474 Conflicts between Fundamental Rights - · PDF filedistribution for the uk: ... conflicts...

CONFLICTS BETWEEN FUNDAMENTAL RIGHTS

CONFLICTS BETWEEN FUNDAMENTAL RIGHTS

Eva BremsEditor

Antwerp – Oxford – Portland

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Confl icts Between Fundamental RightsEva Brems (ed.)

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Intersentia v

TABLE OF CONTENTS

INTRODUCTION1. Orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. Introduction to the Volume . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63. Summing up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154. Th anks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CHAPTER 1. THEORETICAL PERSPECTIVES

CONFLICTS OF FUNDAMENTAL RIGHTS AS CONSTITUTIONAL DILEMMAS

Lorenzo Zucca . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192. Defi ning Genuine Confl icts of Fundamental Rights . . . . . . . . . . . . . . . . . . . 23

2.1. Th e Main Distinction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252.2. A (Practice Oriented) Typology of Confl icts . . . . . . . . . . . . . . . . . . . . 26

3. Balancing and Incommensurability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284. Dealing with Confl icts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

4.1. Constitution-Perfecting, Confl ict-Solving, Th eories . . . . . . . . . . . . . . 334.2. Th e Presumption of Priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

PRIVACY RIGHTS IN CONFLICT: IN SEARCH OF THE THEORETICAL FRAMEWORK BEHIND THE EUROPEAN COURT OF HUMAN RIGHTS’ BALANCING OF PRIVATE LIFE AGAINST OTHER RIGHTS

Aagje Ieven . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392. Privacy Rights in Confl ict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

2.1. Private Life v. Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . 412.2. Private Life v. other Persons’ Privacy Rights . . . . . . . . . . . . . . . . . . . . . 442.3. Rights of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482.4. Right to Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

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3. In Search of the Court’s Th eoretical Framework . . . . . . . . . . . . . . . . . . . . . . 523.1. Some General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523.2. A Th eoretical Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

3.2.1. What is Judicial Minimalism? . . . . . . . . . . . . . . . . . . . . . . . . . . 543.2.2. Judicial Minimalism on the European Court of Human

Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553.2.3. Some Critical Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

4. Balancing Private Life Against other Rights: Privacy in a Democratic Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604.1. Deliberative Democracy and Human Rights: A Common

Foundation in Human Autonomy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614.2. Deliberative Democracy, the Margin of Appreciation Doctrine,

Minority Rights and Critical Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . 644.3. Implications for the Resolution of Confl icts Between Fun-

damental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654.3.1. For Rights Confl icts in General . . . . . . . . . . . . . . . . . . . . . . . . 654.3.2. For Confl icts with Privacy Rights . . . . . . . . . . . . . . . . . . . . . . . 67

CONSTITUTIONAL DEMOCRACY, CONSTITUTIONAL INTERPRETA-TION AND CONFLICTING RIGHTS

Evelyne Maes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 692. Constitutional Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

2.1. Crisis of Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 712.2. Rise of Constitutional Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 732.3. Habermas’ Th eory on Constitutional Democracy . . . . . . . . . . . . . . . . 74

3. Habermas on Constitutional Interpretation and Balancing Rights . . . . . . 803.1. Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803.2. Balancing Confl icting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

4. Models of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 874.1. Originalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 874.2. Procedural Democracy Interpretation of Ely . . . . . . . . . . . . . . . . . . . . 904.3. Fundamental Rights Interpretation by Dworkin . . . . . . . . . . . . . . . . . 93

5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

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CHAPTER 2. TOWARDS A GENERAL APPROACH TO DEAL WITH CONFLICTING FUNDAMENTAL RIGHTS

BACK TO BASICS: WITHOUT DISTINCTION – A DEFINING PRINCIPLE?

Alison Stuart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012. Textual Primacy of the Non Distinction Norm . . . . . . . . . . . . . . . . . . . . . . 103

2.1. Th e Current Non Discrimination Test . . . . . . . . . . . . . . . . . . . . . . . . . 1063. Judicial Handling of the Non Distinction Norm . . . . . . . . . . . . . . . . . . . . . 108

3.1. International Jurisprudence on Non Discrimination on the Basis of Sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

3.2. Regional Jurisprudence on Non Discrimination on the Basis of Sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111

4. Th e Non Distinction Norm as a Method of Interpretation . . . . . . . . . . . . . 1205. Th e Proposed Legal Application of the Non Distinction Norm . . . . . . . . . 1246. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

CUTTING TO THE CORE OF CONFLICTING RIGHTS: THE QUESTION OF INALIENABLE CORES IN COMPARATIVE PERSPECTIVE

Gerhard van der Schyff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1312. Approaches to Cores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

2.1. Objective and Subjective Approaches . . . . . . . . . . . . . . . . . . . . . . . . . 1332.2. Absolute and Relative Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

3. Confl icting Cores Considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1354. European Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

4.1. One-Stage Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1394.2. Two-Stage Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

5. South African Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1415.1. Interim Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1425.2. Final Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

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TOWARDS A SOCIALIZATION OF FUNDAMENTAL RIGHTSMarlies Galenkamp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1492. Confl icts of Fundamental Rights Within the Dutch Setting . . . . . . . . . . . 1503. Th e Absolutism of the Fundamental Rights Discourse . . . . . . . . . . . . . . . . 1544. Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1565. Lessons from Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1586. No Rights Without Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1597. Back to Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1618. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

CHAPTER 3. THE EUROPEAN COURT OF HUMAN RIGHTS AND CONFLICTING RIGHTS

RIGHTS IN CONFLICT: THE EUROPEAN COURT OF HUMAN RIGHTS AS A PRAGMATIC INSTITUTION

Olivier De Schutter and Françoise Tulkens . . . . . . . . . . . . . . . . . . . . . 169

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1692. Confl icts Real or Imagined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

2.1. Confl icts Between a Right Protected Under the Convention and another Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

2.2. Rights of an ‘Absolute’ Character and Rights Subject to Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

2.3. Obligations to Respect and Obligations to Protect . . . . . . . . . . . . . . 1812.4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

3. Th e Classical Solutions to Situations of Real Confl icts . . . . . . . . . . . . . . . . 1883.1. Th e ‘Necessity’ Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1883.2. Balancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1913.3. Th e National Margin of Appreciation . . . . . . . . . . . . . . . . . . . . . . . . . 198

4. Th e Procedural Turn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2034.1. Practical Concordance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2034.2. Transforming the Background Conditions . . . . . . . . . . . . . . . . . . . . . 2064.3. Encouraging Deliberative Processes . . . . . . . . . . . . . . . . . . . . . . . . . . 2084.4. Developing Standards Th rough Adjudication . . . . . . . . . . . . . . . . . . 2104.5. Two Guiding Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

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CONFLICTS BETWEEN FUNDAMENTAL RIGHTS AND THE EUROPEAN COURT OF HUMAN RIGHTS: AN OVERVIEW

Peggy Ducoulombier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

1. Types of Confl ict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2191.1. Confl icts of Rights and Horizontal Situations . . . . . . . . . . . . . . . . . . 2191.2. Confl icts of Rights and Vertical Cases . . . . . . . . . . . . . . . . . . . . . . . . . 2221.3. Th e Link Between the Structure of the Confl ict and the Methods

of Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2241.4. Confl icts Between Rights and Procedural Questions . . . . . . . . . . . . 225

2. Current Solutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2262.1. Confl icts Between Rights, Balance of Interests and

Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2272.2. Confl icts of Rights and Positive Obligations . . . . . . . . . . . . . . . . . . . 2292.3. Th e Infl uence of Confl icts on the Margin of Appreciation. . . . . . . . 230

3. Towards a Human Rights Hierarchy? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2343.1. Hierarchy in the Field of Human Rights . . . . . . . . . . . . . . . . . . . . . . . 2343.2. Th e European Convention and the Idea of Hierarchy . . . . . . . . . . . . 2363.3. Abstract and Concrete Hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2383.4. Th e Hierarchical Framework Proposed to Solve Confl icts

Between Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2393.5. Practical Concordance: An Alternative? . . . . . . . . . . . . . . . . . . . . . . . 243

4. Conclusion: Eff ect on the Court’s Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

THE SEARCH FOR AN EQUILIBRIUM BY THE EUROPEAN COURT OF HUMAN RIGHTS

Leto Cariolou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2492. General Remarks on the Court’s Adjudication . . . . . . . . . . . . . . . . . . . . . . . 2503. Th e Court’s Overall Rejection of a Utilitarian Th eory of Convention

Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2514. Th e Impact of the Reasoning of an Interference on the Protection of a

Convention Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2535. Th e Requirement of a Qualitative Assessment of the Values Concerned

in a Given Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2556. Th e “Incompleteness of Ranking” Between Potentially Competing

Convention Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2597. Th e Role of Balancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

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8. “Balancing” as a Tool of Development of a Normative Th eory . . . . . . . . . 2659. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

CHAPTER 4. CONFLICTING RIGHTS AND CONSTITUTIONAL COURTS

BALANCING CONFLICTING HUMAN RIGHTS: KONRAD HESSE’S NOTION OF “PRAKTISCHE KONKORDANZ” AND THE GERMAN FEDERAL CONSTITUTIONAL COURT

Thilo Marauhn and Nadine Ruppel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2731.1. Categorizing Confl icts Within a Human Rights System . . . . . . . . . 2741.2. Exemplary Case Law of the Federal Constitutional Court . . . . . . . . 2761.3. A Biographical Note on Konrad Hesse . . . . . . . . . . . . . . . . . . . . . . . . 278

2. “Practical Concordance”: Terminology and Methodology . . . . . . . . . . . . . 2792.1. Konrad Hesse’s Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2792.2. Constitutional Doctrine and the Notion of “Practical

Concordance” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2813. “Practical Concordance” and its Application by the German Federal

Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2843.1. Th e “Mephisto” Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2853.2. Th e “Mutzenbacher” Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2873.3. Th e “Crucifi x” Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2893.4. Th e “Headscarf” Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

4. “Practical Concordance” and Eff et Utile . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2945. In Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

CONFLICTING RIGHTS IN SOUTH AFRICAN CASE LAWCarole Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2972. Th e South African Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2993. Freedom of Expression and Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2994. Freedom of Expression and the Right to a Fair Trial . . . . . . . . . . . . . . . . . . 3055. Freedom of Expression and Intellectual Property Rights . . . . . . . . . . . . . . 3126. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

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CONFLICTS OF FUNDAMENTAL RIGHTS BEFORE THE CONSTITU-TIONAL COURT OF BELGIUM: THE CASE OF FREEDOM OF EXPRESSION

Nicolas Bonbled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3172. Confl icts of Fundamental Rights Before the Constitutional Court. . . . . . 318

2.1. Th e Jurisdiction of the Constitutional Court . . . . . . . . . . . . . . . . . . . 3182.2. A Typology of Confl icts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

2.2.1. Confl icts of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3212.2.2. Confl icts of Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

3. Confl icts Involving Freedom of Expression and other Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3253.1. Freedom of Expression v. Right to Health . . . . . . . . . . . . . . . . . . . . . . 3253.2. Freedom of Expression v. Rights of Children . . . . . . . . . . . . . . . . . . . 3263.3. Freedom of Expression v. Right of Property and Right to a

Healthy Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3283.4. Freedom of Expression v. Right not to Be Discriminated Against . 329

3.4.1. Holocaust Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3293.4.2. Racism, Xenophobia and “Manifest Hostility” towards

the European Convention on Human Rights . . . . . . . . . . . . 3313.4.3. Incitement to Discrimination, Hatred or Violence . . . . . . . 332

3.5. Freedom of Expression v. Right to Life and Right to Respect of Private and Family Life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334

4. Confl icts of Constitutional and International Guarantees of Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3364.1. Relations Between Constitutional and International Guarantees

of Freedom of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3374.2. An Integrative and Flexible Approach to Confl icts of Guarantees . 340

5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

CONFLICTS BETWEEN FUNDAMENTAL RIGHTS IN THE JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF THE CZECH REPUBLIC

David Kosař . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347

1. Background Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3471.1. Basic Features of the Czech Constitutional Court . . . . . . . . . . . . . . . 3481.2. Charter of Fundamental Rights and Basic Freedoms . . . . . . . . . . . . 351

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2. Confl icts Between Fundamental Rights: Th eoretical Foundations . . . . . . 3542.1. Introductory Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3552.2. Proportionality Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3572.3. Balancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3582.4. Test of “Minimizing Impingement upon a Fundamental Right” . . 3612.5. Summary of Part 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

3. Confl icts Between Fundamental Rights: Practical Application . . . . . . . . . 3633.1. Abstract and Concrete Constitutional Review Cases . . . . . . . . . . . . 3653.2. Individual Constitutional Complaint Cases . . . . . . . . . . . . . . . . . . . . 367

4. Diff erent (Proportionality) Test for Abstract/Concrete Judicial Review and for Individual Constitutional Complaints? . . . . . . . . . . . . . . . . . . . . . . 3714.1. Reversal Order of the Final Stages of the Proportionality Test . . . . 3724.2. Diff erent Content of the Balancing Stage . . . . . . . . . . . . . . . . . . . . . . 3734.3. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375

5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

CHAPTER 5. CONFLICTS RELATING TO LEGAL PLURALISM AND CULTURAL DIVERSITY

MUSLIM PERSONAL LAW (MPL) IN CANADA: A CASE STUDY CONSIDERING THE CONFLICT BETWEEN FREEDOM OF RELIGION AND MUSLIM WOMEN’S RIGHT TO EQUALITY

Waheeda Amien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3812. Application of MPL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3843. Secular Options for Marriage and Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . 388

3.1. Assimilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3883.2. Accommodation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

4. Shari’a Arbitration Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3965. Constitutional Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405

5.1. Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4055.2. Freedom of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4085.3. Resolving the Confl ict Between the Right to Equality and

Freedom of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4146. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

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FREEDOM OF RELIGION VERSUS SEX EQUALITY AND STATE NEUTRALITY: THE DIFFERENCE THE METHOD OF REVIEW CAN MAKE

Titia Loenen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4213. Similar Principles, Diff erent Approaches, Diff erent Results . . . . . . . . . . . . 4224. Burqas in the Classroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4265. Headscarves in the Courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4276. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

LEGAL PLURALISM AND ISLAM IN THE SCALES OF THE EUROPEAN COURT OF HUMAN RIGHTS: THE LIMITS OF CATEGORICAL BALANCING

Karen Meerschaut and Serge Gutwirth . . . . . . . . . . . . . . . . . . . . . . . . . 431

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4312. Legal Pluralism as a Confl ict of Human Rights . . . . . . . . . . . . . . . . . . . . . . 4333. Th e Refah-Case: Strasbourg’s Categorical Rejection of Legal Pluralism . 435

3.1. Th e Framework of Article 11 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . 4353.2. Legal Pluralism and Sharia as Contrary to Secularism, Equality

and Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4363.3. A Problematic Precedent for Legal Pluralism, Muslims and

Islam. Discussion of the Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . 4383.4. Secularism and Neutrality: No Clear Meaning . . . . . . . . . . . . . . . . . 4403.5. Strasbourg’s Two Strands of Case-Law Concerning the Freedom

of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4443.6. Legal Pluralism and Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . . 4473.7. An Essentialising Discourse on Islamic Law . . . . . . . . . . . . . . . . . . . 448

4. Malaysia: Islamic Law and the Malaysian Model of a Pluralistic-Uniform Legal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4514.1. Malaysia: A ‘Communitarian-Liberal Democracy’ . . . . . . . . . . . . . . 4514.2. Malaysia: Quasi-Secular or Quasi-Islamic? . . . . . . . . . . . . . . . . . . . . 4534.3. Legal Pluralism in Family Law and Islamic Family Law . . . . . . . . . 4564.4. Some Critical Points About the Legal Pluralism in Malaysia . . . . . 459

5. Conclusion: A Plea for a Nuanced and Context-Sensitive Form of Balancing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462

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CHAPTER 6. CONFLICTS RELATING TO ECONOMIC RIGHTS

ENVIRONMENT VERSUS FREE ENTERPRISE: A CONFLICT BETWEEN FUNDAMENTAL RIGHTS?

