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SHORTER ARTICLES, COMMENTS, AND NOTES RESTORING PROPERTY RIGHTS IN THE AFTERMATH OF WAR

Published online by Cambridge University Press:  17 January 2008

Abstract

From Bosnia to East Timor, and now Iraq, property rights have been at the centre of many of the problems that individuals face in the aftermath of armed conflicts. The importance of a fair, transparent and effective property rights policy, as an element of post-conflict recovery and development, can hardly be overrated. Clear and undisputed property title plays a fundamental role in the economic recovery from conflict and is a prerequisite to attract foreign investment. The protection or restoration of property rights is closely linked to the return of refugees and displaced persons, the protection of human rights and the restoration of the rule of law. Because land is life in many war-torn societies, property rights violations tend to affect all parts of the surviving populations.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 Refugees International ‘Iraq: Diffusing an ethnic time bomb’ 17 04 2003, available at <http://www.refintl.org/cgi-bin/ri/other?occ=00672>..>Google Scholar

2 United States Institute of Peace ‘Avoiding Violence in Kirkuk Requires Settling Property Disputes Quickly’ 28 04 2003, available at <http://www.usip.org/newsmedia/releases/2003/0428_NBiraq.html>..>Google Scholar

3 Salopek, P ‘Returning Kurds evict Arabs’ Chicago Tribune, 30 04 2003, available at <http://www.kurdistanobserver.com>..>Google Scholar

4 ICG ‘War in Iraq: What's Next For the Kurds?’ 19 03 2003, available at <http://www.crisisweb.org/projects/showreport.cfm?reportid=923>..>Google Scholar

5 Human Rights Watch ‘HRW letter to Gen. Jay Garner on human rights priorities during Iraqi reconstruction’ 23 04 2003, available at <http://www.hrw.org/press/2003/04/iraq424031tr.htm>..>Google Scholar

6 Howard, M ‘US advances Bosnian solution to ethnic cleansing in Iraq’ The Guardian, 24 04 2003, available at <http://www.guardian.co.uk/Iraq/Story/0,2763,942401,00.html> US Institute of Peace, above n 2.+US+Institute+of+Peace,+above+n+2.>Google Scholar

7 Cox, MThe right to return home: International intervention and ethnic cleansing in Bosnia and Herzegovina’ (1998) 47 ICLQ 620.CrossRefGoogle Scholar

8 For a detailed description of the population movements in Bosnia during and after the war, see CRPC and UNHCR Return, Local Integration and Property Rights. A Study of the Preferences and Intentions of Refugees and Displaced Persons Regarding the Exercise of Property Rights (Sarajevo CRPC 1999).Google Scholar

9 Privately owned property and socially owned or State-owned property were subject to different regimes. While private owners were generally better protected, they also lost their rights in certain cases.Google Scholar

10 Although a formal procedure was established for the original owner or other right holder to return and reclaim possession of his/her property, most owners and right holders failed to meet the conditions for repossession. According to the 1996 Republika Srpska Law on the use of abandoned apartments, for instance, repossession was only possible if the current occupant left voluntarily, if he/she was offered a comparable housing unit or if the returning right holder paid him/her compensation for the property that he/she lost in the other Entity. In the Federation, the Law on abandoned apartments was amended on 22 Dec 1995 so that if displaced persons did not claim and re-occupy their apartment by 29 Dec 1995 (6 Jan 1996 for refugees) their apartment was declared permanently abandoned and could be permanently re-allocated to a new occupant. At that time, return on such short notice was impossible for most displaced persons. See also T Waters ‘The Naked Land: The Dayton Accords, Property Disputes and Bosnia's Real Constitution40 Harvard International Law Journal (1999) 517, at 545.Google Scholar

11 CRPC Real Property Title and Entitlements in Bosnia and Herzegovina: Creating a Unified System For the Registration of Real Property Rights and the Development of the Real Property Market (Sarajevo CRPC 2000).Google Scholar

