Open Collections

UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Explaining the international community’s insistence on real property restitution in Bosnia-Herzegovina… Anderson, Miriam J. 2003

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-ubc_2004-0027.pdf [ 4.48MB ]
Metadata
JSON: 831-1.0091249.json
JSON-LD: 831-1.0091249-ld.json
RDF/XML (Pretty): 831-1.0091249-rdf.xml
RDF/JSON: 831-1.0091249-rdf.json
Turtle: 831-1.0091249-turtle.txt
N-Triples: 831-1.0091249-rdf-ntriples.txt
Original Record: 831-1.0091249-source.json
Full Text
831-1.0091249-fulltext.txt
Citation
831-1.0091249.ris

Full Text

E X P L A I N I N G T H E INTERNATIONAL C O M M U N I T Y ' S INSISTENCE O N R E A L P R O P E R T Y RESTITUTION IN B O S N I A - H E R Z E G O V I N A A N D CROATIA, 1995-2003: E X P L O R I N G N O R M A T I V E FOUNDATIONS by  Miriam J. Anderson B.A., University of British Columbia, 1999  A THESIS SUBMITTED IN PARTIAL F U L F I L L M E N T OF T H E REQUIREMENTS FOR T H E D E G R E E OF M A S T E R OF ARTS in T H E F A C U L T Y OF G R A D U A T E STUDIES (Department of Political Science) We accept this thesis as conforming to the required standard  T H E UNIVERSITY OF BRITISH C O L U M B I A December 2003  © Miriam J. Anderson, 2003  1  Library Authorization  In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  Name of Author (please print) Miriam J Anderson  Title of Thesis:  Degree:  Date December 15, 2003  E X P L A I N I N G T H E INTERNATIONAL C O M M U N I T Y ' S INSISTENCE O N R E A L P R O P E R T Y RESTITUTION I N BOSNIAH E R Z E G O V I N A A N D CROATIA, 1995-2003: E X P O L O R I N G N O R M A T I V E FOUNDATIONS  M A Political Science  Year:  2003  Abstract The existence of post-conflict real property restitution regimes for refugees and displaced persons in Bosnia-Herzegovina (BiH) and Croatia marks a dramatic shift from the largely unredressed real property deprivations which occurred during the first half of the twentieth century. Through a comparative analysis of the international community's policy on conflict-related dispossession in Europe and North America from 1913-1945 and its policy on dispossession resulting from ethnic cleansing in the former Yugoslavia in the 1990s, I posit that contrasting norms lie at the heart of the different practices in these two periods. The massive property dispossessions of the first half of the twentieth century occurred as a result of territorial conquest, discriminatory confiscation, wartime seizure of enemy property, and mass population transfers. These dispossessions and their consolidation were underpinned by ethnic nationalism, the malleability of borders, a state-centric international legal system, the concept of collective responsibility, and weak international protection for property rights. Conversely, calls for restitution in B i H and Croatia are premised on civic nationalism, territorial integrity, the legal standing of the individual in international law, a belief in individual responsibility, and the increasing inviolability of property rights in international law. To explain these normative changes and their apparent influence on the establishment of restitution regimes in B i H and Croatia, I employ realist, rationalist, bureaucratic organization, and constructivist theoretical models. The former three fail to account for the international community's insistence on and commitment to return and property restitution. Ruling out the explanatory power of these three theories, I conclude that a constructivist paradigm provides the most complete and accurate analysis. M . Anderson  ii  Within the framework of constructivism," the five normative changes identified are plausible causal factors in the establishment of restitution regimes. Through this paradigm, these norms coalesced to provide constraints within which a peace agreement had to fall. As human rights norms, predominantly, they are both constitutive and regulative for states which identify themselves as liberal democracies. The primary architects of peace were the US and the E C / E U . Their intersubjectively understood identity in international society as liberal democracies necessitated consideration, if not adherence, to these norms.  M . Anderson  111  T a b l e of C o n t e n t s  Abstract ii Table of Contents iv Preface v Introduction 1 Part I: A History of Property Loss, the International Community's Response, and Restitution in the Breakup of the Former Yugoslavia 13 Allocation of Property 14 The Response of the International Community to the Conflict 22 Part II: Key Normative Changes 33 1. Civic not Ethnic Nationalism 33 2. Territorial Integrity 42 3. Restitution to Individuals as Opposed to States 47 4. Individual as Opposed to Collective Responsibility 50 5. The Strengthening of Property Rights and the Evolution of Restitution 51 Part M : Explanations for Changes in Restitution Practices 62 1. Rationalist explanations: Self-interest, Refugees and the Imminent US Presidential Election 63 2. Realism and Security Concerns: Preventing a Precedent for Border and Ethnic Disputes 65 3. Bureaucratic Explanations of Diplomacy and Bargaining 67 4. Constructivism 70 Conclusion 85 Bibliography 91  M . Anderson  iv  Preface From 1999 to 2002, I worked for the OSCE Mission to Croatia monitoring and reporting on the process of post-conflict property repossession. The work was frustrating because progress was extremely slow. I had many conversations with colleagues about why we were promoting return and restitution when our efforts often seemed futile. When I asked my colleagues why they thought the international community had embarked on such an ambitious program, I received answers like: "The international community holds Croatia and Bosnia to a higher standard than the rest of the world. They aren't demanding a right of return in Cyprus or Israel; this is some kind of anomaly"; "Since the Cold war has ended, there is actually an 'international community' which can ensure compliance with international law—had there been such cooperation after WWII, the same thing would have happened"; "Obviously, the US has strategic interests in this region that we don't know about"; and "This is a reflection of the increasing strength of neo-conservatism where private property is sacrosanct." I didn't know why we were advocating return and repossession. In whose interest was it? Especially when ethnic tensions were often blamed for the outbreak of the war, why were we trying to reconstitute a potentially explosive situation? The OSCE, U N , and various humanitarian and human rights NGOs were investing large sums of money into return, striving to ensure that it would be based on "free and informed choice." However, these efforts were not producing stellar results; many people had settled elsewhere and did not wish to return, while others perhaps dreamed of returning, but were unwilling to confront obstructive governmental bureaucracy and hostile communities. Repossessing or  M . Anderson  v  getting one's house reconstructed often took years of persistence and many gave up in the process. Our aims were idealistic, and I had no way to account for the costly idealism in which I was engaged...  M . Anderson  vi  Introduction For centuries were a person, family or community—whether due to armed conflict, illegal expropriation or human rights violations— displaced from their places of habitual residence, and not on the side of those who either won the conflict or took or remained in power, it was • virtually assured that those same homes and lands would, for all intents and purposes, be lost forever.  