Ignacio García Vitoria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4692. Th e Right to a Healthy Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471

2.1. Th e Constitutionalization of Environmental Goals . . . . . . . . . . . . . 4712.2. Judicial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473

3. Free Enterprise as a Constitutional Right . . . . . . . . . . . . . . . . . . . . . . . . . . . 4754. A Necessary Delimitation of the Constitutional Substance of Economic

Liberties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4785. Th e Core–Periphery Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482

5.1. A Cultural Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4825.2. Th e Free Development of the Personality . . . . . . . . . . . . . . . . . . . . . . 4835.3. Measures that May Hinder Internal Trade . . . . . . . . . . . . . . . . . . . . . 4855.4. Barriers to Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4875.5. Measures Favouring Certain Firms . . . . . . . . . . . . . . . . . . . . . . . . . . . 489

6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490

THE LAW OF NUISANCE AND HUMAN RIGHTSFrancis McManus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493

1. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4932. Th e Law of Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4933. Historical Development of the Law of Nuisance . . . . . . . . . . . . . . . . . . . . . 4984. Th e Miasmatic Th eory of the Transmission of Disease and Nuisance . . . 5005. Nuisance and the Rule in Rylands v. Fletcher . . . . . . . . . . . . . . . . . . . . . . . . 5016. Elements of the Law of Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502

6.1. Unreasonable Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5026.2. What Factors Are Taken into Account? . . . . . . . . . . . . . . . . . . . . . . . . 503

7. Social Utility of the Defender’s Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5048. Motive of the Defender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5059. Locality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506

9.1. Locality and the Eff ect of Planning Permission . . . . . . . . . . . . . . . . . 50710. Duration and Intensity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50911. Time of Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50912. Sensitivity of Pursuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50913. Social Utility of Th ing Interfered with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

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14. Could the Nuisance Have Been Avoided by the Pursuer? . . . . . . . . . . . . . . 51115. Is the State of Aff airs Typical of Modern Life? . . . . . . . . . . . . . . . . . . . . . . . 51116. Need for an Emanation from the Defender’s Premises . . . . . . . . . . . . . . . . 51217. Did the Pursuer Live in Fear of the Adverse State of Aff airs? . . . . . . . . . . . 51418. Th e Law of Nuisance and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 51419. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

THE DISPOSSESSED AND THE DISTRESSED: CONFLICTS IN LAND-RELATED RIGHTS IN TRANSITIONS FROM UNLAWFUL TERRITORIAL REGIMES

Yaël Ronen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521

1. Introduction: Unlawful Territorial Regimes and Restitution of Property 5212. Th e Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525

2.1. Th e Baltic States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5252.2. East Timor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5292.3. Th e TRNC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533

3. Rights Related to Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5373.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5373.2. Rights Protecting Original Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . 5383.3. Rights Protecting Current Occupants . . . . . . . . . . . . . . . . . . . . . . . . . 541

3.3.1. Proprietary Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5413.3.2. Non-Proprietary Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

4. Balancing the Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5454.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5454.2. Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5464.3. Th e Link Between Residence and Land Rights . . . . . . . . . . . . . . . . . . 5474.4. Th e Relationship Between the Individual and the Unlawful

Territorial Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5535. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 556

CONFLICTING ECONOMIC AND SOCIAL RIGHTS: THE PROPORTIONALITY PLUS TEST

Wouter Vandenhole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559

1. First Type Confl icts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5632. Second Type Confl icts: Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565

2.1. Prioritisation of the Most Vulnerable Groups . . . . . . . . . . . . . . . . . . 565

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2.2. Core Content – Minimum Essential Level . . . . . . . . . . . . . . . . . . . . . 5672.3. Prioritization of Certain Rights? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571

3. Second Type Confl icts: Some Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5733.1. Th e Right to Housing Versus the Right to Property . . . . . . . . . . . . . 5733.2. Th e Right to Housing Versus the Right to Housing . . . . . . . . . . . . . . 5783.3. Th e Right to Health Versus other Social Rights . . . . . . . . . . . . . . . . . 5793.4. Right to Social Security Versus other Social Rights . . . . . . . . . . . . . . 583

4. Th ird Type Confl ict: Extraterritorial Obligations . . . . . . . . . . . . . . . . . . . . 5855. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586

CONFLICTS BETWEEN FUNDAMENTAL RIGHTS OR CONFLICTING FUNDAMENTAL RIGHTS VOCABULARIES? AN ANALYSIS OF DIVERGING USES OF ‘FUNDAMENTAL RIGHTS’ IN THE CONTEXT OF INTERNATIONAL AND EUROPEAN TRADE LAW

John Morijn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5912. Diverging Uses of ‘Fundamental Rights’ in the Context of

International and European Trade Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5942.1. Uses of the ‘Fundamental Rights Vocabulary’ in the General

Context of Economic Globalisation: Diff erent Challenges to Interdependence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595

2.2. International Trade Law and the Core Labour Standards Debate: Sequencing the Fundamental Rights List by Prioritising Procedural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599

2.3. European Trade Law and the Nature of Economic Free Movement Rules: Extending the Fundamental Rights List to Include Economic Market Freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . 603

3. Re-Approaching ‘Confl icts Between Fundamental Rights’ in the Context of International and European Trade Law: Identifying Conceptual and Methodological Promises and Challenges Beneath and Beyond Babel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611

4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616

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CHAPTER 7. ARE CONFLICTING RIGHTS REALLY AN ISSUE?

‘THE RIGHTS AND FREEDOMS OF OTHERS’: THE ECHR AND ITS PECULIAR CATEGORY OF CONFLICTS BETWEEN INDIVIDUAL FUNDAMENTAL RIGHTS

Jacco Bomhoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619

1. Introduction: Confl icts Between Fundamental Rights and the European Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619

2. ‘Th e Rights and Freedoms of Others’: Elements of an Internal Critique . 6232.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6232.2. Confusion About Relevant Rights in Specifi c Cases . . . . . . . . . . . . . 6242.3. Who May Be ‘Others’? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6252.4. Internal Critique and Structural Weaknesses . . . . . . . . . . . . . . . . . . 627

3. Th e Contingency of the Category of ‘Confl icts Between Fundamental Rights’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6273.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6273.2. Factual Contingency and the ‘True Confl ict’/Non-Confl ict

Boundary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6283.3. Institutional Contingency and the Comparative Perspective:

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6303.4. Institutional Contingency (1): Understandings of Rights . . . . . . . . . 6303.5. Institutional Contingency (2): Alternative Conceptualizations . . . 632

4. Convention Exceptionalism and the Missing Structural Perspective . . . . 6344.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6344.2. Convention Exceptionalism (1): No Division of Powers

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6354.3. Convention Exceptionalism (2): Visions of a ‘Democratic Society’ 637

5. Th e Missing Structural Perspective in Convention Case-Law . . . . . . . . . . 6385.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6385.2. Th e Missing Structural Perspective (1): Diffi cult Aims . . . . . . . . . . . 6395.3. Th e Missing Structural Perspective (2): Neglected Aims . . . . . . . . . 6435.4. Th e Missing Structural Perspective (3): Aims and Eff ects . . . . . . . . 644

6. Taking ‘Confl icts Between Fundamental Rights’ Seriously . . . . . . . . . . . . 6456.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6456.2. Illusions of Micro-Management, Juridifi cation and

De-Politicization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6466.3. Taking ‘Confl icts Between Fundamental Rights’ Seriously:

Suspicious and Suboptimal Conceptualizations . . . . . . . . . . . . . . . . 6476.4. (1): Majorities as ‘Others’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648

Table of Contents

xviii Intersentia

6.5. (2): Public Bodies and Offi cials as ‘Others’ . . . . . . . . . . . . . . . . . . . . . 6496.6. (3): Redistribution and Access to Public Resources . . . . . . . . . . . . . . 651

7. Conclusion: Th e Future of Confl icts Between Rights Before a Quasi-Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 652

FUNDAMENTAL RIGHTS AND OTHER INTERESTS: SHOULD IT REALLY MAKE A DIFFERENCE?

Janneke H. Gerards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6552. Proliferation of Fundamental Rights in the Case Law of the

ECtHR and the ECJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6562.1. Introduction: Diff erent Types of Rights and the Normative

Debate About Proliferation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6562.2. Th e European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . 659

2.2.1. Positive Obligations and the Proliferation of Convention Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659

2.2.2. Evolutive Interpretation and the Proliferation of Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663

2.2.3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6662.3. Th e European Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667

3. Judicial Assessment of Cases Concerning Fundamental Rights and other Individual Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6723.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6723.2. National Courts: Th e Example of the United Kingdom and

the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6743.2.1. Th e UK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6743.2.2. Th e Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678

3.3. Th e European Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6813.4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685

4. Th e Legal Distinction Between Fundamental Rights and Individual Interests – Is there an Alternative? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686

Intersentia 521

THE DISPOSSESSED AND THE DISTRESSED: CONFLICTS IN LAND-RELATED RIGHTS IN

TRANSITIONS FROM UNLAWFUL TERRITORIAL REGIMES

Yaël Ronen*

1. INTRODUCTION: UNLAWFUL TERRITORIAL REGIMES AND RESTITUTION OF PROPERTY

Who should have priority over a residential property, the owner or the occupant? Th is article examines this question in a specifi c context, namely restitution upon transition from territorial regimes that are unlawful under international law. Such regimes usually take one of two forms: entities eff ectively operating as States and claiming statehood on the basis of acts unlawful under international law; or claims of acquisition of territory, namely claims to sovereign status by existing and recognized States, over areas outside their recognized national territories. Th e cases examined here are the restoration of the independence of the Baltic States following the annexation by the Soviet Union (1991), East Timor’s inde-pendence following Indonesian annexation (2002) and the Turkish Republic of Northern Cyprus (TRNC)1, by reference to the draft Comprehensive Settlement of the Cyprus Problem, proposed (and rejected) in a referendum in April 2004.

General international law provides for an obligation of non-recognition of unlawful territorial claims. Th is is a specifi c expression of the principle ex injuria ius non oritur. In particular, the violations at the root of the unlawful territorial regimes described here, namely the unlawful use of force and the denial of the right to self-determination, both regarded as peremptory norms, are considered in the International Law Commission Draft Articles on Responsibility of States

* Dr. Yaël Ronen is assistant professor at the Ono Academic College, Israel. Email: [email protected].

1 For a concise discussion see J. Dugard, Recognition and the United Nations (Cambridge: Grotius Publications Limited, 1987).

Chapter 6. Confl icts Relating to Economic Rights

522 Intersentia

for Internationally Wrongful Acts.2 Article 41 of the Draft Articles provides that States are under an obligation not to recognize as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general inter-national law, nor render aid or assistance in maintaining that situation.3

Th e applicability of this principle to unlawful territorial regimes was pro-nounced in the Namibia Advisory Opinion in 19714, when the International Court of Justice was requested to advise the General Assembly on the legal conse-quences of South Africa’s continuing illegal presence in Namibia. In 2004 the Court reiterated its position on the obligation of non-recognition of an unlawful act in the Advisory Opinion on Consequences of the Construction of a Wall in the Occupied Palestinian Territories.5

Th e logical extension of the principle ex injuria ius non oritur is that when the unlawful regime is replaced by a lawful regime (the transition stage), reversion to the legal status quo ante should take place, to put facts in line with the law. Th is reversion is not, however, imperative or necessarily comprehensive. Th e extent of reversion refl ects a political stance. Th e constitutional foundations of the post-transition regimes in the Baltic States, East Timor and Cyprus have all incorpo-rated, at least in part, the premise that these territories had previously been sub-ject to an unlawful territorial regime6, and that reversion from this situation justifi ed and even mandated a reversion to the legal status quo ante, at least in some areas of law. In the case of the Baltic States, for example, emphasis lay on the continuity of the three States with their pre-1940 existence. In East Timor, empha-sis lay in the illegitimacy of the Indonesian administration. As far as Cyprus is concerned, the existing blueprint for resolution of the confl ict avoids a clear state-ment on the status of the entity but addresses practical issues directly. All three

2 Offi cial Records of the General Assembly, Fift y-sixth Session, International Law Commission Draft Articles on State Responsibility for Internationally Wrongful Acts Report of the Interna-tional Law Commission on the work of its Fift y-third session (2001), A/56/10, Commentary to art. 40.

3 See also A. Orakhelashvili, Peremptory Norms in International Law 189–203 (Oxford: Oxford University Press, 2006). Milano argues that the obligation covers all unlawful territorial situ-ations, including ones generated not through a violation of a peremptory norm. E. Milano, Unlawful Territorial Situations in International Law 141 (Leiden: Martinus Nijhoff Publishers, 2006). For pre-ILC Draft Articles law and practice see J. Dugard, supra note 1.

4 International Court of Justice (ICJ) 21 June 1971, Legal Consequences for States of the Contin-ued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] Rep 16.

5 ICJ 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. It is not entirely clear whether in the opinion the Court was addressing the territorial element of the regime or only other elements of it. One of the arguments against the construction of a wall was that it was creating an unlawful terri-torial situation, i.e. the forcible annexation of territories. However, there was no dispute over the lawfulness as such of Israel’s control of the West Bank.

6 Or, in the case of the Turkish Republic of Northern Cyprus (TRNC), the accommodation of the view that the previous regime was unlawful.

Th e Dispossessed and the Distressed

Intersentia 523

cases have that in common that the post-transition regimes opted for reversion in the area of ownership over land. In the context of real property, this means resti-tution. Th e principle of invalidity of purported changes to land titles created by an unlawful territorial regime7 was highlighted in a Lithuanian Supreme Court judgment given in 19948, which stated that

“Lawful State property could not and did not appear on the basis of such arbitrary acts of occupation government, as rights may not originate on [an] unlawful basis [under international law and in violation of the constitution and of human rights]. Th erefore, property taken from people in such a way, may be considered as property which is only factually managed by the State.”

Opposite the principle ex injuria ius non oritur operates the principle ex factis ius oritur. In practice unlawful situations extend for lengthy periods of time, some-times with little expectation that they will ever be reversed.9 Th ey create new fac-tual situations, which may have legal consequences because of their eff ectiveness, independently of the legitimacy and status of the regime or of the validity of its original acts (or lack of all of these). Th e longer a regime remains in place, the more likely it is that such factual situations would develop. Th eir legal conse-quences may then be unaff ected by the overall obligation of non-recognition.10

Th e ICJ provided some guidance on the balance between the two principles in the Namibia Advisory Opinion. Paragraph 125 of Namibia states:

“In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from interna-tional co-operation. In particular, while offi cial acts performed by the Government of South Africa on behalf of or concerning Namibia aft er the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the eff ects of which can be ignored only to the detriment of the inhabitants of the Territory.”

7 Although the Court used the term “Occupation”, the judgment does not concern the law of occupation but the principle ex injuria ius non oritur. Th at said, it refers interchangeably to the unlawfulness of the annexation under international law, to the unconstitutionality of Soviet legislation and to the violation of human rights, as grounds for this principle.

8 Th e Constitutional Court of the Republic of Lithuania Ruling on the compliance of the parts of item 3 of the Law of the Republic of Lithuania “On Appending and Amending the Law of the Republic of Lithuania “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” Case 12/93 (27 May 1994) http://www.litlex.lt/Litlex/Eng/Frames/Laws/Documents/138.HTM (last visit: 3 October 2007).

9 As the case of the Baltic States suggested in the past.10 J. Crawford, Th e Creation of State in International Law, 2nd ed. 166–67 (Oxford: Clarendon

Press, 2006); R.Y. Jennings, Nullity and Eff ectiveness in International Law, in: Cambridge Essays in International Law (Essays in Honour of Lord McNair) 75 (London: Stevens & Sons, 1972).


524 Intersentia

In other words, there may be exceptional grounds for giving legal eff ect to the acts of the unlawful territorial regime, where the wellbeing of the population so requires. Th is is the “Namibia exception”. Giving such eff ect may take the form of recognizing the legal validity of the act purportedly carried out by the unlawful regime, such as dispossession or granting of property. It may also take a more nuanced form, that of taking account of facts created by the unlawful regime, without giving them the purported legal eff ect. An example would be taking account of long-term occupancy of property on the basis of purported ownership, but not giving eff ect to the attached claim of ownership.

