Their name is long but precise: The UN Principles for Housing and Property Restitution for Refugees and IDPs. Relief groups and lawyers know them as the Pinheiro Principles, named for Paulo Sergio Pinheiro, the author of a study that assembled the guidelines and a former UN sub-commission special rapporteur on housing and property restitution.
The principles are a consolidation of international human rights law and best practices for resettling those driven off their land. They are included in the UNHCR Handbook on Voluntary Repatriation, which provides additional guidance on resettlement and restitution of land and property.
They’re endorsed by the UN Sub-Commission on the Promotion and Protection of Human Rights and are used as guidelines by the UNHCR and other groups resettling the displaced.
Rights for refugees and the internally displaced
The 23 principles include the right to be protected from forced displacement, and to adequate housing and to the freedom of movement, including the right to return in freedom and dignity. They also suggest legal and political procedures, including compensation, that can be provided by states to protect both returning refugees and current inhabitants of their properties.
Today, they’re referred to in courtrooms around the world for those pressing restitution claims by refugees and IDPs. They’re also used by governments in creating legislation to meet the standards of international treaties.
Chris Huggins, the director of the consulting firm called Land Conflict Research in Ottawa, Canada, said the Pinheiro Principles bring with them recommendations and standards relating to the restitution of refugee lands.
"[The principles interact] with existing guidelines and international frameworks," he said. "[They are] not what we call 'hard law' so [they] don’t necessarily represent a legal obligation by governments or the UNHCR, but in certain parts of the world, they have been used to interpret existing treaties or agreements."
The Pinheiro Principles and Sudan
They include the African Commission on Human and People’s Rights. It relied on the Pinheiro Principles when deciding a recent lawsuit against the Government of Sudan for abuses against the internally displaced in Darfur. The commission found that Khartoum had “failed to show it refrained from forced eviction or the demolition of houses and other property” from Janjaweed militia.
In its ruling, the AU cited Principle 5. It calls on states to prohibit forced eviction, demolition of houses and destruction of agricultural areas, and the confiscation of land as punishment or as an instrument of war. The principles say governments should prevent displacement, even when threatened by people, corporations and other non-state actors.
The African Commission’s ruling calls on the Government of Sudan to provide conditions for the safe return of IDPs and refugees and to establish “a National Reconciliation Forum that would, among others, resolve issues of land, grazing and water rights….”
The Pinheiro Principles also influenced the Kampala Convention. African signatories to it commit to protecting and helping IDPs return safely – and voluntarily – to their homes and to recognize the right of returnees to their property, or to compensation.
Huggins said there are efforts to have the principles be part of peace agreements. For example, the principles encouraged the inclusion of property rights and housing issues in the Comprehensive Peace Agreement, CPA, that ended fighting between north and south Sudan in 2005.
"[Several] international actors like the UN Food and Agriculture Organization did a number of studies on southern Sudan and identified potential problems regarding to post conflict land disputes and the rights and livelihoods of returning IDPs and refugees, and those studies fed into the CPA for Sudan," he said.
"[It] mandated a land commission to look into these issues, and one is looking into these issues now in the south and there are commissions in all of these transitional states looking at how to resolve these land disputes."
In the DRC, there are local reconciliation and return commissions working to resolve land issues and find alternative local lands to serve as compensation. In Burundi, the government has created a land and property commission mandated by peace agreements to look for solutions to IDP and refugee property claims.
Protecting secondary occupants
The Pinheiro Principles forbid discrimination on the basis of gender, religion, language, disability or other status.
They also protect secondary occupants, who have settled on refugee property, from arbitrary eviction and encourage governments to find a remedy to their claims to property as well.
Huggins notes that some say Rwanda has tried to follow the spirit of the principles by having returnees and current occupants share land. Others say the policy violates the principles by eventually undermining land tenure security. Huggins says critics ask how secure a claim to the land can be if the government can order the owner to give up half of it without compensation ?
The Pinheiro Principles are also part of the tripartite agreements signed between the UNHCR, the country of origin and the host country, which cannot arbitrarily deport them.
A public information officer with the UNHCR, Fatoumata Lejeune-Kaba, explains how the Principles’ support for the vulnerable, including women, are ensured in the signed contract:
"Women, for example, may not have their rights respected," she said, "because of traditional practices that prevent them from inheriting land [though they may be] entitled to it because their husband was killed in the war, or maybe they themselves helped purchased the land [though by tradition they do not have a right to property]. This is the type of thing we would seek to address through a tri-partite agreement."
"When we enter [such an agreement]," she said, "every word, every passage about every contentious issue negotiated is discussed. By the time we’ve signed an agreement, it means we’ve negotiated all the issues, and if there are any that need to be resolved, it will be stated if we or the country needs to continue to work on these issues."
One size does not fit all
Huggins said it’s not easy to apply the principles everywhere.
He said they worked well in Eastern Europe, where governments have kept records of land ownership. But that’s not the case in much of Africa, where most land is not owned by individuals, but by the community under customary law.
It may also be difficult for weak governments to ensure the protection of all returning refugees, especially in remote areas, or where the rule of law is not well established.
Huggins calls these the grey areas in post-conflict restitution.
"There are a number of conflicts in Africa where ethnic minorities who are targeted with violence tend to sell their land before they flee the fighting," he said. "There’s controversy in many areas over whether that was a forced sale, because the price of land plummets when there’s going to be conflict in an area, and people sell their land for whatever they can get…But often, afterward, those same people come back and say 'My life was threatened, I sold you this land at a discounted price as a forced sale, and I want it back.' "
"[Or], people will entrust their land to a neighbor of a different ethnic group and say 'Look after may land and use it, but when I return I want it back. But after 20 years, the friendly neighbor has been replaced by his sons, and this was based on a verbal agreement and difficult to prove. So it’s complicated to put the principles into practice in some African countries."
He said this was the case in eastern DRC, and in Rwanda and Burundi and other areas where ethnic minorities were forced to flee.
Some international NGO handbooks recommend that where tenure is not registered or contested, programs should be put in place to define and register land and to give people formal documentation that secures their right to it.
Huggins says this reinforces the importance of having well functioning land tenure systems -- still an issue for a continent where only a small percentage of property is officially registered.