International Journal of Refugee Law - Advance Access

Facing the Asylum-Enlargement Nexus: the Establishment of Asylum Systems in the Western Balkans

Feijen, L. — 2008-07-17

Within a remarkably short time, functioning asylum systems were set up in the countries of the Western Balkans largely thanks to the joint advocacy of and co-operation between UNHCR and the EU, and, in particular, to the realization of a joint regional project implemented by UNHCR 2004–5. This article examines the basis and rationale for the two organizations’ involvement in asylum matters in the region and assesses the progress made in relation to asylum building. It also identifies best practices, some of the challenges encountered and suggests the way forward. It argues that, although the international community did succeed in establishing fair and efficient asylum procedures, the real challenges still lie ahead.

Protecting the Right to Housing in the Aftermath of Natural Disaster: Standards in International Human Rights Law

Barber, R. J. — 2008-07-05

In 2006, the United Nations High Commissioner for Refugees reported that an average of 211 million people each year were directly affected by the accumulated impact of natural disasters.1 This is approximately five times the number of people thought to have been affected by conflict over the past decade.2 It is commonly expected that, as a result of climate change, population growth and inappropriate urbanisation, the incidence, severity and impact of natural disasters will continue to rise. And yet while the obligations of states in situations of armed conflict have been extensively debated, the applicability of human rights law in the aftermath of natural disaster has not been so widely examined by regional or international human rights bodies. This paper considers the obligations of governments in the aftermath of natural disasters, with a particular focus on the right to housing. The applicability of human rights law (and specifically economic, social and cultural rights) in the aftermath of natural disaster is considered in a general sense, followed by a discussion of the content of the right to housing, and the obligations of governments to respect, protect and fulfil this right in the course of responding to disaster. The question of whether states have an obligation to provide restitution, compensation or other form of reparation to those who have lost homes, land and property by reason of natural disaster is also discussed. The paper draws on examples from the Indian Ocean tsunami (2004), the Pakistan earthquake (2005) and the South Asian floods (2007), and identifies specific elements of government obligations that are of particular importance in ensuring the right to adequate housing in the aftermath of natural disaster.

Individual Property Restitution: from Deng to Pinheiro - and the challenges ahead

Paglione, G. — 2008-07-05

The issue of housing and property restitution for refugees and internally displaced persons (IDPs) has received considerable attention in the past decade.1 Conflicts and wars in different parts of the world have shown how housing and property rights are systematically violated during armed strives. Intentional destruction of property, arbitrary confiscation of housing and secondary occupation are just some of the most common practices in violation of individual property rights. In addition to being an individual's right, the international community has increasingly considered post-conflict housing and property restitution as a key component of the broader objective of peace building, and as a means of promoting restorative justice within society. Both at operational and at normative level, several initiatives have contributed to enforcing property restitution rights: from the establishment in the mid 1990s of institutions mandated to resolve conflicting property claims to the adoption in 2005 of the so-called ‘Pinheiro Principles’, the first international standard exclusively addressing property restitution rights.

This paper explores the strengthening of international norms in the field of individual property restitution for refugees and IDPs over the past decade, and argues that the currently available normative standards reflect a partial understanding of displacement and restitution. With an almost exclusive focus on individual real property restitution, and an explicit preference for return among solutions to displacement, such standards undervalue the importance of alternative remedies and overlook the rights of non-returnees. After a brief overview on the emergence of a right to individual property restitution in international law and policy (part 1), this paper will concentrate its attention on three legal documents addressing property and displacement: the Guiding Principles on Internal Displacement of 1998, the International Law Association Declaration of Principles on IDPs of 2000, and the Pinheiro Principles of 2005 (part 2). The first two documents confine their scope to displacement within national borders, whereas the Pinheiro Principles encompass restitution rights for both IDPs and refugees and represent the most recent and comprehensive standard on the topic. Despite the remarkable developments at normative level, epitomized by the approval of the Pinheiro Principles, this paper highlights the following problematic areas: the role played by physical return in the conceptualisation of property restitution; the supremacy given to individual real property restitution over other types of remedies; and the impact of the passage of time on restitution rights (part 3). The paper concludes by arguing that restitution must be conceived independently from return and must consequently go beyond individual real property restitution, in order to provide effective redress to refugees and displaced persons (part 4).

Expulsion to Face Torture? Non-refoulement in International Law

Duffy, A. — 2008-06-25

Non-refoulement is a principle of international law that precludes states from returning a person to a place where he or she might be tortured or face persecution. The principle, codified in Article 33 of the 1951 Refugee Convention, is subject to a number of exceptions. This article examines the status of non-refoulement in international law in respect to three key areas: refugee law, human rights law and international customary law. The findings suggest that while a prohibition on refoulement is part of international human rights law and international customary law, the evidence that non-refoulement has acquired the status of a jus cogens norm is less than convincing.