Upload
arline-mosley
View
215
Download
1
Tags:
Embed Size (px)
Citation preview
Property Restitution and Rule of Law in Peacebuilding: Examining Applicability of the Bosnian Model
Mari Katayanagi, Ph.D.
Former Senior Research Fellow
JICA Research Institute
Displacement during the armed conflict By Philippe Rekacewicz, UNEP/GRID-Arendal 2
Asymmetric Political Structure ofpost-Dayton Bosnia and Herzegovina (BiH)
BiH
Republika Srpska (RS)
municipalities
Federation of Bosnia and
Herzegovina (FBiH)
10 Cantons
municipalities
Brcko District
3
4
History
• Property was an important target in the history of BiH at the time of armed conflicts.• Property allocation was carried out with
humanitarian justification.Socialist Federal Republic of Yugoslavia
(SFRY) - Occupancy rights: rights to live in a socially-owned property
5
General Framework Agreement for Peace (Dayton Peace Agreement)
• ‘All refugees and displaced persons have the right freely to return to their homes of origin.’
(Art. II(5) of Annex 4 and Art. I(1) of Annex 7)
• `Right to have restored to them property of which they were deprived in the course of hostilities since 1991’
• ‘The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.’ 6
Post-war mono-ethnic population structure
• 1.2 million refugees, 1.0 million IDPs (ethnic cleansing)
• De facto partition of the country into three areas controlled by each ethnic group, respectively
Policies of nationalist political leaders
Block return
Encourage IDPs to stay
Allocate public land to IDPs
7
Restitution process8
Housing-related laws and regulations
Abolished laws on abandoned propertiesApril 1999 - Introduced a unified rule: primacy of rights
of pre-war owners or occupancy right holders Oct. 1999 – Harmonized administrative procedures for
property repossessionDec. 2001 – Detailed procedure including the principle of
chronological processing of claims
Bonn Powers of the High Representative
9
Dispute Resolution Mechanism
• Commission for Real Property Claims of Refugees and Displaced Persons (CRPC)
Receive property claimsVerify ownership Issue certificate of ownership
1996-2003: Processed 310,000 claims
10
Members3 international
4 from the Federation2 from the RS
Property Law Implementation Plan
By Office of the High Representative, UNHCR, OSCE, UN International Police Task Force and CRPC
Well-organized field monitoring structureMonthly PLIP statisticsEviction monitoring by International Police Task Force
(IPTF), UNMIBH
11
Information campaign
• “Respect” campaign
Respect for the right to property and respect for right to return – respect for human rights and rule of law are fundamental principles in any democracy
• “It’s enough” campaign
Highlighting frustration of claimants, occupants, and all those involved in the repossession process
12
Removal of obstructive officials
• Nov. 1999 – 22 officials (mainly politicians)• Sep. 2000 – 15 officials (mostly housing officials)
Bonn powers → showing determination of the international community
13
JICA-RI’s original survey in Sarajevo Canton
Land use
• 63.8%: public property
• 34.7%: private property
• 0.1%: religious community’s property
• 1.4%: no ownership data
Plot size
60.731.1
5.12.5 0.4
<0.1ha
0.1-0.5ha
0.5-1.0ha
1.0-5.0ha
5.0ha<
14
Rights-based approach & rule of law
Rule of law requirements• Supremacy of law• Equality before the law• Accountability to the law• Fairness in the application of the law• Separation of powers• Participation in decision-making• Legal certainty• Avoidance of arbitrariness• Procedural and legal transparency (UN Doc. S/2004/616)
15
Applicability of Bosnian Model
• Peculiar conditions of BiHRelatively clearly determined property rightsLimited period of displacementA strong presence of international community
Yet there are lessons to be learnt …
16
Conclusion
Importance of recognizing the original property rights equally
Effectiveness of rule of law approach
Rule of law is complex – how can we build it without enforcement powers?
17
Thank you foryour attention. 18