Th is article examines the relationship between rights in property preceding the unlawful regime which are protected by the principle ex injuria ius non oritur and rights based on the principle ex factis ius oritur.11

Th e special characteristic of this situation is that not only are the confl icting rights entrenched in international law, but the unlawfulness of the situation that brought them about is also grounded in international law. Accordingly, the proc-ess of balancing the rights must incorporate not only international human rights standards, but also other relevant international principles.

Since the balancing of rights is oft en linked to the historical and legal circum-stances of each case, the cases are briefl y reviewed in part 2. Part 3 identifi es the rights at issue and Part 4 addresses certain considerations in balancing the rights. Both latter parts illustrate the concrete application of rights and balancing factors in the three cases. Part 5 off ers some observations on the overall picture emerging from the preceding analysis.

11 For detailed analysis of the obligation of non-recognition and its consequences, as well as on the policies of post-transition regimes with regard to areas of law other than land rights see Y. Ronen, Legal Aspects of Transition from Unlawful regimes in International Law [PhD Th esis] (Cambridge: Cambridge University, 2005).


Intersentia 525

2. THE CASES

2.1. THE BALTIC STATES12

Th e signing of the Molotov-Ribbentrop Pact in August 193913 marked the begin-ning of the active Soviet campaign for taking over the Baltic States, by alleging that Soviet Government security was at risk from the Baltic States.14 In June 1940 it issued ultimatums to all three States, requiring full occupation and the recon-struction of their governments under Soviet supervision. All three States caved in.15 Th e puppet governments established under Soviet military guard arranged for elections, following which the elected assemblies in each State petitioned the Supreme Soviet of the USSR for admission to the Union. In August 1940 the Supreme Soviet passed legislation admitting the Baltic States into the USSR as Soviet Republics.16

12 For general references on the annexation of the Baltic States, the international reaction and the restoration of independence, see: A. Cassese, Self-Determination of Peoples, A Legal Reap-praisal 258–264 (Cambridge: Cambridge University Press, 1995); I. Feldmanis, Th e Occupa-tion of Latvia: Aspects of History and International Law (undated) http://www.amgovlv/en/latvia/history/occupation-aspects (last visit: 7 February 2007); W.J.H. Hough III, Th e Annexa-tion of the Baltic States and its Eff ect on the Development of Law Prohibiting Forcible Seizure of Territory, 6(2) New York Law School Journal of International & Comparative Law 303 (1985); A. Lieven, Th e Baltic Revolution, Estonia Latvia, Lithuania and the Path to Independence (New Haven: Yale University Press, 1993); L. Mälksoo, Illegal Annexation and State Continuity: Th e Case of the Incorporation of the Baltic States by the USSR (Leiden: Martinus Nijhoff Publishers, 2003); R. Müllerson, International Law, Human Rights and Politics: Developments in Eastern Europe and the CIS (London: Routledge, 1994); P. van Elsuwege, State Continuity and its Con-sequences: Th e Case of the Baltic States, 16 Leiden Journal of international Law 177 (2003); R.A. Vitas, Th e Recognition of Lithuania – Th e Completion of the Legal Circle, 24(3) Journal of Baltic Studies 247 (1993); R. Yakemtchouk, Les Républiques Baltes en Droit International Echec d’Une Annexion Opérée en Violation du Droit des Gens, 37 Annuaire français de droit international 259 (1991); D. Žalimas, Legal Issues on the Continuity of the Republic of Lithua-nia, 1 Baltic Yearbook of International Law 1 (2001); I. Ziemele, State Continuity and National-ity: Th e Baltic States and Russia (Leiden: Martinus Nijhoff Publishers, 2005). Th is article refers to the three States jointly out of convenience, because much of their relevant history is similar. However, specifi c diff erences between them are noted as necessary. Needless to say, each of the three States has independent policy and character.

13 Treaty of Nonaggression Between Germany and the Union of Soviet Socialist Republics (signed 23 August 1939) and Secret Supplementary Protocol (USSR-Germany) (signed 23 August 1939, amended 28 September 1939) reproduced in I. Shishcanu, V. Varatec (eds.), Th e Pact Molotov-Ribbentrop and its Consequences for Bessarabia: Documents 6 (Chiș ină u: Universitas, 1991).

14 S.E. Himmer, Th e Achievement of Independence in the Baltic States and its Justifi cations, 6 Emory International Law Review 253, 266 (1992).

15 A. Lieven, supra note 12, 79–80.16 On 3, 5 & 6 August 1940; B. Meissner, Th e Occupation of the Baltic States from a Present-Day

Perspective, in: T. Jundzis (ed.), Th e Baltic States at Historical Crossroads 480 (Riga: Academy of Sciences of Latvia, 1998).


526 Intersentia

International reaction to the annexation was neither uniform nor clear.17 Some States refused to recognize the annexation altogether because it was based on a threat to resort to force. Other States recognized the absorption of the Baltic States into the USSR only de facto.18 Some States recognized it de jure19, and some remained silent.20

Th e reversion of the Baltic States to independence formed part of and indeed precipitated the breakdown of the Soviet Union. In 1990 all three States began legislative processes towards renewing their independence.21 By September 1991 all three Baltic States were admitted to the UN.

An important element in the policy of the Baltic States is their common self-perception as having emerged from an unlawful regime of occupation to restore their pre-1940 independence.22 Th is position is generally accepted by other States

17 W.J.H. Hough, supra note 12. P.M. Eisemann and M. Koskenniemi (eds.), State Succession: Codifi cation Tested against the Facts 52 (Dordrecht: Martinus Nijhoff , 2000); L. Mälksoo, supra note 12, 122; R. Satkauskas, Th e Practice of France with Respect to the Baltic States, 1 Baltic Yearbook of International Law 111, 113 (2001).

18 W.J.H. Hough, supra note 12, 430–442. For the United Kingdom see Court of Appeal, A/S Tallinna Laevauhisus v. Tallinna Shipping Co (1946); Hansard HC Deb vol 433 (5th Series) col 5 (10 February 1947), cited in High Court, In re Pikelny (1955); Hansard HC Deb vol 776 (5th series) col 583 (22 January 1969); Hansard HC Deb vol 172 (6th series) col 172 (8 May 1990). For Canada see Exchequer Court, Estonian States Cargo and Passenger Line v. S S Elise and Messrs Laane and Balster (1949).

19 L. Mälksoo, supra note 12, 121.20 W.J.H. Hough, supra note 12, 437, 440–443.21 E.g. Latvian SSR, Supreme Council, Declaration on the Restoration of Independence of the

Republic of Latvia (4 May 1990); Act on the Re-establishment of the State of Lithuania (11 March 1990); Resolution on the National Independence of Estonia (20 August 1991) noted in L. Mälksoo, supra note 12, 47; Law on the Statehood of the Republic of Latvia (21 August 1991).

22 For Estonia see statement on crimes committed by the occupation regimes in Estonia during the Second World War, June 17–23, 2002 Estonian Review, available at: http://www.vm.ee/eng/kat_137/2484.html (last visit: 3 October 2007). Th e Persons Repressed by Occupying Powers Act, which defi nes such persons as those “unlawfully repressed by the powers that occupied Estonia between 16 June 1940 and 20 August 1991”. Th is includes both the USSR and Germany. June 16 is the day of the Baltic States’ annexation into the USSR. Persons Repressed by Occupy-ing Powers Act, passed 17 December 2003, RT [Riigi Teataja (State Gazette)] I 2003, 88, 589, available at http://www.legaltext.ee/en/andmebaas/ava.asp?m=022 (last visit: 3 October 2007); for Latvia see preamble to the Declaration on the Renewal of Independence (4 May 1990), ECtHR 9 October 2003, Slivenko v. Latvia, application no. 48321/99, para. 76. for Lithuania see the Act on the Re-establishment of the State.


Intersentia 527

and organizations23 although some controversy remains.24 Th is self-perception is expressed, inter alia, in the reversion to the pre-1940 situation in certain areas of law, including land rights, reviewed below.

From 1940, housing policies in the Baltic States were based on Soviet law, and were directed from Moscow. All land and houses over a certain size25 were nation-alized during 1940 and 1945, placing most housing in government hands. By 1991, the public rental sector constituted 56.5%, 61.7%, and 56.4% of the total housing stock in Estonia, Latvia, and Lithuania, respectively.26 Rents, determined by living space regardless of location and amenities, remained fi xed since 1945, resulting in continually growing government subsidies for maintaining rental housing. Given the few housing options that existed, households usually did not move, and the demand for housing services remained unsatisfi ed.27

Upon the restoration of independence, all three Baltic Governments adopted drastic policies to change the housing and property markets. Th ese included sweeping schemes for restitution and compensation of property seized aft er the annexation by the USSR.28 Restitution was a response to the invalidity of the

23 On the question whether by 1940 the prohibition on the threat or use of force had become part of customary international law see I. Brownlie, International Law and the Use of Force by States 364 (Oxford: Clarendon Press, 1963); H. Lauterpacht (ed.), Oppenheim’s International Law (6th ed.) 153 note 6 (London: Longmans, Green and Co, 1940); B. Meissner, Th e Right to Self-Deter-mination aft er Helsinki and its Signifi cance for the Baltic Nations, 13 Case Western Reserve Journal of International Law 375, 380–381 (1981); D. Žalimas, supra note 12; H. Wright, Th e Legality of the Annexation of Austria by Germany, 38 American Journal of International Law 621 (1944); J.W. Garner, Non-Recognition of Illegal Territorial Annexations and Claims to Sovereignty, 30 American Journal of International Law 679 (1936); R.Y. Jennings, Th e Acquisi-tion of Territory in International Law 52–67, 81 (Manchester: Manchester University Press, 1963); International Law Commissoin (ILC), Law of Treaties: Report by Mr Hersch Lauterpacht, Special Rapporteur, UN Doc. A/CN.4/63 (1953), Comment to Draft art. 12 [3]; International Military Tribunal September 1946 - 1st October (1946), Th e Trial of German Major War Crim-inals, 19.

24 Th e Russian Federation (as successor of the USSR) maintains that the Baltic States had been annexed lawfully and their independence is the result of secession. V. Socor, Kremlin Assails Baltic States, 2(93) Eurasia Daily Monitor (12 May 2005) http://jamestown.org/edm/byregion.php#rid_12 (last visit: 15 July 2005); P. van Elsuwege, supra note 12. It has also been suggested that the annexation violated the right of the Baltic peoples to self-determination, J. Salmon, Pays Baltes, 24 Revue Belge de Droit International 262, 266 (2001). See also B. Meissner, supra note 23, 381–385; L. Mälksoo, supra note 12, 91 on self-determination in the peace treaties with the USSR; Resolution 189 (1960) of the Council of Europe; but Cassese notes that the right to self-determination did not ripen until the 1960s. A. Cassese, supra note 12, 262.

25 220 m2 or 170 m2 in Estonia, 220 or 130m2 in Latvia and 150 m2 in Lithuania. World Bank, Estonia: Th e Transition to a Market Economy, a World Bank Country Study 218 (Washington: World Bank, 1993); World Bank, Latvia: Th e Transition to a Market Economy, a World Bank Country Study 155 (Washington: World Bank, 1993); World Bank, Lithuania: Th e Transition to a Market Economy, a World Bank Country Study 221 (Washington, 1993).

26 World Bank, Latvia… supra note 25, 152.27 World Bank, Estonia… supra note 25, 218.28 For a detailed description of Baltic legislation, see F.H. Foster, Restitution of Expropriated

Property: Post-Soviet Lessons for Cuba, 34 Columbia Journal of Transnational Law 621 (1996),


528 Intersentia

relevant Soviet legislation, as well as to injustice caused by dispossession by col-lectivization and measures of arbitrary repression.29

Estonia has the most comprehensive package of relevant legislation.30 Latvia initially approached restitution in a piecemeal fashion. Later it adopted compre-hensive legislation. Lithuania has the most limited restitution program.31

Latvian law provides extensive but detailed guarantees for tenants, including recognition of existing leases, rent control, and restrictions on eviction.32 In Esto-nia and Lithuania, limits have been placed on the rent that may be demanded from remaining tenants, so that they cannot be evicted arbitrarily by an exorbi-tant demand for rent.33 Where they may be evicted, the State is responsible for providing them with alternative accommodation.34 Tenants also have preferential rights in purchasing alternative accommodation.35 Th ese guarantees have proven to be inadequate. Th e rights of tenants are insuffi ciently defi ned36, and there has

N.J.Jr. Gutiérrez, Righting Old Wrongs: A Survey of Restitution Schemes for Possible applica-tion to a Democratic Cuba, 4 University of Miami Yearbook of International Law 111 (1995); W. Valletta, Th e Hesitant Privatization of Lithuanian Land, 18 Fordham International Law Jour-nal 198 (1994–1995); M. Blacksell and K.M. Born, Private Property Restitution: Th e Geograph-ical Consequences of Offi cial Government Policies in Central and Eastern Europe, 168 Th e Geographical Journal 178 (2002); A. Kuddo, Aspects of the Restitution of Property and Land in Estonia, in: R. Abrahams (ed.), Aft er Socialism, Land Reform and Social Change in Eastern Europe 157 (Providence, R.I.: Berghahn; 1996).

29 Republic of Estonia, Supreme Council, Resolution on Restoring the Continuity in the Right of Ownership (1990); Estonia, Principles of Ownership Reform Act (1991), particularly Article 3 and 6; Estonia, Land Reform Act (1991); Relevant legislation is mentioned in the reservation of Latvia made upon the ratifi cation of the Europan Convention of Human Rights (ECHR), 25 June 1997; Lithuania, Law on the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property, Article 1 (1991); Republic of Lithuania, Supreme Council, Resolution Regarding the Process of Enforcement and Application of the Law of the Republic of Lithuania on the Procedures and Conditions of the Restoration of the Ownership Rights of Existing Real Property, art. 2 (1991); Lithuania, Law on the Contracts and Property Unlawfully Possessed by the USSR Military Units and other Military Structures on the Terri-tory of the Republic of Lithuania, Article 1 (1991).

30 Principles of Ownership Reform Act, supra note 29.31 For a summary of Lithuanian land reform and restitution, see W. Valletta, supra note 28.32 Latvia, Building Denationalization Law, art. IV (1991), noted in F.H. Foster, supra note 28,

634–635.33 Th ese limits have been removed in Estonia in late 2004. A Supreme Court ruling on a presiden-

tial appeal confi rmed the constitutionality of this step. A. Gunter, Supreme Court abolishes rent limits, Th e Baltic Times (9 December 2004) http://www.baltictimes.com/art.php?art_id=11548 (last visit: 3 October 2007).

34 Lithuania, Law on the Procedure and Conditions of the Restoration of the Rights of Owner-ship on the Existing Real Property, Article 21.

35 Republic of Lithuania, Supreme Council, Regarding the Process of Enforcement and Application of the Law of the Republic of Lithuania on the Procedures and Conditions of the Restoration of the Ownership Rights of Existing Real Property, Article 3, 4 (1991).

36 World Bank, Latvia… supra note 25, 219–220.


Intersentia 529

been widespread eviction of tenants despite statutory provisions to the contrary.37 On the other hand, rules regarding the rights of original owners are also insuffi -ciently detailed, such as the extent of their responsibility for improvements to their property, or their right to compensation for depreciation in value.38 At the time of writing, the process of restitution continues. In Lithuania, for example, 88% of claims for restoration of ownership rights to living quarters have been satisfi ed by early 2004.39

2.2. EAST TIMOR40

Th e island of Timor is situated in the Indian Ocean, about 400 miles north-west of Darwin, Australia. Th e eastern part of the island (East Timor) was until the

37 F.H. Foster, supra note 28; Centre on Housing Rights and Evictions (COHRE), Housing Rights in Latvia 8 (Geneva, 2000).

38 F.H. Foster, supra note 28, 645–646.39 Land reform pace slowest in Vilnius region, Lithuanian News Agency ELTA (18 March 2004)

http://www.litlex.com/portal/ml/start.asp?Tema=43&str=9209 (last visit: 3 October 2007); More than Half of Owners of Once Nationalized Property Had their Ownership Rights Restored, Lithuanian News Agency ELTA (30 April 2004) http://www.litlex/porta/m/start.asp? Tema=43&str=9729 (last visit: 7 February 2007).