1  The existence of real property restitution regimes for refugees and displaced persons in Bosnia-Herzegovina (BiH) and Croatia mark a dramatic shift from the massive and largely unredressed real property deprivations which occurred during the first half of the twentieth  century. From  1913 to 1945 territorial conquest, discriminatory  confiscation, the seizure of "enemy property" during wartime, and mass "population transfers" resulted in massive derogations of property rights. For example, prior to World War I (WWI), the 1913 Convention of Adrianople between Bulgaria and Turkey decreed the voluntary exchange between Bulgarians in Turkey and Muslims in Bulgaria. During 2  the interwar period, the 1919 Treaty of Neuilly between the Allied and Associated Powers and Bulgaria provided for the voluntary transfer of 46,000 ethnic Greeks living in Bulgaria to Greece and 96,000 ethnic Bulgarians living in Greece to Bulgaria. The 1923 3  Treaty of Lausanne, sanctioned by the League of Nations, decreed the compulsory population exchange of over two million ethnic Greeks and Turks between Turkey and  Scott Leckie, ed., Returning Home: Housing and Property Restitution Rights of Refugees and Displaced (Ardsley, New York: Transnational Publishers, Inc., 2003) 4. Joseph B. Schechtman, Postwar Population Transfers in Europe: 1945-1955 O^hiladelphia: University of Pennsylvania Press, 1962)22. Ibid. 1  Persons 2  3  M . Anderson  1  Greece. During World War II, the 1941 Soviet-German agreement provided for the 4  transfer of Germans from Lithuania, Latvia, and Estonia to German-controlled territory.  5  Of these treaties, only the Treaty of Lausanne, made provisions for compensation to those who lost property as a result of the population transfer, and these provisions later turned out to be ineffective in providing compensation.  6  The seizure and permanent confiscation of "enemy property" during W W I hostilities was legitimized in the post-war peace treaties of Trianon and Versailles which stated that "all the exceptional war measures, or measures of transfer, or acts done or to be done in execution of such measures [...] hereto shall be considered as final and binding upon all persons." These peace treaties codified and legitimized the concept of 7  "victor's justice." Whereas a victorious state could legitimately retain property which it had seized during a conflict, a defeated state was obliged to return all property to the state of origin.  8  During WWI and WWII, seizure of property belonging to "enemy nationals" also occurred in North America. In 1920, the Canadian government enacted legislation which stated that "all property, rights and interests in Canada belonging [...] to enemies and in the possession or control of the Custodian at the date of this Order shall belong to Canada  Eric Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," Michigan Journal ofInternational Law 19, no. Summer (1998): 6-7. Schechtman, Postwar Population Transfers in Europe: 1945-1955 27. 6 Jennifer Jackson-Preece, "Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms," Human Rights Quarterly 20, no. 4 (1998): 824. Trianon and Versaille Peace Treaties, Article 232, paragraph d as cited in Istavan Vasarhelyi, Restitution in International Law OBudapest: Hungarian Academy of Sciences, 1964) 27. Ibid. 4  5  7  8  M . Anderson  2  and are hereby vested in the Custodian." At the end of the war, the 1919 Treaty of 9  Versailles entitled Canada to "keep and liquidate any German property in Canada." The 10  treaty stated that Canada should compensate its own citizens in cases for which they suffered losses due to the liquidation of German-owned property. Accordingly, in cases which "enemy property" was owned jointly by "allied or neutral interests," the Canadian owners could claim and receive compensation from the Canadian government in accordance with the share owned. The 1919 Paris Peace Treaty, on the other hand, 11  imposed the obligation of restitution upon the losers of WWI. It stipulated that "the Hungarian Government undertakes to restore to complete good order all property [...] to the United Nations nationals and in cases where property cannot be returned or where as a result of the war damage inflicted on his property in Hungary, the Hungarian Government undertakes to pay compensation."  12  During WWII, the Canadian government decreed that 22,000 Japanese Canadians must register for evacuation and sign "voluntary" declarations turning over their property to the Custodian for safe-keeping. The state liquidated most of their property ostensibly 13  because of the difficulties in protecting it. At the end of the war, those whose property 14  had been confiscated received the proceeds from the sales minus administrative fees and  RG 2, PC 755, 14 April 1920 as cited in Judith Roberts-Moore, "Studies in Documents. The Office of the Custodian of Enemy Property: An Overview of the Office and Its Records, 1920-1952,'Mrc/?/va/-;a 22 (1986): 96. By 1924 the custodian held over $490,000 worth of enemy property in Canada and 7.3 million in enemyowned securities. Ibid. 98. " Ibid. Vasarhelyi, Restitution in International Law 47. Roberts-Moore, "Studies in Documents. The Office of the Custodian of Enemy Property: An Overview of the Office and Its Records, 1920-1952," 101. Ibid. 102. 9  10  12 13  14  M . Anderson  3  any outstanding debts against the property.  The only option for Japanese Canadians to  recover their property was the possibility o f repurchasing it.  Massive property dispossession occurred in the wake o f W W I I primarily as an accepted form o f collective punishment. Article X I I I o f the 1945 Potsdam Treaty provided for the transfer o f ethnic Germans from Poland, Czechoslovakia, and Hungary to Germany.  16  Subsequently, Yugoslavia, and the Soviet Union claimed that the Potsdam  Treaty sanctioned the deportation o f ethnic Germans from their territories as well, and expelled their German minorities. ethnic  Germans •  were  expelled  compensation or legal recourse.  17  A s a result o f these policies, up to fifteen million from  their  homes  throughout  Europe  without  18  The legitimization o f seizure and confiscation which occurred after W W I and W W I I marked a departure from previous practice. There are four approximate historical periods into which the concept o f restitution in European international law can be divided: prior to the 1215 Magna Charta; from the Magna Charta to W W I ; from the end o f W W I until about 1948; and from 1948 until the present. Restitution refers to "the [release] o f the property that was taken away, by discriminatory war measures, from the disposal o f the persons entitled thereto."  19  Prior to the 1215 Magna Charta, war was conceived o f as bellum omnium contra omnes; that is, "every subject o f the belligerent was at war with every subject o f the other belligerent irrespective o f sex or age, the property and the person o f everybody was a free  1 5  Ibid.  1 6  Schechtman, Postwar Population Transfers in Europe: 1945-1955 37-38.  17  Ibid. 38. Ibid.  1 8  M . Anderson  4  prey, there was no difference between the members of the armed forces and the civilian population." As material gains made in war were considered legitimate, there was no 20  obligation for the restitution of confiscated property lost in war.  The 1215 Magna Charta provided that in the event of a war, the property of foreign nationals on English territory would be respected and protected.  21  This principle  was generally accepted until the 17 century when maritime law had gained greater th  prominence. Maritime law provided for the "right to seize and confiscate all private 23  sailing in enemy ownership, moreover to confiscate neutral property, too, if the latter was entrusted to the protection of an enemy flag."  24  th  By the 19 century a divisive split had occurred between the Anglo-Saxon and continental Europeans' conceptions of how private property should be treated during war.  25  The Anglo-Saxons espoused the principle of universal warfare, as codified in  maritime law, whereas the Continental Europeans adhered to the older principle enshrined in the Magna Charta.  26  This division was played out at the 1907 Hague  Conference. Article 46 of the Hague Convention IV stated: "Private property can not be 27  confiscated"  and Article 23, paragraph h stated: "it is especially forbidden to declare  abolished, suspended or inadmissible in a court of law the rights [...] of the hostile  19 20 21 22 23 24 25 26 27  Vasarhelyi, Restitution in International Law 9. Ibid. 21. This provision was motivated by the wish to protect commercial interests. Ibid. Ibid. Ibid. Ibid. Ibid. 22. Ibid. Ibid. 23.  M . Anderson  5  party."  The continental powers interpreted this clause to apply to private property while  Great Britain refused to extend it to private property.  