. Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.

Principle 30 All authorities concerned shall grant and facilitate for international humanitarian organizations and other appropriate actors, in the exercise of their respective mandates, rapid and unimpeded access to internally displaced persons to assist in their return or resettlement and reintegration.

The Comprehensive Human Rights Guidelines on Development-Based Displacement (1997)33 Preamble The expert seminar on forced evictions, Reaffirming that under international law every State has the obligation to respect and ensure respect for human rights and humanitarian law, including obligations to prevent violations, to investigate violations, to take appropriate action against violators, and to afford remedies and reparation to victims, Adopts the following guidelines: I. BACKGROUND ISSUES Scope and nature of the Guidelines 1. The present Guidelines address the human rights implications of the practice of forced evictions associated with development-based displacement in urban and rural areas. The Guidelines reflect and are consistent with international human rights law and international humanitarian law and should be subject to the widest possible application.

2. Having due regard to all relevant definitions of the practice of forced evictions under international human rights provisions and instruments, the present Guidelines apply to instances of forced evictions in which there are acts and/or omissions involving the coerced and involuntary removal of individuals, groups and communities from their homes and/or lands and common property resources they occupy or are dependent upon, thus eliminating or limiting the possibility of an individual, group or community residing or working in a particular dwelling, residence or place.

V. LEGAL REMEDIES Compensation 24. All persons subjected to any forced eviction not in full accordance with the present Guidelines should have a right to compensation for any losses of land or personal, real or other property or goods, including rights or interests in property not recognized in national legislation, incurred in connection with a forced eviction. Compensation should include land and access to common property resources and should not be restricted to cash payments.

33 UN Doc. E/CN.4/Sub.2/1997/7, Annex (1997).

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Restitution and return 25. All persons, groups and communities subjected to forced evictions have the right, but shall not be forced to return to their homes, lands or places of origin.

The Declaration of Principles of International Law on Compensation to Refugees (International Law Association, 65th Conf., Cairo, April 1992)34 Principle 1 The responsibility for caring for the world’s refugees rests ultimately upon the countries that directly or indirectly force their own citizens to flee and/or remain abroad as refugees. The discharge of such responsibility by countries of asylum, international organisations and donors, pending the return of refugees, their settlement in place, or their resettlement in third countries, shall not relieve the counties of origin of their basic responsibility, including that of paying adequate compensation to refugees.

Principle 2 Since refugees are forced directly or indirectly out of their homes in their homelands, they are deprived of the full and effective enjoyment of all articles in the Universal Declaration of Human Rights that presuppose a person’s ability to live in the place chosen as home. Accordingly, the State that turns a person into a refugee commits an internationally wrongful act, which creates the obligation to make good the wrong done.

Principle 4 A State is obligated to compensate its own nationals forced to leave their homes to the same extent as it is obligated by international law to compensate an alien.

Principle 5 A State that has committed an ‘internationally wrongful act’ through the generation of refugees shall be required, as appropriate: (a) to discontinue the act; (b) to apply remedies provided under the municipal law; (c) to restore the situation to that which existed prior to the act; (d) to pay compensation in the event of the impossibility of the restoration of the pre-existing situation; and (e) to proved appropriate guarantees against the repetition or recurrence of the act.

Principle 6 In implementing the right of refugees to compensation, States shall, directly or through the United Nations and intergovernmental organisations, tie the granting of economic or developmental assistance to countries of origin to their fulfilment of this right.

Principle 7 The United Nations may, in the discharge of its role as guardian of the interests of refugees, claim and administer compensation funds for refugees.

34 The Declaration of Principles of International Law on Compensation to Refugees (International Law Association, 65th Conf., Cairo, April 1992).

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Principle 8 The possibility that refugees or UNHCR may one day successfully claim compensation from the country of origin should not serve as a pretext for withdrawing humanitarian assistance to refugees or refusing to join in international burden-sharing meant to meet the needs of refugees or otherwise to provide durable solutions, including mediation to facilitate voluntary repatriation in dignity and security, thereby removing or reducing the necessity to pay compensation.

ILO Convention No. 169: Concerning Indigenous and Tribal Peoples (1989)35 Article 13 1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

2. The use of the term lands in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.

Article 14 1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

Article 15 1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

35 Entered into force 5 September 1991.

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Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power36 A. Victims of Crime 1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.

Restitution 8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

B. Victims of Abuse of Power 18. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

19. States should consider incorporating into the national law norms proscribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.

20. States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph 18.

21. States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts.

36 UN General Assembly resolution 40/34, adopted 29 November 1985.

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Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 (1948)37 Art. 45 Protected persons shall not be transferred to a Power which is not a party to the Convention.

This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.

Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with.

Art. 127 When making decisions regarding the transfer of internees, the Detaining Power shall take their interests into account and, in particular, shall not do anything to increase the difficulties of repatriating them or returning them to their own homes.

Art. 132 Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.

The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time.

Art. 134 The High Contracting Parties shall endeavour, upon the close of hostilities or occupation, to ensure the return of all internees to their last place of residence, or to facilitate their repatriation.

Art. 135 The Detaining Power shall bear the expense of returning released internees to the places where they were residing when interned, or, if it took them into custody while they were in transit or on the high seas, the cost of completing their journey or of their return to their point of departure.

Where a Detaining Power refuses permission to reside in its territory to a released internee who previously had his permanent domicile therein, such Detaining Power shall pay the cost of the said interneeâ&#x20AC;&#x2122;s repatriation. If, however, the internee elects to return to his country on his own responsibility or in obedience to the Government of the

37 75 U.N.T.S. 287, entered into force 21 October 1950.

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Power to which he owes allegiance, the Detaining Power need not pay the expenses of his journey beyond the point of his departure from its territory. The Detaining Power need not pay the costs of repatriation of an internee who was interned at his own request.

If internees are transferred in accordance with Article 45, the transferring and receiving Powers shall agree on the portion of the above costs to be borne by each.

The foregoing shall not prejudice such special agreements as may be concluded between Parties to the conflict concerning the exchange and repatriation of their nationals in enemy hands.

Universal Declaration of Human Rights (1948)38 Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 17 1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

3.8 DRAFT INTERNATIONAL STANDARDS UN Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000)39 NOTE: The UN Commission on Human Rights will examine a revised draft of the Basic Principles and Guidelines at its fifty-eighth session in the Spring of 2002. For updated developments regarding the Basic Principles and Guidelines refer to the relevant Commission resolution in 2002.

The Commission on Human Rights, Pursuant to Commission on Human Rights resolution 1999/33 of 26 April 1999, entitled â&#x20AC;&#x153;The right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedomsâ&#x20AC;?, in which the Commission took note with appreciation of the note of the Secretary-General (E/CN.4/1999/53) submitted in compliance with resolution 1998/43 of 17 April 1998 and the report of the independent expert (E/CN.4/1999/65),

38 UN Doc. G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

39 UN Doc. E/CN.4/2000/62, Annex (2000).

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Recalling resolution 1989/13 of 31 August 1989 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in which the Sub-Commission decided to entrust Mr. Theo van Boven with the task of undertaking a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, which was contained in Mr. Van Boven’s final report (E/CN.4/Sub.2/1993/8) and which resulted in draft basic principles and guidelines (E/CN.4/1997/104, annex), and resolution 1994/35 of 4 March 1994 of the Commission on Human Rights in which the Commission regarded the proposed basic principles and guidelines contained in the study of the Special Rapporteur as a useful basis for giving priority to the question of restitution, compensation and rehabilitation, Recalling the provisions providing a right to a remedy for victims of violations of international human rights and humanitarian law found in numerous international instruments, in particular the Universal Declaration of Human Rights at article 8, the International Covenant on Civil and Political Rights at article 2, the International Convention on the Elimination of All Forms of Racial Discrimination at article 6, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment at article 11, and the Convention on the Rights of the Child at article 39, Recalling the provisions providing a right to a remedy for victims of violations of international human rights found in regional conventions, in particular the African Charter on Human and Peoples’ Rights at article 7, the American Convention on Human Rights at article 25, and the European Convention for the Protection of Human Rights and Fundamental Freedoms at article 13, Recalling the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power emanating from the deliberations of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and resolution 40/34 of 29 November 1985 by which the General Assembly adopted the text recommended by the Congress, Reaffirming the principles enunciated in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, including that victims should be treated with compassion and respect for their dignity, have their right to access to justice and redress mechanisms fully respected, and that the establishment, strengthening and expansion of national funds for compensation to victims should be encouraged, together with the expeditious development of appropriate rights and remedies for victims, Recalling resolution 1989/57 of 24 May 1989 of the Economic and Social Council, entitled “Implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, as well as Council resolution 1990/22 of 24 May 1990, entitled “Victims of crime and abuse of power”, Noting that in resolution 827 (1993) of 25 May 1993 in which it adopted the Statute of the International Criminal Tribunal for the Former Yugoslavia, the Security Council decided that “the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law”, Noting with satisfaction the adoption of the Rome Statute of the International Criminal Court on 17 July 1998 which obliges the Court to “establish principles relating to reparation to, or in respect of, victims, including restitution, compensation and rehabilitation” and obliges the Assembly of States Parties to establish a trust fund for the benefit of victims of crimes within the jurisdiction of the Court and of the families of such victims, and mandates the Court “to protect the safety, physical and psychological well-being, dignity and privacy of victims” and to permit the participation of victims at all “stages of the proceedings determined to be appropriate by the Court”,

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Recognizing that, in honouring the victimsâ&#x20AC;&#x2122; right to benefit from remedies and reparation, the international community keeps faith and human solidarity with victims, survivors and future human generations, and reaffirms the international legal principles of accountability, justice and the rule of law, Convinced that, in adopting a victim-oriented point of departure, the community, at local, national and international levels, affirms its human solidarity and compassion with victims of violations of international human rights and humanitarian law as well as with humanity at large, Decides to adopt the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law as follows:

I. OBLIGATION TO RESPECT, ENSURE RESPECT FOR AND ENFORCE INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW Every State has the obligation to respect, ensure respect for and enforce international human rights and humanitarian law norms that are, inter alia: (a) Contained in treaties to which it is a State Party; (b) Found in customary international law; or (c) Incorporated in its domestic law.

To that end, if they have not already done so, States shall ensure that domestic law is consistent with international legal obligations by: (a) Incorporating norms of international human rights and humanitarian law into their domestic law, or otherwise implementing them in their domestic legal system; (b) Adopting appropriate and effective judicial and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice; (c) Making available adequate, effective and prompt reparation as defined below; and (d) Ensuring, in the case that there is a difference between national and international norms, that the norm that provides the greatest degree of protection is applied.

II. SCOPE OF THE OBLIGATION The obligation to respect, ensure respect for and enforce international human rights and humanitarian law includes, inter alia, a Stateâ&#x20AC;&#x2122;s duty to: (a) Take appropriate legal and administrative measures to prevent violations;

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(b) Investigate violations and, where appropriate, take action against the violator in accordance with domestic and international law; (c) Provide victims with equal and effective access to justice irrespective of who may be the ultimate bearer of responsibility for the violation; (d) Afford appropriate remedies to victims; and (e) Provide for or facilitate reparation to victims.

III. VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW THAT CONSTITUTE CRIMES UNDER INTERNATIONAL LAW Violations of international human rights and humanitarian law norms that constitute crimes under international law carry the duty to prosecute persons alleged to have committed these violations, to punish perpetrators adjudged to have committed these violations, and to cooperate with and assist States and appropriate international judicial organs in the investigation and prosecution of these violations.

To that end, States shall incorporate within their domestic law appropriate provisions providing for universal jurisdiction over crimes under international law and appropriate legislation to facilitate extradition or surrender of offenders to other States and to international judicial bodies and to provide judicial assistance and other forms of cooperation in the pursuit of international justice, including assistance to and protection of victims and witnesses.

IV. STATUTES OF LIMITATIONS Statutes of limitations shall not apply for prosecuting violations of international human rights and humanitarian law norms that constitute crimes under international law.

Statutes of limitations for prosecuting other violations or pursuing civil claims should not unduly restrict the ability of a victim to pursue a claim against the perpetrator, and should not apply with respect to periods during which no effective remedies exist for violations of human rights and international humanitarian law norms.

V. VICTIMS OF VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW A person is “a victim” where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person’s fundamental legal rights. A “victim” may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.

A person’s status as “a victim” should not depend on any relationship that may exist or may have existed between the victim and the perpetrator, or whether the perpetrator of the violation has been identified, apprehended, prosecuted, or convicted.

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VI. TREATMENT OF VICTIMS Victims should be treated by the State and, where applicable, by intergovernmental and non-governmental organizations and private enterprises with compassion and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety and privacy as well as that of their families. The State should ensure that its domestic laws, as much as possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her retraumatization in the course of legal and administrative procedures designed to provide justice and reparation.

VII. VICTIMS’ RIGHT TO A REMEDY Remedies for violations of international human rights and humanitarian law include the victim’s right to: (a) Access justice; (b) Reparation for harm suffered; and (c) Access the factual information concerning the violations.

VIII. VICTIMS’ RIGHT TO ACCESS JUSTICE A victim’s right of access to justice includes all available judicial, administrative, or other public processes under existing domestic laws as well as under international law. Obligations arising under international law to secure the individual or collective right to access justice and fair and impartial proceedings should be made available under domestic laws. To that end, States should: (a) Make known, through public and private mechanisms, all available remedies for violations of international human rights and humanitarian law; (b) Take measures to minimize the inconvenience to victims, protect their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during, and after judicial, administrative, or other proceedings that affect the interests of victims; (c) Make available all appropriate diplomatic and legal means to ensure that victims can exercise their rights to a remedy and reparation for violations of international human rights or humanitarian law.

In addition to individual access to justice, adequate provisions should also be made to allow groups of victims to present collective claims for reparation and to receive reparation collectively.

The right to an adequate, effective and prompt remedy against a violation of international human rights or humanitarian law includes all available international processes in which an individual may have legal standing and should be without prejudice to any other domestic remedies.

IX. VICTIMS’ RIGHT TO REPARATION Adequate, effective and prompt reparation shall be intended to promote justice by redressing violations of international human rights or humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered.

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In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for its acts or omissions constituting violations of international human rights and humanitarian law norms.

In cases where the violation is not attributable to the State, the party responsible for the violation should provide reparation to the victim or to the State if the State has already provided reparation to the victim.

In the event that the party responsible for the violation is unable or unwilling to meet these obligations, the State should endeavour to provide reparation to victims who have sustained bodily injury or impairment of physical or mental health as a result of these violations and to the families, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of the violation. To that end, States should endeavour to establish national funds for reparation to victims and seek other sources of funds wherever necessary to supplement these.

A State shall enforce its domestic judgements for reparation against private individuals or entities responsible for the violations. States shall endeavour to enforce valid foreign judgements for reparation against private individuals or entities responsible for the violations.

In cases where the State or Government under whose authority the violation occurred is no longer in existence, the State or Government successor in title should provide reparation to the victims.

X. FORMS OF REPARATION In accordance with their domestic law and international obligations, and taking account of individual circumstances, States should provide victims of violations of international human rights and humanitarian law the following forms of reparation: restitution, compensation, rehabilitation, and satisfaction and guarantees of non-repetition.

Restitution should, whenever possible, restore the victim to the original situation before the violations of international human rights or humanitarian law occurred. Restitution includes: restoration of liberty, legal rights, social status, family life and citizenship; return to oneâ&#x20AC;&#x2122;s place of residence; and restoration of employment and return of property.

Compensation should be provided for any economically assessable damage resulting from violations of international human rights and humanitarian law, such as: (a) Physical or mental harm, including pain, suffering and emotional distress; (b) Lost opportunities, including education; (c) Material damages and loss of earnings, including loss of earning potential; (d) Harm to reputation or dignity; and (e) Costs required for legal or expert assistance, medicines and medical services, and psychological and social services.

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Building in Tbilisi, Republic of Georgia, overcrowded with internally displaced persons (1998) Š Scott Leckie

Rehabilitation should include medical and psychological care as well as legal and social services.

Satisfaction and guarantees of non-repetition should include, where applicable, any or all of the following: (a) Cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others; (c) The search for the bodies of those killed or disappeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim; (e) Apology, including public acknowledgement of the facts and acceptance of responsibility; (f) Judicial or administrative sanctions against persons responsible for the violations; (g) Commemorations and tributes to the victims; (h) Inclusion of an accurate account of the violations that occurred in international human rights and humanitarian law training and in educational material at all levels; (i) Preventing the recurrence of violations by such means as: Ensuring effective civilian control of military and security forces; Restricting the jurisdiction of military tribunals only to specifically military offences committed by members of the armed forces; Strengthening the independence of the judiciary;

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Protecting persons in the legal, media and other related professions and human rights defenders; Conducting and strengthening, on a priority and continued basis, human rights training to all sectors of society, in particular to military and security forces and to law enforcement officials; Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as the staff of economic enterprises; Creating mechanisms for monitoring conflict resolution and preventive intervention.

XI. PUBLIC ACCESS TO INFORMATION 26. States should develop means of informing the general public and in particular victims of violations of international human rights and humanitarian law of the rights and remedies contained within these principles and guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access.

XII. NON-DISCRIMINATION AMONG VICTIMS 27. The application and interpretation of these principles and guidelines must be consistent with internationally recognized human rights law and be without any adverse distinction founded on grounds such as race, colour, gender, sexual orientation, age, language, religion, political or religious belief, national, ethnic or social origin, wealth, birth, family or other status, or disability.

Draft Declaration on the Rights of Indigenous Peoples40 On 23 August 1993 the United Nations Working Group on Indigenous Populations approved the Draft Declaration on the Rights of Indigenous Peoples and forwarded the Draft to the Commission on Human Rights for its approval.

The Draft Declaration contains a number of clauses relevant to the issue of restitution and compensation for lost lands. For example, the Draft Declaration articulates: concern that indigenous peoples have been deprived of their human rights and fundamental freedoms, resulting, inter alia, in their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.

The Draft also recognizes: the urgent need to respect and promote the inherent rights and characteristics of indigenous peoples, especially their rights to their lands, territories and resources.

Further, the Draft Declaration states that: 27. Indigenous peoples have the right to restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used; and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands territories and resources equal in quality, size and legal status.

40 UN Doc. E/CN.4/Sub.2/1993/29 (23 August 1993), (The Draft Declaration is currently being considered by the UN Commission on Human Rights).

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4

REGIONAL STANDARDS

4.1 AFRICA Convention Governing the Specific Aspects of Refugee Problems in Africa (1969)41 We, the Heads of State and Government assembled in the city of Addis Ababa, from 6-10 September 1969, Have agreed as follows: Article 1 Definition of the term “Refugee” 1. For the purposes of this Convention, the term “refugee” shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.