12 Cox, M, above n 7, at 622.Google Scholar

13 Popovic, E ‘The impact of international human rights law on the property law of Bosnia and Herzegovina’, in O'Flaherty, M and Gisvold, G (eds) Post-war Protection of Human Rights in Bosnia and Herzegovina (The HagueMartinus 1998) 142.Google Scholar

14 The General Framework Agreement for Peace in Bosnia and Herzegovina was initialled in Dayton on 21 11 1995 and signed in Paris on 14 Dec 1995. For the text, see 35 ILM (1996) 75.Google Scholar

15 Ibid. The right to return has also been incorporated in Art II para 5 of the new Constitution of Bosnia and Herzegovina (Annex IV, Dayton Peace Agreement).

16 Garlick, MProtection for property rights: A partial solution? The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) in Bosnia and Herzegovina19 Refugee Survey Quarterly (2000) 68;CrossRefGoogle ScholarStavropoulou, MBosnia and Herzegovina and the right to return in international law’ in O'Flaherty, M and Gisvold, G (eds) above n 13, at 127.Google Scholar

17 Dayton, Peace Agreement, above n 14, Annex 7, Art XI.Google ScholarOn the CRPC, see also Houtte, H vanMass Property Claims Resolution in a Post-War Society’ (1999) 48 ICLQ 625CrossRefGoogle Scholar

18 In the former Yugoslavia, socially owned apartments built with public funds were allocated by socially owned companies to their employees. The employees were given a sui generis right to the apartment, called an ‘occupancy right’. An occupancy right was less than ownership, but considerably more than a leasehold. A socially owned apartment was given only for use as a primary residence. It could not be sold, sub-let in its entirety, or used for business purposes, and if the occupancy right holder ceased to use it for more than a year, the contract on use could be cancelled. In ordinary circumstances, however, the apartment was held for life, and upon the death of the occupancy right holder any member of his/her family household would inherit the occupancy right. In assessing occupancy rights in Bosnia and Herzegovina, the Human Rights Chamber (a mixed international-local judicial body created under Annex 6 of the Dayton Peace Agreement) has found that an occupancy right is a ‘possession’ protected under Article 1 of Protocol No 1 of the European Convention on Human Rights. MJ v Republika Srpska, 1999, 6 IHRR 590.Google Scholar

19 Dayton, Peace Agreement, above n 14, Annex 7, Art XII, 3.Google Scholar

20 Ibid, Art XII, 1.

21 Dayton, Peace Agreement, above n 14, Annex 7, Art XV. CRPC adopted two Books of Regulations, available at <http://www.crpc.org.ba>..>Google Scholar

22 Ibid, Art XII, 7.

23 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 12 07 1999, UN Doc. S/1999/779, paras 77 and 78.Google Scholar

24 On socially owned apartments, see above n 18.Google Scholar

25 Law on Changes and Supplements to the Law on Real Estate Transactions, Official Gazette RS 22/91, 18 Apr 1991. Council of Europe experts considered this law to be clearly discriminatory according to international human rights standards. On 13 10 1999, UNMIK repealed this law by Regulation No 10/1999.Google Scholar

26 SC Res 1244 (1999), para 11 (j) and (k).Google Scholar

27 Both institutions were created through UNMIK Regulation 1999/23. UNMIK Regulations are promulgated by the Special Representative of the Secretary-General of the United Nations and have the force of law. They override provisions of domestic law insofar as these are inconsistent. All UNMIK Regulations are available at <http://www.un.org/peace/kosovo/pages/regulations>..>Google Scholar

28 UNMIK Regulation 2000/60, s 2.Google Scholar

29 This principle was introduced to avoid further uncertainty about the validity of property rights acquired under the Serb laws during the post-Autonomy period. The uncertainty was created by UNMIK Regulation 1999/24 on the applicable law in Kosovo. UNMIK Regulation 1999/1 had originally provided that Serb laws continued to be applicable unless they had been explicitly repealed by UNMIK. Regulation 1999/24 reversed the situation, providing that the law in force in Kosovo is the pre-1989 law, but that a court or public official may apply a post-1989 law in respect of a subject matter or situation not covered by pre-1989 laws, provided the law is not discriminatory. The pre-1989 laws obviously did not cover the situation of privatized apartments, while actions done under post-1989 laws were in doubt until adjudicated by the Commission.Google Scholar