40 For general reference on the annexation of East Timor, the international reaction and the tran-sition to independence, see: M. Alkatiri, Th e Democratic Republic of East Timor (Statement in the Fourth Committee of the United Nations General Assembly), 7 Journal of Contemporary Asia 280 (1977); A. Cassese, supra note 12, 223–230; R.S. Clark, Obligations of Th ird States in the Face of Illegality—Ruminations Inspired by the Weeramantry Dissent in the Case Concerning East Timor, in: A. Anghie and G. Stugess (eds.), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (Th e Hague: Kluwer Law International, 1998); R.S. Clark, Th e “Decolonization” of East Timor and the United Nations Norms on Self Determination and Aggression (1995) updated and corrected version of R.S. Clark, Th e “Decolonization” of East Timor and the United Nations Norms on Self Determination and Aggression, 7 Yale Journal of World Public Order 2 (1980) (on fi le with the author); C. Drew, Th e East Timor Story: International Law on Trial, 12 European Journal of International Law 651 (2001); J. Dunn, East Timor: A People Betrayed (Milton, Queensland: Jacaranda, 1983); G.C. Gunn, East Timor and the United Nations, the Case for Intervention (Lawrenceville: Red Sea, 1997); L. Hannikainen, Th e Case of East Timor from the Perspective of jus cogens, in: Catholic Institute for International Relations and International Platform of Jurists for East Timor, International Law and the Question of East Timor 103 (Leiden: International Platform of Jurists for East Timor, 1995); S.D. Korman, Th e Right of Conquest: Th e Acquisition of Terri-tory by Force in International Law and Practice 281–292 (Oxford: Clarendon Press, 1996); H. Krieger (ed.), East Timor and the International Community: Basic Documents (Cambridge: Cambridge University Press, 1997); J. Fox J and D. Babo Soares (eds.), Out of the Ashes: Destruc-tion and Reconstruction of East Timor (Adelaide: Crawford House, 2003); I.G.M. Scobbie and C.J. Drew, Self-Determination Undetermined: Th e Case of East Timor, 9 Leiden Journal of International Law 185 (1996); H. Strohmeyer, Policing the Peace: Post-Confl ict Judicial System Reconstruction in East Timor, 24 University of New South Wales Law Journal 171 (2001); Con-fl ict, Security and Development Group, A Review of Peace Operations: A Case of Change 215–323 (International Policy Institute, King’s College London, 2003); International Center for Transitional Justice (ICTJ), Commission for Reception, Truth and Reconciliation in East


530 Intersentia

mid-1970s a colony of Portugal.41 In 1974 Portugal began a process of decoloniza-tion, which included the territory of East Timor, at the time with a population of some 600–700,000 people. Neighbouring Indonesia opposed independence for East Timor.42 In 1975, disagreement among factions within East Timor on the future of East Timor spurred a civil war. Indonesian forces intervened in Decem-ber 1975, and in July 1976 Indonesia annexed East Timor into Indonesia.43

Portugal claimed that Indonesia was occupying East Timor illegally44 because it violated the prohibition on the use of force and in the denial of the right to self-determination.45 Individual States accepted the Portuguese contention46, although few concrete measures were taken to sanction the delinquency.47 Th e collective international position was expressed in General Assembly Resolution 3485 of 12 December 1975, which called upon Indonesia:

“to desist from further violation of the territorial integrity of Portuguese Timor and to withdraw without delay its armed forces from the territory in order to enable the people of the Territory freely to exercise their right to self-determination and independence”.

Subsequent Resolutions were less explicit with regard to the unlawfulness of the Indonesian intervention.48

Timor (CAVR), Chega! (CAVR Final Report), 31 October 2005, available at http://www.ictj.org/en/news/features/846.html (last visit: 3 October 2007).

41 UN. General Assembly (GA) 15 December 1961, Resolution 1542.42 R.S. Clark, supra note 40, 19–43 (1980).43 Indonesia, Law 7/76 on the Legalization of the Integration of East Timor into the Unitary State

of the Republic of Indonesia and the Formation of the Province of East Timor (1976).44 E.g. UN Doc A/52/152 Note Verbale dated 19 May 1997 from the Permanent Mission of Portu-

gal to the UN addressed to the Secretary-General (20 May 1997) [1].45 Offi cial Records of the Security Council, 30th Year, 1864th Meeting, New York, Statement of

the representative of Portugal, S/PV.1864, [59] (15 December 1975); GA Res 31/53 (1 December 1976); A. Cassese, supra note 12, 226.

46 For the UK, see statement of the Minister of State, Foreign and Commonwealth Offi ce (Mr. John Battle) that “East Timor was invaded by Indonesia in 1975,” Hansard HC vol 334 (6th Series) col 764 (15 February 2000); An exception is Australia, which on 14 February 1979 announced it recognized the incorporation of East Timor into Indonesia de jure. It also claimed that other States have recognized the annexation, ICJ 1 June 1992, East Timor (Portu-gal v. Australia), Counter-memorial of the Government of Australia, [175]-[176]; ICJ 1 July 1993, East Timor (Portugal v. Australia), Rejoinder of the Government of Australia, [44]-[54]; Judge Skubiszewski opined that certain of the following States might have recognized the annexation de facto: Bangladesh, India, Iran, Iraq, Jordan, Malaysia, Morocco, Papua New Guinea, the Philippines and the US. ICJ 30 June 1995, Case Concerning East Timor (Portugal v. Australia), Dissenting Opinion of Judge Skubiszewski, Rep. 90, [26].

47 T.D. Grant, East Timor, the UN System, and Enforcing Non-Recognition in International Law, 33 Vanderbilt Journal of Transnational Law 273, 298–99 (2000).

48 UN Security Council, Resolution 384 (22 December 1975) and UN Security Council, Resolu-tion 389 (22 April 1976); GA, Resolutions 31/53 (1 December 1976), 32/34 (28 November 1977), 33/39 (13 December 1978), 34/40 (21 November 1979), 35/27 (11 November 1980), 36/50 (24 November 1981), and 37/30 (22 November 1982) In 1983 the Commission on Human Rights


Intersentia 531

In 1999 Indonesia agreed to hold a referendum in East Timor to determine its political future49, with a choice between independence and integration with autonomy within Indonesia. In August 1999, over 78% of the half million voters voted in favour of independence.50 Once the results of the vote were released, pro-integration militia groups went on a violent rampage, killing more than a thou-sand people and demolishing most of the country’s infrastructure. In October 1999 the UN Security Council established the United Nations Transitional Administration in East Timor (UNTAET), to administer East Timor before handing it over to an elected Timorese government. On 20 May 2002 East Timor became independent.

Independent East Timor took the position that it had been occupied by Indo-nesia in violation of the prohibition on the use of force and of the right of the people of East Timor to self-determination.51 Th e overall implications of this position on the applicable law in East Timor are yet to be settled.52 In the area of land law there had already been a reversion to the status quo ante, discussed below.

It is estimated that some 35,000 land titles were issued under the Indonesian administration53, as many as a third of them through corrupt processes54, some of which involved dispossession of the East Timorese. First, Indonesian law did

adopted a resolution on the right of the East Timorese to self-determination which reaffi rmed the inalienable right of the people of East Timor to self-determination and independence Commission of Human Rights Res 1983/8 noted in UN Yearbook 833–834 (Lake Success, N.Y.: Dept. of Public Information, United Nations 1983). For the position of the ICJ see East Timor, supra note 46.

49 Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor A/53/951 S/1999/513 Annex I 2062 United Nations Treaty Series (UNTS) 8; Agree-ment Regarding the Modalities for the Popular Consultation of the East Timorese through a Direct Ballot (Portugal-Indonesia) 2062 UNTS 40.

50 UN Secretary-General Press Release SG/SM/7119 SC/6722 of 3 September 1999.51 Th e preamble to the East Timorese Constitution; Indonesia has attempted to justify its use of

force against East Timor on four grounds: self defence, invitation by the East Timorese, the future stability of Indonesia and Southeast Asia, and humanitarian purposes. However, none of these claims was sustainable as a matter of fact or of law. R.S. Clark, supra note 40, 37–43 (1980).

52 East Timor, Court of Appeal Judgment, Criminal Off ence No. 3/2002 in the name of the appel-lant Armando dos Santos v. the Prosecutor General, Dili, 15 July 2003, available in English at http://www.jsmp.minihub.org/judgmentspdf/courtofappeal/Ct_of_App-os_Santos_Eng-lish22703.pdf (last visit: 7 February 2007). Although the majority’s ruling as to the validity of Indonesian legislation was rejected by lower courts and later superseded by legislation, its statement on the fact of unlawful occupation was not contested; Preamble of Law on the Juridical regime Real Estate Part 1 – Ownership over Real Estate, No. 1/2003, adopted on 10 March, 2003. Th e original version in Portuguese (“A ocupação de Timor-Leste, entre 1975 e 1999, foi um acto ilegal, conforme reconhecido a nível internacional”) is available at http://www.gov.east-timor.org/L1 bens.htm (last visit: 7 February 2007).

53 D. Fitzpatrick, Land Claims in East Timor 44 (Australia: Southwood Press, 2002).54 D. Fitzpatrick, Land Issues in a Newly Independent East Timor, 21 Research paper (Depart-

ment of the Parliamentary Library Australia 2001) 5, 10 (2001).


532 Intersentia

not generally recognize Portuguese titles and required their conversion for their existence to continue.55 Th e eff ect of the relevant legislation is unclear, but in any event, only 142 Portuguese titles were ever formally converted to Indonesian titles.56 Customary rights of property and use were also largely disregarded under Indonesian law.57 As a result, many East Timorese lost their property to Indone-sians who had come in aft er 1975 and held State-provided documentation of own-ership.58

Another signifi cant measure of dispossession was military taking of aban-doned property.59 Th is process was assisted by mass fl ight and abandonment of properties by over half of the population by the late 1970s.60

Dispossession was also achieved through forced resettlement of population living in the vicinity of combat areas in more easily controlled areas. Estimates for the numbers of people resettled vary from 150,000 to 300,000.61 Th is relocation was eff ectively accompanied by land dispossession.62

Finally, dispossession was made possible through Ministerial Decrees of 1975 and 1976, allowing the taking of land for public-purpose development with little

55 L.S. Meitzner Yoder, Custom, Codifi cation, Collaboration: Integrating the legacies of Land and Forest Authorities in Oecusse Enclave, East Timor [PhD thesis] 302–304 (Yale: Yale University, 2005). Government Regulation 18 of 1991 on Provisions on the Conversion of Land Rights in the Province of East Timor in accordance with the Basic Agrarian Law of 1960. Th e Regulation provided for the conversion of Portuguese land rights into rights under Indonesian law.

56 D. Fitzpatrick, supra note 53, 158. On the diffi culties in complying with the requirements for conversion see W.L. Wright, A Note on Land Rights in East Timor [Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor] and the Purported Suspension of art. 5 by Government Regulation No 34 of 1992, East Timor Law Journal Article No 01 (2004) http://wwweastimorlawjournalorg (2004 No 1) (last visit: 7 February 2007).

57 D. Fitzpatrick, supra note 53, 126.58 D. Babo Soares, Challenges for the future, in: J. Fox J and D. Babo Soares (eds.), Out of the

Ashes: Destruction and Reconstruction of East Timor 269–270 (Adelaide: Crawford House, 2003).

59 Indonesia, SKEP 40 Decree, issued in 1979 by the Indonesian military commander in East Timor. Military control under the Decree was intended to be temporary but was never actually terminated. D. Fitzpatrick, supra note 53, 116–119.

60 CAVR Report estimates that around 300,000 persons moved into Indonesian-controlled cent-ers in 1978 and 1979 alone. CAVR Final Report, supra note 40, Ch 7 [64].

61 J.G. Taylor, East Timor: Forced Resettlement, 5 Forced Migration Review 31 (1999); Amnesty International, East Timor Violations of Human Rights, Extrajudicial Executions, “Disappear-ances”, Torture and Political Imprisonment, 1975–1984 68 (London: Amnesty International Publications, 1985). Th ese fi gures derive from reports relying on Indonesian offi cials. Th e dis-crepancies may be due to diff erent interpretations of the term “resettlement village” in docu-mentation. Th e inability to access East Timor, in order to verify testimonies, limits the reliabil-ity of data in Amnesty International’s reports. However, this concerns the reliability of specifi c numbers rather than of the basic allegation of a practice of resettlement. Assistance from Catholic Relief Services alone extended to some 240,000 persons in the resettlement villages. CAVR Final Report, supra note 40, Ch 7 [249].

62 D. Fitzpatrick, supra note 53, 135–136.


Intersentia 533

compensation or judicial recourse, both oft en disregarded altogether.63 In the absence of criteria for “public purpose”, in some cases this term was only a cover for corrupt transfer of title to associates of the regime.

Th e preamble of Law 1/2003 on the Juridical Regime of Real Estate – Part 1 (“the Real Estate Law”) states that:

“[n]umerous real estate, that are now the property of the State of East Timor, have been illegitimately occupied or owned. Similarly, several real estate belonging to ordinary citizens, namely national citizens living abroad and foreign citizens, have also been illegally occupied or appropriated…”.

Th is declaration on the unlawfulness of Indonesian measure with regard to land is followed by specifi c provisions on reversion of State land to the State. Section 16(1) of the Law provides that:

“Any acts of appropriation relating to the real estate owned by the Portuguese State as at the 7 December 1975 that may have taken place under whatever form between the 7 December 1975 and the 19 May 2002, namely those undertaken by the Indonesian Administration, shall be considered non-existent.”

Section 16(2) provides that real estate acquired or built by public entities within the period referred to in section 16(1) above shall revert to the State. Th e law does not regulate the status of privately-owned land.64

Article 6 of the Real Estate Law, concerning “illegal occupation”, defi nes it as the act of using someone else’s real estate or acting as the possessor of such a real estate against the owner’s will. Th e law fi nes illegal occupants and provides for administrative eviction of persons illegally occupying State-owned land.65

2.3. THE TRNC66

Th e population of the island of Cyprus, all together some 780,000 people, com-prises approximately 82% Greek Cypriots of Christian faith and 18% Turkish

63 Although the 1976 Decree was repealed in 1993, confi scation by the State and transfer to devel-opers continued until 1999. D. Fitzpatrick, supra note 53, 124–125.

64 Beyond provisions on the procedure for submitting claims to private ownership of land other-wise regarded as State-owned, East Timor, Law 1/2003 on the Juridical Regime of Real Estate – Part 1 (“Real Estate Law”) art. 12, 13.

65 East Timor, Real Estate Law, art. 7.66 For general references on the establishment of the TRNC, on the international reaction and on

proposals for solutions, see: S.K.N. Blay, Self-Determination in Cyprus: Th e New Dimensions of an Old Confl ict, 10 Australian Yearbook of International Law 67 (1981–1983); R.R. Denktaş, Th e Crux of the Cyprus Problem, IV Perceptions 5 (1999); C.H. Dodd, Th e Cyprus Imbroglio 78–82 (Huntington, N.Y.: Eothen Press, 1998); J. Dugard, supra note 1, 108–111; Z.M. Necatigil


534 Intersentia

Cypriots of Muslim faith. In 1960 Cyprus gained independence from British rule. Division between the two populations and civil disturbances erupted almost immediately.67 Th ey peaked in July 1974, following a coup d’état by Greek Cypri-ots favouring a union of Cyprus with Greece. In response to the coup, Turkey invaded Cyprus, claiming that it was exercising its rights under the 1960 Treaty of Guarantee to protect the Turkish-Cypriot population. During the military con-fl ict, which continued until early 1975, 183,000 Greek Cypriots reportedly fl ed their homes in the northern part of the island and moved to the south, while over 40,000 Turkish Cypriots fl ed from their homes in the southern part of the island to the north.68

Th e Turkish-held territory set up its own administration under the name Turkish Federated State of Cyprus (TFSC). In November 1983 the Turkish Cyp-riot community declared the independence of the Turkish Republic of Northern Cyprus (TRNC).69

Th e TRNC was immediately recognized as an independent State by Turkey. Th e Security Council declared the declaration of independence legally invalid and called upon all States not to recognise any Cypriot State other than the Republic of Cyprus.70 Th is call has been adhered to by all States71 except Turkey. Th e refusal to recognize the TRNC is based on the use by Turkey of force in 1974.72

[published as Nedjatigil], Th e Cyprus Confl ict - A Lawyer’s View (2nd ed) (Lefk oşa: A-Z Publica-tions, 1982); Z.M. Necatigil [published as Nejatigil], Our Republic in Perspective (Nicosia: Tezel Off set); Z.M. Necatigil, Th e Cyprus Question and the Turkish Position in International Law, 2nd ed (Oxford: Oxford University Press, 1993); Z.M. Necatigil, Th e Legal System of the Turkish Republic of Northern Cyprus, 4 Journal of Cyprus Studies 213 (1998); C. Palley, An Interna-tional Relations Debacle Th e UN Secretary-General’s Mission of Good Offi ces in Cyprus 1999–2004 (Oxford: Hart Publishing, 2005); O.P. Richmond, Mediating in Cyprus, the Cypriot Communities and the United Nations (London: Frank Cass, 1998).

