Right, Remedy or Rhetoric?
Land Restitution in International Law
- Side: 143-176
- Publisert på Idunn: 2011-01-24
- Publisert: 2011-01-24
In 2005, the UN Sub-Commission on Human Rights declared in the Pinheiro Principles that restitution of land, housing and property in cases of displacement was a preferred remedy and a human right in international law. This paper argues that the composite legal method behind this claim cannot be sustained in international customary law but neither can a more conservative and beneficiary-based approach that restricts such rights to a narrow group such as refugees. Instead, a context-based legal method makes the most sense of current legal sources. We argue that a right and remedy of restitution for displacement only arises in instances of armed conflict and, to a slightly lesser extent, the removal of indigenous peoples from ancestral lands and systemic and arbitrary eviction, usually carried out by authoritarian regimes on particular discriminatory grounds. Nonetheless, the approach in the Pinheiro Principles is more coherent and morally superior than the status quo in customary international law. The growing acceptance of the Pinheiro Principles should therefore be welcomed subject to refining their scope of application.
* The authors would like to thank the two anonymous referees for comments on an earlier draft and Mayra Gomez for exchanges over the development of the new version.
Keywords: Restitution, International Law, Human Rights, Remedies