30 See the HPD website at <http://www.hpdkosovo.org>..>Google Scholar

31 These are respectively the ‘Commission on the Restitution of Land Rights’ and the ‘Land Claims Court’. See Cohre, , Forced Evictions and Human Rights: A Manual for Action (GenevaCOHRE 1999), 86.Google Scholar

32 During the first three years of the programme, some 25,000 individuals and communities submitted claims to the Commission and only seven claims were finalized by the Land Claims Court.Google Scholar

33 The HPCC procedures are largely adversarial. The current occupant and other parties with a legal interest in the claimed property are invited to participate in the procedures and submit written evidence and arguments. Given the security risks and limited freedom of movement for minorities, the HPCC does not conduct public hearings or receive oral evidence, unless there is a specific need.Google Scholar

34 In the case of the CRPC, the date of transfer of responsibility provided for in the Dayton Peace Agreement was five years from the date of its signing. This term was extended by additional agreement to the end of 2003. In Kosovo, Section 2.1 of Regulation 1999/23 provides that the HPCC will function ‘until the Special Representative of the Secretary-General determines that local courts are able to carry out the functions entrusted to the Commission’.Google Scholar

35 On the administration of evidence in the CRPC, see Houtte, H vanEvidence before the Commission for Real Property Claims in Bosnia and Herzegovina1 International Law Forum (1999) 225.CrossRefGoogle Scholar

36 CRPC Book of Regulations on the Conditions and Decision Making Procedure for Claims for Return of Real Property of Displaced Persons and Refugees, 4 03 1999, Art 32, available at <http://www.crpc.org.ba>..>Google Scholar

37 Ibid, Arts 33 and 36.

38 For a detailed examination of the administration of evidence in historical reparations commissions and contemporary mass claims processes, see Das, HClaims for looted cultural assets: Is there a need for specialised rules of evidence?’, in Permanent Court of Arbitration (ed) Resolution of Cultural Property Disputes, PCA Peace Palace Papers 8, forthcoming.Google Scholar

39 See for instance the CRPC Book of Regulations, above n 36, Art 11 (presumption that claimant is not in possession of the claimed real property) and Art 12 (presumption of refugee status).Google Scholar

40 See UNMIK Regulation 2000/60, above n 28, ss 10.2, 19 and 21.Google Scholar

41 Dayton, Peace Agreement, above n 14, Annex 7, Art VIII.Google Scholar

42 Initial reactions from local authorities ranged from hesitation to outright obstruction tactics. Garlick, M, above n 16, at 78.Google Scholar

43 Law on implementation of the decisions of the Commission for Real Property Claims of Displaced Persons and refugees, Republika Srpska, Federation of B-H, 27 10 1999, available at <http://www.crpc.org.ba>..>Google Scholar

44 Garlick, M, above n 16, at 80.Google Scholar

45 The compensation provisions were included in the Dayton, Peace Agreement at the insistence of the Serb negotiators, who ‘have maintained consistently that Serbs from the Federation do not wish to return to their homes, and must receive compensation instead'.Google ScholarSee Cox, M, above n 7, at 611.Google Scholar

46 Dayton, Peace Agreement, above n 14, Annex 7, Art XIV.Google Scholar

47 Garlick, M, above n 16, at 81.Google Scholar

48 UNMIK Regulation 2000/60, above n 28, s 2.5.Google Scholar

49 Garlick, , above n 16, at 80–1.Google Scholar

50 Ibid, above n 16, at 81.

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SHORTER ARTICLES, COMMENTS, AND NOTES RESTORING PROPERTY RIGHTS IN THE AFTERMATH OF WAR
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