67 UN Security Council Resolution 186 (1964) of 4 March 1964.68 S.K.N. Blay, supra note 66, 78.69 Declaration of Independence by Turkish Cypriot Parliament on 15 November 1983; UN Secu-

rity Council, UN Doc A/38/586 S/16148 (16 November 1983).70 UN Security Council, Resolution 541 (18 November 1983), UN Security Council, Resolution

550 (11 May 1984).71 European Community (EC) Bulletin 11–1983 point 2.4.1, 16 November 1983; Press communi-

qué of the Commonwealth Heads of Government, 29 November 1983, cited in ECtHR Grand Chamber 18 December 1996, Loizidou v. Turkey (Merits), Reports of Judgments & Decisions 1996-VI 2216 [23].

72 Th is was not expressly mentioned in the resolutions, which give the impression that the unlaw-fulness with which the Security Council was concerned was the violation of the 1960 Treaties (A point disputed by the TRNC. eg Z.M. Necatigil, Th e Cyprus Question…, supra note 66, 324), and possibly the secession. It is submitted that the former is not opposable to States not parties to the Treaties, and the latter not an unlawful act (J. Crawford, State Practice and International Law in Relation to Succession, 69 British Yearbook of International Law 85, 86–87 (1998). Nonetheless, the calls “upon all States to respect the sovereignty, independence, territorial integ-rity and non-alignment of the Republic of Cyprus” allude to the prohibition on the use of force and the rights of Cyprus to self-determination, e.g. Council of Europe Parliamentary Assem-


Intersentia 535

Despite repeated attempts to resolve the confl ict73, at the time of writing the situation with the TRNC persists. In April 2004 the UN Secretary-General pre-sented the populations of both parts of the island with a draft Comprehensive Settlement of the Cyprus Problem (the “Annan Plan”), proposing a federated United Cyprus Republic.74 In simultaneously held referenda on 24 April 2004, a majority of TRNC voters approved the Annan Plan. In the south, the majority of voters rejected it. Without acceptance on both sides, the Plan did not materialize. Nonetheless, it is valuable as an indication of what the international commu-nity75, represented by the UN Secretary-General, considers an acceptable com-promise. At the time of writing, no other plan has been tabled, and the analysis in this work is based on the Annan Plan.

Th e Annan Plan does not spell out the status of the TRNC. Th is is an obvious consequence of the attempt to satisfy both Greek and Turkish Cypriots. An obser-vation appended to Main Article 12 indicates that:

“Th is… like the whole draft Article [on the validity of past acts], is without prejudice to the question of the legitimacy or status of the relevant authorities under international law.”

Some areas, including property rights, are regulated by provisions that proceed from the return to the status quo ante, as discussed below.

bly Recommendation 974 (1983) on the Situation in Cyprus (23 November 1983) [12(c)]. J. Dugard, supra note 1, 110. Th is aspect of the aff air is entirely absent from the opinion of Sir (then Mr) Eli Lauterpacht CBE QC “Turkish Republic of Northern Cyprus, the Status of the Two Communities in Cyprus” UN Doc A/44/968 S/21463 Letter from the Permanent Representative of Turkey to the United Nations Addressed to the Secretary-General (9 August 1990). Th e TNRC argues that Turkey’s recourse to force was within its rights—and obligation - under the 1960 Treaty of Guarantee, to protect the Turkish-Cypriot population, Z.M. Necatigil, Th e Cyprus Question…, supra note 66, 324. Yet even if the Treaty of Guarantee permits the use of force, it could not override the customary prohibition on the use of force embodied in the UN Charter. For a discussion of this debate, see C.H. Dodd, supra note 66, 80; Z.M. Necatigil, Th e Cyprus Confl ict…, supra note 66, ch 4.

73 O.P. Richmond, supra note 66; Z.M. Necatigil, Th e Cyprus Confl ict…, supra note 66, 147–164; C. Palley, supra note 66, 15–16; e.g. UN Doc S/24472 Report of the Secretary-General on his Mission of Good Offi ces in Cyprus, containing Proximity Talks Leading to Set of Ideas on an Overall Framework Agreement on Cyprus (21 August 1992).

74 Th e discussion in this work is based on the fi nal version of the Annan Plan, dated 31 March 2004 (Comprehensive Settlement of the Cyprus Problem as fi nalised on 31 March 2004 http://www.hri.org/docs/annan/ (last visit: 3 October 2007)). It is in the present tense even though the Plan is no longer on the table. Th e decision to do so was purely one of linguistic simplicity. It is partly justifi ed by the fact that as a document, the Plan still exists. It is not suggested that the Plan in any way binds either party to the dispute or the UN Secretary-General.

75 European Parlement Resolution 21 April 2004, Prospects for the Unifi cation of Cyprus.


536 Intersentia

Almost half the population of Cyprus lost their properties as a result of inter-communal strife or military action since 1963.76 Since 1974 Greek-Cypriot own-ers of property in northern Cyprus have been denied access to, control, use and enjoyment of their lands.77 Turkish-Cypriot owned properties in the south78 are held by the Government of the Republic of Cyprus in trust (by the Guardian for Turkish-Cypriot Property) and there has been no attempt at transfer of owner-ship. Consequently, instances of confl icting interests in specifi c properties are likely to be more common in the area of the TRNC.79

Th e TRNC and its precursor the TFSC enacted various laws changing the property regime in the territory under their control. First they allowed the sur-render by Turkish Cypriots refugees from the south of their property to the authorities in the north in exchange for Greek-Cypriot owned land in the north-ern part of the island.80 Th ey also extended the possibility of land redistribution to Turkish Cypriots, Turkish settlers and Turkish soldiers who had served in Cyprus.81 Th e precise legal and practical consequences of this legislation remain unclear.82

Under Article 159 of the TRNC’s 1985 Constitution, property abandoned in 1975 became property of the TRNC.83 Th e Constitution allows for compensation for such land, but the implementing law was only enacted in June 2003.84 In a series of judgments, the European Court of Human Rights (ECtHR) ruled that Article 159 could not be recognized as valid for the purposes of the European Con-vention of Human Rights (ECHR).85 Accordingly, the denial of access of Greek-Cypriots to their property and the exercise of control over it constitute an unlawful

76 S/2003/398 Report of the Secretary-General on his Mission of Good Offi ces in Cyprus (1 April 2003) [107].

77 ECtHR Grand Chamber 10 May 2001, Cyprus v. Turkey (Th e Fourth Interstate Case), Reports of Judgments & Decisions 2001-IV 1 [32].

78 About 10% of privately-owned properties in the Government-controlled area. C. Palley, supra note 66, 175.

79 Ibid.80 TRNC, Housing, Allocation of Land and Property of Equal Value Law (1977).81 TRNC, Settlement, Land Allocation and Equivalent Property Law (1982); EComHR 28 June

1996, Cyprus v. Turkey, 86-A DR 104, 119.82 Statement made by Mr. Zaim Necatigil (Attorney-General of the TRNC) in appendix to UN

Doc A/37/793 S/15620 Letter from the Permanent Representative of Turkey to the UN addressed to the Secretary-General (23 February 1983) 5; UN Doc S/24472 [28]; Statement of Mr Denktaş to the UN Secretary-General in 1987 according to which no actual transfer of ownership had taken place, Cyprus v. Turkey, supra note 81, 120–121.

83 TRNC Constitution, art. 159(1).84 In June 2003 the TRNC passed the Law as to Compensation for Immovable Properties Located

within the Boundaries of the Turkish Republic of Northern Cyprus, which are within the Scope of art. 159, para. 4 of the Constitution (“2003 Compensation Law”).

85 European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force September 1953) 213 UNTS 222 (ECHR); Loizidou v. Turkey (Merits), supra note 71, [42–44].


Intersentia 537

interference with the still-existing right to property.86 Th e absence of compensa-tion to the displaced persons for the interferences which they have suff ered and continue to suff er in respect of their property rights through the purported expro-priation is a further violation of the right to property.87 By 2006 there were thou-sands of cases pending before the ECtHR.88 Some of them have already been declared admissible but have not been yet considered on the merits.89

Under the Annan Plan, acts of the TRNC are generally regarded as having valid consequences. However, the Plan excludes from the general validation of previous acts matters of property90 surrendered involuntarily since 1963 due to intercommunal strife, military action or the unresolved division of the island, and for which compensation due to compulsory acquisition has been accepted.91 Dispossessed owners are thus entitled to restitution unless they prefer compensa-tion92, subject to various restrictions.

Th e most important category of limitations on the possibility of restitution is that relating to the balance between current individual occupants and dispos-sessed owners. A number of provisions give priority to current occupants over dispossessed owners; the latter would have to be satisfi ed with compensation only.

3. RIGHTS RELATED TO LAND

3.1. INTRODUCTION

Th e importance of land-related rights can hardly be overstated. It is a recognized basic need of every person to have secure shelter. Land also provides subsistence through agricultural cultivation. Stability of land-related rights is particularly necessary when long-term investments of resources are at stake, such as in agri-culture. Th is is why the regulation of land-related rights is so critical in transi-tional processes.

86 Loizidou v. Turkey (Merits), supra note 71, [64]; Cyprus v. Turkey, supra note 77; ECtHR 31 October, Michaelidou Developments LTD and Michael Tymvios v. Turkey, application 16163/90, unpublished [31]. But see dissenting opinion of Judge Gölcüklü.

87 Cyprus v. Turkey, supra note 77, [32], [187].88 UN Doc S/2003/398 23 [108].89 ECtHR 14 March 2005, Xenides-Arestis v. Turkey, application No. 46347/99, unpublished

44–45.90 Annan Plan, supra note 77, Foundation Agreement Main, art. 12(1), observation.91 Id., Annex VII, Attachment 1 item 1.92 Id., Main, art. 10 and Annex VII.


538 Intersentia

Yet the question is: whose rights? On the one hand are original owners, invol-untarily dispossessed of their property. On the other hand are current occupants93, who have been relying, for periods of time that may be very lengthy, on rights purportedly granted by the unlawful territorial regime. Th e rights of the former are beyond dispute. Th e claims of the latter, to the extent that they are based on acts of the unlawful territorial regime, must be rejected. Yet it may be that the interests of new occupants have evolved to such an extent that they should be given eff ect under the Namibia exception, either in the shape in which the unlaw-ful territorial regime purported to regulate them, or because the purported grant has generated a factual situation which in turn constitutes the basis for rights that are legally independent of the acts of the unlawful regime.

Th e balance between dispossessed owners and current occupants must be car-ried out in accordance with internationally protected human rights and stand-ards. Th is section identifi es the rights and standards that govern this process.

3.2. RIGHTS PROTECTING ORIGINAL OWNERS

Original owners are protected primarily through the right to property94, guaran-teed in Article 17 of the Universal Declaration of Human Rights95 (UDHR)96 as well as in Article 1 of ECHR Protocol 1.97 Estonia, Latvia and Lithuania are par-

93 Th e term “current occupants” indicates persons in actual occupancy of the property at the time of transition. It is neutral with regard to the legal relationship between these persons and the property, a matter addressed below.

94 Generally see C. Krause, Th e Right to Property, in: A. Eide et. al. (eds.), Economic, Social and Cultural Rights (2nd ed) 191–209 (Dordrecht: Martinus Nijhoff Publishers, 2001).

95 UN General Assembly, Universal Declaration of Human Rights (UDHR), Res. 217 A (III), adopted 10 December 1948.

96 It is also guaranteed in art. 5(d)(v.) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (opened for signature 7 March 1966, entered into force 4 January 1969) 660 UNTS 195, in force for Estonia since 20 November 1991, for Latvia since 14 May 1992, for Lithuania since 9 January 1999, for East Timor since 16 May 2003, Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 110 in the multilateral treaty list binding upon the UCR; and art. 15(2) and 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (opened for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, in force for Estonia since 20 November 1991, for Latvia since 14 May 1992, for Lithuania since 5 November 1994, for East Timor since 16 May 2003, Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 113 in the multilateral treaty list binding upon the UCR.

97 1952 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 20 March 1952, entered into force 18 May 1954) 213 UNTS 262 (ECHR Protocol 1), in force for Estonia from 16 April 1996, for Latvia from 27 June 1997, for Lithuania from 24 May 1996. It is also guaranteed in UDHR, 1982 African Charter on Human and Peoples’ Rights (opened for signature 27 June 1981, entered into force 21 October 1986) (1982) 21 International Legal Materials (IL.M) 58 (Banjul Charter), art. 14.


Intersentia 539

ties to the Protocol, as would be the UCR under the Annan Plan.98 However, Estonia and Latvia have entered a reservation, according to which Article 1 shall not apply to the laws on property reform which regulate the restoration or com-pensation to the former owners or their legal heirs of property nationalised, con-fi scated, requisitioned, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation. Th e right to property is also protected in the constitutions of all three Baltic States, East Timor and in the draft Constitution of the UCR.99

Th e right to property comprises the rights to physical possession, peaceful enjoyment, transfer and disposal of the property. Th ere is wide disagreement among States as to the content and scope of the right. Th is weighs against the conclusion that this is a principle of customary law.100 Under ECHR jurispru-dence, the right to property is not absolute, but may be limited, particularly when public or general interest so require. Limitations may take the form of expropria-tion, formal or de facto, or legislative controls over the use of property.101 Such limitations must be carried out in accordance with the principle of lawfulness and proportionality, so that a fair balance is struck between the general interests of the community and the protection of the right to property.102

Under ECHR jurisprudence, States may interfere with the right to property through legislation to control the use of property in the fi eld of housing. In a number of judgments regarding limitations on owners and landlords’ rights for the benefi t of tenants, with a view to securing the social protection of tenants in a poor fi nancial situation, the ECtHR has ruled that legislatures enjoy a wide mar-gin of appreciation both with regard to the existence of a problem of public con-cern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures.103 Th is margin of appreciation was specifi -cally acknowledged with regard to economies in transition following the collapse of the communist regime.104

An example of such a limitation is in the Annan Plan. Dispossessed owners are entitled to restitution of only a dwelling they have built or in which they lived for at least ten years, and up to one donum of adjacent land or a third of the area

98 Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 204 in the multilateral treaty list binding upon the UCR.

99 Constitution of East Timor, art. 54(1); Constitution of Estonia, art. 32; Constitution of Latvia, art. 105; Constitution of Lithuania, art. 23; Draft Constitution of the United Cyprus Republic, art. 11 (this assumes that art. 11(1) enshrines not only the ECHR but also its protocols).

100 United States, Restatement of the Law: Th ird Restatement of US Foreign Relations Law (vol. 2) 165 [702] (1987).

101 ECtHR 19 December 1989, Mellacher and Others v. Austria, Series A no. 169 [42].102 Id., [48].103 Id., [45], ECtHR [1995], Spadea and Scalabriono v. Italy [1995] ECHR 35 [29].104 ECtHR Grand Chamber 19 June 2006, Hutten-Czapska v. Poland, ECHR 628 [178], [223];

ECtHR 21 September 2004, Schirmer v. Poland, 431 [38].