29  Based on the principle of reciprocity, Article 53 of the 1907 Hague Convention called for the "restitution at the end of the war of all property seized and sequestrated lawfully by the enemy on the occupied territory in.the course of the hostilities." Essentially, temporary seizure, in some cases, was legitimate while confiscation was illegitimate.  30  permanent  31  The Paris Peace Treaties concluding WWI marked a new phase in the history of restitution in international law. They encoded the right for the victorious parties to keep and liquidate any enemy property seized whereas the losing states were required to return any seized property. This marked the demise of reciprocity as a guiding principle in 32  favour of "victor's justice." In contrast to the massive unredressed property losses of the first half of the twentieth century, the Yugoslav wars of secession ended November 21, 1995 with the initialing of the General Framework Agreement for Peace in Bosnia-Herzegovina (Dayton Peace Agreement) which stipulated the right for displaced persons "to return to their homes of origin [and] to have restored to them property of which they were deprived." As of October 1, 2003, 198,197 of 220,225 or 90% of claimed properties 33  have been repossessed by their owners in B i H and 54 of 149 municipalities have now  28  Ibid. 24. Ibid. 30 Ibid. 42. 31 Ibid. 32 Ibid. 27. 29  M . Anderson  6  finalized all claims.  The Office of the High Representative (OHR)  process of repossession will be largely completed by the end of 2003.  anticipates that the 36  In Croatia, while substantially fewer homes were taken over by the state— between 70,000 and 80,000 — the repossession rate of repossession continues to be 37  much slower than in BiH. 4271 of the 19,277 private properties "officially allocated" still remain occupied.  38  Furthermore, Croatia has not yet established an effective reginie  to provide restitution for the estimated 50,000-60,000 Serb households who lost occupancy rights as a result of the conflict. Although in a recent development, Croatia 40  has recognized the right of former occupancy right holders to compensatory housing if  " Annex 7: Agreement on Refugees and Displaced Persons General Framework Agreement for Peace in (December 15, 1995). OHR/OSCE/UNHCR/CRPC, Implementation of the Property Laws in Bosnia and Herzegovina Reached 90 Per Cent [Press Release] (OHR/OSCE/UNHCR/CRPC, November 1 2003 [cited November 15 2003]); available from http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=31164. The Office of the High Representative was established by the Dayton Peace Accords. The High Representative has an extensive mandate which includes monitoring implementation of the peace agreement, ensuring the compliance of elected officials, holding thefinalauthority to interpret the Dayton Accords. Annex 10, Articles 2-5 in Dayton Peace Agreement. OHR/OSCE/UNHCR/CRPC, RS and FBiH Reach Same Ratio of PUP at End of A ugust [Press Release] (OHR/OSCE/UNHCR/CRPC, 2003 [cited October 15 2003]); available from www.ohr.int/ohrdept/presso/pressr/default. asp?content_id=30913. This includes both private and socially-owned properties. This figure is derived from NGO estimates that 50,000-60,000 Serb households lost occupancy rights as a result of the conflict and the almost 20,000 officially allocated by the state OSCE, "Report of the OSCE Mission to the Republic of Croatia on Croatia's Progress in Meeting International Commitments since 18 April 1996," (Zagreb: OSCE, 2001), 67. In addition to properties officially allocated by the state, an unknown additional number was spontaneously occupied—"illegally occupied." Ibid. 8. Reconstruction and Construction-Office for Displaced Persons Ministry for Public Works, Returnees and Refugees (MPWRC-ODPR), "Progress in the Process of Return of Displaced Persons and Refugees in the Period from 2000 - End September 2003," (Zagreb: Ministry for Public Works, Reconstruction and Construction-Office for Displaced Persons, Returnees and Refugees (MPWRC-ODPR), 2003), 2. Occupancy rights were a unique institution in the Socialist Federal Republic of Yugoslavia (SFRY). They were the predominant type of real property in SFRY Generally they were assigned to individuals by their employers and held almost all attributes of a property right (for example, the rights to bequeath or to exchange) barring the right to sell or leave vacant. They could be cancelled if the assigned occupant did not inhabit the apartment for more than six consecutive months without justified reason. Marcus Cox and Madeline Garlick, "Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina," in Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, ed. Scott Leckie (Ardsley, New York: Transnational, 2003), 67. Bosnia and Herzegovina, 34  35  36  37  38  39  40  M . Anderson  7  they return to Croatia.  Despite the markedly different progress in B i H and Croatia, it is  significant that both recognize the right of displaced persons to return to their homes, and failing return, the right to maintain control over their private property. In addition to Croatia and BiH, restitution regimes have been established in a host of other cases since 1991. These include Guatemala, Rwanda, Kosovo and South Africa.  42  This is occurring within an overall context of the increase in reparations  worldwide in the post-Cold War era.  43  Reparations, defined as "compensation, usually material, for some past wrong,"  44  have become common for such issues as slavery, apartheid, recent gross human rights violations, and private and communal property confiscation. Elazar Barkan attributes 45  the rise of reparations to an increased legitimacy afforded to moral and ethical considerations particularly since the end of the Cold War.  46  This new international  morality is underpinned by such ideals as "opposition to genocide, support for human rights, and the fear of being implicated in crimes against humanity (even by inaction)."  47  Barkan notes that these ideals now have palpable effects on decision-making at the •  *  international level.  48  *  Within this overall framework, restitution, a specific type of  Ministry for Public Works, "Progress in the Process of Return of Displaced Persons and Refugees in the Period from 2000 - End September 2003," 3-4. Leckie, ed., Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons 13-14. Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices, 1st ed. (New York: Norton, 2000) ix. John C. Torpey, Politics and the Past: On Repairing Historical Injustices, World Social Change (Lanham, Md.: Rowman & Littlefield, 2003) 3. Ibid. 12. Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices xv. Ibid. ix. 41  42  43  44  45  46 47  M . Anderson  8  reparations, refers to "the return of specific items of real or personal property."  This  raises two questions. Firstly, what is the content of this new international morality? And, can it explain the emergence of restitution regimes in the former. Yugoslavia? This thesis seeks to explore the importance of normative factors in determining the international community's clear and persistent policy on the establishment of real property restitution regimes in both B i H and Croatia. I seek to demonstrate that the massive dispossessions during the first half of the century and the property restitution regimes in the former Yugoslavia have significantly different normative underpinnings, and that it is these differences that have played a significant role in the international community's policy on the former Yugoslavia. These differences are a preference for civic as opposed to ethnic nationalism; the strengthened norm of territorial integrity; respect for private property rights and the prohibition of arbitrary deprivation of property; the notion that individuals and not states exclusively are entitled to restitution and are subjects of international law; and the concept of individual as opposed to collective responsibility. I propose that these normative underpinnings are significant causal factors in the shape and outcome of the post-Dayton Agreement peace.  