2. The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

3. In the case of a person who has several nationalities, the term “a country of which he is a national” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of which he is a national if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

Article 4 Non-Discrimination Member States undertake to apply the provisions of this Convention to all refugees without discrimination as to race, religion, nationality, membership of a particular social group or political opinions.

Article 5 Voluntary Repatriation 1. The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will.

2. The country of asylum, in collaboration with the country of origin, shall make adequate arrangements for the safe return of refugees who request repatriation.

3. The country of origin, on receiving back refugees, shall facilitate their resettlement and grant them the full rights and privileges of nationals of the country, and subject them to the same obligations.

41 1001 U.N.T.S. 45 (1969), entered into force 20 June 1974.

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4. Refugees who voluntarily return to their country shall in no way be penalized for having left it for any of the reasons giving rise to refugee situations. Whenever necessary, an appeal shall be made through national information media and through the Administrative Secretary-General of the OAU, inviting refugees to return home and giving assurance that the new circumstances prevailing in their country of origin will enable them to return without risk and to take up a normal and peaceful life without fear of being disturbed or punished, and that the text of such appeal should be given to refugees and clearly explained to them by their country of asylum.

5. Refugees who freely decide to return to their homeland, as a result of such assurances or on their own initiative, shall be given every possible assistance by the country of asylum, the country of origin, voluntary agencies and international and intergovernmental organizations, to facilitate their return.

Regional Conference on Assistance to Refugees, Returnees and Displaced Persons in the Great Lakes Region (12-17 February 1995)42 Sec. C. Measures to be Taken in and/or by the Countries of Origin: Burundi: 20. In addition, to reassure refugees and internally displaced persons, the Government should:... (e) publicly reassure refugees and internally displaced persons regarding the right to restoration of their private property, while adopting concrete measures to clarify the legal status of property left behind by refugees, including those who fled prior to October 1993, notably in 1972.

Rwanda: 22. ...The Conference therefore urged and encouraged the Government of Rwanda to continue with its programmes in the following areas... (d) ensuring respect for the property rights of refugees and internally displaced persons by: i. continuing to apply concrete measures to adjudicate property disputes in a fair and expeditious manner; ii. enacting legislation to regulate the strictly temporary and provisional nature of any house occupation on an emergency basis, to be authorised and recorded by designated officials.

NOTE: In regulating the manner and modalities of return, UNHCR and others also urged the authorities in Rwanda and Burundi to comply with various repatriation principles, including: a) The right to return; b) Non-discrimination; c) Voluntariness based on informed consent; d) Return in conditions of safety and dignity; e) Respect for private property (â&#x20AC;&#x153;Governments must ensure re-instatement of returning refugees and IDPs in their homes and land, while finding alternative solutions when this is legally or otherwise impossibleâ&#x20AC;?); and f) Freedom of abode.

42 UNHCR, Regional Conference on Assistance to Refugees, Returnees and Displaced Persons in the Great Lakes Region (12-17 February 1995).

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4.2 AMERICAS Cartagena Declaration on Refugees43 The Colloquium adopted the following conclusions: 12. To reiterate the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin.

4.3 EUROPE Many of the cases involving restitution or compensation stem from violations of either Article 8 or Article 1(1) of Protocol No.1 to the 1950 European Convention for the protection of Human Rights and Fundamental Freedoms.

European Convention for the Protection of Human Rights and Fundamental Freedoms44 Article 8 – Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 1(1) of Protocol No.1 of the ECHR 1(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

43 Adopted at a colloquium entitled “Coloquio Sobre la Proteccíon Internacional de los Refugiados en América Central, México y Panamá: Problemas Jurídicos y Humanitarios”, held at Cartagena, Colombia, 19 - 22 November 1984.

44 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively.

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II. UNITED NATIONS SPONSORED AGREEMENTS AND OTHER COUNTRY-SPECIFIC STANDARDS

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5 5.1

RELEVANT AGREEMENTS AND STANDARDS BOSNIA AND HERZEGOVINA

General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7 Agreement on Refugees and Displaced Persons (1996)45 The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska (the “Parties”) have agreed as follows: CHAPTER ONE: PROTECTION Article I Rights of Refugees and Displaced Persons 1. All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.

4. Choice of destination shall be up to the individual or family, and the principle of the unity of the family shall be preserved. The Parties shall not interfere with the returnees’ choice of destination, nor shall they compel them to remain in or move to situations of serious danger or insecurity, or to areas lacking in the basic infrastructure necessary to resume a normal life. The Parties shall facilitate the flow of information necessary for refugees and displaced persons to make informed judgments about local conditions for return.

Article XI Mandate [of the Commission for Displaced Persons and Refugees] The Commission shall receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation in lieu of return.

Article XII Proceedings before the Commission 1. Upon receipt of a claim, the Commission shall determine the lawful owner of the property with respect to which the claim is made and the value of that property. The Commission, through its staff or a duly designated international or nongovernmental organization, shall be entitled to have access to any and all property records in Bosnia and Herzegovina, and to any and all real property located in Bosnia and Herzegovina for purposes of inspection, evaluation and assessment related to consideration of a claim.

2. Any person requesting the return of property who is found by the Commission to be the lawful owner of that property shall be awarded its return. Any person requesting compensation in lieu of return who is found by the Commission to be the lawful owner of that property shall be awarded just compensation as determined by the Commission. The Commission shall make decisions by a majority of its members.

45 General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7: Agreement on Refugees and Displaced Persons, initialed in Dayton, Ohio on November 21, 1995 and signed in Paris on December 14, 1995.

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3. In determining the lawful owner of any property, the Commission shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing. Any person who is awarded return of property may accept a satisfactory lease arrangement rather than retake possession.

4. The Commission shall establish fixed rates that may be applied to determine the value of all real property in Bosnia and Herzegovina that is the subject of a claim before the Commission. The rates shall be based on an assessment or survey of properties in the territory of Bosnia and Herzegovina undertaken prior to April 1, 1992, if available, or may be based on other reasonable criteria as determined by the Commission.

5. The Commission shall have the power to effect any transactions necessary to transfer or assign title, mortgage, lease, or otherwise dispose of property with respect to which a claim is made, or which is determined to be abandoned. In particular, the Commission may lawfully sell, mortgage, or lease real property to any resident or citizen of Bosnia and Herzegovina, or to either Party, where the lawful owner has sought and received compensation in lieu of return, or where the property is determined to be abandoned in accordance with local law. The Commission may also lease property pending consideration and final determination of ownership.

6. In cases in which the claimant is awarded compensation in lieu of return of the property, the Commission may award a monetary grant or a compensation bond for the future purchase of real property. The Parties welcome the willingness of the international community assisting in the construction and financing of housing in Bosnia and Herzegovina to accept compensation bonds awarded by the Commission as payment, and to award persons holding such compensation bonds priority in obtaining that housing.

7. Commission decisions shall be final, and any title, deed, mortgage, or other legal instrument created or awarded by the Commission shall be recognized as lawful throughout Bosnia and Herzegovina.

8. Failure of any Party or individual to cooperate with the Commission shall not prevent the Commission from making its decision.

Article XIII Use of Vacant Property The Parties, after notification to the Commission and in coordination with UNHCR and other international and nongovernmental organizations contributing to relief and reconstruction, may temporarily house refugees and displaced persons in vacant property, subject to final determination of ownership by the Commission and to such temporary lease provisions as it may require.

Article XIV Refugees and Displaced Persons Property Fund 1. A Refugees and Displaced Persons Property Fund (the â&#x20AC;&#x153;Fundâ&#x20AC;?) shall be established in the Central Bank of Bosnia and Herzegovina to be administered by the Commission. The Fund shall be replenished through the purchase, sale, lease and mortgage of real property which is the subject of claims before the Commission. It may also be replenished by direct payments from the Parties, or from contributions by States or international or nongovernmental organizations.

2. Compensation bonds issued pursuant to Article XII(6) shall create future liabilities on the Fund under terms and conditions to be defined by the Commission.

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5.2 CAMBODIA Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (1991)46 Article 19 Upon entry into force of this Agreement, every effort will be made to create in Cambodia political, economic and social conditions conducive to the voluntary return and harmonious integration of Cambodian refugees and displaced personsâ&#x20AC;Ś.

Art. 20(1) Cambodian refugees and displaced persons, located outside Cambodia, shall have the right to return to Cambodia and to live in safety, security and dignity, free from intimidation or coercion of any kind.

Annex 4 Repatriation of Cambodian Refugees and Displaced Persons Part II Conditions Conducive to the Return of Refugees and Displaced Persons 2. The task of rebuilding the Cambodian nation will require the harnessing of all its human and natural resources.

To this end, the return to the place of their choice of Cambodians from their temporary refuge and elsewhere outside their country of origin will make a major contribution; 3. Every effort should be made to ensure that the conditions which have led to a large number of Cambodian refugees and displaced persons seeking refuge in other countries should not recur. Nevertheless, some Cambodian refugees and displaced persons will wish and be able to return spontaneously to their homeland; 4. There must be full respect for the human rights and fundamental freedoms of all Cambodians, including those of the repatriated refugees and displaced persons, in recognition of their entitlement to live in peace and security, free from intimidation and coercion of any kind. These rights would include, inter alia, freedom of movement within Cambodia, the choice of domicile and employment, and the right to property; 5. In accordance with the comprehensive political settlement, every effort should be made to create concurrently in Cambodia political, economic and social conditions conducive to the return and harmonious integration of the Cambodian refugees and displaced persons; 6. With a view to ensuring that refugees and displaced persons participate in the elections, mass repatriation should commence and be completed as soon as possible, taking into account all the political, humanitarian, logistical, technical and socio-economic factors involved, and with the co-operation of the SNC; and 7. Repatriation of Cambodian refugees and displaced persons should be voluntary and their decision should be taken in full possession of the facts. Choice of destination within Cambodia should be that of the individual. The unity of the family must be preserved.

46 United Nations, Agreements on a Comprehensive Political Settlement of the Cambodia Conflict, Paris, 23 October 1991.

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5.3 CYPRUS Set of Ideas on an Overall Framework Agreement on Cyprus (1992)47 A. Areas that will come under Greek Cypriot administration 73. The first priority will be given to the satisfactory relocation of and support for Turkish Cypriots living in the area that will come under Greek Cypriot administration and to displaced persons returning to that area.

74. Turkish Cypriots who in 1974 resided in the area that will come under Greek Cypriot administration will have the option to remain in their property or to request to receive a comparable residence in the area that will come under Turkish Cypriot administration. Turkish Cypriot displaced persons currently residing in the area that will come under Greek Cypriot administration will have the option to receive comparable residence in that area, to return to their former residence, or to receive a comparable residence in the area that will come under Turkish Cypriot administration.

75. A bi-communal committee will be established immediately after the overall framework agreement has been approved in the referendums to arrange for suitable housing for all persons affected by the territorial adjustments.

B. Other areas under Greek Cypriot and Turkish Cypriot administration 76. Each community will establish an agency to deal with all matters related to displaced persons.

77. The ownership of the property of displaced persons, in respect of which those persons seek compensation, will be transferred to the ownership of the community in which the property is located. To this end, all titles of properties will be exchanged on a global communal basis between the two agencies at the 1974 value plus inflation. Displaced persons will be compensated by the agency of their community from funds obtained from the sale of the properties transferred to the agency, or through the exchange of property. The shortfall in funds necessary for compensation will be covered by the federal Government from a compensation fund obtained from various possible sources such as windfall taxes on the increased value of transferred properties following the overall agreement, and savings from defense spending. Governments and international organizations will also be invited to contribute to the compensation fund. In this connection, the option of long-term leasing and other commercial arrangements may also be considered.

78. Persons from both communities who in 1974 resided and / or owned property in the federated state administered by the other community or their heirs will be able to file compensation claims. Persons belonging to the Turkish Cypriot community who were displaced after December 1963 or their heirs may also file claims.

79. Current permanent residents of Cyprus who at the time of displacement owned their permanent residence in the federated state administered by the other community and who wish to resume their permanent residence at that location may also select the option to return.

80. Current permanent residents of Cyprus who at the time of displacement rented their permanent residence in the federated state administered by the other community and who wish to resume their permanent residence in that area will be given priority under the freedom of settlement arrangements.

47 Office of the Secretary-General of the United Nations, Set of Ideas on an Overall Framework Agreement on Cyprus, (1992).

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81. All claims must be filed within six months after the approval of the overall framework agreement.

82. ______ thousand displaced persons who elect to return to their former permanent residence will be processed by the federated state concerned each year for ______ years. In addition, Maronites who in 1974 had their permanent residence in the federated state under the administration of the Turkish Cypriot community may elect to return to their properties. The two federated states will review the situation at the conclusion of the above mentioned period in the light of the experience gained.

83. This period will begin after the resettlement and rehabilitation process arising from territorial adjustments are essentially completed.

84. The settlement of those who select to return will take place after the persons who will be affected have been satisfactorily relocated. If the current occupant is also a displaced person and wishes to remain, or if the property has been substantially altered or has been converted to public use, the former permanent resident will be compensated or will be provided an accommodation of similar value.

85. Persons who are known to have been actively or are actively involved in acts of violence or incitement to violence and/or hatred against persons of the other community may, subject to due process of law, be prevented from returning to the federated state administered by the other community.

5.4 GUATEMALA Agreement on the Identity and Rights of Indigenous Peoples (Guatemala Peace Accords) (31 March 1995)48 F. Rights relating to land of the indigenous peoples 1. The rights relating to land of the indigenous peoples include both the communal or collective and the individual tenure of land, rights of ownership and possession and other real rights, and the use of natural resources for the benefit of the communities without detriment to their habitat. Legislative and administrative measure must be developed to ensure recognition, the awarding of title, protection, recovery, restitution and compensation for those rights.

7. Recognizing the particularly vulnerable situation of the indigenous communities, which have historically been the victims of land plundering, the Government undertakes to institute proceedings to settle the claims to communal lands formulated by the communities and to restore or pay compensation for those lands. In particular, the Government shall adopt or promote the following measures: (a) Suspend the awarding of supplementary titles in respect of property to which the indigenous communities have claimed a right; (b) Suspend the statute of limitations in respect of any action involving the plundering of the indigenous communities; and (c) When the statute of limitations has already expired, however, establish procedures to compensate the communities which have been plundered with lands acquired for that purpose.

48 UN Doc. A/49/882-S/1995/256 (1995).

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Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict (Guatemala) (17 June 1994)49 Principles The Parties agree that a comprehensive solution to the problem of uprooted population groups should be guided by the following principles: 1. Uprooted population groups have the right to reside and live freely in Guatemalan territory. Accordingly, the Government of the Republic undertakes to ensure that conditions exist which permit and guarantee the voluntary return of uprooted persons to their places of origin or to the place of their choice, in conditions of dignity and security.

2. Full respect for the human rights of the uprooted population shall be an essential condition for the resettlement of this population.

3. Uprooted population groups deserve special attention, in view of the consequences they have suffered from being uprooted, through the implementation of a comprehensive, exceptional strategy which ensures, in the shortest possible time, their relocation in conditions of security and dignity and their free and full integration into the social, economic, and political life of the country.

8. An essential element of the resettlement process is legal security in the holding (inter alia, the use, ownership and possession) of land. In that regard, the Parties recognize the existence of a general problem which particularly affects the uprooted population. One of the principal manifestations of legal insecurity is the difficulty of producing evidence of landholding rights. This situation stems, inter alia, from problems concerning registration, the disappearance of the files of the Instituto Nacional de Transformaciรณn Agraria (INTA), the institutional weakness of specialized bodies and municipalities; the existence of rights based on customary systems for the holding and surveying of land; the existence of secondary occupants or the annulment of rights on the basis of the improper application of provisions concerning voluntary abandonment.

9. In the particular case of abandonment of land as a result of armed conflict, the Government undertakes to revise and promote legal provisions to ensure that such an act is not considered to be voluntary abandonment, and to ratify the inalienable nature of landholding rights. In this context, it shall promote the return of land to the original holders and/or shall seek adequate compensatory solutions.

49 UN Doc. A/48/954-S/1994/751, Annex I (1994).

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Kosovo (1999) © Scott Leckie

5.5

KOSOVO

UNMIK Regulation No. 1999/23 (on the establishing of the housing and property directorate and the housing and property claims commission) (15 November 1999)50 The Special Representative of the Secretary-General, For the purpose of achieving efficient and effective resolutions of claims concerning residential property, Hereby promulgates the following: Section 1 - Housing and Property Directorate 1. The Housing and Property Directorate (the “Directorate”) shall provide overall direction on property rights in Kosovo until the Special Representative of the Secretary-General determines that local governmental institutions are able to carry out the functions entrusted to the Directorate. In particular, the Directorate shall: a. Conduct an inventory of abandoned private, state and socially owned housing; b. Supervise the utilization or rental of such abandoned property on a temporary basis for humanitarian purposes; rental monies of abandoned private and socially owned property shall be recorded in a separate account in trust for the rightful owner, subject to deduction of relevant expenses; c. Provide guidance to UNMIK, including CIVPOL, and UNHCR, as well as KFOR on specific issues related to property rights; and d. Conduct research leading to recommended policies and legislation concerning property rights.

50 United Nations Mission in Kosovo, UNMIK Regulation No. 1999/23 (15 November 1999).

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1. As an exception to the jurisdiction of the local courts, the Directorate shall receive and register the following categories of claims concerning residential property including associated property: a. Claims by natural persons whose ownership, possession or occupancy rights to residential real property have been revoked subsequent to 23 March 1989 on the basis of legislation which is discriminatory in its application or intent; b. Claims by natural persons who entered into informal transactions of residential real property on the basis of the free will of the parties subsequent to 23 March 1989; c. Claims by natural persons who were the owners, possessors or occupancy right holders of residential real property prior to 24 March 1999 and who do not now enjoy possession of the property, and where the property has not voluntarily been transferred.

The Directorate shall refer these claims to the Housing and Property Claims Commission for resolution or, if appropriate, seek to mediate such disputes and, if not successful, refer them to the Housing and Property Claims commission for resolution.

Section 2 - Housing and Property Claims Commission 1. The Housing and Property Claims Commission (the “Commission”) is an independent organ of the Directorate which shall settle private non-commercial disputes concerning residential property referred to it by the Directorate until the Special Representative of the Secretary-General determines that local courts are able to carry out the functions entrusted to the Commission.

2. The Commission shall initially be composed of one Panel of two international and one local members, all of whom shall be experts in the field of housing and property law and competent to hold judicial office. The Special Representative of the Secretary-General shall appoint the members of the Panel and shall designate one member as the chairperson. The Special Representative of the Secretary-General may establish additional Panels of the Commission in consultation with the Commission.

3. Before taking office, the members of the Commission shall make in writing the following solemn declaration: “I solemnly declare that I will perform my duties and exercise my power as a member of the Housing and Property Claims Commission honourably, faithfully, impartially and conscientiously.”

The declarations shall be put in the archives of the Commission.