540 Intersentia

of their total property ownership, and to receive full and eff ective compensation for the remaining two-thirds.105 Th ese are absolute limitations on restitution, regardless of whether there exist competing interests in the land in question.106

Where an original owner had previously been deprived of property, the gen-eral right to property does not obligate a State to guarantee restitution.107 Restitu-tion is dependent on the political choice of the State to return to the status quo ante.

Another right which is oft en invoked in support of original owners is the right to respect for privacy of the home, guaranteed in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and in Article 8 of the ECHR.108 Th is right is guaranteed by the constitutions of all three Baltic States109, East Timor110 and the draft Constitution of the UCR.111 It has been specifi cally upheld as relevant to the right of Greek Cypriots to their property in the TRNC.112 Th e scope of this protection is narrower than that of the right to property, because it only covers property intended for use as a residence. However, the right is inde-pendent of the actual occupancy of the residence.

A third right applicable to original owners’ claims is the right to return, guar-anteed in Article 13(2) of UDHR and Article 12(4) of ICCPR.113 Th is right is

105 Annan Plan, supra note 74, Foundation Agreement Annex VII, art. 16.106 Another type of priority given to compensation over restitution regardless of competing inter-

ests (at least directly identifi able ones) is in the case of a dispossessed owner opting for com-pensation. Th is is not a problematic situation given that it is based on a voluntary choice. It is questionable whether these limitations are lawful under the ECHR. However, Annex IX Attachment 2 of the Annan Plan includes a letter from the parties to the Secretary-General of the Council of Europe requesting the ECtHR to strike out any proceedings currently before it concerning aff ected property in Cyprus, in order to allow the domestic mechanism established to solve these cases to proceed.

107 ECtHR, 6 March 2003, Jasiuniene v. Lithuania, 122 [41].108 1966 International Covenant on Civil and Political Rights (opened for signature 19 December

1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), in force for Estonia since 21 January 1992, for Latvia since 14 August 1992, for Lithuania since 20 February 1992, for East Timor since 18 December 2003, Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 112 in the multilateral treaty list binding upon the UCR; ECHR art. 8, in force for Estonia since 16 April 1996, for Latvia since 27 June 1997, for Lithuania since 20 June 1995, Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 204 in the multilateral treaty list binding upon the UCR.

109 Constitution of Estonia, art. 33; Constitution of Latvia, art. 96; Constitution of Lithuania, art. 24.

110 Constitution of East Timor, art. 37.111 Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 204 in the multilateral

treaty list binding upon the UCR and Draft Constitution art. 11(1), enshrining the ECHR in the Constitution.

112 ECtHR 31 July 2003, Demades v. Turkey, application No 16219/90, unpublished, [37], Cyprus v. Turkey, supra note 77, [174]-[175].

113 As well as in art. 45, 127, 132 and 135 of the Convention (IV) Relative to the Protection of Civilian Persons in Time of War (opened for signature 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, which may be applicable at least to Indonesia’s administration of


Intersentia 541

increasingly acknowledged as a free-standing, autonomous right, not merely to return to one’s country, but also to one’s individual home.114 Th e right to return is not directly relevant in the case of the Baltic States, although it should be noted that the issue of exiled nationals has been specifi cally addressed, so that generally speaking, all nationals from 1940 and their descendents are regarded as nationals of their respective States, and may therefore return to them at will.115 Similarly, the East Timorese Constitution and legislation defi ne nationals as persons of East Timorese descent116, thus enabling exiles and their descendents to enter East Timor at will. Th e Annan Plan restricts the possibility of refugees to return to their homes. Under the plan, Cypriot citizens shall automatically be aff orded internal citizenship status of the Constituent State in which they reside, not of their original place of residence.117 Th eir ability to reside in their original home if it is not in the Constituent State of which they are citizens will be limited118 because each Constituent State may restrict the right to reside of Cypriot citizens who do not hold its internal citizenship status.119

3.3. RIGHTS PROTECTING CURRENT OCCUPANTS

3.3.1. Proprietary Rights

Th eoretically, current occupants may be regarded as holders of title to property if the acts of the unlawful regime are deemed legally valid under the Namibia excep-tion. Such seem to have been the opinions of Judges Baka and Pettiti in Loiz-idou120, although the issue in that case was not so much the validity of rights of existing occupants as the validity of ex lege dispossession of original owners. Th e

East Timor and to the TRNC, Indonesia being party since 30 September 1958 and Turkey since 10 February 1954.

114 UN Sub-Commission on the Promotion and Protection of Human Rights of the UN Commis-sion on Human Rights, Housing and property restitution in the context of the return of refugees and internally displaced persons, UN Doc E/CN.4/Sub.2/2002/17 and UN Doc. E/CN.4/Sub.2/2004/22/Add.1, Commentary on the Draft Principles on Housing and Property Restitu-tion for Refugees and Displaced Persons (8 June 2004) [29]; GA Res 35/124 11 December 1980; Sub-Commission on the Promotion and Protection of Human Rights of the UN Commission on Human Rights Res 1998/26.

115 For detailed discussion of the evolution of nationality legislation see I. Ziemele, supra note 12.

116 East Timor Constitution, Article 3 (2002), East Timor Nationality Law art. 8 (2002).117 Annan Plan, supra note 74, Foundation Agreement, Annex II, Attachment III, Article 1.118 Except in specifi c listed villages, Id., Foundation Agreement, Annex II, Attachment III, Article

7(3).119 Id., Foundation Agreement Annex II, Attachment III, Article 6, 7.120 Loizidou v. Turkey (Merits), supra note 71. Judge Baka elaborated on what he considered to be

the necessity for the land transfers, 2235. Judge Pettiti in dissent thought that “if events had made the rehousing operation inevitable, that could justify the interference”, 2242.


542 Intersentia

Court’s majority evaded the question whether the need to rehouse the displaced persons could justify the dispossession of original owners, because it considered that even if it could, the implementation of this measure had been exercised in violation of the ECHR.121 Th e opinions of Judges Baka and Pettiti have to date remained minority ones with regard to the TRNC, nor was a similar approach formally taken elsewhere. As noted above, it is not entirely clear whether the rights granted by the TRNC are of ownership or possession alone. Th e same holds true for rights purportedly granted under Indonesian administration. However, both East Timor’s Real Estate Law and the Annan Plan go some way towards rec-ognizing quasi-proprietary rights of current occupants.

East Timor’s Real Estate Law appears to take into consideration the interests of persons who have purchased land in good faith from public entities122 that had acquired or built on such land. Section 16(3) of the Real Estate Law provides that:

“For the purposes of the provisions of section 16.2 above [on the automatic of forfeiting of real estate of public entities to the State], the rights of bona fi de third parties that have onerously acquired the respective real estate through a fair price shall be safeguarded, and the State shall be the creditor of the balance due for their acquisition where their payment has not been totally made.”

Th is appears to acknowledge the property interests of good faith owners. Th ey are not protected from surrendering the property to the State, but they are entitled to compensation for their fi nancial investment in the property.

Under the Annan Plan for Cyprus, priority is given to a current occupant where the dispossessed owner had neither built the house nor lived in it for at least ten years, and the current occupant has lived in it for ten years.123 Th is provision is a straightforward preference of the current occupant over the dispossessed owner. In addition, priority is given to a long-term current occupant who is a displaced person and has exchangeable property of comparable value.124

Another exception to restitution under the Annan Plan is the priority given to makers of signifi cant improvements.125 Current occupants who are owners of sig-nifi cant improvements126 and who are not otherwise entitled to acquire title would be able to acquire title to the immovable property involved upon payment of its value without the improvement.

121 Id., 2242.122 Th ese were the only legal vehicle for Indonesian action in the public interest.123 Annan Plan, supra note 74, Foundation Agreement, Annex VII, art. 16.3.124 Th e exchange would be possible if the value of the property retained does not exceed that of the

surrendered property by more than 50%. Id., Foundation Agreement, Annex VII, Article 12(1), (2).

125 Id., Foundation Agreement, Annex VII, Article 14.126 A signifi cant improvement being defi ned as one of which the market value is greater than the

value of the property in its original state. Id., Annex VII, Attachment 1, item 15.


Intersentia 543

In the Baltic States there does not appear to have been any concession towards proprietary claims of current occupants. Th is is hardly surprising because even under Soviet rule, occupants were lessees or tenants rather than purported own-ers.

3.3.2. Non-Proprietary Rights

Another type of rights is based on the actual occupancy of property. Th is occu-pancy may give rise to non-proprietary rights that are independent of whether the occupancy came about lawfully or not.

Th e main protection aff orded to current occupants is through the right to housing127, enshrined in Article 25 of the UDHR and in ICESCR, CERD128, CEDAW129 and CRC.130

ICESCR Article 11131 recognizes:

“the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing.”

Th e right to adequate housing does not include a right to a specifi c home or to remain in an existing abode. Consequently it does not prevent eviction altogether, but only restricts the manner in which eviction may be carried out, namely it must not be forced or arbitrary. Th e Committee on Economic Social, and Cul-tural Rights defi ned132 the term “forced eviction” for the purposes of ICESCR

Article 11 as:

“… the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision

127 Generally see S. Leckie Th e Right to Adequate Housing, in: A. Eide et. al. (eds.), Economic, Social and Cultural Rights (2nd ed) 149–168 (Dordrecht: Martinus Nijhoff Publishers, 2001).

128 CERD, supra note 96, art. 5.129 CEDAW, supra note 96, art. 14(2).130 Convention on the Rights of the Child (CRC), art. 27(3) adoption, in force for Estonia since 20

November 1991, for Latvia since 14 May 1992, for Lithuania since 1 March 1992, for East Timor since 16 May 2003, Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 115 in the multilateral treaty list binding upon the UCR.

131 1966 International Covenant on Economic, Social and Cultural Rights (opened for signature 19 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR), in force for Esto-nia since 21 January 1992, for Latvia since 14 July 1992, for Lithuania since 20 February 1992, for East Timor since 16 July 2003, Annan Plan, supra note 74, Foundation Agreement, Annex V, Item 111 in the multilateral treaty list binding upon the UCR; See also European Social Charter Revised Part I Item 31 and Part II art. 31. Estonia is party to the Social Charter since 1 November 2000 but it did not declare itself bound to the right to housing in item 31.

132 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 7 [4] in UN Doc HRI/GEN/1/Rev.3 Compilation of General Comments and General Recommenda-tions Adopted by Human Rights Treaty Bodies: Note by the Secretariat (15 August 1997).


544 Intersentia

of, and access to, appropriate forms of legal or other protection. Th e prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights.”

Evictions must be carried out in conformity with general principles of reasona-bleness and proportionality.133

Eviction should not result in individuals being rendered homeless or vulner-able to the violation of other human rights. Th erefore the protection from forcible eviction extends beyond the negative obligation not to remove occupants arbi-trarily. Where those aff ected are unable to provide for themselves, the State must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.134 For housing to be considered “adequate”, several basic criteria must be fulfi lled: security of tenure, habitability, aff ordabil-ity, accessibility, availability of materials, location and cultural adequacy.135

Article 58 of the East Timorese Constitution provides:

“Everyone has the right to a house, both for himself or herself and for his or her family, of adequate size that meets satisfactory standards of hygiene and comfort and preserves personal intimacy and family privacy.”

East Timor is exceptional in that its Constitution guarantees the right to hous-ing.136 However, this provision falls short of preventing forced eviction.

Th e Annan Plan protects current occupants without suffi cient fi nancial means from eviction until alternative accommodation is made available, in kind or through preferential loans. Th is is only guaranteed to Cypriot nationals.137 Th ese

133 CESCR, General Comment No 7 [15] in UN Doc. HRI/GEN/1/Rev.3. Forced evictions are pro-hibited or restricted under other instruments, both binding and guiding, although they are not defi ned there. E.g. Commission on Human Rights Res 1993/77 [1]; Agenda 21 ch 7.9 (b) in Report of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 (A/CONF.151/26/Rev.1 (vol I) annex II; UN Doc A/CONF.165/14 Report of the United Nations Conference on Human Settlements (Habitat II) Istanbul 3–14 June 1996 (7 August 1996) [40(n)].

134 CESCR, General Comment No 7 [17] in UN Doc. HRI/GEN/1/Rev.3; S. Leckie, supra note 127, 157. Th is aspect of the right to housing is enshrined in many international human rights instruments additional to ICESCR, both binding and guiding: UDHR Article 25(1); CERD, supra note 96, Article 5(e)(iii); CEDAW, supra note 96, Article 14 (2); CRC, supra note 130, Article 27 (3); Declaration on Social Progress and Development, Article 10, Vancouver Decla-ration on Human Settlements, 1976 s III (8); UN Doc A/CONF.165/14 [97(b)]; Declaration on the Right to Development and the ILO Recommendation Concerning Workers’ Housing, 1961 (No. 115), Article 8 (1).

135 CESCR, General Comment 4 [8] in UN Doc. HRI/GEN/1/Rev.3.136 COHRE, 8 COHRE Online Newsletter 5 (February 2003) (available with the author).137 Annan Plan, supra note 74, Foundation Agreement, Annex VII, Attachment 3, Article 2(1).


Intersentia 545

are primarily 1974 refugees who have been settled in abandoned property by the current Cypriot or TRNC government, and who have limited fi nancial means and who have therefore not improved the residences signifi cantly. Current occupants without suffi cient fi nancial means who are legal residents but not nationals of Cyprus are also protected from eviction until alternative accommodation is found, but only for up to two years.138 Persons who are not granted residence under the UCR, namely primarily immigrants settlers, are not protected from eviction.

Finally, the right to respect for privacy of the home protects not only original owners, but also current occupants. Under ECtHR jurisprudence, ECHR Arti-cle 8 covers the protection of current occupants from arbitrary eviction.139 How-ever, this right does not encompass the positive obligation to provide alternative adequate housing.

4. BALANCING THE RIGHTS

4.1. INTRODUCTION

If rights of both original owners and current occupants are recognized, the prob-lem of confl icting claims has to be addressed. Probably the greatest diffi culty in providing justice to individuals injured by the unlawful regime is the risk of doing so at the expense of other individuals. Restitution and reversion to the status quo ante in accordance with the principle ex injuria ius non oritur may be signifi -cantly more detrimental to current occupants who are relying on the existing situation, than to dispossessed owners who may have managed to fi nd alternative means of accommodation and subsistence. It would mean upsetting an existing order and creating new hardship, for the sake of solving a problem which may have for the most part already solved itself.

Confl icts between original owners and current occupants may be resolved in a variety of manners: by granting possession to the owner and evicting the occu-pant; by allowing the occupant to remain in the property under a controlled ten-ancy from the original owner; by allowing the occupant preferential rights to acquire the property from the original owner; or, in the most extreme case, by recognizing the ownership of the current occupant and the compensating of the original owner. Generally, the three regimes examined here have opted for resti-

138 Id., Foundation Agreement, Annex VII, Attachment 3, Article 2(3).139 S. Leckie, supra note 127, 157–159; ECtHR Grand Chamber 18 February 1999, Larkos v. Cyprus,

application no. 29515/95; ECtHR Grand Chamber 18 January 2001, Chapman v. the United Kingdom, application no. 27238/95; ECtHR 27 May 2004, Connors v. the United Kingdom, application no. 66746/01; ECtHR 18 November 2004, Prokopovich v. Russia, application no. 58255/00.


546 Intersentia

tution. In the Baltic States and Cyprus this is limited by the right to accommoda-tion of current occupants. But diff erent weight is attached to the confl icting inter-ests in each case, and so the overall arrangements diff er.

Many factors shape the legislative policy regarding the balance between dis-possessed owners and current occupants. Th e following sections examine various such factors that are related to the specifi c circumstances of the territories, namely the emergence from an unlawful territorial regime under international law. Th ese factors operate not so much to balance the rights against each other as to circum-scribe each of the rights separately.

4.2. GOOD FAITH

It is well established that any claim to rights must be made in good faith. In the case of claims based on acts of an unlawful territorial regime the issue of good faith is particularly pertinent, given that under international law, such acts are generally invalid.