I have chosen to examine the cases of B i H and Croatia because they represent difficult test cases for the restitution of property. Fulfillment of the Dayton Peace Agreement in B i H has required vast military and financial commitments since 1995 and is likely to require these for the foreseeable future. Also, viewing B i H and Croatia comparatively illuminates the character of the norm of post-conflict restitution because of the shared similarities and striking differences between the two cases. The problems with  4 9  Torpey, Politics and the Past: On Repairing Historical Injustices 3.  M . Anderson  9  displacement and dispossession of property vary only in scale; the war in Croatia, in many ways, is a microcosm of the B i H conflict. The scale of the bloodshed led to significantly greater levels of foreign involvement in enforcing peace in B i H than it did in Croatia. Therefore the B i H restitution regime can be seen as a direct manifestation of the will of the international community, whereas in Croatia, the outcome can be understood as resulting from the interplay between both international and domestic factors. Given these two very different levels of international involvement, these two cases allow for a close examination of the strength of the post-conflict restitution of property norm. M y study is limited to property rights which have been derogated due to international or civil conflict or with the justification of ameliorating the threat of potential conflict. I do not examine the phenomenon of nationalization of private property due to socialist governmental policy or its restitution in states undergoing transformation. These are important events in the development of stronger international protection for property, but encompass an additional set of issues which are not within the scope of this thesis to address. I also focus exclusively on the restitution of habitable property placed under state control and do not explore the establishment of reconstruction programs. I exclude reconstruction because while it falls under the state obligation to facilitate return, it has a different set of problems associated with implementation.  Individuals were deprived of various types of property during the breakup of the former Yugoslavia including housing, business premises, agricultural land, moveable property such as farm equipment, furniture, and financial assets such as pensions. For 50  the purposes of this paper, however, the term 'property' refers to housing only. The  M . Anderson  10  deprivation of housing is key to achieving ethnic cleansing by physically preventing return to one's home, and its restitution the most instrumental in facilitating return. I have chosen to compare dispossessions which occurred due to conflict or perceived potential conflict between 1913 and 1945 to the Yugoslav regimes because they occurred under markedly different normative conditions. Using these conditions as an independent variable allows us to view what occurred in the Balkans in their absence. There is scant literature on the development of restitution regimes in the former Yugoslavia. Generally, the literature which addresses the breakup of the former Yugoslavia focuses on "the means that were used or could have been used to bring peace to south-eastern Europe,"  51  and fails to answer the question of why the international  community sought to reverse ethnic cleansing in both B i H and Croatia. Restitution of real property is a crucial part of the international community's vision for an ethnically reconstituted south-eastern Europe, and additionally has allowed for restitution of property rights even when not tied to refugee return. However, there is a deficiency of normative inquiry into the underpinnings of the resolution to the conflict, generally, and into the issue of property restitution, specifically.  The literature on the international community's response to the dissolution of the former Yugoslavia has two major shortcomings. It does not problematize the motivations of various actors in the international community, but largely takes them for granted. It fails, for the most part, to adequately place the restitution regimes within a wider  OSCE, "Status Report No. 11," (Zagreb: OSCE, 2002), 13. Mikulas Fabry, "International Norms of Territorial Integrity and the Balkan Wars of the 1990s," Global Society 16, no. 2 (2002): 49. 50 51  M . Anderson  11  historical context and thus does not fully elucidate their significance. This paper seeks to fill this void by establishing the normative shifts which have occurred since the end of WWII and by exploring the normative underpinnings of the international community's insistence upon the establishment of restitution regimes. This thesis is divided into three major parts. In the first part, I give a brief overview of the dissolution of the former Yugoslavia, the international community's response, and the establishment of restitution regimes. Part II details five key normative differences that stand out between internationally sanctioned real property loss in the first half of the twentieth century and international demands for restitution in B i H and Croatia in the 1990s. Demonstrating a shift of normative underpinnings does not by itself establish that they are the sole cause of the restitution regimes in the former Yugoslavia. Jeffrey Legro critiques norm literature for neglecting to consider alternative explanations to norms as causal factors.  52  I pay particular attention to this critique and therefore  explicitly consider alternative explanations. In Part III of the thesis, then, I examine explanations for these changes, considering the expectations of different theories in international relations and assessing their strengths and weaknesses. I argue that alternative  explanations focusing on security concerns, material self-interest  and  bureaucratic factors do not adequately explain the rise of restitution in the 1990s. Instead, I point to the centrality of changing norms, and assert that the theoretical lens of constructivism allows for an accurate interpretation of the international community's motivations for constructing a certain character of peace in the former Yugoslavia.  Jeffrey Legro, "Which Norms Matter? Revisiting the Failure of Internationalism," International 51 (1997): 33.  Organization  M . Anderson  12  Part I: A History of Property Loss, the International Community's Response, and Restitution in the Breakup of the Former Yugoslavia The breakup of the former Yugoslavia resulted in the large-scale displacement of up to four million persons between 1991 and 1995.  53  Although massive displacement  occurred continuously throughout the conflict it can be divided roughly into three periods. From June 1991 to November 1992, precipitated in part by Croatia's and Slovenia's declarations of independence on June 25, 1991, Serb-paramilitary and Yugoslav National Army (JNA) forces took control of almost thirty percent of Croatia's territory declaring it the Republika Srpska Krajina or the Serbian Republic of the Krajina. '' This initial phase of the conflict resulted in the expulsion of about 200,000 5  ethnic Croats, Hungarians, and others from the Serb-occupied territory.  55  The United  Nations High Commissioner for Refugees (TJNHCR) estimates that by February 1992 there were a total of 605,000 displaced persons throughout the former Yugoslavia.  56  From March 1992 to August 1995, the wars in B i H resulted in the displacement of a total of 2.6 million persons: 1 million internally displaced persons within B i H ; 1.1 million refugees who left BiH, but remained on the territory of the former Yugoslavia and approximately 500,000 people who emigrated out of the former Yugoslavia.  57  Finally,  from August to November 1995 the offensive launched by Croatia and the Bosnia-  Official estimates vary between three and four million. Thomas G. and Pasic Weiss, Amir, "Dealing with the Displacement and Suffering Caused by Yugoslavia's Wars," in The Forsaken People: Case Studies of the Internally Displaced, ed. Roberta and Deng Cohen, Francis M. (Washington: Brookings Institution Press, 1998), 184. Ibid. 185. Ibid. Ibid. Ibid. 53  54 55  56 57  M . Anderson  13  Croatian Federation together with N A T O air strikes against Croatian and Bosnian Serbs resulted in the displacement of over 750,000.  