4. The Commission shall be entitled to free access to any and all records in Kosovo relevant to the settlement of a dispute submitted to it.

5. As an exception to the jurisdiction of local courts, the Commission shall have exclusive jurisdiction to settle the categories of claims listed in section 1.2 of the present regulation. Nevertheless, the Commission may refer specific separate parts of such claims to the local courts or administrative organs, if the adjudication of those separate parts does not raise the issues listed in section 1.2. Pending investigation or resolution of a claim, the Commission may issue provisional measures of protection.

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6. The Special Representative of the Secretary-General shall establish by regulation the Rules of Procedure and Evidence of the Commission, upon the recommendation of the Commission. Such rules shall guarantee fair and impartial proceedings in accordance with internationally recognized human rights standards. In particular, such rules shall include provisions on reconsideration of decisions of the Commission.

7. Final decisions of the Commission are binding and enforceable, and are not subject to review by any other judicial or administrative authority in Kosovo.

Executive Director and Staff The Special Representative of the Secretary-General shall appoint an Executive Director of the Directorate after consultation with the Executive Director of the United Nations Centre for Human Settlements (UNCHS) (Habitat).

The Executive Director shall appoint the staff of the Directorate, which shall comprise local experts, and shall allocate staff to the Commission who shall be under the exclusive control of the Commission.

Applicable law The provisions of the applicable laws relating to property rights shall apply subject to the provisions of the present regulation.

5.6 RWANDA Arusha Peace Agreement (4 August 1993)51 Article 4 With a view to promote social harmony and national reconciliation, refugees who have fled the country more than ten years ago cannot reclaim their property if it has been occupied by other individuals. To compensate them, the Government must put at their disposition land and help them to resettle.

51 Organization of African Unity, Arusha Peace Agreement (signed in Arusha, Tanzania on 4 August 1993).

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III. NATIONAL LEGAL PROVISIONS ON HOUSING AND PROPERTY RESTITUTION

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SELECTED NATIONAL LEGISLATION

6.1 BULGARIA Restitution of Ownership of Nationalised Real Property Act of 1992 Owners reinstated under the Restitution of Ownership of Nationalised Real Property Act (promulgated, SG No. 15/1992; amended, No. 28/1992) may claim their property right before the authority under Article 3 of the Transformation and Privatisation of State-Owned and Municipal Enterprises Act. However, such owners must make such a claim not later than two months after the publication of the decision to privatise the enterprise whereof their property is part, otherwise they shall only have the right to compensation.

6.2 CZECH REPUBLIC Law No. 116/1994 Coll.

Law No. 116/1994 Coll. amends Law No. 87/1991 Coll. on out-of-court rehabilitation, as amended. Under this law, dealing specifically with agricultural land and property, entitled persons defined in section 4 were compensated, above all by the return of real estate (sect. 6), compensation for buildings which could not be yielded up (sect. 14) and compensation for animate and inanimate chattels (sect. 20).

Law No. 87/1991 Coll.

On 2 February 1991, the Czech and Slovak Federal Government adopted Act 87/1991, which entered into force on 1 April 1991. It endorses the rehabilitation of Czech citizens who had left the country under communist pressure and lays down the conditions for restitution or compensation for loss of property. Under Section 3, subsection 1, of the Act, those who had their property turned into State ownership in the cases specified in Section 6 of the Act are entitled to restitution, but only if they are citizens of the Czech and Slovak Federal Republic and are permanent residents in its territory.

Under Section 5, subsection 1, of the Act, anyone currently in (illegal) possession of the property shall restitute it to the rightful owner, upon a written request from the latter, who must also prove his or her claim to the property and demonstrate how the property was turned over to the State. Under subsection 2, the request for restitution must be submitted to the individual in possession of the property, within six months of the entry into force of the Act. If the person in possession of the property does not comply with the request, the rightful owner may submit his or her claim to the competent tribunal, within one year of the date of entry into force of the Act (subsection 4).

NOTE: The Constitutional Court of the Czech Republic reached a decision on 12 July 12 1994 and issued a Finding that eliminates the requirement of permanent residence as a condition to exercise the right to claim property seized by the Communist government of Czechoslovakia during the period between 25 February 1948 and 31 December 1989. The requirement for the claimant to hold Czech citizenship, however, remains valid.

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6.3 ESTONIA Law on the Fundamentals of Ownership Reform of 1991, as amended in 1993 and Land Reform Act of 1991, as amended in 1993 Stipulates that the principal process of ownership reform will be the extensive restitution and compensation of unlawfully expropriated properties to their former owners or their heirs. Unlawful expropriation, according to the Acts, is interpreted rather broadly. Subject to restitution or compensation of unlawfully nationalized property, property collectivised and property expropriated in the course of unlawful repressions (as well as property abandoned due to the genuine danger of repression) during the period from June 16, 1940 until June 1, 1991. Restitution concerns a large number of buildings that are actually occupied by tenants (other than the former owner). In order to avoid social tensions, the restitution of such dwellings requires the former owner (or inheritor) to continue the rental contract with the present tenant for at least 3 years after the restitution (unless the tenant and former owner do not reach another agreement). Eligible persons entitled to claim restitution or compensation for property is rather broad and includes: 1) former owners if they lived permanently on the territory of Estonia in June 1991, or if they were citizens of the Republic of Estonia on June 16, 1940 (i.e. including present foreign residents); 2) heirs of the former owner. If there are none, the parents, spouse and children of the previous owner in equal shares, the spouse of the child of the previous owner, should the child of the previous owner be deceased; the grandchildren of the previous owner and other descendants, should their parent be deceased; 3) public and religious organizations, which operated until June 16, 1940, and whose statutory activity has not been terminated.

6.4 GERMANY German Act Regulating Unresolved Property of 1990 The German Act Regulating Unresolved Property regulates unresolved issues of property and assets within the area of the former German Democratic Republic. The Act establishes a framework for the return of assets taken from individuals and associations between 30 January 1933 and 1990. In cases where restitution is not possible, compensation will be made for the loss of property in eastern Germany.

Federal Restitution Law of 1957 Under the Federal Restitution Law of 1957, property remaining in Germany that had belonged to victims of racial and political persecution was returned to its former owners, and, in cases where owners had perished, to heirs or successor organizations, specifically the Jewish Claims Conference. For objects that no longer existed and thus could not be returned, compensation and indemnification were paid.

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6.5 RWANDA Ministerial Order No. 01/96 of September 23, 1996 Regarding the Temporary Management of Land Property Chapter One: Preliminary Provisions Article 1: The Commune is bestowed with full authority to ensure on behalf of the government the management of all the land property in rural areas of their jurisdiction that have been abandoned by their owners.

Article 2: Within the framework of the present order, portions of land in rural areas are those that are not located in boundary limits of towns as determined by the decree of April 20, 1979.

The present order concerns land property that is not registered in official documents and has been abandoned by its owners. It does not concern all the land in rural areas which has been registered (in cadastre) or any other land that is normally counted in Government property and has never been allocated (left overs, swamps, military fields, research fields, etc.).

Article 3: Shall be considered as abandoned property: 1. Any land whose owner died without leaving behind his legitimate wife or children; 2. Any land whose owner, his legitimate wife and children are out of the country.

Chapter V: Modalities for the Land Owner to be Reinstated in His Rights Article 23: The land owner, his legitimate wife and children have the full right to have their property returned upon their repatriation.

They shall submit their request to the Bourgmestre where the property is located.

The Bourgmestre shall immediately inform the temporary occupant in writing.

The Secretary to the Commission mentioned in Article 4 of the present Order [Communal Commission] writes the request in an ad hoc register and acknowledges in writing that he received the request.

The ad hoc register shall mention: 1. The identification of the land owner requesting to be reinstated; 2. The date on which the request was handed in to the Secretary of the Commission;

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3. Summarized reasons or proofs on which the owner bases his request; 4. The date on which the Commission made the decision, including a summary of the contents of the decision.

Article 24: Requests to be reinstated in ownership rights are examined by the relevant commission within fifteen days from the time the request has reached the Commune Office.

The Commission’s decision is communicated to those concerned within seven days after the decision has been made. A copy of the decision is handed to the people concerned.

Article 25: If either party is not satisfied with the Commission’s decision, he shall submit his appeal to the Prefet of Prefecture within 8 days after being informed of the decision.

In the event of the Commune Commission’s refusal to make a decision within fifteen days after it has received the request, the applicant has seven days to appeal to the Prefet against the refusal to decide.

The Prefet shall make a decision on the appeal not later than one month from the time the appeal was registered at the Prefecture. If, after one month, no decision has been made by the Prefet or if his decision does not satisfy the person appealing, the latter may submit the case to the judicial authority.

Article 26: A register book shall be held in the Prefet’s Secretariat for recording all the appeals regarding decisions made by the Communal Commission responsible for the abandoned land property.

1. The identity of the person appealing; 2. The date on which the appeal was received; 3. A summary of reasons/proofs on which the person bases his appeal; 4. The date on which the appealing person was informed of the decision made by the Commission; 5. The date of the Prefet’s decision on the appeal as well as its contents.

6.6 SLOVENIA Denationalisation Law (1991, amended 1998) A person’s rights to receive returned property are spelled out in the 1991 Denationalization Law, as amended in 1998. Slovenia’s Constitutional Court emphasized that the purpose of the law is to correct injustices perpetrated by the state against property owners after the Second World War. The law does not cancel the nationalization legislation. For economic and political reasons, the Denationalization Law does not seek to restore the country to the pre-Second World War status quo regarding property, but to correct injustices - sometimes with cash compensation. Anyone whose property was nationalized may apply for redress. The government determines how much

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compensation is due, and whether it should be given in the form of physical property or money. These decisions are made on a case-by-case basis, and take into account such factors as the public interest, agricultural activity of the claimant and the means of acquisition.

6.7 SOUTH AFRICA Constitution, Article 25 (1996) Article 25. Property (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

Restitution of Land Rights Act 22 of 1994 Whereas the Constitution of the Republic of South Africa, 1996 (Act. No. 108 of 1996) provides for restitution of property or equitable redress to a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory law or practices; Section 1. Definitions In this Act, unless the context indicate otherwise‘Restitution of a right in land’ means: (a) the restoration of a right in land; or (b) equitable redress.

‘Restoration of a right in land’ means the return of a right in land dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices; “Right in land” means any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question; Section 2. Enforcement of claim for restitution (1) A person shall be entitled to restitution of a right in land if(a) the or she is a person or community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices or a direct descendant of such a person; and (c) the claim for such restitution is lodged not later than 31 December 1998.

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(1A) No person shall be entitled to restitution of a right in land if(a) just and equitable compensation as contemplated in section 25(3) of the Constitution; or (b) any other consideration which is just and equitable, calculated a the time of any dispossession of such right, was received in respect of such dispossession.

Section 3. Claims against nominees Subject to the provisions of this Act a person shall be entitled to claim title in land if such claimant or his, her or its antecedent(a) was prevented from obtaining or retaining title to the claimed land because of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 9(3) of the Constitution had that subsection been in operation at the relevant time; and (b) proves that the registered owner of the land holds title as a result of a transaction between such registered owner or his, her or its antecedents and the claimant or his, her or its antecedents, in terms of which such registered owner or his, her or its antecedents held the land on behalf of he claimant or his, her or its antecedents.

Section 4. Establishment of Commission on Restitution of Land Rights (1) There is hereby established a commission to be known as the Commission on Restitution of Land Rights. ...

Section 10. Lodgement of claims (1) Any person or the representative of any community who is of the opinion that he or she or the community which he or she represents is entitled to claim restitution of a right in land as contemplated in section 121 of the Constitution, may lodge such claim, which shall include a description of the land in question, and the nature of the right being claimed, on the form prescribed for this purpose by the Chief Land Claims Commissioner under section 16. ...

Section 22. Land Claims Court (1) There shall be a court of law to be known as the Land Claims Court which, in addition to the powers contemplated in section 123 of the Constitution, shall have the power (a) to determine restitution of any right in land in accordance with this Act; (b) to determine compensation in terms of this Act; (c) in respect of a claim in terms of section 3, to determine the person entitled to ownership; (d) to determine all other matters which require to be determined in terms of sections 121, 122 and 123 of the Constitution.

(2) The Court shall have jurisdiction throughout the Republic and shall have all the ancillary powers necessary or reasonably incidental to the performance of its functions, including the power to grant interlocutory orders and interdicts. ...

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Section 33. Factors to be taken in account by court In considering its decision in any particular matter, excluding the review of a decision in terms of section 15, the Court shall, in addition to the matters referred to in section 121, 122 and 123 of the Constitution, have regard to the following factors: (a) The desirability of providing for restitution of rights in land or compensation to people who were dispossessed of their rights in land as a result of or in pursuance of racially based discriminatory laws; (b) the desirability of remedying past violations of human rights; (c) the requirements of equity and justice; (d) the desirability of avoiding major social disruption; (e) any provision which already exists, in respect of the land in question in any matter, for that land to be dealt with in a manner which is designed to achieve the goals contemplated in section 8(3)(a) of the Constitution; (f) any other factor which the Court may consider relevant and consistent with the spirit and objects of the Constitution and in particular the provisions of section 8 of the Constitution.

6.8 TAJIKISTAN Special Law on the Return of Illegally Occupied Houses This law deals with housing that was illegally occupied during the conflict between the Government of Tajikistan and the United Tajik Opposition, which concluded with the signing of a Peace Accord in June 1997.

Resolution No. 542 of 22 August 1995 on Additional Measures Facilitating the Return of Refugees-Citizens of the Republic of Tajikistan and Forced Migrants to the Places of Permanent Residence and Their Social and Legal Protection With the aim of activating efforts on returning refugees-citizens of the Republic of Tajikistan and forced migrants to the places of permanent residence, strengthening their social and legal protection and in accordance with the statement of the government delegation of the Republic of Tajikistan on the results of the fourth round of interTajik talks in Almaty, the Government of the Republic of Tajikistan resolves; 1. The ministries departments of the Republic of Tajikistan, heads of oblasts, cities and rayons of the Republic of Tajikistan shall intensify the work of the organized return of the refugees and forced migrants to the places of permanent residence and their social and legal protection.

2. With the aim of efficiently solving the questions arising in connection with the return of refugees - citizens of the Republic of Tajikistan and forced migrants to the places of permanent residence, their social and legal protection a government commission shall be set up in accordance with the supplement.

4. With the aim of facilitating the earliest social and economic adaptation of the refugees-citizens of the Republic of Tajikistan and forced migrants returned to the places of permanent residence, the Ministry of Internal Affairs of the Republic of Tajikistan, hukumats of oblasts, cities and rayons of the Republic of Tajikistan in common with the agencies of the Procuratorâ&#x20AC;&#x2122;s Office of the Republic of Tajikistan shall: - immediately vacate illegally occupied dwellings owned or rented by the refugees-citizens of the Republic of Tajikistan and forced migrants in houses belonging to the State or communal housing fund and pass them to their rightful owners;

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- in case of the destruction or loss of the State-owned dwelling, provide out of turn an available dwelling space at his whereabouts in conformity with the standards in force in the Republic. According to the wish of the victims, in return for the dwelling, allot them a land plot for the construction of a dwelling house or give them a right to join a building cooperative out of turn.

6. The State Committee of the Republic of Tajikistan on Contracts and Trade, the Board of Tajikmatlubot shall provide persons from among refugees-citizens of the Republic of Tajikistan and forced migrants and forced migrants building their own houses with main types of building materials in the first instance according to the claims of thukumats.

The Law of the Republic of Tajikistan on Forced Migrants (20 July 1994) Article 11 - Safeguarding Security of the Forced Migrants on Their to Places of Permanent Residence Organs of State power and administration are obliged to safeguard the security of the forced migrants on their return to their places of permanent residences as well as observation of their rights and lawful interests.

Article 12 - the Rights of Forced Migrants Upon Arrival in their Places of Permanent Residence A forced migrant, after return to his place of permanent residence, has the right to: - repossess the personal and real estate left by him under the circumstances foreseen by the Article 1 of the present law; - receive a lump sum allowance or other cash benefit, the sum of which is determined by the Council of Ministers of the Republic of Tajikistan; - receive credit on preferential terms to reconstruct and build new houses and outbuildings to replace what has been destroyed; Article 13 - The Fund of Assistance to Forced Migrants To ensure favourable material conditions and compensation of expenses on accommodation at new permanent places of residence in the territory of the Republic of Tajikistan and at the places of previous residence the Fund of Assistance to Forced migrants hereby is established within the Central Refugee Department of the Ministry of Labour and Employment of Population of the Republic of Tajikistan.

The Fund shall be formed on the basis of receipts from the State Budget of the Republic of Tajikistan, other states and international organizations on the basis of agreements and other documents concluded by the Republic of Tajikistan, receipts from province, town and district budgets, voluntary donations on the part of domestic and foreign enterprises, public organisations and individual persons.

Article 14 - Sources of Compensation of Expenses of Reception and Accommodation of Forced Migrants Expenses on the part of the local State power and administration organs connected with reception and accommodation of forced migrants on their territory shall be reimbursed from republican budget of the Republic of Tajikistan and the fund of Assistance within the Central Refugee Department of the Ministry of Labour and Employment of Population of the Republic of Tajikistan.

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6.9 FORMER REPUBLIC OF YUGOSLAVIA Law on the Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens (3 April 1998) (Bosnia and Herzegovina)52 I. GENERAL PROVISIONS Article 1 From the day of the entry into force of this law, the Law on Temporary Abandoned Real Property Owned by Citizens (Official Gazette RBiH 11/93, 13/94 - hereinafter: the Law) and regulations regulating the issue of temporary abandoned property owned by citizens in the period between 30 April 1991 and the entry into force of this law, shall cease to applied on the territory of the Federation of Bosnia and Herzegovina (hereinafter: the Federation).

Article 2 From the day of the entry into force of this Law, the bodies and authorities of the Federation and other bodies in the Federation ( hereinafter: the competent authorities) shall refrain from undertaking any new actions by which real property owned by citizens is declared abandoned or placed under municipal administration.

Article 3 Real property declared abandoned and placed under municipal administration on the basis of the Law on Temporary Abandoned Real Property Owned by Citizens shall remain under municipal administration until the return of the real property to the owner pursuant to the provisions of this Law. Article 4 Owner of the real property declared abandoned shall have the right to file a claim for the return of the real property at any time.

Article 5 For the purpose of this Law, the owner shall be understood to mean a person which, according to the legislation in force, was the owner of the real property at the moment when that property was declared abandoned. The owner of the real property may authorize another person to submit the claim for the return of the real property.