Th ere is no reason to put on the same legal footing a person holding a right in law and a person who knowingly took advantage of the legal uncertainty and illegitimacy or temporary character of the regime. Th e onus is therefore on the claimant current occupants to prove that an exceptional validation is justifi ed.

Th e implications of lack of good faith diff er from one right to another. With respect to the right to housing, which responds directly to the protection of human dignity, it plays only a minor role. Th e right to housing is based on the perception that human dignity is unconditional and cannot be denied under any circumstances, and therefore transcends considerations such as good faith. Th e right to property is diff erent. It may respond to some basic perception of human dignity, but it may go beyond it. In the latter case, the element of good faith has a more dominant role. Bad faith in acquiring property may not be relevant when the prospect of eviction means rendering a person homeless. But it may play a dominant role when the property in question is a spacious villa surrounded by extensive land, and the evictee can easily aff ord alternative accommodation. Th erefore, it is not surprising that in some cases, legislation protecting current occupants makes reference to the requirement of good faith.140

According to Article 6(5) of East Timor’s Land Law, “[t]hose that prove to have acted on good faith are not considered to be illegal occupants”. In other words, the

140 Cf. United Nations Mission In Kosovo (UNMIK), Regulation No 2000/60 (31 October 2000) on Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission.


Intersentia 547

law exempts good faith occupants from the penal implications of their act. How-ever, there is no protection from administrative measures such as eviction.141

Under the Annan Plan, restitution is limited to property transferred unlaw-fully or involuntarily. Th e onus lies with transferees or their successor in title to prove that the transfer was voluntary.142 Th is provision can be read as creating a rebuttable presumption of bad faith on the part of any transferee enjoying a prop-erty that was not purchased under ordinary market terms.

Th e determination whether a purported right was acquired in good faith must take account of the specifi c circumstances of the case. For example, knowledge of prior ownership by a dispossessed person might defeat a claim of good faith. With regard to a voluntary acquisition of property, this might be a relevant criterion in Cyprus. An illustration of how reference to good faith can be manipulated is the alleged practice of the TRNC authorities of denying access to records concerning pre-1974 ownership143, thereby preventing potential purchasers from ascertain-ing the history of the land. On the one hand, if purchasers cannot verify the status of property, they cannot be held responsible if it transpires that the property is that of a dispossessed person.144 On the other hand, since there is no compelling need to purchase property in the TRNC, a person who chooses to do so despite the inability to ascertain the history of the property assumes the responsibility for whatever is later revealed, and cannot claim to have acted in good faith.

Where individuals have no choice in taking up dispossessed property because they are refugees themselves (as in the TRNC) or where the coercive regime dic-tates their actions (as was in the Baltic States)145, knowledge of prior ownership might not detract from a claim of good faith.146

4.3. THE LINK BETWEEN RESIDENCE AND LAND RIGHTS

Th e choice between restitution to owners and rehousing of occupants on the one hand, and compensation of owners with a right to acquire ownership by occu-pants on the other hand, is oft en linked to the whereabouts of the original owners. In many cases, dispossessed owners are also refugees or internally displaced

141 COHRE, Global Housing Rights Round-Up, 9 COHRE Online Newsletter 5 (June 2003) (avail-able with the author).

142 Annan Plan, supra note 74, Foundation Agreement, Annex VII, Attachment 1, art. 1.143 B. Simon, Who’s land is this? – Information restricted on pre-1974 property ownership in

north, Cyprus Mail (30 September 2004) http://www.cyprus-mail.com/news/main/php?id=16199&archive=1 (last visit: 3 October 2007).

144 Cf. ECtHR 5 November 2002, Pincova and Pinc v. the Czech Republic, 712 [58].145 See 4.4. Th e relationship between the individual and the unlawful territorial regime.146 UK House of Commons Foreign Aff airs Committee, Cyprus Second Report of Session 2004–5,

HC-113I [200] (22 February 2005). http://www.publications.parliament.uk/pa/cm200405/ cmselect/cmfaff /113/113.pdf (last visit: 7 February 2007).


548 Intersentia

persons. Such was clearly the situation in East Timor, and is still so in Cyprus. As a matter of law, residence in a territory and ownership of land in it are separate issues; in practice the two issues are strongly linked. For many refugees and other displaced persons, dispossession of their homes lies at the root of their displace-ment. Th erefore, one of the primary concerns for those returning or attempting to return home is the resolution of property and housing issues.147 Without a right to residence, the enjoyment of ownership of a property is eff ectively restricted; and without property, a person has fewer means of establishing residence within the existing residence legislation.

Th is section concerns the link between the right to restitution and residence in the territory once the post-transition regime comes into power. It examines whether the right to restitution is contingent upon residence in the territory. It therefore informs the rights of dispossessed owners.

Th ere has long been practice linking property rights to residence in regulating situations of mass displacement. Th roughout the twentieth century, international agreements that foresaw or regulated resettlement of populations overwhelm-ingly provided for compensation for land rather than its retention or restitu-tion.148 Indeed, the position of the TRNC that a population and property exchange

147 UN Sub-Commission on the Promotion and Protection of Human Rights of the UN Commis-sion on Human Rights, Th e Return of Refugees’ or Displaced Persons’ Property, UN Doc E/CN.4/Sub.2/2002/17, Working paper submitted by Mr. Paulo Sérgio Pinheiro pursuant to Sub-Commission decision 2001/122 (12 June 2002) [13]; E. Rosand, Th e Right to Return Under International Law Following Mass dislocation: Th e Bosnia Precedent?, 19 Michigan Journal of International Law 1091 (1997–1998); In the Case of the TRNC, the right to return and the right to residence are more or less the same thing in practice.

148 E.g. the Convention between Greece and Bulgaria Respecting Reciprocal Emigration (signed 27 November 1919), 1 League of Nations Treaty Series (LNTS) 68; Financial Agreement between Bulgaria and Greece (signed 9 December 1927), 87 LNTS. 200; Convention Concerning the Exchange of Greek and Turkish Populations (signed 30 January 1923), 32 LNTS 76; Agreement of Athens (signed 1 December 1926), 68 LNTS 12; Convention of Ankara (signed 10 June 1930) reproduced in S.P. Ladas, Th e Exchange of Minorities, Bulgaria, Greece and Turkey 817 (New York: Macmillan, 1932); Agreement between the Government of the Kingdom of Greece and the Government of the Romanian People’s Republic Concerning the Settlement of Economic Questions Pending Between the Two Countries Since 1939 (signed 25 August 1956, entered into force 14 February 1958) 299 UNTS 231; Agreement Between the Polish People’s Republic and the Czechoslovak Republic Concerning the Settlement of Outstanding Property Matters (signed 29 March 1958, entered into force 9 January 1959) 340 UNTS 199; Agreement Between the Republic of Italy and the Federal People’s Republic of Yugoslavia for the Final Settlement of all Reciprocal Economic and Financial Obligations Arising out of the Treaty of Peace and subsequent Agreements (signed 18 December 1954, entered into force 10 February 1956) 284 UNTS 239 Article 2, 5; Treaty Between Th e Italian Republic and Federal People’s Republic of Yugoslavia on the delimitation of the boundary line for the part not indicated as such in the Peace Treaty of 10 February 1947 (with annexes and fi nal act) (signed 10 November 1975, entered into force 3 April 1977) 1466 UNTS 72 Article 4; Agreement between the Republic of Italy and the Federative Socialist Republic of Yugoslavia for the Defi nitive Settlement of All the Mutual Obligations Deriving from Article 4 of the Treaty Signed at Osimo on 10 November 1975 (signed 18 February 1983, entered into force 15 February 1989), B.H. Weston, R.B. Lillich


Intersentia 549

should take place rather than return and restitution was expressly based on the Turkish experience following World War I.149

However, the linkage between residence and property rights is weakening. For example, the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons, adopted by the Sub-Commission on the Promotion and Protection of Human Rights of the UN Commission on Human Rights guaran-tees the rights of refugees and displaced persons to property and prohibits any discrimination.150 Th is would include a prohibition on discrimination on the basis of nationality151 or residence. Some instruments that concern situations of individual or mass displacement following territorial changes make similar pro-visions.152

Although the severance of the link between residence and property rights is not yet complete, it is mitigated by the strengthening of the right to return. In the past there has been at most indiff erence as to the choice between return (with restitution) and resettlement (with compensation). Today there is a clear prefer-ence for resolution of post-war situations by repatriation of refugees and displaced persons.153 Draft Principle 9.1 of the Draft Principles on Housing and Property

and D.J. Bederman, International Claims: Th eir Settlement by Lump Sum Agreements, 1975–1999 287 (Ardsley, N.Y.: Transnational Publishers, 1999); Agreement between Belgium and Italy for the Settlement of Questions Arising from the State of War and the Economic Clauses of the Treaty of Peace Between the Allied and Associated Powers and Italy (signed 10 February 1947 (signed 24 October 1952) Article 4, R.B. Lillich and B.H. Weston, International Claims: Th eir Settlement by Lump Sum Agreements (vol. 2) 82, (Charlottesville: University Press of Virginia, 1975); Agreement between Italy and Tunisia Relative to Indemnifi cation and to Economic and Financial Cooperation (signed 29 August 1967, entered into force 29 August 1967) Article 3, R.B. Lillich and B.H. Weston, International Claims: Th eir Settlement by Lump Sum Agreements (vol. 2) 346 supra; Agreement between the Federal Republic of Germany and the Empire of Ethiopia Concerning the Compensation of German Property in Ethiopia (signed 21 April 1965, entered into force 21 October 1965) R.B. Lillich and B.H. Weston, International Claims: Th eir Settlement by Lump Sum Agreements (vol. 2) 287 supra. Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland concerning Finan-cial and Commercial Relations and British Property in Egypt (signed and entered into force 28 February 1959), 343 UNTS 159 Article 3. For India and Pakistan see M.A. Chaudhri, Th e Emer-gence of Pakistan 268–270, (New York: Columbia University Press, 1967).

149 C. Palley, supra note 66, 169 footnote 20.150 UN Sub-Commission on the Promotion and Protection of Human Rights of the UN Commis-

sion on Human Rights, Housing and property restitution in the context of the return of refugees and internally displaced persons, annexed to UN Doc E/CN.4/Sub.2/2004/22 Progress report of the Special Rapporteur, Paulo Sérgio Pinheiro, submitted in accordance with Sub-Commis-sion Resolution 2002/7 (2 June 2004).

151 Expressly mentioned in Id., Draft Principle 2.1.152 Declaration on the Consequences of State Succession for the Nationality of Natural Persons

adopted by the European Commission for Democracy through Law at its 28th Plenary Meeting (Venice 13–14 September 1996) and Explanatory Report CDL-NAT (1996) 007e-rev-restr s 16.

153 Sub-Commission on the Promotion and Protection of Human Rights of the UN Commission on Human Rights, supra note 114; UN Doc S/2003/398 [108 ff .].


550 Intersentia

Restitution for Refugees and Displaced Persons guarantees all refugees and dis-placed persons “the right to voluntarily return to their former homes, lands or places of origin, in safety and dignity”. An application of these principles is evi-denced in the Dayton Accord154 for Peace in Bosnia-Herzegovina, which gives priority to restitution.155 While this priority is contingent upon return to the ter-ritory rather than settlement elsewhere156, the Accord formally provides a right of return for refugees and displaced persons and is supported by massive interna-tional assistance in this regard.157

Th e applicability of the Draft Principles to the Baltic States, East Timor or TRNC is not immediately obvious. First, dispossession in the Baltic States was not always related to fl ight.158 Second, in the Baltic States and the TRNC it was carried out during a relatively peaceful period, although in the TRNC it certainly followed an acute armed confl ict. Th erefore, the parameters according to which parties to a confl ict operate during armed confl ict, with regard to land as well as to other issues, do not apply. In East Timor there have been several waves of dis-placement and dispossession (in 1975, in the late 1970s and in 1999). Again, this is not a simple case of resolving a one-off post-armed-confl ict dispute.159 Finally, in the TRNC, dispossession took place within a purported constitutional frame-work. However, the Principles may be applied in a wider context, as suggested by the Commentary attached to them.160 Th is can be done by linking restitution to residence, even if such dispossession was not concomitant with the acquisition of refugee status or internal displacement.

Th e scope of restitution in Lithuania is the narrowest of the Baltic States. It is generally restricted to former owners or their heirs that are both current nationals

154 Bosnia and Herzegovina-Croatia-Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes (signed 14 December 1995), 35 ILM 75 (1996).

155 For details of the property dispute resolution mechanism, see L. von Carlowitz, Settling Property Issues in Complex Peace Operations: Th e CRPC in Bosnia and Herzegovina and the HPD/CC in Kosovo, 17 Leiden Journal of International Law 599 (2004).

156 For the diffi culties in implementing these provisions because of the reluctance to return, see T.W. Waters, Th e Naked Land: Th e Dayton Accords, Property Disputes, and Bosnia’s Real Constitution, 40 Harvard International Law Journal 517 (1999); M.Cox, Th e Dayton Agree-ment in Bosnia and Herzegovina: A Study of Implementation Strategies, 69 British Yearbook of International Law 238–239 (1998).

157 Bosnia and Herzegovina-Croatia-Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, supra note 154, Annex 7.

158 Although the Soviets carried out mass deportation of Balts to the east of the Union.159 M. Marquardt, J. Unruh and L. Heron, Land Policy and Administration: Assessment of the

Current Situation and Future Prospects in East Timor. Final Report, 7 US Agency for Interna-tional Development (USAID) 13–14 (2002) http://www.dec.org/pdf_docs/PNACS142.pdf (last visit: 7 February 2007).

160 Sub-Commission on the Promotion and Protection of Human Rights of the UN Commission on Human Rights, supra note 114, [3].


Intersentia 551

and permanent residents.161 In Estonia, eligible individual claimants for restitu-tion are anyone resident in Estonia in 1991 and Estonian nationals.162 Restitution is not contingent upon residence in Estonia. At the same time, as under interna-tional law all nationals are entitled to return to their country, benefi ciaries of restitution are all actual or potential residents; accordingly, in Lithuania and Estonia restitution is limited to former owners that are capable of using the prop-erty for residence. Th e scope of Latvian restitution is widest, and applies to previ-ous owners or their heirs, regardless of their present nationality or residence.163

According to the Constitution, only nationals of East Timor may own land in the country.164 It is not clear whether this provision aff ects only new acquisitions or whether it would govern restitution of land, if such is made available for private owners. Under the constitution, at least, East Timorese exiles may in the future benefi t from restitution without a requirement of residence being introduced.

In Cyprus the positions of the two sides diff er precisely on the extent to which individuals should be allowed to return to reside in their former homes.165 Th e TRNC’s position was based, if not on independence of the TRNC, then on the principle of bi-zonality.166 Th is meant that there should be neither return of refu-gees nor restitution, but an exchange of populations followed by a global exchange of property. Th e position of the Government of Cyprus was that reunifi cation should be based on complete freedom of movement, residence and property; in other words a right to restitution.167 Even in a federated State, the division into two constituent States should be, according to the Government of Cyprus, an administrative arrangement which limits as little as possible the freedom of resi-dence and ownership of property. Consequently, restitution should be the pre-ferred remedy.

Th e political form that the TRNC eventually takes will aff ect the extent of return to the territory, and consequently the extent to which restitution would be appropriate. Broadly speaking, there are three possibilities. Th e fi rst two assume

161 Lithuania, Law on the Procedure and Conditions of the Restoration of the Rights of Owner-ship to the Existing Real Property Article 2 (1991).

162 Principles of Ownership Reform Act, supra note 29, Article 7, 8. Under Estonian law, persons who were citizens of Estonia on 16 June 1940 and their heirs were automatically regarded as nationals upon independence, see I. Ziemele, supra note 12. Others must resolve their claims through mutual agreements between Estonia and their respective States Principles of Owner-ship Reform Act, supra note 29, Article 7(2).

163 F.H. Foster, supra note 28, 630.164 East Timor Constitution, Article 54(4).165 UN Docs S/11789 Interim Report of the Secretary-General pursuant to Security Council Reso-

lution 370(1975) (5 August 1975), S/11789/Add.1 (10 September 1975), S/11789/Add.2 (13 Sep-tember 1975).