58  Allocation of Property During the conflict and after the cessation of hostilities, political officials, military and paramilitary personnel, and individuals belonging to the ethnic majority of an area allocated "abandoned" housing to refugees, internally displaced persons and others of the majority's ethnicity. In many cases those who occupied properties were not refugees or 59  Internally Displaced Persons (EDPs), but individuals from surrounding communities who sought to profit from the conflict. The take-over of "abandoned" property involved at 60  least 220,220 properties in B i H  6 1  and at least 70,000 properties in Croatia. In part, this 62  served to ameliorate the imminent humanitarian crisis of the vast numbers of persons displaced from their homes, but also served to consolidate ethnic cleansing. While property seizure, confiscation, and destruction were legitimate practice during the first half of the twentieth  century, the international community's reaction to these  displacements and property violations were markedly different.  In contrast to internationally legitimized and sanctioned population transfers that th characterized the first half of the 20 century, the international community sought to achieve the reverse in the case of the former Yugoslavia; that is, the re-creation of the Ibid. 185-86. OSCE, "Report of die OSCE Mission to the Republic of Croatia on Croatia's Progress in Meeting International Commitments since 18 April 1996," 6. Ibid. A definitive figure for the number of properties occupied has never been established. This number is derived from the number of currently claimed properties—both private and formerly socially-owned. OHR/OSCE/UNHCR/CRPC, Implementation of the Property Laws in Bosnia and Herzegovina Reached 90 58  59  60 61  Per Cent ([cited).  M . Anderson  14  multi-ethnic pre-war configuration of the population. Key to this goal would be the ability of refugees to repossess their homes. The Dayton Peace Agreement not only specifies the right to return, but the right to return to one's home.  63  This goes beyond  existing standards for the rights of the displaced. For example, the 1991 Final Act of the 64  Paris Conference on Cambodia allows for "return to the place of [...] choice" and the "return to their homeland." Likewise U N H C R Executive Committee conclusions on Afghanistan, Angola, Tajikistan, and Myanmar "extend[] the right to return to the whole country of origin."  65  The return of displaced persons to their homes was not an inevitability or necessity in terms of expediency. States could have simply supported resettlement of ethnic groups in their "kin-state" in the former Yugoslavia or in various regions of their country of origin. The international community's insistence that displaced persons had the right to return to their homes required peace-keeping forces, international monitoring and enforcement  agencies, and investment into economic assistance programs. As  Mikulas Fabry notes, the policy pursued by the international community was one which did not favour an easy peace, but one which required that the international community pay a high price for the kind of peace that it wished to impose.  66  OSCE, "Report of the OSCE Mission to the Republic of Croatia on Croatia's Progress in Meeting International Commitments since 18 April 1996," 6-7. Sophie Albert, "The Return of Refugees to Bosnia and Herzegovina: Peacebuilding widi People," International Peacekeeping 4, no. 3 (1997): 10-11. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 72. Albert, "The Return of Refugees to Bosnia and Herzegovina: Peacebuilding with People," 10-11. This is in specific reference to die insistence on territorial integrity. Fabry, "International Norms of Territorial Integrity and the Balkan Wars of the 1990s," 147. 63  64  65  66  M . Anderson  15  Croatia Prior to 1995, property take-over and allocation occurred on an ad hoc basis. Shortly after the military operations Flash and Storm during which Croatia retook twothirds of its territory which had been held by Serb forces from 1991 to 1995, causing a mass exodus of Serbs from the government controlled territories of Croatia, the Croatian government passed legislation that regulated and legitimized this practice. Despite Croatia's obligation prescribed by Dayton to facilitate refugee return and repossession of property, on August 31, 1995 the Croatian government adopted the Decree on the Temporary Take-Over of Specified Property and then on September 20, 1995 the Law on Temporary Take-Over of Specified Property (LTTP).  67  The LTTP authorized the  Government to take under public administration property that was: Abandoned by its owners and not personally used by them, situated in the previously occupied [...] territory of [Croatia], [...] owned by the persons who left [Croatia] after 17 August 1990 or who [were] staying in the occupied area of [Croatia] or in the territory of Federal Republic of Yugoslavia or in the occupied territory of [BiH] or [... ] placed in the territory of [Croatia] and owned by the citizens of the Federal Republic of Yugoslavia.  68  The term "abandoned property" is not defined in the law, and therefore predominantly Serb individuals working abroad, on holiday, or away from their homes temporarily lost possession of their homes. Under the law this property could be temporarily allocated to:  Joachim Carlson, "The Right to Property in Croatia in the Aftermath of the Dissolution of the Former Yugoslavia (Draft)" (Uppsala, 2000) 9. Ibid. 10. 68  M . Anderson  16  Displaced persons and refugees, returnees whose property has been destroyed or damaged during the liberation war, war invalids, families of Croatian defenders killed or missing in the liberation war, and other citizens performing duties vital for the security, reconstruction and development of the previously occupied areas.  69  The stated purpose of this legislation was to "regulate the temporary take-over, use, administration and supervision of the property of natural persons specified in [the] Law in order to protect this property and to safeguard the claims of creditors arisen in connection with it."  70  Private property rights were further limited by the 1996 Law on  Areas of Special State Concern (LASSC) which prescribed that temporary users could obtain an ownership title after ten years of uninterrupted use. The LTTP was abolished 71  on July 10, .1998. However, the cancellation of the LTTP did not remedy the effects of 72  the legislation. It only meant that new properties could not be allocated.  In 1998, under pressure from the international community, the government enacted the Program for the Return and Accommodation of Displaced Persons, Refugees and Resettled Persons (Return Program), which for the first time created a mechanism for the repossession of property.  The Return Program established municipal Housing  Commissions which were comprised of five individuals appointed by the municipal/town mayor to facilitate the restitution of property, stipulating that two of the five had to be  7 0  Law on Temporary Law on Temporary  Take-Over and Administration Take-Over and Administration  of Specified Property, of Specified Property,  Art. 5, para 2. in Ibid. 11. art. 1 in Ibid. 10.  Ibid. 18. Official Gazette, No. 101/98. Carlson, "The Right to Property in Croatia in the Aftermath of the Dissolution of the Former Yugoslavia (Draft)" 25.  71  72  73  M . Anderson  17  minority members. This, of course, meant that the minority members—usually Serbs— 74  could always be outvoted by the other three members—usually Croats. The program states that, excepting cases of "illegal" or "multiple" occupancy, prior to the owner's repossession of his/her property, the Housing Commission must ensure the provision of "alternative accommodation" for the temporary user. This stipulation has served to make restitution largely ineffective in returning property to those from whom it was taken.  75  Alternative accommodation has been understood to be  permanent and of a high quality. It was not until summer 2001 that a standard for the 76  type of alternative accommodation to be allocated was prescribed.  