Article 6 The user to whom the real property has been allocated for temporary use on the basis of the Law on Temporary Abandoned Real Property (hereinafter: the temporary user), shall continue to use the real property under the conditions and in the manner which were prescribed by the Law on Temporary Abandoned Real Property, until the issuance of a decision under Article 12 of this Law. Article 7 If a temporary user who has been ordered to vacate the property pursuant to the provisions of this Law has no possibility to return to the apartment in which he was living until 30 April 1991 and no other housing unit satisfying the requirements of emergency or appropriate accommodation has been provided to him/her, the competent service of the municipality on the territory of which s/he enjoyed the latest domicile or residence shall, within the

52 Published in the Official Gazette of the Federation of Bosnia and Herzegovina, no. 11/98 Unofficial Translation 8 April 1998.

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deadline set by the decision for his/her vacation of the property, provide him/her with an emergency accommodation or an appropriate accommodation if, pursuant to Article 8(4) of the Law on Housing Relations, this person cannot be lodged in an emergency accommodation.

The authorities responsible to provide an emergency accommodation shall not be obliged to provide either an emergency or appropriate accommodation to persons occupying the property without a valid legal title.

In no event shall the failure of the municipality to meet its obligations under Paragraph 1 of this Article operate to delay the ability of the owner to reclaim his property.

Article 8 For the purposes of this Law, an emergency accommodation shall be understood to mean the emergency accommodation pursuant to Article 8 of the Law on Housing Relations (Official Gazette of SR BiH 4/84, 12/86, 36/89).

Article 9 Parties in proceedings instituted at the owner’s request for repossession of the real property shall be the owner of the real property and the temporary occupant at the time the request was submitted.

II. RETURN OF REAL PROPERTY TO THE OWNER Article 10 The owner of private property has the right to claim at any time from the competent authorities the repossession of his/her property which has been declared abandoned or allocated for temporary use.

Article 11 A claim for repossession of a property under Article 10 of this Law shall be filed by the owner to the competent municipal, city or cantonal administrative body competent for property - law affairs. The claim shall be submitted in writing, signed by the owner or orally, in person by the owner or an authorized representative. A claim should include: 1. all necessary information on the property; 2. any evidence in possession of the claimant that the claimant is the owner; 3. the date when the owner intends to reoccupy the property.

The claim for repossession of property referred to in Paragraph 1 of this Article shall not be subject to the statute of limitations.

Article 12 Upon the receipt of the owner’s claim for the return of the property, the competent body shall issue a decision on the return of the property to the owner within a period of 30 days from the date of the receipt of the claim.

The decision referred to in paragraph 1 of this Article by which the owner’s claim is accepted shall contain: 1. a decision terminating the municipal administration of the property as of the date of the intended return; 2. a decision on repossession of the property by the owner; 3. a decision terminating the right of the temporary user to use the property as of the date of the intended return of the owner; 4. a time limit for vacating the property by the temporary user or the person using the property without a valid legal title, or the time limit for returning the land; 5. a decision whether the temporary user is entitled to emergency accommodation.

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The deadline for vacating the property, referred to in Paragraph 2(4) of this Article may not be shorter than 90 days from the date of the issuance of the decision, nor longer than the day of intended return of the owner and the day of intended return may not be earlier than 90 days from the date of submitting the claim for return of the property.

In exceptional circumstances, the deadline referred to in Paragraph 3 of this Article may be extended to up to one year if the municipality responsible for providing alternative accommodation in accordance with Article 7(1) of this Law provides detailed documentation regarding its efforts to secure alternative accommodation to the Federation Ministry of Urban Planning and Environment, and upon a finding by the Ministry that there exists a documented absence of available housing in the municipality.

In case of the return of arable land, the time limit referred to in Paragraph 2 (4) of this Article may be extended until the harvest is completed.

Article 13 The competent authority must notify the owner of the property and the temporary user of the property.

Any appeal against the decision must be submitted to the cantonal administrative body competent for the property law affairs within 15 days from the date of receipt of the decision.

An appeal shall not suspend the execution of the decision.

Article 14 A party affected by a decision made under Article 12 may at any time file a claim to the Commission for Real Property Claims of Displaced Persons and Refugees (GFAP, Annex 7, hereinafter the Property Commission).

In the event that a proceeding from Paragraph 1 of this Article is initiated, all other proceedings before the competent authorities, including the enforcement of decision referred to in Article 12 of this Law, shall be stayed pending the final decision of the Property Commission.

A decision of the Property Commission is final and binding.

Regarding the rights and obligations of a party referred to in Paragraph 1. of this Article, the decision of the Property Commission shall have the same legal force as a decision of any other competent authority made in accordance with this Law. Article 15 The return of the property to the owner shall be witnessed by an official of the competent office of the municipality referred to in Article 11, paragraph 1 of this Law. The return of the property and the entering into possession by the owner shall be recorded in the minutes including, among other things, a detailed description of the current state of the premises and the movable property therein.

Article 16 If the person occupying the property fails to voluntarily comply with the decision ordering him/her to vacate the property the competent authority shall employ compulsory enforcement, in accordance with the law.

The enforcement shall be carried out at the request of the owner.

Article 17 The proceedings for the repossession of real property by the owner as determined in this law and proceedings of the compulsory enforcement referred to in Article 16 of this law shall be carried out in accordance with the Law on

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General Administrative Procedure(Official Gazette 2/92 and 13/94) which is applicable in the territory of the Federation until the competent authorities decide otherwise, based on Article IX.5 (1) of the Federation Constitution.

Article 18 This law shall enter into force on the day following its publication in the “Official Gazette” of the Federation of Bosnia and Herzegovina.

Law on the Cessation of the Application of the Law on Abandoned Apartments (1998) (Bosnia and Herzegovina)53 I. GENERAL PROVISIONS Article 1 The Law on Abandoned Apartments (“Official Gazette of RBH” no. 6/92, 8/92, 16/92, 13/94, 36/94, 9/95 and 33/95), Decree on Use of Abandoned Apartments (Official Gazette HZHB 13/93) and the regulations passed there under, as well as other regulations regulating the issue of abandoned apartments passed between 30 April 1991 and the entry into force of this Law which are being applied on the territory of the Federation of Bosnia and Herzegovina (hereinafter: the Federation) shall cease to be applied on the day of the entry into force of this law.

Following the entry into force of this Law, the authorities of the Federation and other bodies in the Federation shall refrain from undertaking any new actions by which apartments will be declared abandoned.

The competent bodies referred to in Paragraph 2 of this Article shall decide about the rights of occupancy right holders to return to their apartments which have been declared temporarily or permanently abandoned and the rights of temporary occupants of the abandoned apartment, and about further use of the apartment, in accordance with the provisions of this Law and the Law on Taking over the Law on Housing Relations (hereinafter: the ZOSO).

Article 2 All administrative, judicial and any other decisions enacted on the basis of the regulations referred to in Paragraph 1 of Article 1 of this Law terminating occupancy rights shall be null and void.

All administrative, judicial and any other decisions enacted on the basis of the regulations referred to in Paragraph 1 of Article 1 of this Law in which rights of temporary occupancy have been created shall remain effective until cancelled in accordance with this Law. Persons who moved into apartments on the basis of acts which have expired shall be considered to be temporary users. Article 3, Paragraph 3 of this Law shall not apply to such persons.

All administrative, judicial and any other decisions including the acts of allocation right holders enacted on the basis of the regulations referred to in Paragraph 1 of Article 1 of this Law in which new occupancy rights are created, as well as the contracts concluded pursuant to those acts, shall remain in force unless cancelled in accordance with this Law.

53 Published in the Official Gazette of the Federation of Bosnia and Herzegovina, no. 11/98, dated 3 April 1998.

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Article 3 The occupancy right holder of an apartment declared abandoned or a member of his/her household as defined in Article 6 of the ZOSO (hereinafter the â&#x20AC;&#x153;occupancy right holderâ&#x20AC;?) shall have the right to return in accordance with Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina.

Paragraph 1 of this Article shall be applied only to those occupancy right holders who have the right to return to their homes of origin under Annex 7, Article 1 of the General Framework Agreement for Peace in Bosnia and Herzegovina. Persons who have left their apartments since 30 April 1991 are presumed to be refugees and displaced persons under Annex 7 absent a showing that they left their apartments for reasons wholly unrelated to the conflict.

Holder of occupancy right in the apartment which is inhabited by a person using the apartment without legal basis or which is vacant as of the date this Law enters into force shall be able, without any restrictions, to repossess the apartment in which he has an occupancy right. Persons using the apartment without legal basis shall be evicted and the authorities competent for allocation of emergency accommodation shall not be obliged to provide emergency accommodation to such persons.

A temporary user of an apartment who is required to vacate the apartment pursuant to the provisions of this Law and whose housing needs are otherwise met shall be obliged to move out from the apartment that he/she has been using within 90 days of the date of the issuance of the Decision by which it has been decided about the right of an occupancy right holder to the relevant apartment (hereinafter: the Decision under Article 6).

A temporary user of an apartment who is required to vacate the apartment pursuant to the provisions of this Law and whose housing needs are not otherwise met, shall be provided with accommodation in accordance with the ZOSO by the administrative body on the territory of which she/he had his/her latest domicile or residence. The temporary user shall be obliged to move out of the apartment within the deadline set in Article 7 of this Law. Within thirty days of a Decision under Article 6 of this Law which concerns an apartment inhabited by a new occupancy right holder on the basis of a decision of the allocation right holder, or of a contract (hereinafter: the current occupant), the allocation right holder shall refer the case to the responsible cantonal administrative authority which shall pass a decision on allocation of another apartment to the current occupant or the occupancy right holder, within 30 days from the date the case has been submitted.

If the responsible cantonal authority decides that the occupancy right holder should be allocated another apartment, the decision shall be made in accordance with the criteria which must comply with Article 1. of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina, in accordance with the European Convention of Human Rights and its Protocols, as well as the Law on Housing Relations. These criteria shall be developed by the Federation Ministry of Urban Planning and Environment, in consultation with organizations competent for the implementation of the standards mentioned in this Paragraph.

In all cases in which the current occupant remains in the apartment, all moveable property of the occupancy right holder found in the apartment must be returned to him/her upon his/her request.

In no event shall the failure of the cantonal authorities or of an allocation right holder to meet their obligations under this Article, or the failure of the current occupancy right holder to accept an apartment, operate to delay the ability of an occupancy right holder to reclaim the apartment.

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II. THE PROCEDURE FOR REPOSSESSION OF AN APARTMENT AND THE RIGHTS OF THE OCCUPANCY RIGHT HOLDER Article 4 The occupancy right holder as defined in Article 3, Paragraph 1 of this Law shall be entitled to claim the repossession of an apartment.

A claim for repossession of an apartment shall be presented to the municipal administrative authority competent for housing affairs, unless otherwise determined by cantonal law.

The claim shall be submitted in writing signed by the occupancy right holder or orally, in person by the occupancy right holder or an authorized representative. A claim should include: 1. information on the apartment; 2. any evidence that the claimant is the holder of an occupancy right or a member of the latterâ&#x20AC;&#x2122;s household; 3. the date when the occupancy right holder intends to reoccupy the apartment, but not later than one year from the date of submitting the claim; and 4. information on the place of residence of the occupancy right holder and the members of the occupancy right holderâ&#x20AC;&#x2122;s household at the time the claim is filed.

Article 5 A claim for repossession of the apartment must be filed within six months from the date of the entry into force of this Law. If the occupancy right holder does not file a claim within the time limit referred to in the previous paragraph, the occupancy right is cancelled.

Article 6 Upon the receipt of a claim for return of the apartment to the occupancy right holder, the competent authority shall decide on the claim by a decision within 30 days from the date of receipt of the claim.

Article 7 The decision referred to in the preceding Article by which the claim of the occupancy right holder is accepted, shall contain: 1. a decision confirming that the claimant is the holder of the occupancy right; 2. a decision on repossession of the apartment by the occupancy right holder if there is a temporary user in the apartment, or if the apartment is vacant or occupied without legal basis; 3. a decision on termination of the right of temporary use of the apartment, if there is a temporary user in the apartment; 4. a time limit for vacating the apartment by a temporary user or another person occupying the apartment, and 5. a decision concerning whether the temporary user is entitled to accommodation in accordance with the ZOSO.

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The deadline for vacating the apartment, referred to in Paragraph 1(4) of this Article may not be shorter than 90 days from the date of the issuance of the decision, nor longer than the day of intended return of the holder of occupancy right, and the day of intended return may not be earlier than 90 days from the date of submitting the claim.

In exceptional circumstances, the deadline referred to in Paragraph 2 of this Article may be extended to up to one year if the municipality or the allocation right holder responsible for providing alternative accommodation in accordance with Article 3 of this Law provides detailed documentation regarding its efforts to secure alternative accommodation to the cantonal administrative authority responsible for housing affairs, and the cantonal authority finds that there is a documented absence of available housing. In each individual case, the requirements of the European Convention on Human Rights and its Protocols must be met, and the occupancy right holder must be notified of the decision to extend the deadline and the basis for the decision 30 days before the deadline has expired.

Article 8 The competent administrative body shall deliver the decision within 5 days from the date of issuance of the decision to: 1. the occupancy right holder; 2. the occupant of the apartment, and 3. the allocation right holder.

Any appeal against a decision must be submitted to the cantonal ministry responsible for housing affairs within 15 days from the date of receipt of the decision.

An appeal shall not suspend the execution of the decision.

Article 9 The handing over of the apartment to the occupancy right holder shall be witnessed by an official of the competent authority.

The handing over of the apartment and its contents shall be recorded in the minutes including, among other things, a detailed description of the current state of the apartment and its contents.

Article 10 Proceedings in the cases initiated by the claims referred to in Article 4 of this Law shall be considered urgent.

Article 11 If the person occupying the apartment fails to voluntarily comply with a decision ordering him/her to vacate the apartment, the competent administrative body shall employ compulsory enforcement in accordance with law.

The enforcement shall be carried out at the request of the occupancy right holder.

Article 12 The occupancy right shall terminate by the force of the law if the occupancy right holder fails, without good cause, to reoccupy the apartment within one year from the date when his right to return to the apartment has been established by a final decision.

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The occupancy right holder is considered to have good cause not to reoccupy the apartment: if s/he has requested the commencement of enforcement proceedings, but the apartment continues to be occupied by another party; 1. if s/he has been unable to return to the municipality in which the apartment is located due to a well-founded fear of persecution; 2. if the occupancy right holder was called up for military service; 3. if the occupancy right holder has been receiving medical treatment; 4. if the occupancy right holder is staying in a retirement house; 5. if the occupancy right holder has been convicted and is serving a prison sentence for this period; 6. if security measures are being applied to the occupancy right holder; 7. if the occupancy right holder and the members of his/her household are temporarily staying in an other place in the country or abroad on the bases stated in paragraph 1 of Article 48 of the ZOSO; or 8. if the apartment is the subject of an unresolved claim submitted to the Commission for Real Property Claims of Displaced Persons and Refugees.

In the cases referred to in Paragraph 1 of this Article, as long as these reasons last, the right of the occupancy right holder to use the apartment shall not terminate.

Article 13 Upon the cancellation of an occupancy right under Articles 5 or 12 of this Law, the allocation right holder may allocate the apartment for use to the temporary occupant or to another party in accordance with the provisions of the ZOSO. Where the apartment is allocated to another party under the paragraph 1 of this Article, the temporary occupant of the apartment must vacate the apartment within 60 days of being notified of the final decision on allocation of the apartment to another occupant.

III. CLAIMS TO THE COMMISSION FOR REAL PROPERTY CLAIMS OF DISPLACED PERSONS AND REFUGEES Article 14 A party affected by a decision made under Article 7 may at any time file a claim with the Commission for Real Property Claims of Displaced Persons and Refugees (GFAP, Annex 7, hereinafter the Property Commission). In the event that such a claim is filed, all proceedings, including execution of decisions or orders, shall be stayed pending the final decision of the Property Commission.

A decision of the Property Commission is final and binding.

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Following a decision of the Property Commission, the rights and obligations of the party referred to in Paragraph 1 of this Article shall be the same as if the decision of the Property Commission was a decision of the competent authorities made in accordance with this law.

IV. PURCHASE OF APARTMENTS WHICH HAVE BEEN DECLARED ABANDONED Article 15 The occupancy right holder, whose contract on the use of the apartment was cancelled in the period between 30 April 1991 and the entry into force of this Law , on the basis of regulations referred to in Article 1 of this Law and Article 47 of the ZOSO, and whose apartment has been returned to him in line with this Law has the right to purchase the apartment in the sense of the Law on Sale of Apartments with Occupancy Right.

The occupancy right holder shall acquire the right to purchase after he has been using the apartment for a period of at least six months.

The occupancy right holder may not sell the apartment within 5 years from the day of the registration of his ownership right, and this shall be noted in the land books or other respective registers on rights in real property.

The prohibition of purchase of the apartment by the current holder of occupancy right shall last until the deadline for the former occupancy right holder to submit the claim for repossession of the apartment has expired, i.e. until the proceedings under this Law have been finalized.

V. FINAL PROVISIONS Article 16 Contracts on the use of apartments declared abandoned in accordance with the regulations referred to in Article 1 (1) of this Law, as well as other decisions on allocation of apartment for use issued after 7 February 1998 are null and void.

Provision referred to in Paragraph 1 of this Article shall also apply to contracts on the use of apartment if they were concluded before 7 February 1998 but their beneficiary did not move into the apartment.

Any person who uses an apartment on the basis of a decision or contract referred to in Paragraph 1 of this Article shall be considered to occupy the apartment without legal basis.

Article 17 The Federation Minister of Urban Planning and Environment shall pass an instruction on the application of Article 4 of this Law within 30 days from the date of the entry into force of this Law. Article 18 The procedure for the return of apartments to the possession of the occupancy right holders determined by this law shall be carried out in accordance with the Law on General Administrative Procedure (“Official Gazette of FBiH” No. 2/98), unless otherwise stipulated by this law.

Article 19 This law shall enter into force on the day following its publication in the “Official Journal of the Federation of Bosnia and Herzegovina”.

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Law on the Sale of Apartments with Occupancy Rights (6 December 1997) (Bosnia and Herzegovina) 54 6 December 1997 I. GENERAL PROVISIONS Article 1 This Law shall regulate conditions and method of sale of apartments with occupancy right together with the common parts and facilities of the building, as well as the method of determining the price of the apartment and cessation of occupancy right.

Article 2 Apartment and auxiliary premises shall be understood to mean premises or a set of premises as defined by provisions of the Law on Housing Relations (“Official Gazette of SR BiH” No: 14/84, 12/87 and 13/89 - hereinafter: the Law on Housing Relations).

Article 3 An apartment shall be purchased with the common parts and facilities of the building which serve to the building as a whole, together with the land under the building.

Common parts and facilities of the building are defined by provisions of the Law on Housing Relations.

Premises with occupancy right which are not considered as an apartment may also be subject to sale, if it is prescribed by regulations that they may be subject to transactions.

A garage shall also be subject to sale, if it makes a building unit with the apartment or if it was given to the occupant for use as an integral part of the apartment.

