By James A Sweeney
[James A Sweeney is Professor of International Law at Lancaster University, UK]
The idea behind this piece was to use the issue of post-conflict restitution as a particular example of the complex relationship between proclaimed best-practice, emerging international standards, and actual law in post-conflict contexts. I have written about restitution in my 2012 monograph on the ECHR (now in paperback!), but this chapter was a chance to get deeper into the topic, and also to look at a wider range of international comparative materials (although this brief comment will again concentrate on the European dimension).
There has been a suggestion that human rights courts and tribunals are lagging behind best practice, by failing to uphold a right to post-conflict restitution. For example the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, the Chicago Principles on Post-Conflict Justice, and especially the Pinheiro Principles, all suggest that there is a right to post-conflict housing restitution (or, at the very least, a duty upon states to engineer restitution). This is in contrast to the jurisprudence of the European Court of Human Rights, where there are at least two levels of frustration: first, that the European Court does not require post-conflict restitution to take place, due to jurisdictional limitations; and second that where states have voluntarily undertaken restitution schemes secondary occupiers have been able to use the ECHR to challenge aspects of such schemes.
But it is possible to overstate the existence of the right in the first place. Moreover, the corrective, legalistic, approach of the Pinheiro Principles has been called into question. The key debate is whether restitution should be prioritized, or whether (and when) compensation is appropriate. The Pinheiro Principles only allow for compensation when the property has been destroyed. This perhaps underestimates the fragility of the post-conflict context, the rights of secondary occupiers, and the fact that unequal property distribution may have been a source of conflict in the first place. What is to say that restoring the status quo ante is a good idea?
The chapter goes on to look at judicial reception of the Basic Principles and Guidelines and the Pinheiro Principles, noting that they have not yet had a profound impact upon international human rights courts and tribunals. For example in the Demopoulos ECHR decision a remedy for displacement, which could only provide compensation and not restitution, was upheld by the European Court. Indeed, in the Mago and Others ECHR case the European Court failed to condemn the operation of a restitution scheme under which some of the applicants had failed even to gain compensation. Whilst it found that states ‘must normally offer compensation’ when taking a property, the ECtHR was swayed by, ‘the exceptional circumstances of the dissolution of the SFRY and the wars in the region.’
Far from accepting the legalistic, univalent, approach of the Pinheiro Principles, this judgment of the European Court sits alongside others where it has accepted that transitional or post-conflict states should be given some leeway in relation to human rights standards: a form of multivalent ‘transitional relativism’. This presents its own problems, but at least acknowledges that there may need to be flexibility built into post-conflict strategies.