77  The standard  prescribed was higher than Croatia's standard of provision under its social welfare legislation. The OSCE criticized this requirement because of the privilege it afforded to secondary occupants and because little such accommodation was owned by the state and therefore rarely available. The requirement for the provision of this high standard of 78  alternative accommodation effectively blocked the repossession of property process.  79  Bosnia-Herzegovina During and after the war, all three sides used property laws to further ethnic cleansing and reinforce its outcome.  The private property of those who had fled was  declared "abandoned" and various authorities reallocated it for the use of others.  Ibid. 26. OSCE, "Report of the OSCE Mission to the Republic of Croatia on Croatia's Progress in Meeting International Commitments since 18 April 1996," 8. Ibid. Ibid. Ibid. Ibid. 7. Garlick, "Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina," 67. 74 75  76 77  78  79 80  M . Anderson  18  Authorities used the pre-existing Yugoslav Law on Housing Relations to cancel the occupancy rights of those who fled,  81  which occurred in Croatia as well. Generally,  "occupancy rights" had been assigned to individuals by their employers and held almost all attributes of a property right (for example, the rights to bequeath or to exchange) barring the right to sell or leave vacant. They could be cancelled if the assigned occupant did not inhabit the apartment for more than six consecutive months without justified reason.  82  Immediately after the signing of the Dayton Peace Agreement, the government issued a decree giving internally displaced persons eight days to return to their homes or fifteen days if they were abroad. Failing to return, they would permanently lose their 83  occupancy rights. However, most of those displaced were not aware of the passage of this law and were unable to return at this time. In regards to restitution, the government issued decrees which  made  repossession dependent upon compensation or alternative  accommodation to be provided to the occupant. With over half the housing stock either 84  destroyed or occupied, this delayed repossession indefinitely.  85  However, in accordance with the Dayton Peace Accords, property rights in B i H were enshrined in the B i H constitution. The European Convention on Human Rights 86  and all the additional Protocols were incorporated directly into the B i H legal system with priority over all other law. The constitution also established an Ombudsperson and a  81 8 2  8 3  8 4  8 5  8 6  Ibid: Ibid. Official Gazette RBiH, 33/95 as cited in Ibid. Ibid. 67-68. Ibid. 68. Ibid. 70.  M . Anderson  19  Human Rights Chamber to have jurisdiction over human rights violations committed by the state or either of the two entities.  87  From 1995 to 1997 return results were limited. Largely uncoordinated, hundreds of Non-Governmental Organizations (NGOs) and International Organizations (IOs) had conducted various ad hoc return projects.  88  These limited results prompted coordination  of activities and prioritization of "minority return"—that is, return of ethnic groups to areas where they were not the ethnic majority. This resulted in an increased reliance on 89  the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), a new approach of the international community taken against uncooperative municipal officials, and a change in the policy on reconstruction.  The Dayton Agreement established CRPC as a domestic/international property claims tribunal. The nine-member tribunal is comprised of three international staff, two Bosnian Serbs, two Bosnian Croats, and two Bosnian Muslims. In practicality, though, the commission is an international organ. The commission verifies claims to properties and is authorized "to disregard any legislation which is discriminatory or contrary to the right to return."  90  The CRPC has assumed a prominent role in restitution of property  operating with a six million U S D annual budget by 1999 and having issued 217,000 decisions on property by April 2002. Although CRPC decisions recognized the right of 91  the owner to his/her property, a CRPC decision did not necessarily mean that the owner could in fact repossess his property when the property was occupied by someone else.  87  Ibid. Ibid. 72. 89 Ibid. 90 Ibid. 91 Ibid. 73.  88  M . Anderson  20  The CRPC did not have an enforcement arm or control over the municipal or state-owned housing stock, which in practical terms meant that owners did not in actuality have access to their properties. Furthermore, the police and local officials were often hostile to minority return and thus refused to assist with repossession.  92  In 1998, the High Representative gained the authority to impose laws and dismiss elected  officials.  93  The High  Implementation Plan (PLIP)  94  Representative then  imposed the  Property Law  which prescribed stringent standards for the provision of  alternative accommodation for  secondary occupants.  To qualify  for alternative  accommodation one must: Fall below a certain income threshold, have no assets, including allocated land, and have demonstrably made...every effort in their power to gain repossession of their pre-war property. This includes making efforts to reconstruct this property, if uninhabitable. Temporary occupants who have at any point rejected any offer of Alternative Accommodation, either from the local authorities or from the claimant, or any offer of housing construction assistance, have no right to Alternative Accommodation. Nor do those whose parents, children, spouse, or family household members of any date since 1991 have regained access to pre-war accommodation, or who have found accommodation anywhere in the same Entity of displacement, or the pre-war city or municipality. Temporary occupants who were  OHR, Office  M . Anderson  of the High Representative:  General Information  (OHR, 2003 [cited November 1 2003]).  21  subtenants before the conflict also have no right to Alternative Accommodation."  95  PJJP also prescribed that the secondary occupant did not have to be provided with alternative accommodation prior to repossession by the owner. These laws also obliged the police to carry out forcible evictions. PLIP has been extremely successful in 96  facilitating repossession for owners. By 2002, about 8000 claims per month were being implemented. This does not mean that all decisions resulted in owners returning to their 97  properties; in many cases owners chose to sell or rent their properties, or wait until the market improved to do so.  The Response of the International Community to the Conflict Although the repossession regimes are clearly imperfect, their existence and the persistence of the international community in implementing them represents a dramatic departure from the policies of the first half of the twentieth century. While previous population transfers were perceived as inevitable and necessary to promote peace, the international community took a very different stance when it came to the former Yugoslavia. The international community could have allowed the consolidation of ethnic cleansing, stating that it was a necessary evil or that ethnic homogeneity would bode well for peace in the long term. Yet instead, the international community actively tried to reverse it. This policy begs an explanation. Although there were disagreements  amongst the international community  regarding the imposition of sanctions, arms embargoes, and military intervention, there Office of the High Representative, "PLIP Agencies Reiterate Alternative Accommodation Criteria," http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=7371, April 11, 2002. Garlick, "Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina," 76.  95  96  M . Anderson  22  were consistent and widespread calls for the right of displaced persons to return to their homes or to receive compensation should they be unable or unwilling to do so. This position is borne out in all of the peace proposals during the conflict, U N Security Council (SC) resolutions, and the statements of various governments. This high degree of agreement and consistency indicates both the strength and clarity of the right of restitution of property as an international norm.  