Article 4 For the purposes of this Law, the following shall not be considered as an apartment: 1. premises in buildings for accommodation of individual persons, 2. premises in buildings for temporary accommodation and 3. premises in administrative and business buildings.

Article 5 Provisions of this Law shall not be applied to sale of apartments: 1. which are located in buildings for which a procedure for demolition has been initiated, 2. which are intended for living while performing official duties, 3. which are located in business buildings used for the activities of state administration, Federal administration, judiciary, health care, transport and communications.

54 Published in the “Official Gazette” of the Federation of Bosnia and Herzegovina, 27/97, 11/98, 22/99, 27/99, 7/00.

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Article 6 Apartments owned by legal entities whose seats are in the territory of the Federation of Bosnia and Herzegovina (hereinafter: the Federation), and which are located in the territory of the states formed after the dissolution of the former SFRY, shall be sold in the manner regulated in the respective state and under conditions of reciprocity, unless otherwise regulated by an inter-state agreement.

A foreign citizen, under conditions stipulated by this Law, may purchase an apartment only if a citizen of Bosnia and Herzegovina is entitled to purchase an apartment in the respective state.

II. RIGHT TO BUY AN APARTMENT Article 7 Any holder of occupancy right, except in the case referred to in Article 5 of this Law, may submit a written request for buying an apartment to the holder of the right to dispose with the apartment (hereinafter: the seller) and the seller shall be obliged to sell it.

Request from paragraph 1 of this Article shall be submitted within two years from the day of the application of this Law, and contract on sale of the apartment (hereinafter: the contract) must be concluded within three months from the day the request for buying apartment has been submitted.

If the seller does not conclude the contract upon the request of the holder of occupancy right who wants to purchase the apartment within the deadline referred to in paragraph 2 of this Article, the buyer shall have the right to initiate judicial proceedings.

The court ruling shall replace the contract in its entirety. As an exception, the term for the conclusion of the contract concerning an apartment for which all facts relevant for the sale of the apartment were not established at the time the request for purchasing the apartment had to be submitted, shall be counted from the day of the establishment of these facts.

Facts relevant for the sale of an apartment shall be evaluated at the time of the conclusion of the contract.

Article 8 Occupancy right holder shall be considered to be the person to whom the apartment was allocated for use by the owner i.e. the allocation right holder of the apartment, and who had signed the contract on the use of the apartment or the person to whom the apartment was allocated by final and binding judicial decision, as well as the person to whom this right was recognised by the act of a competent body in accordance with the Law on Housing Relations.

Article 8a The occupancy right holder over an apartment which was proclaimed as abandoned by special regulations applied at the territory of Federation Bosnia and Herzegovina during the period of 30 April 1991 to 4 April 1998, shall acquire the right to purchase the apartment in compliance with the provisions of this Law upon expiry of two year deadline after his/her reinstatement in the apartment.

In the decision-making procedure related to the claim for purchase of the apartment, the owner of the apartment shall be obliged to establish, on the basis of available documentation, whether the claimant is the occupancy right holder referred to in paragraph 1of this Article.

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A contract on sale of the apartment concluded in contravention of the provisions in paragraph 1 of this Article shall be null and void.

The occupancy right holder referred to in paragraph 1 of this Article may submit a claim for purchase of the apartment in accordance with Article 7, paragraph 1 of this Law, within a six months deadline of a day on which he acquired the right to purchase the apartment.

Article 9 Under conditions prescribed by this Law, the members of the close family household of the occupancy right holder may also buy an apartment, with the approval of or in case of death of the occupancy right holder.

Members of the close family household of the occupancy right holder shall be considered to be the persons referred to in the Law on Housing Relations.

Article 10 Under conditions prescribed by this Law the occupancy right holder, his/her spouse or a member of his/her close family household may purchase only one apartment.

Any contract concluded in violation of provision referred to in paragraph 1 of this Article shall be null and void.

Article 11 Spouses may buy an apartment together, and one of them may buy it only with the approval of the other one.

If co-tenants have the occupancy rights on one apartment, they shall buy the apartment together each the part on which he/she has the occupancy right, unless they agree otherwise.

As an exception from paragraph 2 of this Article, if one or more co-tenants do not submit the request for buying their parts of the apartment within the deadline referred to in Article 7 of this Law, other co-tenants shall have the right to buy the apartment.

Approval and agreement referred to in paragraphs 1 and 2 of this Article shall be given in the contract or in a separate document with certified signature.

In case the approval is not given, or the agreement is not reached, the decision shall be made in the judicial proceedings.

Article 12 Apartments shall be sold by the seller from Article 7 ( 1 ) of this Law. Article 13 Apartments whose seller is unknown shall be sold by the municipality.

Article 14 For the purposes of this Law, an apartment whose seller is unknown shall be understood to mean an apartment whose holder of the right of disposal is a legal entity which did not register its activities according to the current regulations, or which ceased to operate and its legal successor is unknown or not determined, or whose seat is

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unknown, and the occupancy right holder is not able to file the request for buying the apartment within the deadline prescribed by Article 7 (2) of this Law. In case referred to in paragraph 1 of this Article the occupancy right holder shall submit the request to the competent service of the municipality in which the apartment is located.

After having completed the required procedure, the competent service of the municipality shall allow the occupancy right holder who fulfils the conditions prescribed by this Law to purchase the apartment, and shall conclude the contract within the deadline referred to in Article 7 of this Law. Article 15 Apartments whose holders of the right of disposal were the former JNA and the SSNO (Federal Secretariat of National Defence) shall be sold by the Federation Ministry of Defence, in accordance with this Law. An organisational unit of the Federation Ministry of Defence on the municipal level shall sell the apartments from paragraph 1 of this Article which are on the territory within its jurisdiction.

Apartments whose holders of the right of disposal were the bodies and organisations of former SFRY, with the exception of paragraphs 1 and 2 of this Article, shall be sold by the Cantonal Government on the territory of which the apartment is located.

Apartments which are owned by the bodies and organisations of Bosnia and Herzegovina shall be sold by the Government of the Federation of Bosnia and Herzegovina.

III. PRICE OF AN APARTMENT Article 16 The price of an apartment shall be defined by contract, depending on: • • • • •

the value of the apartment established in accordance with Article 18 of this Law; amount of funds of the occupancy right holder which he invested in the apartment; depreciation of the apartment; level of war damage which the occupancy right holder repaired, or which is to be repaired discounts recognised belonging to the purchaser.

Article 17 The price of the apartment shall be fixed on the basis of the value of the apartment as defined by Articles 18 to 21 of this Law and reductions as defined by Articles 21 to 24 of this Law, and shall be calculated in DM. Article 18 The value of the apartment shall consist of the construction value of the apartment, corrected by apartment’s location coefficient. The construction value of an apartment shall be 600 DM per m2.

Apartment’s location coefficient shall be established by the competent Cantonal Government within the range from 0.80 to 1.20 depending the on area of the settlement where the apartment is located, infrastructure support to the settlement, floor and other relevant facts.

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Article 19 Upon the request of the purchaser, the value of the apartment shall be reduced by the amount of personal funds invested or which need to be invested in the apartment by the purchaser, as follows: • non-refunded funds he/she invested as his/her own share for the purpose of acquiring occupancy rights; • the funds not paid in the name of compensation for dispossessed property to the holder of occupancy rights for the purpose of acquiring occupancy rights; • funds with which the holder of occupancy rights removed war damage.

The amount of invested funds shall be defined on the basis of documentation or the estimate of the expert witness of civil engineering profession.

The amount of invested or needed funds from paragraph l, line 3 of this Article shall be recognised to the purchaser in the amount not exceeding 30 % of the construction value.

Article 20 The value of an apartment defined on the basis of Articles 18 and 19 of this Law shall be reduced on the basis of depreciation at the rate of 1 % per year, and not more than up to 60 %.

The price of garage shall be defined in the manner from paragraph 1 of this Article, provided that the purchaser does not have the right to reductions, and that he shall be obliged to pay the price of garage in full even in case when the apartment is paid by instalments.

Article 21 The purchaser shall be given a personal reduction of price of the apartment determined in accordance with Article 20 of this Law, in the amount of 1 % per full year of service with domestic legal or physical persons, including years of service with legal and physical persons from the area of SFRY until 06 April 1992.

Reduction based on years of service of spouses defined in paragraph 1 of this Article shall be calculated cumulatively and up to 75 %.

The beneficiary of family pension who is a purchaser, shall also be recognised a reduction of price of the apartment based on the years of service of the deceased holder of occupancy right.

Article 22 The purchaser of an apartment shall be recognised a reduction of price of the apartment determined in accordance with Article 21 of this Law, as follows: • 0.25 % for every month spent in the RBiH Army, Croat Council of Defence or Police (hereinafter: the Armed Forces) and in National - Liberation War from 1941 until 1945; • 0.12% for every month spent under a working duty and in the unit of Civil Protection during the state of war.

Article 23 Purchasers of apartments who are war victims shall be entitled to a special reduction of the value of the apartment determined in accordance with Articles 19 to 22 of this Law, as follows:

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1. Discount of 100% when the apartment is purchased by: a. minor child as well as by the child receiving full time education both parents of whose were killed in the home guard-defensive war or were killed as victims of the aggression, b. person who is military or civil invalid of war with at least 90% of physical damage.

2. Discount of 75% when the apartment is purchased by: a. person whose two or more members of the family household were killed as members of the Federation Armed Forces in the defensive liberation war or were killed as victims of that aggression. b. the holder of occupancy right whose spouse was killed in the home guard- defensive liberation war as a member of the Armed Forces or was killed as a victim in that aggression if he/she lives in a family house hold with a pre-school (a child or an adopted child) receiving full time education or with a child (an adopted child) who is the holder of the family property. In that case the apartment shall be jointly owned by the spouse and the child (adopted child).

3. Discount of 50% when the apartment is purchased by: a holder of occupancy right whose spouse was killed in home guard-defensive liberation war or was killed as a victim in that aggression, b. military invalid or a civil invalid of war with 60 % to 90 % of physical damage, c. a parent whose child with who the parent lived in a family household was killed in the home guard-defensive, liberation war or was killed as a victim in that aggression.

4. Discount of 25 % when the apartment is purchased by: a military or civil invalids of war with 20 % to 60 % of physical damage. b. camp inmates and political prisoners who were in camps or prisons respectively during the aggression on Bosnia and Herzegovina for at least 12 months, which shall be proved by a credible documentation.

Military and civil war invalids of certain categories from this Article shall be considered persons to who that property is recognised on the basis of a separate law.

War invalids and other invalids who do not belong to the category of invalids defined in paragraphs I-4 of this Article shall be entitled to a discount in the amount of an appropriate category of invalidity from this Article deduced by 20%.

IV. FUNDS AND WAYS OF PAYING THE PRICE OF APARTMENT Article 24 Payment of purchase price of the apartment shall be done by one of the means of payment, as follows:

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• cash, • certificates based on citizen’s claims, regulated by special regulations, and • in case of cash payment, the price of an apartment shall be reduced by 20% of the determined purchase price.

Article 25 Cash payment of the price of the apartment may be agreed to be in full or by instalments, according to the choice of purchaser. If the payment is agreed to be in full, the payment deadline may not be longer than 30 days from the day of entering into the contract.

Article 26 The deadline for payment by instalments may not exceed 25 years, and shall be paid in 25 equal annual instalments with 1% annual interest. The Cantonal Government may prescribe a shorter period for payment by instalments, with a smaller interest rate.

Article 26a If a buyer, after a certain number of instalment payment of the apartment price, settles for cash payment, the price he pays is decreased for interest rate that is accounted at the rate of 2% a year on instalments paid in advance, from Article 26 of this Law, calculated according to the method of interest calculations for a consumption loan.

V. REGISTRATION OF APARTMENT OWNERSHIP RIGHTS Article 27 The ownership right to an apartment shall be acquired upon the registration in the Land Register.

If the purchaser contracted the payment in instalments the right to register the ownership in the Land Register shall be acquired upon the day of the payment of the first instalment, provided that the apartment may not be sold or disposed of in legal transactions with living persons until the day of the payment of the last instalment.

If a real property is not registered in the Land Register, the ownership right to the apartment shall be acquired upon submission of the contract to the Land Registry Service of the Court in whose jurisdiction the apartment is located and upon the registration in the record of submitted contracts held in the Court.

The way of setting up and keeping the submitted contracts record shall be regulated by a separate cantonal regulation.

Article 28 When the apartment is used by the families of dead soldiers, disabled war veterans, demobilised soldiers and expelled persons on the basis of a legal title, the purchaser of the apartment may establish a lease relation with that person, under conditions prescribed by a separate law regulating the lease of apartments. The lease relation from paragraph 1 of this Article may not last longer than 3 years.

Article 29 The seller shall be obliged to submit for approval the contract on the sale of the apartment to the competent Public Attorney within 30 days from the day of entering into the contract.

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If the Public Attorney finds that the agreed price of the apartment was not determined in accordance with the provisions of this Law, he/she shall invite the parties to amend the contract and thus bring the apartment price into compliance with the provisions of this law within 30 days from the day of receipt of the contract.

If the parties fail to comply, the Public Attorney shall file an action for the cancellation of the contract within 60 days from the day of the submission of the contract.

Article 30 The contracting parties shall be obliged to certify their signatures. The body competent for the certification of signatures shall certify the signatures of the parties upon the finding that the contract was submitted for approval to the competent Attorney General, which is to be confirmed on the back of the contract.

Article 31 The contract on the sale of the apartment by instalment payments must contain the purchaser’s statement authorising the registration of mortgage on the purchased apartment on behalf of the seller, in the amount of the price and interest.

Article 32 The mortgage shall become valid upon the registration in the Land Register.

In the area for which land records are not kept the mortgage shall become valid upon the registration in the Book of Title Deeds or other book in which the mortgage on real property is registered.

When the court receives the request for registration, i.e. the registration of apartment ownership, it shall register ex officio the mortgage on behalf of the seller in the full amount of the price and interest.

Article 33 Occupancy right of the apartment of the holder thereof shall terminate on the day of entering into the apartment sales contract.

Article 34 Contract on the sale of the apartment concluded under the conditions prescribed by this law shall not be subject to sales taxation.

VI. THE MANNER OF DISTRIBUTION OF FUNDS Article 35 Income realised from the sale of apartments referred to in Article 13 of this Law shall be included in the municipal budget.

Article 36 Income realised from the sale of apartments referred to in Article 15 of this Law shall be allocated as follows: • 80% to the cantons • 20% to the Federation.

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Article 37 Income realised from the sale of apartments referred to in Article 12 of this Law shall be allocated as follows: 90% of income to the enterprise or other legal entity for the purpose of giving credits under favourable conditions for purchasing apartments for their workers. If the enterprise or other legal entity does not need crediting under favourable conditions for purchasing apartments for their workers, the income from the preceding paragraph may be used for its development. l0% of income to the enterprise or other legal entity for the payment of costs caused by the sale of apartments.

Income realised from the sale of apartments referred to in paragraph 1, line I, of this Article shall be used by the enterprise for the given purposes until the day of approval of the privatisation programme by the competent privatisation agency.

Once the privatisation programme is approved to the enterprise, further instalment payments collected from the sale of apartments referred to in paragraph 1, line 1, of this Article shall be paid into the budget of the municipality and the town on the territory of which the apartment is located and shall be used for the development of the communal infrastructure.

Article 38 Entities realising income from the sale of apartments in accordance with Articles 36, 37 and 38 of this Law, shall allocate 70% of income to the cantonal fund for construction of apartments for family members of killed soldiers, disabled war veterans, demobilised soldiers and expelled persons.

The rights and liabilities of the cantonal funds for building the apartments will be determined by separate cantonal regulations.

Article 39 When concluding a contract on the sale of apartments under provisions of this Law, an occupancy right holder who concluded a contract on the purchase of the apartment on the basis of the Law on Security in JNA and the Law on Amendments to the Law on Rights and Obligations of the Federal Bodies Regarding Socially Owned Assets Used by Them ( Official Gazette of the SFRY, No 84/90 ) shall be recognised the amount paid, calculated in DEM at the exchange rates valid on the day of the payment.

Article 39a If the occupancy right holder of an apartment at the disposal of the Federation Ministry of Defence uses the apartment legally and s/he entered into a legally binding contract on purchase of the apartment with the SSNO before 6 April 1992 in accordance with the Law referred to in Article 39 of this Law, the Federation Ministry of Defence shall issue an order for the registration of the occupancy right holder as the owner of the apartment with the responsible court.

Article 39b In the event that the occupancy right holder referred to in Article 39a of this Law did not effect the payment of the total amount of the sale price of the apartment in accordance with the sale contract, s/he shall pay the reminder of the amount specified in that contract to the Ministry of Defence of the Federation.

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If the contract provided for the payment of the sale price in instalments, an annex to the contract shall be made regulating the payment of the remaining instalments and the creation and registration of a mortgage in accordance with this Law. The provisions of Articles 39a of this Law and paragraph 1 and 2 of this Article shall also be applied to contracts on the purchase of apartments concluded before 6 April 1992, in cases where the verification of signatures has not been done before the responsible court.

Article 39c The provisions of Articles 39a and 39b shall also be applicable to an occupancy right holder who has exercised the right to repossess the apartment pursuant to the provisions of the Law on the Cessation of Application of the Law on Abandoned Apartments (â&#x20AC;&#x153;Official Gazette of the FbiHâ&#x20AC;?, 11/98 and 18/99).

Article 39d Person who does not realise his/her right under this Law with the Federation Ministry of Defence, may initiate a proceedings before the responsible court.

Article 39e The occupancy right holder who is not entitled to the repossession of the apartment or does not submit a claim for the repossession of the apartment in accordance with the provisions of Article 3 and 3a of the Law on the Cessation of Application of the Law on Abandoned Apartments and who entered into a legally binding contract on the purchase of apartment with the SSNO before 6 April 1992, shall have the right to submit a request to the Federation Ministry of Defence for compensation of the funds paid on that basis, unless it is proved that these funds were acknowledged for purchase of an apartment outside the territory of Bosnia and Herzegovina.

VII. SPECIAL PROVISIONS Article 40 Legal status of apartments which are under construction and the manner of their privatisation shall be regulated by a special regulation to be passed by the competent Cantonal body.

For the purposes of this Law, the apartment under construction shall be understood to mean every newly built apartment on which a technical inspection has not been done and a positive statement on use of the apartment has not been given.

When passing this regulation, the competent Cantonal body shall consider the rights of an investor (contractor), level of construction, as well as other circumstances relevant for a fair solution.

Article 41 Upon a request of the seller or the purchaser, the responsible body which keeps the records on apartments shall be obliged to provide access to data relevant for the sale of the apartment.

Article 42 Maintenance of common parts of the building in which the apartments have been sold, as well as renting of the apartments for which the holders of the occupancy right have not submitted a request for sale, shall be regulated by a special Cantonal regulation.

