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The thesis examines protections afforded by the emerging right in international law of refugees or internally displaced persons to retum to their homes of origin following conflict. The establishment of discrete, quasi-judicial housing and property restitution mechanisms (for example in Kosovo and Bosnia-Herzegovina) promising "restitution in kind" has become the preferred approach of the international community. Their attractiveness is that they promise both legal redress and a practical outcome - the retum of refugees and IDPs to their homes. However, as the thesis discusses, the desires of refugees and IDPs often shift over a long displacement, to the point that return often no longer equates with going "home". Meanwhile ties begin to form with the host community. The thesis assesses the effectiveness of restitution mechanisms as concerns the decision-making of refugees and displaced persons, and concludes that they will be useful if undertaken quickly and in coordination with a larger project to encourage return. In protracted refugee situations, by contrast, restitution is unlikely to lead to widespread retum. A wider array of remedies (including increased use of compensation in place of restitution in kind) and approaches to the protection of housing and property rights for displaced persons should be available. Further, rather than detracting from the rights-based approach, such solutions are solidly rooted in the larger property rights discourse and may in fact strengthen protections of the rights to housing and property for returnees. Based in qualitative and quantitative empirical research, the last chapter presents a case study of protracted displacement and the possibilities for housing and property rights approaches which support a range of durable solutions in the Republic of Georgia and South Ossetia.
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The establishment of the Housing and Property Directorate (HPD) and Claims Commission (HPCC) in Kosovo has reflected an increasing focus internationally on the post-conflict restitution of housing and property rights. In approximately three years of full-scale operation, the institutions have managed to make a property rights determination on almost all of the approximate 30,000 contested residential properties. As such, HPD and HPCC are being looked to by many in other post-conflict areas as an example of how to proceed. While the efficiency of the organizations is commendable, one of the key original goals – the return of displaced persons to their homes of origin – has to a large degree been left aside. The paper focuses on two distinct failures of the international community with respect to the functioning of HPD/HPCC and its possible effect on returns: a failure of coordination between HPD/HPCC and other organizations working on returns, and the isolation of residential property rights determinations from other aspects of building a property rights-respecting culture in Kosovo.
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The establishment of the Housing and Property Directorate (HPD) and Claims Commission (HPCC) in Kosovo has reflected an increasing focus internationally on the post-conflict restitution of housing and property rights. In approximately three years of full-scale operation, the institutions have managed to make a property rights determination on almost all of the approximate 30,000 contested residential properties. As such, HPD and HPCC are being looked to by many in other post-conflict areas as an example of how to proceed. While the efficiency of the organizations is commendable, one of the key original goals – the return of displaced persons to their homes of origin – has to a large degree been left aside. The paper focuses on two distinct failures of the international community with respect to the functioning of HPD/HPCC and its possible effect on returns: a failure of coordination between HPD/HPCC and other organizations working on returns, and the isolation of residential property rights determinations from other aspects of building a property rights-respecting culture in Kosovo.
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This chapter begins with overview of international law protections of a displaced person’s right to return to his or her home of origin. It focuses on the case studies of Kosovo and Georgia and considers the international community’s approach ‘on the ground’. The chapter addresses some of the weaknesses of an approach which relies to too great an extent on property restitution mechanisms as vehicles by which to encourage refugee and internally displaced persons (IDP) returns and protect such individuals’ rights to housing and the enjoyment of their property. IDPs’ lack of willingness to return may be related not only to political uncertainty in their area of origin, but also to ways in which they have adapted over time to circumstances in the place where they have taken refuge. The right to return to one’s home of origin, and the corresponding right to housing and property restitution for displaced persons, has been increasingly articulated in peace agreements and UN documents.
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This chapter will focus on the protection of housing and property rights of refugees and internally displaced persons (IDPs) in Georgia.1 Georgia suffered two ethnic conflicts shortly following its declaration of independence from the Soviet Union in 1991 — one in Abkhazia in western Georgia and one in South Ossetia on the Russian border. Both conflicts produced large numbers of displaced persons and left the regions administered by secessionist governments; however this chapter will focus mainly on the South Ossetian context.
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