In a preliminary attempt to end the unfolding crisis, on September 7, 1991 the E C convened a peace conference in The Hague.  98  The E C stated that it would accept any  outcome of negotiations that adhered to four principles: the use of force was unacceptable in achieving objectives; any forcible border changes were unacceptable and would not be recognized; the rights of all those who lived in Yugoslavia must be respected; and it was necessary to take account of all legitimate concerns and aspirations of all parties involved.  99  This was also articulated in a September 25 Security Council resolution  100  sponsored by Austria, Belgium, France, the USSR, and the U K as well as a September 3 Conference on Security and Cooperation in Europe (CSCE) Declaration.  101  The  international community consistently reiterated these principles throughout the conflict. As there were still no major population displacements, the principle of the right of return to the home was not yet articulated.  Department of Public Information United Nations, Yearbook of the United Nations: 1991, vol. 45 (New York: Martinus Nijhoff Publishers, 1992) 214. Ibid. S/RES/713 as reproduced in Daniel Betiilehem and Marc Weller, eds., The 'Yugoslav' Crisis in 99  100  International  Law: General Issues, Part 1, Cambridge  (Cambridge: Cambridge University Press, 1997) 1. United Nations, Yearbook of the United Nations: 101  M . Anderson  International  Documents Series: Volume 5  1991.  23  Prompted by reports of ethnic cleansing, the U N and the E C convened the London Conference from August 26-27, 1992 in London.  102  The conference established the  Steering Committee chaired by Lord David Owen, representing the E C presidency and Cyrus Vance, representing the U N Secretary General. The Steering Committee also comprised an E C troika, a CSCE troika, the five permanent members of the U N Security Council (P5), a representative of the Organization of the Islamic Conference (OIC) and two representatives from neighboring states.  103  The Steering Committee's task was to  supervise six working groups on issues ranging from humanitarian to ethnic to economic concerns. The working groups would meet in continuous session at the U N in Geneva.  104  The conference resulted in all Yugoslav republics recognizing the territorial integrity of B i H and pledging guarantees for minorities. Other outcomes were the establishment of an international peacekeeping force (UNPROFOR), the establishment of the permanent International Conference of the Former Yugoslavia (ICFY), and the declared right of return for all displaced persons and refugees.  105  The right of return  entailed the right of all displaced persons to return to their homes, and if they chose not to return they were entitled to receive compensation for their properties.  106  The  establishment of UNPROFOR, it was hoped, would put in place conditions which would allow return to occur.  107  John B. Allcock, Marko Milivojevic, and John J. Horton, Conflict in the Former Yugoslavia: An (Denver: ABC-CLIO, 1998) 160. Department of Public Information United Nations, Yearbook of the United Nations: 1992, vol. 46 (New York: Martinus Nijhoff Publishers, 1993) 327. Ibid. 22. Allcock, Milivojevic, and Horton, Conflict in the Former Yugoslavia: An Encyclopedia 160. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1107. United Nations, Yearbook of the United Nations: 1992 332.  Encyclopedia 103  104 105  106  107  M . Anderson  24  There was also a strong condemnation of the possibility of partitioning B i H along ethnic lines. At this conference, the Bosnia Working Group presented a paper entitled "Options for B i H " which eventually evolved into the Vance-Owen Peace Plan.  It  108  envisaged seven to ten multi-ethnic regions, constitutionally designed as multi-cultural with a federal government.  109  Although this proposal envisaged cantonization based upon  majority ethnicity, it also envisaged the right of individual return and respect for minority rights within each canton. It was believed that this proposal would prevent the partition of B i H into three regions premised on ethnicity. It is significant that the principles of the preservation of multi-ethnicity and the right of return were articulated so early in the conflict and were agreed to by not only the international community as represented by the U N and the E C , but also by the former Yugoslav republics. This indicates a strong acceptance within the international community that an individual's property rights could not be violated legitimately due to conflict or ethnic identity.  The International Conference for the Former Yugoslavia (ICFY) convened in Geneva in September 1992, meeting in continuous session, to provide a framework for ongoing peace negotiations. of ethnic cleansing.  111  110  In October 1992, the conference called for the "reversal"  That is, the conference not only condemned forcible expulsions,  but called for their undoing. The conference produced the Vance-Owen Plan from 1992 to 1993. The plan sought to ensure territorial integrity of BiH, to resist "ethnic purification," and to deny the Bosnian Serbs contiguous territories.  It comprised three  James Gow, Triumph of Lack of Will (London: Hurst & Company) 235. Ibid. Allcock, Milivojevic, and Horton, Conflict in the Former Yugoslavia: An Encyclopedia 124. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1107. 108  109 110 111  1 1 2  Gow,  Triumph of Lack of Will  M . Anderson  309.  25  components: military, political, and a map.  113  The map envisaged the administrative  division of a federal B i H into ten provinces governed by proportional representation based on the 1991 census.  Nine of ten would have a governor who belonged to the  114  majority ethnicity and a vice-governor belonging to the ethnicity of the second largest ethnic group.  115  The tenth, Sarajevo, would have a separate status. The Vance-Owen  Peace Plan ambitiously envisaged that the local police would be responsible to ensure that the reversal of ethnic cleansing was carried out and that the U N Civilian Police would be responsible for monitoring the local police's fulfillment of this requirement.  116  The Vance-Owen Peace Plan failed when the signature of Radovan Karadzic, leader of the Bosnian Serbs, was nullified by a vote in the self-proclaimed Bosnian Serb Assembly on May 5, 1993.  117  Karadzic had signed with the caveat that should the  assembly reject the proposal, his signature would be annulled. Some analysts attribute the Bosnian Serbs' thwarting of the Vance-Owen Peace Plan to the US's lukewarm response to it.  118  Although the US did not condemn the proposal, it did not heartily endorse it  because it believed that the plan "rewarded aggression and condoned ethnic cleansing," was "a thinly disguised partition," and violated the principle of self-determination. US's response encouraged Karadjic to hold out for better options.  121  120  119  The  The US's primary  Ibid. 235. Ibid. Ibid. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1107-08. Department of Public Information United Nations, Yearbook of the United Nations: 1993, vol. 47 (New York: Martinus Nijhoff, 1994) 475. 113 114 115  116  117  1 . 8  1 . 9 120 121  Gow,  Triumph of Lack ofWill  313.  Ibid. William G. Hyland, Clinton's World: Remaking Gow, Triumph of Lack of Will 241-42.  M . Anderson  American  Foreign Policy  (Westport: Praeger, 1999) 33.  26  objection to the plan was that it did not go far enough to ensure multi-ethnicity, even though its implementation would have ended the conflict. The Contact Group, comprised of France, Germany, the U K , the Russian Federation, and the US, was established in 1994 to take the lead in reaching a peace settlement.  122  Within the Contact Group, the US and Russia played a greater role and its  establishment signified the failure of European leadership and the necessity of US leadership.  123  The Contact Group developed a proposal which adhered to the principles  set out since the beginning of the conflict—including the right of return and restitution of property—and proposed that B i H be divided into two "entities;" the Muslims and Croats would share the Bosniac-Croat Federation comprising 51% of the territory and the Bosnian Serbs would have the Republic of Srpska which comprised 49% of the territory of B I H .  