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VIII. PENALTY PROVISIONS Article 43 Legal entity - the seller of the apartment shall be fined for an offence by the amount from 1.000 KM to 10.000 KM : 1. if s/he does not act in accordance with the provision of Article 7 of this Law; 2. if s/he acts opposite to the provisions of Article 8a of this Law; 3. if he determines the price of the apartment in contravention of the provisions of Article 18 to 25 of this Law; 4. if he does not act in accordance with the provision of Article 29, paragraph 1 of this Law; 5. if he uses means acquired by sale of apartments for purposes which are opposite to provisions of Articles 35 to 38 of this Law. A responsible person within legal entity shall be fined for the offence referred to in paragraph 1 of this Article, by the amount from 500 KM to 1.000 KM. Article 44 A responsible person within the competent body which keeps the record on apartments shall be formed for an offence by the amount from 500 KM to 1.000 KM if he does not act in accordance with provisions of Article 41 of this Law. Article 45 Until the KM becomes operational, the fines foreseen in Articles 43 and 44 of this Law may be paid in DM or the same amount denominated in other currencies used in payment operations in the Federation of Bosnia and Herzegovina, at the average rate published by the competent financial institution on the date of payment.

IX. FINAL AND INTERIM PROVISIONS Article 46 Contracts on the use of apartment which were concluded under the Law on Housing Relations by the day of the entry into force of this Law, shall cease to be valid at latest within three years from the date of the entry into force of this Law. Persons who acquired the occupancy right or the legal title to lawfully occupy the apartment in accordance with provisions of the Law on Housing Relations, by the expiry of the deadline referred to in Article 50 of this Law, shall have the right to purchase the apartment in accordance with the provisions of this Law. Article 47 Provisions of this Law shall not be applied to the sale of privately owned apartments which have not been subject to nationalisation, on which the occupancy right has been acquired. Sale of apartments which are subject to restitution shall be regulated by a separate regulation on restitution.

Article 48 The residential building and apartments in the building which have been damaged during the war can not be subject to sale, if they do not provide permanent fitness, usability and safety of all basic parts of the building as a whole which are being used by all users of the building.

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After having concluded the required procedure, the fitness of the building referred to in paragraph 1 of this Article, shall be determined by the administrative municipal body responsible for urban planning and civil engineering affairs.

Article 49 Cantonal Governments shall pass regulations referred to in Articles 18, 26 and 27 of this Law within 15 days from the date of the entry into force of this Law. Article 50 Cantonal Assemblies shall pass regulations referred to in Articles 40 and 42 of this Law within two years from the date of the entry into force of this Law. Article 51 This Law shall enter into force on the eight day of its publishing in the â&#x20AC;&#x153;Official Gazette of the Federation of Bosnia and Herzegovinaâ&#x20AC;? and shall be applied upon the expiration of 90 days after its entry into force.

Law on the Cessation of the Application of the Law on Abandoned Apartments (2 December 1998) (Republika Srpska)55 I. GENERAL PROVISIONS Article 1 The Law on Use of Abandoned Property (Official Gazette of RS, Nos. 3/96 and 21/96) shall cease to be in force, as well as the regulations passed there under and other regulations regulating the issues of abandoned property and apartments passed between 30 April 1991 and the entry into force of this Law. Article 2 All administrative, judicial, and any other decisions enacted on the basis of the regulations referred to in Article 1 of this Law in which rights of temporary occupancy have been created shall remain effective until cancelled in accordance with this Law. All administrative, judicial, and any other decisions enacted on the basis of the regulations referred to in Article 1 of this Law in which new occupancy rights have been created shall be treated as acts granting rights of temporary occupancy until cancelled in accordance with this Law. All administrative, judicial and any other acts and any other disposals of real estate and apartments, enacted on the basis of the regulations referred to in Article 1 of this Law shall cease to be effective after a claim has been filed by the authorised claimant.

55 Published in the Official Gazette of Republika Srpska, no. 38/1998, dated 11 December 1998.

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II. RETURN OF PROPERTY TO PRIVATE OWNERS, POSSESSORS OR USERS Article 3 The owner, possessor or user of the real property who abandoned the property shall have the right to repossess the real property with all the rights which s/he had before 30 April 1991 or before the real property became abandoned.

Article 4 For the purpose of this Law, the owner, possessor or user shall be understood to mean the person who was the owner, possessor or user of the real property under the applicable legislation at the time when the real property became abandoned.

Article 5 A user to whom the real property was allocated for temporary use pursuant to the Law on the Use of Abandoned Property (hereinafter referred as: the temporary user) may continue to use the real property under the conditions and in the manner as provided by the Law on the Use of Abandoned Property until a decision referred to in Article 11 of this Law has been issued.

Article 6 If the temporary user who is required to vacate the property pursuant to the provisions of this Law cannot or does not wish to return to the apartment in which s/he lived before 30 April 1991 and who has not been provided with another apartment meeting the conditions of appropriate accommodation, the responsible body of the Ministry of Refugees and Displaced Persons on the territory of which s/he had his/her last domicile or residence shall provide him/her with appropriate accommodation within the deadline set in the decision ordering him/her to move out.

If the temporary user referred to in Paragraph 1 of this Article presents evidence that s/he submitted a claim for repossession of his/her property, s/he may not be evicted by force until s/he is enabled to return or freely dispose of his/her property, in line with Annex 7 of the General Framework Peace Agreement for Bosnia and Herzegovina or until an alternative accommodation has been provided in another way within one year.

If the request of the temporary user and free disposal of his/her property has been resolved, in no event shall failure of the responsible body to meet its obligations under paragraph 1 of this Article operate to delay the ability of the owner, possessor or user to enter into possession of his/her property.

The body responsible for the provision of accommodation shall not be obliged to provide an accommodation to a person using the apartment without valid legal basis.

Article 7 The owner, possessor or user of abandoned real property, or his/her authorised representative, shall have the right to file a claim at any time for the repossession or disposal in another way of his/her abandoned property.

The right of the owner to file a claim shall not become obsolete.

Article 8 A claim under Article 7 of this Law may be filed by the owner, possessor or user of abandoned real property with the responsible body of the Minister of Refugees and Displaced Persons in the municipality on the territory of which the real property is located.

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Claims may be made in writing signed by the claimant or an authorised representative, or orally by the claimant or an authorised representative. Claims made in writing may be submitted in person, by mail or by any other person.

No power of attorney is required for another person to submit a claim signed by the claimant.

A claim should include: 1. information on the owner, possessor or user; 2. all necessary information on the real property; 3. any evidence possessed by the claimant indicating that the claimant is the owner, possessor or user of the real property; 4. the date when the claimant intends to repossess the real property.

The responsible body shall accept claims regardless of whether or not supporting documentation is supplied by the claimant. In the event that the claimant cannot provide the necessary supporting documentation, the responsible body shall check the records of the relevant court or administrative body and any other available documentation to confirm the rights of the claimant.

The responsible body shall accept any identification document issued by the state of Bosnia and Herzegovina or any administrative body in either Entity, and any other document which shows the claimant’s identity, and shall use any options provided in the Law on General Administrative Proceedings in the identification process.

The claimant shall be fully released from taxation, as well as from other expenses of the proceedings as provided in Articles 113 through 119 of the Law on General Administrative Proceedings (“The SFRY Official Gazette”, No. 47/86, “The RS Official Gazette”, No. 1/94, Special Issue 10/95).

Article 9 The responsible body of the Ministry of Refugees and Displaced Persons shall be obliged to issue a decision to the claimant within 30 days from the date of receipt of the claim for repossession of real property.

Article 10 The proceedings to return the real property to the owner, possessor or user shall be carried out in accordance with the provisions of the Law on General Administrative Proceedings, unless this Law provides otherwise. The procedure until the issuance of the decision shall be carried out as an expedited procedure.

Article 11 The decision on return of the real property to the owner, possessor or user shall contain the following: • information on the owner, possessor or user to whom the real property is returned, • information on the real property subject to return, • the time limit within which the real property will be returned or put at disposal of the owner, possessor or user, • a decision whether the temporary user is entitled to appropriate accommodation,

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â&#x20AC;˘ a decision terminating the right of the temporary user to use the real property as of the date of the intended return of the claimant, â&#x20AC;˘ the time limit for the temporary user to vacate the property, or for handing over of the land.

The decision under Paragraph 1 of this Article may not set a time limit for the temporary user to vacate the property shorter than 90 days from the date of the issuance of the decision, nor longer than the date of the intended return of the owner, possessor or user, but the day of the intended return may not be earlier than 90 days from the date of submitting the claim.

The claimant may reoccupy property that is not in possession of a temporary user immediately on receipt of the decision.

In exceptional circumstances, the deadline referred to above may be extended by up to one year if the body responsible for providing another accommodation in accordance with Article 6 of this Law provides detailed documentation regarding the lack of available accommodation to the Ministry of Refugees and Displaced Persons.

In case of the return of arable land into possession, the time limit for its handing over may be extended, as an exception, until the harvest is collected.

Article 12 The responsible body of the Ministry of Refugees and Displaced Persons shall submit its decision to the claimant requesting the repossession of the property and the temporary user of the property.

Article 13 The party to whom the decision under Article 11 of this Law is referred may at any time initiate proceedings before the Commission for Real Property Claims of Displaced Persons and Refugees (Annex 7 to the General Framework Agreement of Peace in Bosnia and Herzegovina, hereinafter referred to as the Commission).

In case that the proceedings under Paragraph 1 of this Article have been initiated, all other proceedings carried out before the competent bodies, including the procedure to enforce the decision referred to in Article 11 of this Law, shall be stayed pending the final decision of the Commission.

A decision of the Commission shall be final and binding.

In the light of specifying the rights and obligations of the party referred to in Paragraph 1 of this Article, the decision of the Commission shall have the same legal force as the decision of any other responsible body issued in accordance with this Law. A decision of the Commission shall be enforced by the competent bodies of the Republika Srpska.

III. RETURN OF APARTMENTS TO THE HOLDERS OF OCCUPANCY RIGHT Article 14 The occupancy right holder of an abandoned apartment shall have the right to return to the apartment in accordance with Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina.

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Persons who have left their apartments after 30 April 1991, are presumed to be refugees and displaced persons under Annex 7, unless it is established that they left their apartments for reasons wholly unrelated to the conflict.

Article 15 The occupancy right holder referred to in Article 14 of this Law shall be entitled to file a claim for repossession of the apartment.

A claim for repossession of the apartment shall be filed with the responsible body of the Ministry of Refugees and Displaced Persons in the municipality in which the apartment is located.

A claim for repossession of the apartment should include: • • • •

information on the claimant; information on the apartment; evidence that the claimant is the occupancy right holder or a member of the latter’s family household; the date when the claimant intends to reoccupy the apartment, but not later than one year from the date of submitting the claim; • information on the residence of the occupancy right holder and members of his/her household at the time when the claim is submitted.

If the temporary user of the apartment presents evidence that s/he submitted a claim for return of his/her occupancy right, s/he shall not be evicted by force from the apartment allocated to him/her for temporary use until s/he is enabled to freely dispose of his/her apartment, or until an appropriate accommodation has been provided in another way within one year.

The responsible body shall accept all claims with or without the appropriate documents enclosed by the claimant.

In cases when the claimant is not able to provide the necessary relevant documents, the responsible body shall verify the evidence, as well as other available documents, with the allocation right holder, the appropriate court or administrative body in order to have the rights of the claimant confirmed.

The responsible body shall accept any identification document issued by the state of Bosnia and Herzegovina or any legal body in either Entity, as well as any other document confirming the identity of the claimant.

The claimant shall be fully exempted from taxation as well as from other expenses of the proceedings, as provided in Articles 113 through 119 of the Law on General Administrative Proceedings.

Article 16 A claim for repossession of the apartment may be filed within 6 months from the date of entry into force of this Law. If the occupancy right holder does not file a claim within the time limit referred to in the previous paragraph, his/her occupancy right shall be cancelled.

Article 17 The responsible body of the Ministry of Refugees and Displaced Persons shall decide on the claim for the repossession of the apartment by the occupancy right holder within 30 days from the date of receipt of the claim.

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The allocation right holder shall refer the case to the responsible municipal or city administrative body within 30 days from the issuance of the decision referred to in the Article above which relates to the apartment occupied by the new occupancy right holder based on an act issued by the allocation right holder, i.e. contract (hereinafter: the current user). The responsible municipal or city administrative body shall then pass a decision on the allocation of another apartment to the current user or occupancy right holder within a deadline which cannot be longer than the deadlines referred to in Article 18 of this Law. If the responsible municipal body has decided to allocate another apartment to the occupancy right holder, this Decision shall have to be passed in accordance with the criteria which must be harmonised with Article 1 Annex 7 of the General Framework Agreement in line with the European Convention on Human Rights and with other regulations of the Republika Srpska.

Article 18 The decision on repossession of the apartment by the occupancy right holder shall contain: • a decision confirming that the claimant is the occupancy right holder; • a decision on repossession of the apartment by the occupancy right holder if there is a temporary user in the apartment, or if the apartment is vacant or occupied without legal basis; • a decision on termination of the right of temporary use of the apartment if there is a temporary user of the apartment; • a time limit for vacating the apartment by a temporary user or another person in possession of the apartment; • a decision concerning whether the temporary user is entitled to accommodation in accordance with the ZOSO. The time limit for vacating the apartment referred to in Paragraph 1(4) of this Article may not be shorter than 90 days from the date of the issuance of the decision, nor longer than the day of the intended return of the holder of the occupancy right, but the day of the intended return may not be earlier than 90 days from the date of submitting the claim.

The occupancy right holder may reoccupy an apartment that is vacant immediately on receipt of the decision, unless the apartment is in possession of a temporary user in accordance with this Law. In exceptional circumstances, the deadline referred to in Paragraph 2 of this Article may be extended by up to one year if the body responsible for providing alternative accommodation on the territory of which the temporary user of the apartment had the last domicile or residence provides detailed documentation regarding the lack of available housing for provision of appropriate accommodation the Ministry for Refugees and Displaced Persons.

In each individual case, the requirements of the European Convention on Human Rights and its Protocols must be met, and the occupancy right holder shall be notified of the decision to extend the deadline and the basis for the decision 30 days before the deadline has expired.

Article 19 The responsible body shall deliver the decision referred to in Article 18 of this Law within 8 days from the date of issuance of the decision to:

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• the occupancy right holder; • the user of the apartment; • the allocation right holder.

Article 20 The proceedings to return the apartment to the occupancy right holder shall be carried out in accordance with the provisions of the Law on General Administrative Proceedings, unless this Law provides otherwise.

Article 21 The occupancy right to the apartment shall cease in case the occupancy right holder fails to reoccupy the apartment without a justified cause, within one year from the day when the decision becomes final.

The reason for which the occupancy right holder failed to commence to use the apartment shall be deemed justified: • if the occupancy right holder has initiated an enforcement procedure, while the other party continues to occupy that apartment; • if the occupancy right holder is unable to return to the municipality where the apartment is located for the reason of his/her justified fear of persecution; • if the occupancy right holder has been drafted into the army; • if the occupancy right holder is admitted to medical care; • if the occupancy right holder is in the old peoples’ home, disabled peoples’ home, pensioners’ home, etc.

• if the occupancy right holder is serving a prison sentence during the period of imprisonment sentence; • if a certain security measure is being taken against the occupancy right holder; • if the occupancy right holder and members of her/his family household temporarily reside in a different place within the country or abroad for the reasons mentioned in Paragraph 1 of Article 48 of the ZOSO; or • if an apartment is the subject of the claim submitted to the Commission for the Real Property Claims of the Displaced Persons and Refugees.

The occupancy right holder’s right to use the apartment shall not cease in the cases referred to in the previous paragraph.

Article 22 Upon the cancellation of the occupancy right under Articles 16 and 21 of this Law, the allocation right holder may allocate the apartment for use to the temporary user or another person in accordance with the provisions of the ZOSO. If the temporary user has been issued a decision by the Ministry of Refugees and Displaced Persons, s/he shall stay in possession of such an apartment until he is provided with another appropriate accommodation.

Article 23 The party referred to in the decision under Article 18 of this Law may initiate at any time proceedings before the Commission for Real Property Claims of Displaced Persons and Refugees (Annex 7 to the General Framework Agreement for Peace in Bosnia and Herzegovina, hereafter: the Commission).

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In case that such proceedings have been initiated, all other proceedings carried out before the competent bodies, including the procedure to enforce the decision, shall be stayed pending the final decision of the Commission.

A decision of the Commission shall be final and binding.

In the light of specifying the rights and obligations of the party referred to in Paragraph 1 of this Article, the decision of the Commission shall have the same legal force as the decision of any other responsible body issued in accordance with this Law. A decision of the Commission shall be enforced by the competent body of Republika Srpska.

IV - SPECIAL PROVISIONS Article 24 The repossession of abandoned real property or the apartment by the owner, user or occupancy right holder shall be witnessed by an official and interested parties.

A report shall be made on the return of the real property or apartment and on the reinstatement of the owner or user into possession of the property or apartment. The report shall contain a detailed description of the real property under the process of return.

Article 25 The provisions of this Law shall also apply to the abandoned real property the ownership of which has been acquired after 30 April 1991 under any title on sale of real property (contracts on exchange, purchase, gift, etc.)

Article 26 The provisions of this Law regulating the manner of repossession of the real property or apartment by the owner, possessor or user shall also apply regarding repossession of the real property allocated to temporary users on the basis of rationalisation (excess housing space).

Article 27 A decision on repossession of real property may be appealed with the Ministry of Refugees and Displaced Persons within 15 days from the date of the receipt of the decision.

Article 28 The conditions for and the manner of the purchase of an apartment for the occupancy right holders to whom the apartments have been returned in accordance with this Law shall be regulated by a separate law.

Article 29 The Minister of Refugees and Displaced Persons shall pass an instruction on the application of Articles 8 through 11 and Articles 15 through 18 of this Law within 30 days from the date of the entry into force of this Law. Article 30 This Law shall enter into force on the 8th day after its publication in the Official Gazette of the Republika Srpska.

