The 2005 Pinheiro Principles were the first summative statement regarding property rights in post-conflict settings. They were the result of a UN Sub-Commission tasked with applying human rights law to post-conflict housing, land, and property issues for refugees and internally displaced people. In arriving at the Pinheiro Principles the UN Sub-Commission on the Promotion and Protection of Human Rights consulted with legal experts, civil society organizations and states. They were helpful, but imperfect, as these things often are. They have been challenged in terms of their legal foundations and I have reservations about their applicability in situations with customary law.
The Voluntary Guidelines on the Responsible Governance of Tenure, actually have a longer title yet, but are most often just referred to as ‘The Voluntary Guidelines”. They were adopted in 2012 after a remarkable consultative process lead by the FAO Committee on World Food Security. Negotiations over the guidelines occurred in 2011 and 2012, as the world was still reeling from the 2008 Food Price Crisis. The Voluntary Guidelines are notable for bringing together food sovereignty advocates in over 30 civil society organizations and the 96 UN member states that negotiated the agreement. They are broader than the Pinheiro Principles as they address land governance in all contexts, not just post-conflict. They also address the concerns of people such as myself, interested in seeing customary law directly addressed.
The Voluntary What?
However, there is a major problem with the Voluntary Guidelines. Apart from those directly involved in the consultations, and perhaps also some of my students, no one seems to know they exist. Of course I exaggerate, but not too much. In the past month I have reviewed two academic papers by very smart people writing on land restitution issues, who seemingly have never heard of the Voluntary Guidelines. Why? How could it be that people are not aware of the Voluntary Guidelines in spite of the remarkable effort and extensive consultation that went into developing them?
Here are my three ideas about the causes of this ignorance.
- Voluntary is interpreted as irrelevant. This isn’t true. The Voluntary Guidelines are no more or less enforceable than the Pinheiro Principles. It is all ‘soft’ international law and therefore has no specific enforcement mechanism, but is meant to guide organizations and governments in making decisions.
- Post-conflict issues are buried in Section 25 after multiple preceding sections addressing riveting issues such as valuation, taxation and spatial planning. Personally, I do find spatial planning compelling, but I realize that not everyone agrees with me.
- The focus in the Voluntary Guidelines on respecting marginalized people and ensuring food security for all, means that they are more complex than the Pinheiro Principles, which are very straightforward and easy to understand. By way of example, here is the way that property restitution is discussed in each.
Pinheiro Principle 2 The right to housing and property restitution
2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/ or property that is factually impossible to restore as determined by an independent, impartial tribunal.
And the equivalent passage in the Voluntary Guidelines
VG 25.5 In situations of conflicts, whenever possible or when conflicts cease, States and other parties should ensure that tenure problems are addressed in ways that contribute to gender equality and support durable solutions for those affected. Where restitution is possible and, as appropriate, with the assistance of UNHCR and other relevant agencies, refugees and displaced persons should be assisted in voluntarily, safely and with dignity returning to their place of origin, in line with applicable international standards. Procedures for restitution, rehabilitation and reparation should be nondiscriminatory, gender sensitive and widely publicized, and claims for restitution should be processed promptly. Procedures for restitution of tenure rights of indigenous peoples and other communities with customary tenure systems should provide for the use of traditional sources of information.
25.6 Where restitution is not possible, the provision of secure access to alternative land, fisheries and forests and livelihoods for refugees and displaced persons should be negotiated with host communities and other relevant parties to ensure that the resettlement does not jeopardize the livelihoods of others. Special procedures should, where possible, provide the vulnerable, including widows and orphans, with secure access to land, fisheries and forests
You get the picture.
This is all unfortunate. The Voluntary Guidelines is an important document that is sophisticated in its understanding of tenure systems around the world and prioritizes people and food production. This is good and necessary, albeit complex.