166 Th e Turkish-Cypriot concept of “bi-zonality” was that the constituent states would have the unfettered right to decide who could establish residency therein. UN Doc S/2003/398 23 [98].

167 N. Tocci and T. Kovziridze, Cyprus, in: B. Coppieters et al (eds.), Europeanization and Confl ict Resolution: Case Studies from the European Periphery 73 (Gent: Academia Press, 2004).


552 Intersentia

the traditional relationship between residence and property. If the TRNC is rec-ognized as an independent State and refugee populations remain in place, restitu-tion seems least likely.168 If the TRNC is reincorporated into the Republic of Cyprus in a unitary State, a combination of restitution and compensation is a pos-sibility, although restitution would seem to be the primary tool; restrictions on the freedom of movement, right to property and non-discrimination could prob-ably not remain more than transitional.169 A third possibility is a federate State, as envisaged by the Annan Plan.

Th e Annan Plan limits the extent to which both return and restitution would be possible, but the two are not entirely concomitant. Th e Plan, as the Secretary-General emphasized on 1 April 2003, “largely unlinks residency rights and the issue of reinstatement of property—two aspects which have oft en been confused in public discussion”.170 Th us, the extent of the entitlements of individuals under one right are, in principle, independent of their entitlement under the other. Th ose reinstated to their properties would be entitled to use them as second residences for holidays or weekends, and to lease or sell them.171 Th e Turkish-Cypriot Con-stituent State authorities are given power to restrict the purchase of property, even by returning Greek Cypriots, for a lengthy period of time.172 In other words, own-ership is not contingent upon return, but it is also not guaranteed to returnees. Th is separation of residence from property ownership did not meet with Greek-Cypriot approval.173

Th ere is an exception to the absence of link between return and restitution. Th is concerns situations when persons of one of the Constituent States wish to establish residence in the other Constituent State.174 However, within the permis-sible limit, priority shall be given to persons to whom properties have been rein-stated by order of the Property Board, and their families; second to other persons who were inhabitants of the relevant municipality or village before 1963 or 1974

168 If an independent TRNC eventually joins the EU, movement across borders will become pos-sible, and the scope for restrictions on acquisition of property more limited. Th is, however, seems an extremely far-fetched possibility.

169 A fourth alternative is a reinforcement of the TRNC’s current status, without formally recog-nizing it as an independent State. Such steps could lead to a “Taiwanization” of the TRNC. N. Tocci and T. Kovziridze, supra note 167, 103–104. A consolidation of the de facto status, how-ever, would probably not advance the resolution of property disputes. In the ECtHR there clearly has not been any change to date. Xenides-Arestis v. Turkey, supra note 89, 17–18.

170 UN Doc S/2003/398 [101].171 C. Palley, supra note 66, 168.172 15 years or until the GDP per capita income in the Turkish-Cypriot Constituent State reached

85% of the GDP per capita in the Greek-Cypriot Constituent State. Draft Act of Adaptation to the terms of Accession of the United Cyprus Republic to the European Union, Article 1.1.

173 C. Palley, supra note 66, 228–229.174 Annan Plan, supra note 74, Foundation agreement, Annex II, Article 7(1).


Intersentia 553

respectively, and their families.175 Property-owning refugees thus have priority in return. Th is creates a link whereby ownership of property enhances a right of return, but not the other way round.

In conclusion, the link between residence and right to property is growing weaker but still exists. In the Baltic States restitution is widely available but is in some cases limited to actual or potential residents. Under the Annan Plan restitu-tion is limited but unrelated to residence. In East Timor the matter is not yet set-tled.

4.4. THE RELATIONSHIP BETWEEN THE INDIVIDUAL AND THE UNLAWFUL TERRITORIAL REGIME

Th e Namibia Advisory Opinion stressed the need to avoid detriment to the “inhabitants of the Territory”. It did not clarify who the inhabitants are or whether protection is dependent upon their presence in the territory being lawful.176 In many cases, the unlawful regime deliberately transferred its population into the territory and granted it title to property. Th is was the case in all three situations examined here: Th e Soviets introduced over a million immigrants to each of the Baltic States during the 50-year annexation.177 Some 30,000 Indonesians trans-migrated to East Timor during the 1980s.178 In the TRNC, Turkish immigrants make up more than half the population.179 Th is section addresses the extent to which the status of the immigrant population should be taken into account in the balancing process, i.e. whether the fact that current occupants are immigrants under the unlawful regime aff ects their rights to proprietary or non-proprietary rights in land.

Th ere is no doubt that an unlawful regime is prohibited from bringing in immigrant settlers into the territory under its control.180 Dispossession of the local population of its property in order to grant it to the immigrant population is a further violation of international law.181 Th erefore, it is diffi cult to give eff ect to

175 And third to the heirs of either category of persons. Id., Foundation Agreement, Annex III, art. 7(2).

176 A question which was not at issue in the circumstances of the case.177 I. Ziemele, supra note 12, 359.178 B. Kiernan, Th e Demography of Genocide in Southeast Asia: Th e Death Tolls in Cambodia,

1975–79 and East Timor, 1975–80, 35 Critical Asian Studies 584, 596 (2003).179 UK House of Commons Foreign Aff airs Committee, supra note 146, [201].180 Cf. J. Quigley, Baltic States Russians: Entitled Inhabitants or Unlawful Settlers?, in: R. Clark, F.

Feldbrugge and S. Pomorsky (eds.), International and National Law in Russia and Eastern Europe, Essays in Honor of Georg Ginsburg 319–337 (Th e Hague: Martinus Nijhoff Publishers, 2001); cf. Geneva Convention IV, Article 49.

181 Taking of private property is strictly limited under the Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and


554 Intersentia

rights in land of the immigrants, be they proprietary or other rights, on the basis of their grant by the unlawful regime, since the immigrants’ very presence in the territory was unlawful. However, two factors mitigate such a categorical conclu-sion.

First, many of the non-Baltic residents and Indonesian transmigrants were relocated to the Baltic States and East Timor involuntarily. In the TRNC immi-gration was voluntary, yet many of the Turkish settlers were deliberately kept in ignorance of the situation in which they were putting themselves.182 It is ques-tionable whether such persons should be penalized for circumstances eff ectively beyond their control. It is arguable that the Namibia exception should extend to protect individuals who have become subject to the authority of the unlawful regime in good faith.183 Th is would mean taking account of interests of persons who have become subject to the authority of the unlawful regime either involun-tarily or following a voluntarily but uninformed choice.

Second, a distinction is necessary between proprietary rights and the right to adequate housing. Th e lawfulness of the presence of immigrants in the territory is pertinent principally if an attempt is made to establish (on the basis of the Namibia exception) the right of current occupants to property. If it is the actual occupancy of the property that is the determinant factor, the unlawfulness of the individual’s presence in the territory is no more a factor than the unlawfulness of the grant of ownership by the unlawful regime. Rights arising out of actual occupancy are based on human need, and should not be subject to formalistic restriction. In this respect, there is no distinction between immigrant settlers and “ordinary” squat-ters. In either case, the issue is not the right to own the property but the right to shelter.

Th e regulation of status in each of the cases may aff ect the link between status in the territory and land-related rights. In all three Baltic States the same legal policy was adopted, that of reversion to pre-1940 nationality law. Th is eff ectively deprives all Soviet-era immigrants from national status. However, all three States also adopted lenient procedures for naturalization addressing these large popula-tions.184 In addition, permanent residence status is also available to large sections of the immigrant populations.185 Immigrants who cannot or choose not to benefi t from the naturalization and acquisition of residence status may not remain in the Baltic States. Th eir status as current occupants is therefore immaterial. Th ere is

Customs of War on Land (signed 18 October 1907 entered into force 26 January 1910) Martens Nouveau Recueil (ser. 3) 461 art. 46–56 and Geneva Convention IV art. 46, 53, 147.

182 A. Schwartz, Th e Settlers of Cyprus failed to Settle in the Hearts, Ha’aretz (Israeli Daily Newspaper) B6 (25 May 2005) (in Hebrew, on fi le with author).

183 Cf. U.S.A., US Supreme Court, Lamar v. Micou,112 US 452 (1884).184 For a detailed discussion of the policies of all three States see I. Ziemele, supra note 12.185 It was never seriously contemplated that the entire non-Balt population would have to remove

itself from the territory. L. Mälksoo, supra note 12, 224.


Intersentia 555

therefore an apparent linkage of the status and the rights in land. Th e implica-tions of the unlawfulness of the immigration (namely the inability to remain in the country unless the status is regulated under the new legal regime) indirectly aff ect the ability of immigrants to benefi t from land-related rights. However, the wide authorization to remain in the territory as permanent residents minimized the extent of practical problems.

In East Timor the situation is practically the reverse. Nationality in East Timor is in eff ect reserved to ethnic East Timorese and thus excludes Indonesian trans-migrants.186 Th e latter may acquire such status in accordance with ordinary natu-ralization procedures which require residence in the territory but exclude resi-dence between 1975 and 2002.187 Indonesian transmigrants are eff ectively excluded from remaining in East Timor. In practice, the overwhelming majority of Indonesians left East Timor in 1999.188 Th us, the question of rights of immi-grants to adequate housing is largely a moot one. Furthermore, the constitutional reservation of rights in real property to nationals of East Timor appears to prevent transmigrants, even if they remain in East Timor as residents, from acquiring rights in land. At any rate, it is not yet clear what validity their purported propri-etary rights will have. As for the right to housing, the Immigration and Asylum Law provides that a visa for the purpose of requesting a permanent residence authorization will be granted to persons who can demonstrate, inter alia, means of subsistence and ensured lodging. Th is necessarily excludes Indonesian trans-migrants that need to benefi t from the protection from forcible evictions.189 In sum, Indonesian transmigrants are prevented from claiming rights in land, either proprietary or other.

Under the Annan Plan, Cypriot nationality is limited to nationals in 1960 and their heirs. Th is excluded post-1983 immigrants. However, to mitigate the eff ect of this exclusion, a list of some 45,000 names was supposed to be submitted by each side, of persons who would acquire national status under the Plan.190

As noted above, under the Annan Plan current occupants are under some circumstances entitled to acquire ownership in the property which they occupy.191 Th is right does not hinge on any national or resident status in the territory. As for

186 East Timor Constitution (2002). Th e provisions of art. 3 are repeated in East Timor Nationality Law, Article 8 (2002).

187 East Timor Nationality Law, Article 12 (2002).188 Not on the basis of this legislation, which dates to 2002, but during the violent events following

the popular consultation.189 Immigration and Asylum Law, Article 37 (2003). Another limitation may be that permanent

residence authorization may benefi t non-citizens who have been legal residents of the national territory for at least 12 consecutive years (Immigration and Asylum Law (2003) Article 53). If the term “legal residents” is interpreted in accordance with its meaning under the Nationality Act, it excludes Indonesian transmigrants.

190 Annan Plann supra note 74, Appendix F (Measures to be taken during April 2004).191 Id., Foundation Agreement, Annex VII, Articles 12, 14 and 16; and 3.2.1.


556 Intersentia

the right to housing, the Annan Plan distinguishes among nationals of the UCR, non-national residents and others. UCR nationals are protected from forced evic-tion, indefi nitely192; these are primarily 1974 refugees who have been settled in abandoned property by the current Cypriot or TRNC government, and are of limited fi nancial means who have therefore not improved the residences signifi -cantly. Non-national residents are protected for only two years.193 Persons who are not granted residence under the UCR, namely primarily immigrant settlers, are not protected from eviction. Th e overall eff ect of these provisions is the partial severance of property rights from residence and even nationality, and its partial linkage to fi nancial status. Th us, affl uent Turkish settlers may not be entitled to stay in the territory (following the general limitation on the settler population), but they are entitled to acquire ownership of a residence in which they have lived and which they have improved signifi cantly. Non-affl uent Turkish settlers, the poorest population, will have to leave their homes immediately. Most immigrant settlers are therefore not protected by either proprietary or non-proprietary right.

In conclusion, it appears that there is a connection between the unlawfulness of the immigration (despite the fact that its voluntary character can be challenged) and the protection of land-related rights. Th e diff erence between the Baltic States and Cyprus is that in the former, immigrants are largely allowed to regulate their status, while in Cyprus their right to do so is much more limited.

5. CONCLUSION

Th e three cases analyzed above present a range of problems and circumstances, and it is therefore diffi cult, perhaps unnecessary, to attempt to extract defi nite conclusions on the precise balance between the rights of dispossessed owners and current occupants. Th ere is little reason to expect that the balance in all three cases would be identical, given the diff erent causes for confl ict, political aims of the balancing process and fi nancial and other constraints on the process. How-ever, the three cases share some common features. Th e diff erences may also be indicative of general considerations that transcend the individual circumstances of each case. Th e following are some observation about such commonalities and diff erences.

1. Right of dispossessed owners acknowledged in all cases: In all three cases, there is no doubt that the proprietary rights of dispossessed owners are acknowledged in the sense that they are entitled to restitution in kind. Th e

192 Id., Foundation Agreement, Annex VII, Attachment 3, Article 2(1).193 Id., art. 2(3).


Intersentia 557

right to restitution is not dependent upon actual use of the property by the returning owner. Th us, it is the right to property rather than a right to occu-pancy that is being given eff ect. In the case of Cyprus under the Annan Plan, restitution is limited by size of the property.

2. Th e right to property is widely available: Generally speaking, the right to property is not generally contingent upon residence in the territory, although in some cases it is dependent on national status. It is not even circumscribed by the intended use of the property.

3. Current occupants have mostly non-proprietary rights: Current occupants clearly enjoy primarily the right to housing, although the scope of protection of this right diff ers from case to case. Under the Annan Plan and possibly in East Timor, current occupants enjoy more extensive rights, namely the option of becoming owners of the property, or being compensated for loss equivalent to that of owners. Th is may appear excessive protection, particularly as it seems to benefi t current occupants who are more fi nancially secure. Th is seems incongruous with the professed doctrine of taking account of changes that have taken place under the unlawful regime in order to prevent hardship and avoid detriment to the population.

4. Non-proprietary right to housing strictly circumscribed: Not every current occupant is protected from forced eviction. Not all current occupants may benefi t from the right to housing; normally, immigrant settlers under the unlawful regime are excluded from protection, unless they regulate their sta-tus under the law of the post-transition regime. Furthermore, while the need to show good faith in acquiring the property is not, in itself, an excessive demand, the presumption of bad faith such as that applied under the Annan Plan, places an additional burden on current occupants claiming rights.

5. Conclusion: It is diffi cult to assert that human rights and standards necessar-ily give priority to current occupants or to dispossessed owners. Th ey gener-ally require that the rights be balanced against each other and that neither the right to property nor the right to housing be entirely discarded for the sake of the other.194 Th e decision whether to prefer original owners or current occu-pants is, fi nally, a political one. Th e success of the balance is to be found, fi rst and foremost, in the social, economic and political stability of the community where it is applied. In the Baltic States the process has been underway for a decade and a half. Th ese countries have gone through such overwhelming

194 And these limits can be exceeded if a proper reservation is made, as was done by Estonia and Latvia with regard to ECHR Protocol 1.


558 Intersentia

changes that it is diffi cult to isolate one issue from the others. Nonetheless, it can tentatively be suggested that whatever the fl aws of the mechanism, it is manageable and can be contained within institutions acting under the rule of law. In East Timor land-related rights are still under formation and crystalli-zation. In the Baltic States and under the Annan Plan, dispossessed owners have complained that current occupants enjoy excessive protection. In Cyprus criticism was raised that the lengthy periods of delays in restitution (six years at the earliest in most cases195; indefi nitely in some) might result in the right to restitution remaining largely illusory. Th is fear of excessive protection of current occupants has played a part in the rejection of the Annan Plan by the Greek Cypriots.196 With regard to all three cases, a truism may be appropriate: if all parties are equally dissatisfi ed, this may indicate that a good balance has probably been struck.

195 Annan Plan, supra note 74, Foundation Agreement, Annex VII, Article 16, 17, Attachment 3 Article 1, 2.

196 C. Palley, supra note 66, 193.

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