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CONTACT INFORMATION

BADIL Resource Center for Palestinian Residency and Refugee Rights PO Box 728 Bethlehem, West Bank Palestine Tel/Fax: +972.2.274.7346 Website: www.badil.org/ E-mail: info@badil.org

Centre on Housing Rights and Evictions (COHRE) 83 Rue de Montbrillant 1201 Geneva Suisse / Switzerland Tel/Fax: +41.22.734.1028 Website: www.cohre.org E-mail: sleckie@attglobal.net

Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) (Bosnia and Herzegovina) Aleja lipa 56 71000 Sarajevo Bosnia and Herzegovina Tel: +387.71.615.808 Website: http://www.crpc.org.ba/english/text/default.htm

Global IDP Project Chemin Moise-Duboule 59 CH-1209 Geneva Switzerland tel: +41.22.788.8085 fax: +41.22.788.8086 website: www.idpproject.org

Housing and Property Directorate (Kosovo) / Housing and Property Claims Commission (Kosovo) 2 Goleshka Street Pristina, Kosovo Federal Republic of Yugoslavia Tel: +381.(0)38.549.918 Fax: +1.212.963.8113 E-mail: hpd_unchs@hotmail.com

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The Land Claims Court of South Africa Trust Bank Centre, Randburg Mall, Corner of Hill Street and Kent Avenue Randburg, 2194 South Africa Postal Address: Private Bag X10060, Randburg, 2125 Tel: National: (011).781.2291 International: + 27.11.781.2291 Fax: National: (011).781.2217/8 International: + 27.11.781.2217/8 Website: http://www.law.wits.ac.za/lcc/ E-mail: Registrar@landclaims.org.za

REFWORLD (UNHCR research source) Website: http://www.unhcr.ch/refworld/welcome.htm

The United Nations Compensation Commission Villa La Pelouse Palais des Nations CH-1211 Geneva 10 Suisse / Switzerland Tel: +41.22.917.3600 Fax: +41.22.917.0069 Website: http://www.unog.ch/uncc/ E-mail: UNCCWebmaster@uncc.ch

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INTERNET RESOURCES

The Internet is a valuable tool to research existing housing and property restitution standards as well as to keep abreast of emerging trends and norms. Many of the above instruments, as well as additional general resources, may be found at the following Internet sites. www.un.org (United Nations) www.icrc.org (International Red Cross and Red Crescent) www.unhcr.ch (United Nations High Commissioner for Refugees) www.unhcr.ch/refworld/ (UNHCR - Refworld) www.unhchr.ch (United Nations High Commissioner for Human Rights) www.reliefweb.int (Relief Web - Information for the Humanitarian Relief Community) www.hri.ca (Human Rights Internet) www.cohre.org (Centre on Housing Rights and Evictions) www.umn.edu/humanrts (University of Minnesota Human Rights Library) www.nesl.edu/center (Center for International Law and Policy) www.ohr.int (Office of the High Representative in Bosnia and Herzegovina) www.idpproject.org (Global IDP Project)

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SELECTED BIBLIOGRAPHY

GENERAL RESOURCES • Adams, M., Land Reform: New Seeds on Old Ground?, in Natural Resource Perspectives (ODI), no. 6 (1995) • Allen & Morsink (eds.), When Refugees Go Home, London: James Currey (1994) • Allen, T., The United Nations and the Homecoming of Displaced Populations, in International Review of the Red Cross, no. 301, Geneva: ICRC (1994) • Ayotte, W., No Refuge for Children: The Impact on Children of Withdrawing Benefits and Housing from Asylum Seekers, London: Save The Children (UK) (1995) • Bagshaw, S., Property Restitution and the Development of a Normative Framework for the Internally Displaced, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) • Barkan, E., The Guilt of Nations: Restitution and Negotiating Historical Injustices, New York: W.W. Norton & Co. (2000) — Payback Time: Restitution and the Moral Economy of Nations, in Tikkun, vol. 11, no. 5 (1996) • Bayefsky and Doyle, Emergency Return: Principles and Guidelines, Center of International Studies, Princeton: Princeton Univ. Press (1999) • Bennewitz, I., Rehabilitierung und Entschaedigung der Opfer von Zwangsaussiedlungen, in Deutschland-Archiv, no. 27, May 1994 • Bentwich, N., International aspects of restitution and compensation for victims of the Nazis, in British Year Book of International Law, London (1955-56) — URO: The United Restitution Office, Refugee Studies Programme, Oxford: Oxford DCC (Oxford) • Beyani, C., Internally Displaced Persons in International Law, from a thesis presented to the Refugee Studies Programme, Oxford (1995) • Black, R. and Koser, K. (eds.), The End of the Refugee Cycle? Refugee Repatriation & Reconstruction, New York: Berghahn Books (1999) • van Boven, Final Report: Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Sub-Commission on Human Rights/ECOSOC, E/CN.4/Sub.2/1993/8 (2 July 1993)

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• Centre on Housing Rights and Evictions, Sources No. 9: Legal Resources on Compensation for Housing Rights Violations, Geneva: COHRE (2002) — Sources No. 7: Legal Resources on Housing and Property Restitution for Refugees and IDPs, Geneva: COHRE (2001) — Sources No. 4: Legal Resources for Housing Rights: International and National Standards, Geneva: COHRE (2000) — Sources No. 3: Forced Evictions and Human Rights: A Manual for Action, Geneva: COHRE (1999) • Cernea, M.M., The Risks and Reconstruction Model for Resettling Displaced Populations, from Keynote Address – Int’l Conference on Reconstructing Livelihoods, Oxford: Oxford Univ. Press (9-13 Sept. 1996) • Christopher, A.J., Spatial Aspects of Indigenous Lands and Land Claims in the Anglophone World, Cambridge: University of Cambridge Press (1997) • Cohen, Roberta and Francis M. Deng, Masses in Flight: The Global Crisis of Internal Displacement, Washington: DC: The Brookings Institution (1998) • Coles, G., Voluntary Repatriation: a Background Study, paper presented to the Round Table on Voluntary Repatriation convened by UNHCR and the International Institute for Humanitarian Law, San Remo, 16-19 July 1985 • Conquest, R., The Nation Killers, London: Macmillan and Co., Ltd. (1970) • Deng, Francis M., Protecting the Dispossessed: A Challenge for the International Community, Washington, DC: The Brookings Institution (1993) • Farha, L., Women’s Right to Land, Property and Housing, in Forced Migration Review, no. 7 (April 2000) • Fosseldoorf, H. and Medson, C. Refugees Repatriation: A Selected and Annotated Bibliography, DOC/BIB/104 D, Copenhagen: Danish Refugee Council (1994) • Gasarasi, C.P., Development, Refugee Generation, Resettlement and Repatriation: A Conceptual Review, in Refuge - Canada’s Periodical on Refugees: Special Issue on Refugee Return, vol. 15:2, no. 1 (1997) • Gildenhuys, A., Rights of Indigenous Peoples, paper presented to the International Bar Association (1998) • Goodwin-Gill, G.S., Refugee Identity and Protection’s Fading Prospect, in Refugee Rights and Realities: Evolving International Concepts and Regimes, Cambridge: Cambridge Univ. Press (1998) — Voluntary Repatriation; Legal and Policy Issues, in Refugees and International Relations (Loescher and Manahan, eds.), Oxford: Clarendon Press (1990) — The Right to Leave, the Right to Return and the Question of a Right to Remain, from Colloquium: The Problem of Refugees in the Light of Contemporary International Law Issues, Geneva: UNHCR (August 1994)

INTERNATIONAL

,

REGIONAL AND NATIONAL LEGAL RECOURCES

111

• Gorlick, B., Human Rights and Refugees: Enhancing Protection through International Human Rights Law, forthcoming in Nordic Journal of International Law, Dordrecht: Kluwer (2000) • Hammon, L., Examining the Discourse of Repatriation: Towards a More Proactive Theory of Return Migration, in The End of the Refugee Cycle, New York: Berghahn Books (1999) • Haran, M. Social Group for the Purposes of Asylum, in Immigration and Nationality Law and Practice, vol. 9, no. 2, Croydon, UK: Tolley (1995) • Helle, D., Enhancing the Protection of Internally Displaced Persons, in Rights Have No Borders: Worldwide Internal Displacement, Geneva: Norwegian Refugee Council/Global IDP Survey (1998) • HCHRS, Refugees on Their Return, Belgrade: Helsinki Committee for Human Rights in Serbia (1996) • ICRC, Going Home: A Guidebook for Refugees, Sarajevo: ICRC Publication (1997) • Journal of Refugee Studies, Oxford: Oxford Univ. Refugee Studies Programme (2000) • von Kruse (ed.), Whitebook on Democratic Land Reform, Hannover: Assoc. of German Farmers and Peasants (1959) • Kumar, K. (ed.), Rebuilding Societies After Civil War: Critical Roles for International Assistance, London: Lynne Rienner Publishers (1997) • Leckie, Scott, Housing and Property Restitution for Refugees and IDPs: An International Legal Comparative Study, Ardsley, New York: Transnational Publishers (2001) — The Right to Housing, in Economic, Social and Cultural Rights: A Textbook, Turku, Finland: Abo Akademi Institute for Human Rights (2000) — Housing and Property Issues for Refugees and Internally Displaced Persons In the Context of Return: Key Considerations for UNHCR Policy and Practice, in Refugee Survey Quarterly, vol. 19, no. 3, pp. 5 – 63, Oxford: Oxford Univ.

Press (August 2000) — Housing Restitution for Refugees and IDPs: A Key Housing Rights Issue for the 21st Century, in Housing Newsletter, pp. 1 – 3 (1999) — From Housing Needs to Housing Rights: An Analysis of the Rights to Adequate Housing under International Human Rights Law, London: International Institute for Environment and Development (Human Settlements Programme) (1992) • Lee, L., Internally Displaced Persons and Refugees: Towards a Legal Synthesis?, in Journal of Refugee Studies, vol. 9, no. 1, Oxford: Oxford Univ. Press (1996) — The Right to Compensation: Refugees and Countries of Asylum, in The American Journal of International Law, vol.

80, no. 3, pp. 532-567 (1998)

112

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• Mosoma, D., Restitution/Reparation: A Commitment to Justice and Peace, in Journal of Black Theology, vol. 5, part 1 (1991) • OECD, Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects, Paris: OECD publication (1991) • Reich, C.A., The New Property, in Yale Law Journal, vol. 73, no. 5 (April 1964) • South African Department of Land Affairs, International Precedents for the Restitution of Land Rights in South Africa, SADLA publication (August 1999) • Stavropoulou, M., The Question of the Right not to be Displaced, in Proceedings of the 90th Annual Meeting of the American Society of International Law, Washington, DC: ASIL (27-30 March 1996) • Thiele, Bret, Recent Developments in United Nations Policy on Housing and Property Restitution for Refugee and IDP Return, in Refuge - Canada’s Periodical on Refugees: Special Issue on Refugee Return, vol. 19, no. 3, at 3 (December 2000) — Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons: Developments at the United Nations, in Netherlands Quarterly of Human Rights, vol.18, pp. 283-88 (June 2000) • Towle, Rick, Human Rights Standards, A Paradigm for Refugee Protection?, paper presented to the Conference on Human Rights and Forced Displacement, Toronto (May 1998) • Valencia-Rodriquez, L., Report: The Right of Everyone to Own Property Alone as Well as in Association with Others, UN Economic and Social Council, E/CN.4/1994/19/Add.1, Geneva (February 1994) — Final Report: The Right of Everyone to Own Property Alone as Well as in Association with Others, UN Economic and Social Council, E/CN.4/1993/15, Geneva (18 December 1992) • Weis, G. (et al.), Restitution as a Problem of Law, Part One, available at Refugee Studies Programme, Oxford DCC — Restitution Through the Ages: Noah Barou Memorial Lecture 1962, World Jewish Congress, available at Refugee Studies Programme, Oxford DCC • Weis, P., Survey of Restitution in Europe, available at Refugee Studies Programme, Oxford DCC • Wichert, T. Property Issues in Displacement and Conflict Resolution, in Refuge - Canada’s Periodical on Refugees: Special Issue on Refugee Return, Vol. 16, No. 6 (December 1997) • de Zayas, A.M., The Legality of Mass Population Transfers: The German Experience 1945-48, in East European Quarterly, Vol. XII, No. 1,2, Boulder: Univ. of Colorado (1978) • Zetter, R., Shelter Provision and Settlement Policies for Refugees: A State of the Art Review, in Studies on Emergencies and Disaster Relief, no. 2, Nordiska Afrikainstitutet (1994)

INTERNATIONAL

,

REGIONAL AND NATIONAL LEGAL RECOURCES

113

• Zieck, M., UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis, The Hague: Martinus Nijhoff Publishers (1997) • Zweig, R.W., Restitution of Property and Refugee Rehabilitation: Two Case Studies, in Journal of Refugee Studies, Vol. 6, No. 1/4, pp. 56-64, Oxford: Oxford Univ. Press (1993)

COUNTRY/REGIONAL RESOURCES Africa: • Amnesty International, Report: Rwanda and Burundi, The Return Home: Rumours and Realities, London: Amnesty International (20 February 1996) • Bakewell, O., Refugee Repatriation in Africa: Towards a Theoretical Framework?, Centre for Development Studies, University of Bath (1996) • Bennett, J., Forced Relocation in Uganda, Rwanda and Burundi: Emerging Policy, in Forced Migration Review, no.

7 (April 2000) • de Bruyn, et al., International Precedents for the Restitution of Land Rights in South Africa, New York: UNDP (1999) • Budlender, G., Restitution for Housing and Property Rights: Some Lessons from the South-African Experience, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) • Cernea, M.M., Bridging the Research Divide: Studying Refugees and Development Overseas, in In Search of Cool Ground: War, Flight & Homecoming in Northeast Africa, Geneva: UNRISD (1996) • Hanchinamani, B., The Impact of Mozambiques Land Tenure Policy on Refugees and Internally Displaced Persons, in Human Rights Brief, vol. 7, no. 2 (Winter 2000) • Jones, L., The Evolution of Property Use in Rwanda, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) • Republique Rwandaise, Avant Projet de Loi Porant Regime Foncier du Rwanda, Kigali : Ministère des Terres, de la Reinstallation et de la Protection de L’Environnement, BP3502 (June 1999) • Rwelamira, M.R. and Werle, G. (eds.), Confronting Past Injustices: Approaches to Amnesty, Punishment, Reparation and Restitution in South Africa and Germany, Cape Town: Butterworths (1996) • Scollo-Lavizzari, C., Restitution of Land Rights in an Administrative Law Environment : The German and South African Experience Compared, Cape Town: Univ. of Cape Town (1996) • Shriver, D.W., Apology and Restitution, in South African Outlook, (July-August 1992) • South African Department of Land Affairs, International Precedents for the Restitution of Land Rights in South Africa, SADLA publication (August 1999)

114

H O U S I N G A N D P R O P E RTY R EST I T U T I O N F O R R E F U G E ES A N D I N T E R N A L LY D I S P L A CE D P E R S O N S

• Unruh, J., The Role of Land and Conflict Resolution in a Peace Process: Mozambique’s Return to Agriculture, in Refuge, vol. 16, no. 1 (December 1997) • Wilkinson, R., Going Home: Mozambique Revisited, in Refugees, vol. 2, no. 112, Geneva: UNHCR (1998) Asia: • AHURA-Bhutan, Bhutanese Refugees: Victims of Forced Eviction: A Report on the Problem and Resistance Efforts, Jhapa, Bhutan: Association of Human Rights Activists (1996) • Gazmere, Ratan and Dilip Bishwo, Bhutanese Refugees: Rights to Nationality, Return and Property, in Forced Migration Review, no. 7 (April 2000) • Hirtz, F. The Discourse that Silences: Beneficiaries’ Ambivalence Towards Redistributive Land Reform in the Philippines, in Development and Change, vol. 29 (1998) • Lay Lee, T., Refugees from Bhutan: Nationality, Statelessness and the Right to Return, in International Journal of Refugee Law, vol. 10, no. 1/2, Oxford: Oxford Univ. Press (1998) • Leckie, Scott and Jean du Plessis. Housing, Property and Land Rights in East Timor: Proposal for an Effective Dispute Resolution and Claim Verification Mechanism, in Refugee Survey Quarterly, vol. 19, no. 3, pp. 5 – 63, Oxford: Oxford Univ. Press (August 2000) — Bhutanese Refugees – The Rights to Return: A Photo Essay, in Human Rights Tribune, vol. 6, no. 1, pp. 24 – 25 (January 1999) • Piper, Tessa, Myanmar: Exodus and Return of Muslims from Rakhine State, in Refugee Survey Quarterly, vol. 13, no. 1, pp. 11 – 29 (Spring 1994) • Robinson, C., Rapture and Return: Repatriation, Displacement and Reintegration in Battambang Province, Cambodia, in Chulalongkorn Univ. Occasional Papers Series, no. 007, Bangkok: Institute of Asian Studies (1994) • RPG, Internally Displaced Persons – Sri Lanka, Washington, DC: Refugee Policy Group, COI/LKA/30 D (1996) • Saha, K.C., Learning from Rohingya Refugee Repatriation to Myanmar, in Refuge - Canada’s Periodical on Refugee Issues: Special Issue on Refugee Return, vol. 19, no. 3, at 38 (December 2000) • Sen, Sumit, Stateless Refugees and the Right to Return: The Bihari Refugees of South Asia, in International Journal of Refugee Law, vol. 12, no. 1, pp. 41 – 70 (2000) Eastern Europe/CIS/Europe: • Bennewitz, I., Rehabilitierung und Entschaedigung der Opfer von Zwangsauaaiedlungen, in Deutschland-Archiv, no. 27 (May 1994) • Conquest, R., The Nation Killers, London: Macmillan and Co., Ltd. (1970) • Christopher, A.J., Spatial Aspects of Indigenous Lands and Land Claims in the Anglophone World, Cambridge: University of Cambridge (1997)

INTERNATIONAL

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REGIONAL AND NATIONAL LEGAL RECOURCES

115

• Druke, L., Housing and Property Restitution for Returnees in Tajikistan in the 1990s, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) • Gurber, R., Land Ownership and Conflicting Claims: Studies from Germany 1937-1991, supplement to Urban Foundation Research, nos. 4 & 5, Johannesburg: Urban Foundation (1993) • HRW/Helsinki, Tajikistan: Tajik Refugees in Northern Afghanistan: Obstacles to Repatriation, New York: Human Rights Watch/Helsinki (1996) • Jacobs, F. and White, R., The European Convention on Human Rights (2d ed.)(Ch. 14, “Property Rights”), Oxford: Clarendon Press (1996) • von Kruse (ed.), Whitebook on Democratic Land Reform, Hannover: Assoc. of German Farmers and Peasants (1959) • Leatherdale, J., Technical, Social and Economic Aspects of Land Reform in Eastern Europe, Overseas Development Initiative (1995) • Leckie, Scott, Resolving Kosovo’s Housing Crisis: Challenges for the UN Housing and Property Directorate, in Forced Migration Review: Land and Property Issues for Refugees and IDP’s, Issue No. 7, pp. 12-15 (April 2000) — Kosovo’s Next Challenge: Fixing the Housing Mess, in Human Rights Tribune, vol. 6, no. 4, pp. 28-30 (December 1999) • OSI, Coping With Conflict: A Guide to the Work of Local NGOs in the North Caucasus, New York: Open Society Institute (1998) — Forced Migration: Repatriation in Georgia, New York: Open Society Institute (2000) — Kazakstan: Forced Migration and Nation Building, New York: Open Society Institute (1998) — Meskhentian Turks: Solutions and Human Security, New York: Open Society Institute, (1998) — Return to Tajikistan: Continued Regional and Ethnic Tensions, New York: Open Society Institute (1998) — Tajikistan: Refugee Reintegration and Conflict Prevention, New York: Open Society Institute (1998) • Ott, A.F. and Desai, K., Land Reform: Restitution and Valuation in the Republic of Estonia, in Assessment Journal (Sept.-Oct. 1998) • Passavant, O. and Nosser, G., The German Re-Unification – Legal Implications for Investment in East Germany, in The International Lawyer, vol. 25 (1991) • Petrossian, L., Data on Refugees, Displaced Persons and Territories Occupied During Military Actions in Nagorno-Karabagh and Azerbaijan, (letter to Commission on Human Rights), UN doc. E/CN.4/Sub.2/1997/47, Geneva (27 August 1997)

116

H O U S I N G A N D P R O P E RTY R EST I T U T I O N F O R R E F U G E ES A N D I N T E R N A L LY D I S P L A CE D P E R S O N S

• Petrova, D. (ed.), Roma Rights, Budapest: European Roma Rights Center (1996 - ) • von Rundstedt, S., The Restitution of Property After Communism: Germany, the Czech Republic and Poland, in Parker School Journal of East European Law, vol. 4 (1997) • Southern, D., The Land Question in East Germany, in International Comparative Law Quaterly, vol. 24 (July 1993) • UNAG, Refugee—Bi-Monthly Newsletter, Budapest: UNHCR/UNAG (Aug/Sept. 1998) • UNHCR, Tajikistan, Geneva: UNHCR (May 1996) de Zayas, The Legality of Mass Population Transfers: The German Experience 1945 – 48, in East European Quarterly, vol. XII, no. 1, 2, Boulder: Univ. of Colorado Press (1978) Former Yugoslavia/Bosnia: • Bagshaw, S., Benchmarks or Deutschmarks? Determining the Criteria for the Repatriation of Refugees to Bosnia and Herzegovina, in International Journal of Refugee Law, vol. 99, p. 566 (1997) • Barakat, S. and Ellis, S., Towards Improving Shelter and Environment for Refugees and Displaced Persons Within the Post-Yugoslav Countries, in Journal of Refugee Studies (Zetter, R., (ed.)), vol. 8, no. 4, Oxford: Oxford Univ. Press (1995) • Bildt, C., Peaceful Journey: The Struggle for Peace in Bosnia, London: Weidenfeld and Nicolson (1996) • CRPC, Refugee Return: The Problem of Property Rights, Sarajevo: Commission for Real Property Claims of Displaced Persons and Refugees (1996) • Cox, M., Return, Relocation and Property Rights: A Discussion Paper, Sarajevo: Commission for Real Property Claims of Displaced Persons and Refugees & UNHCR (1997) • Garlick, M., Protection for Property rights: a partial solution? The Commission for Real Property Claims of Displaced Persons and Persons and Refugees (CRPC) in Bosnia and Herzegovina, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) • Haller, G., Special Report of the Ombudsperson on the Right to Respect for One’s Home and the Right to Peaceful Enjoyment of One’s Possessions with Respect to the Privatization the Housing Fund, Sarajevo: Office of the Human Rights Ombudsperson, Sarajevo (21 November 1997) • Hallergard, C., Bosnia and Herzegovina: Problems and Progress in the Return Process, in Forced Migration Review, New York: Open Society Institute (Jan.-April 1998) • Hovey, G., The Rehabilitation of Homes and Return of Minorities to Republika Srpska, Bosnia and Herzegovina, in Forced Migration Review, no. 7 (April 2000) • HRW, Federal Republic of Yugoslavia: Humanitarian Law Violations in Kosovo, in Human Rights Watch Report, vol.

10, no. 9 (D), New York: Human Rights Watch (October 1998)

INTERNATIONAL

,

REGIONAL AND NATIONAL LEGAL RECOURCES

117

• Jacquot, R., Managing the Return of Refugees to Bosnia and Herzegovina, in Forced Migration Review, no. 1., p.

24 (1998) • Leckie, Scott, Resolving Kosovo’s Housing Crisis: Challenges for the UN Housing and Property Directorate, in Forced Migration Review: Land and Property Issues for Refugees and IDP’s, Issue No. 7, pp. 12-15 (April 2000) — Kosovo’s Next Challenge: Fixing the Housing Mess, in Human Rights Tribune, vol. 6, no. 4, pp. 28-30 (December 1999) • Madsen, Lene, Homes of Origin: Return and Property Rights in Post-Dayton Bosnia and Herzegovina, in Refuge Canada’s Periodical on Refugees: Special Issue on Refugee Return, vol. 19, no. 3, at 8 (December 2000) • OSI, The Commission for Displaced Persons and Refugees: Options and Issues, New York: Open Society Institute (February 1996) — The Forced Migration Monitor, no. 22, New York: Open Society Institute (March 1998) — The Forced Migration Monitor, no. 27, New York: Open Society Institute (January 1998) — Forced Migration Projects Annual Report, New York: Open Society Institute (1997) — Property Law in Bosnia and Herzegovina, New York: Open Society Institute (March 1996) — Property Law in Republika Srpska, Open Society Institute, New York: Open Society Institute (October 1997) • Phuong, C., At the Heart of the Return Process: Solving Property Issues in Bosnia and Herzegovina, in Forced Migration Review, no. 7, April 2000 • UNHCR/OHR and the CRPC, Property and Housing Issues Affecting Repatriates and Displaced Persons in Bosnia and Herzegovina, Geneva: UNHCR publication (1999) • UNHCR Inspection and Evaluation Service, Review of the UNHCR Housing Programme in Bosnia and Herzegovina, Geneva: UNHCR, EVAL/05/98 (1998) • UNHCR, A Regional Strategy for Sustainable Return of Those Displaced by the Conflict in the Former Yugoslavia, Geneva: UNHCR/HIWG, HIWG/98/2 (17 June 1998) — Bosnia and Herzegovina Repatriation and Return Operation: 1998, Geneva: UNHCR/HIWG, HIWG/97/7 (1997) • Wak-Woya, B., Property Restitution in Post-War Croatia: Problems and Perspectives, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) • de Zayas, A., The Right to One’s Homeland, Ethnic-Cleansing and the International Criminal Tibunal in the Former Yugoslavia, in Criminal Law Forum, vol. 6, no. 2 (1995)

118

H O U S I N G A N D P R O P E RTY R EST I T U T I O N F O R R E F U G E ES A N D I N T E R N A L LY D I S P L A CE D P E R S O N S

Middle East: • Abu Helwa, M. and Birch, B., The Demography of Housing Conditions of Palestinian Refugees in and Around the Camps in Amman, Jordan, in Journal of Refugee Studies, vol. 6, no. 4, Oxford: Oxford Univ. Press (1993) • Assaf, G. and El-Fil, R., Resolving the Issue of War Displacement in Lebanon, in Forced Migration Review, no. 7 (April 2000) • Benvenisti, E. and E. Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, in The American Journal of International Law, vol. 89, pp. 294 (1995) • HRW/Helsinki, Turkey’s Failed Policy to Aid the Forcibly Displaced in the Southeast, vol. 8, no. 9(d), New York: Human Rights Watch/Helsinki (1996) • Jiryis, S., Settling Historical Land Claims, in Journal of Palestine Studies, vol. XXVII, no. 1, pp. 40-50 (Autumn 1997) • Lawand, K., The Right to Return of Palestinians in International Law, in International Journal of Refugee Law, vol.

8, no. 4, Oxford: Oxford Univ. Press (1996) • Robinson, G., The Politics of Legal Reform, in Journal of Palestine Studies, vol. XXVII, no. 1, pp. 51-60 (Autumn 1997) North, Central and South America: • Bailliet, C., Preventing Internal Displacement: Conciliating land Conflicts in Guatemala, in Refugee Survey Quarterly, vol. 19, no. 3, Oxford: Oxford Univ. Press (2000) — Unfinished Business: The IDP Land Question in Guatemala, in Forced Migration Review, no. 7 (April 2000) • Berger, T., A Long and Terrible Shadow—White Values, Native Rights in the Americas, Toronto: Douglas & McIntyre (1991) • Baranyi, Stephen, Maximizing the Benefits of UN Involvement in the Guatemala Peace Process, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Blacklock, Cathy, Democratization and Popular Women’s Organizations, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ.

Press (1999) • Catillo, Manuel Angel, Exodus and Return with a Changing Migration System, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Crosby, Alison, Return to the Nation: The Organizational Challenges Confronted by Guatemalan Refugee Women, in Refuge - Canada’s Periodical on Refugee Issues: Special Issue on Refugee Return, vol. 19, no. 3, at 32 (December 2000)

INTERNATIONAL

,

REGIONAL AND NATIONAL LEGAL RECOURCES

119

— To Whom Shall the Nation Belong? The Gender and Ethnic Dimension of Refugee Return and the Struggle for Peace in Guatemala, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Egan, Brian, “Somos de la Tierra”: Land and the Guatemalan Refugee Return, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Fonseca, Marco, Paradigms of Negotiation and Democratization in Guatemala, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGillQueen’s Univ. Press (1999) • Gellert, Gisela, Migration and the Displaced in Guatemala City in the Context of a Flawed National Transformation, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Levitt, Barry, Theorizing Accompaniment, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Mahony, L., Risking Return: NGOs in the Guatemalan Refugee Repatriation, Uppsala: Life & Peace Institute (1999) • Nolin Hanlon, Catherine, Guatemalan Refugees and Returnees: Place and Maya Identity, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • North, Liisa and Alan Simmons (eds.), Journeys of Fear: Refugee Return and National Transformation in Guatemala, Montreal and Kingston: McGill-Queen’s University Press (1999) — Fear and Hope: Return and Transformation in Historical Perspective, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ.

Press (1999) — Concluding Reflections: Refugee Return, National Transformation, and Neoliberal Restructuring, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Painter, A.R., Property Rights of Returning Displaced Persons: The Guatemalan Experience, in Harvard Human Rights Journal, Vol. 9, pp. 145-83 (Spring 1996) • Patroni, Viviana and Jim Gronau, Canadian Foreign Aid as Support for Human Rights and Democratization in Guatemala, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Poitevin, René, Reflections on the Problems of Democracy in Guatemala, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ.

Press (1999)

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• SEJUP, Focus on Land Policy: News from Brazil, in The Progress Report, no. 290, Servico Brasilerio de Justice e Paz (1997) • Stepputat, F., Repatriation and the Politics od Space: The Case of the Mayan Diaspora and Return Movement, in Journal of Refugee Studies, vol. 7, no. 2/3, Oxford: Oxford Univ. Press (1994) • Torres, M. Gabriela, The Unexpected Consequences of Violence: Rethinking Gender Roles and Ethnicity, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • de Villa, Gonzalo and W George Lovell, Land and Peace: Two Points of View, in Journeys of Fear: Refugee Return and National Transformation in Guatemala (Liisa L. North and Alan B. Simmons, eds.), Montreal: McGill-Queen’s Univ. Press (1999) • Wolfensohn, Galit, Refugees and Collective Action: A Case Study of the Association of Dispersed Guatemalan Refugees, in Refuge - Canada’s Periodical on Refugee Issues: Special Issue on Refugee Return, vol. 19, no. 3, at 25 (December 2000) • Worby, Paula, Security and Dignity: Land Access and Guatemala’s Returned Refugees, in Refuge - Canada’s Periodical on Refugee Issues: Special Issue on Refugee Return, vol. 19, no. 3, at 17 (December 2000) UNHCR and UN Affiliate Resources: • UN Centre on Human Settlements (Habitat), Housing and Property in Kosovo: Rights, Law & Justice: Proposals for a Comprehensive Plan of Action for the Promotion and Protection of Housing and Property Rights in Kosovo (30 August 1999) — Kosovo Program (establishing the UNMIK Housing and Property Directorate (HPD)) (22 September 1999) — The Habitat Agenda: Goals and Principles, Commitments and Global Plan of Action, London: Habitat publication (June 1996) • UN Commission on Human Rights, Forced Eviction: Analytical Report Compiled by the Secretary General, UN Economic and Social Council, E/CN.4/1994/20 (7 December 1993) • UN, Report of the Secretary-General: Respect for the Right of Everyone to Own Property Alone as well as in Association with Others and its Contribution to the Economic and Social Development of Member States, General Assembly, A/43/739, New York (27 October 1988) • UNHCR, Refugee Survey Quarterly, vol. 19, no. 3, Special Edition on Housing and Property Restitution for Returning Refugees and Internally Displaced Persons, Oxford: Oxford Univ. Press (August 2000) — Handbook: Voluntary Repatriation/International Protection, Geneva: UNHCR Division of Int’l Protection publication (1996) — Housing and Property Restitution Issues in the Context of Return to and Within Georgia: An International Legal Perspective, Geneva: UNHCR publication (July 1998)

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— Protecting Refugees: A Field Guide for NGOs, Geneva: UNHCR publication (1999) — and CRPC, Return, Relocation and Property Rights, Sarajevo: UNHCR/CRPC publication (December 1997) — Rebuilding a War-Torn Society: A Review of the UNHCR Reintegration Programme for Mozambican Returnees, Geneva: UNHCR (July 1996) — Note on Voluntary Repatriation (and additional conference materials), presented to the Regional Conference on Assistance to Refugees, Returnees and Displaced Persons in the Great Lakes Region, Bujumbura: Organization of African Unity & UNHCR (15-17 February 1995) — The State of the World’s Refugees: In Search of Solutions (ch. 2, The Right to Return, The Right to Remain), Oxford: Oxford Univ. Press (1995) — Summary of Proceeding: First International Workshop on Improved Shelter Response and Environment for Refugees, Geneva: UNHCR publication (29 June – 1 July 1993) — Voluntary Repatriation: A Background Study, San Remo: International Institute of Humanitarian Law (16-19 July 1985) • UNHCR Inspection and Evaluation Service, The Problem of Access to Land and Ownership in Repatriation Operations, Geneva: UNHCR, EVAL/03/98 (May 1998) • UNIFEM, UNDP, UNHCR and UNCHS (HABITAT), Peace for Homes, Homes for Peace: Inter-Regional Consultation on Women’s Land and Property Rights in Situations of Conflict and Reconstruction, Kigali, joint publication, Rwanda (16-19 February 1998)

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COHRE PUBLICATIONS

SOURCES SERIES • COHRE, Sources No. 7: Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources, (May 2001), US$ 15.00 • COHRE, Sources No. 6: International Events and Forced Evictions, (October 2001), US$ 15.00 • COHRE, Sources No. 5: Women and Housing Rights, (May 2000), US$ 15.00 nd

• COHRE, Sources No. 4: Legal Provisions on Housing Rights: International and National Approaches, (2 ed., April 2000), US$ 15.00 • COHRE, Sources No. 3: Forced Evictions and Human Rights: A Manual for Action, (2nd ed., October 1998), US$ 15.00 • COHRE, Sources No. 2: Selected Bibliography on Housing Rights and Evictions (2nd ed., April 2001), US$ 15.00 • COHRE, Sources No. 1: Legal Sources of the Right to Housing in International Human Rights Law (February 1992) (out of print)

GLOBAL SURVEY’S ON FORCED EVICTIONS • COHRE, Forced Evictions: Violations of Human Rights No. 8 (July 2001), US$ 10.00 • COHRE, Forced Evictions: Violations of Human Rights No. 7 (July 1998), US$ 10.00 • COHRE, Forced Evictions: Violations of Human Rights No. 6 (August 1994), US$ 10.00 • COHRE, Forced Evictions: Violations of Human Rights No. 5 (June 1993) • COHRE, Forced Evictions: Violations of Human Rights No. 4 (August 1992) • COHRE, Forced Evictions: Violations of Human Rights No. 3 (February 1992) • COHRE, Forced Evictions: Violations of Human Rights No. 2 (August 1991) • COHRE, Forced Evictions: Violations of Human Rights No. 1 (August 1990)

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BOOKS AND OTHER REPORTS • Ken Fernandes and Scott Leckie (eds.) We Shall Not Be Moved: Popular Resistance to Forced Evictions (2001), COHRE, 200p, US$ 20.00 • COHRE (and the Canadian Human Rights Foundation), Housing Rights: A Training Programme, (2001), US$ 20.00 • COHRE, The Human Right to Adequate Housing: A Chronology of United Nations Activity 1945-1999, (May 2000), US$ 15.00 • Scott Leckie, When Push Comes to Shove: Forced Evictions and Human Rights (1995) Habitat International Coalition, 139p, US$ 15.00 • Scott Leckie, Destruction by Design: Housing Rights Violations in Tibet (1994) COHRE, 199p, US$ 20.00

COUNTRY REPORTS • COHRE, Land, Housing and Property Rights in Zimbabwe (June 2001), US$ 10.00 • COHRE and ACHR, Housing Rights Violations in Bangladesh (June 2001), US$ 10.00 • COHRE, Better Late Than Never: Housing Rights in East Timor (October 2000), US$ 10.00 • COHRE, Housing Rights in Latvia (January 2000), US$ 10.00 • COHRE, The Status of Economic, Social and Cultural Rights in the Solomon Islands: Moving Forward and Maintaining the Past (May 1999), US$ 10.00 • COHRE, St. Vincent and the Grenadines and the Covenant on Economic, Social and Cultural Rights (November 1997), US$ 10.00 • COHRE, Still Waiting: Housing Rights Violations in a Land of Plenty, The Kobe Earthquake and Beyond (February 1996), US$ 10.00 • COHRE, Planned Dispossession: Palestinians, East Jerusalem and the Right to a Place to Live (September 1995), US$ 10.00 • COHRE, Prima Facie Violations of Article 11(1) of the Covenant on Economic, Social and Cultural Rights by the Government of the Philippines (November 1993), US$ 10.00

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Centre on Housing Rights and Evictions International Secretariat tel/fax: + 41.22.734.1028 e-mail: sleckie@attglobal.net www.cohre.org ISBN 92-95004-04-3

COHRE May 2001

83 Rue Montbrillant 1202 Geneva Switzerland

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Housing and Property Restitution for Refugees and Internally Displaced Persons : International, Regional and National Legal Resources (Sources 7) gathers valuable international, regional and national provisions regarding housing and property restitution in one user friendly document. It provides anyone working in the area of refugee and IDP return with the legal resources necessary to not only understand the concepts of housing and property restitution but to apply the concepts and practices in real world situations. While housing and property restitution is an emerging area of law, Sources 7 illustrates that the concept has been used to some degree for decades, first in specific ad hoc situations and later in more general statements of international law.

Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources

COHRE actively campaigns against forced evictions wherever they occur or are planned, and views forced evictions as a gross violation of a range of human rights, in particular the right to adequate housing.

CO H R E May 2001

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Sources 7

The Centre on Housing Rights and Evictions (COHRE) undertakes a wide variety of activities supporting the full realization of housing rights for everyone, everywhere.

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