1 2 4  The Contact Group put forth both incentives and disincentives to encourage  acceptance of the proposal. However, the Serbs rejected the proposal in the spring of 1995.  125  Proposals that advocated partition and the acceptance  of ethnic homogeneity  received little currency throughout the conflict. At the 1992 London Conference, the Dutch Presidency proposed that any solution to the conflict would be acceptable if it resulted from a peaceful process and was based on the consent of all parties, even if that process meant partition based on ethnic boundaries.  126  This proposal was rejected by the  eleven other E C members because it was believed that it would open a "Pandora's box"  Allcock, Milivojevic, and Horton, Conflict in the Former Yugoslavia: An Encyclopedia 124. Ibid. Department of Public Information United Nations, Yearbook of the United Nations: 1994, vol. 48 (New . York: Martinus Nijhoff Publishers, 1995) 553. 122  123 124  M . Anderson  27  of border disputes, that the various pockets of ethnic minorities would make redrawing boundaries difficult, and that "it was considered out of date to draw state borders along ethnic lines."  127  Throughout the conflict, a host of Security Council Resolutions condemned the practice of ethnic cleansing and called for its reversal through the voluntary return of all those who had been displaced to their homes. For example, April 18, 1993 Resolution 820  128  sponsored by nine SC members including P5 members France, the U K , and the  US, stated in the preamble that "any taking of territory by force or any practice of "ethnic cleansing" is unlawful and totally unacceptable, and insisting that all displaced persons be enabled to return in peace to their former homes." And in point 7: "The Security Council reaffirms its endorsement of the principles that all statements or commitments made under duress, particularly those relating to land and property, are wholly null and void and that all displaced persons have the right to return in peace to their former homes and should be assisted to do so."  129  Resolution 1009 adopted on August 10, 1995 states in  point 2: The Security Council demands further that the Government of the Republic of Croatia, in conformity with internationally recognized standards [...] respect fully the rights of the local Serb population  127 128  David Owen, Balkan Odyssey (London: Victor Gollancz, 1995) 33. Ibid. S/RES/820 reproduced in Bethlehem and Weller, eds., The 'Yugoslav'  General Issues, Part 129  Crisis in International  Law:  136.  S/RES/820 reproduced in Ibid. 37.  M . Anderson  28  including their rights to remain, leave or return in safety [....] and create conditions conducive to those persons who have left their homes.  130  Other Security Council resolutions, such as 752, 757, 771, 787, and 819, demonstrate the consistency of the absolute denunciation of ethnic cleansing throughout the conflict. Language in these resolutions and statements made during Security Council debates reveal the widespread revulsion of ethnic cleansing, and the adamant resolve for its reversal through return. On August 13, 1992 in debating Security Council Resolution 771, Austria stated: The international community has the clear obligation to assist displaced persons in returning to their homes and regaining their property. Many persons have been forced to sign documents renouncing their property rights. There can be no doubt that such documents are null and void and that compensation should be given for property that has been destroyed.  131  Lord Owen, addressing the Security Council on November 13, 1992 on the Vance-Owen Peace Plan stated: Our constitutional proposals for Bosnia make clear there is not going to be a crude division of Bosnia and Herzegovina into three separate provinces, because such an arrangement would simply endorse ethnic cleansing [...] A vital aspect of our constitutional proposals [...] is the powerful interlocking mechanism for the reversal of ethnic cleansing.  130  S/RES/1009 as cited in Scott Leckie, Housing  Displaced  Persons: International,  Regional  and Property Restitution for Refugees and Internally and National Legal Resources, vol. 7, Sources (Amsterdam:  Primavera, 2001) 15. S/PV.3106, 13 August 1992 in Bethlehem and Weller, eds., 131  General Issues, Part  M . Anderson  The 'Yugoslav'  Crisis in International  Law:  199.  29  People who wish to return to their homes or land will be able to call on an ombudsman for help in negotiating with local authorities and, if need be, help in going to court.  132  The same day, U N High Commissioner for Refugees Sadako Ogata addressed the Security Council stating: I take part in the condemnation by the entire international community of [the] abhorrent practice [of ethnic cleansing], emphasizing the rights of people to stay where they are, in conditions of full security, and stressing the responsibility of everyone to ensure respect for this right.. .1 sincerely hope the day will come when refugees and displaced persons on all sides will be able to return to their homes.  133  Japan stated: Japan denounces the practice of 'ethnic cleansing' perpetrated by Serbian military and paramilitary forces in Bosnia and Herzegovina, and insists that the resulting change in the ethnic composition of the territory must not be accepted as a fait  accompli}  34  On November 16, 1992 Lithuania stated, "Even though the Bosnian Serbs may have valid political aspirations, nothing can justify the armed aggression, massive expulsions and killing of innocent civilians taking place in Bosnia and Herzegovina."  The principle of the right of post-conflict return and repossession of property was finally implemented in B i H once the Dayton Peace Accords were signed. Until Dayton,  132 133 134  S/PV.3134 reproduced in Ibid. 126. S/PV.3134, 13 November 1992 reproduced in Ibid. 129. S/PV.3134, 13 November 1992 reproduced in Ibid. 134.  M . Anderson  30  the Bosnian Serbs had thwarted peace efforts primarily because, due to their military superiority, they would have been required to make the largest concessions.  136  Changes  on the ground reduced Serb territorial gains thus making negotiation more attractive. The US turned a blind eye to Croatia's importation of Iranian weapons Croatia with military assistance.  139  138  137  and provided  Croatia then launched successful offensives regaining  two-thirds of its territory which had been held by Serb forces.  140  N A T O air strikes and  the Bosniac-Croat gains in B i H were also successful in reducing Serb gains.  141  The Dayton Peace Agreement was initialed by the Croatian, Bosnian, and Yugoslavian government on November 21, 1995 in Dayton, Ohio and signed in Paris on December 14, 1995. Annex 7 on Refugees and Displaced persons in Article 1 of Chapter 1 states: All refugees and displaced persons have the right freely to return to their homes of origin. They shall have therightto have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.  142  The agreement establishes the Commission for Displaced Persons and Refugees to implement property claims. Its mandate is to: 143  S/PV.3137 reproduced Ibid. 175. Hyland, Clinton's World: Remaking Ibid. Ibid. Gow, Triumph of Lack of Will  American  Foreign Policy  39.  276.  Hyland, Clinton's World: Remaking American Foreign Policy 39. Weiss, "Dealing with the Displacement and Suffering Caused by Yugoslavia's Wars," 186. Dayton Peace  Agreement. Agreements  Christine Bell, Peace M . Anderson  and Human Rights  (New York: Oxford University Press, 2000) 253. 31  Receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation in lieu of restitution.  144  As detailed above, the Dayton Peace Agreement has been extremely successful in restituting property to its owners. The repeated calls for restitution of property throughout the conflict, their enshrinement in Dayton, and their subsequent implementation are curious because of the massive population transfers which occurred during the first half of the twentieth century. It is significant that there was widespread acceptance of this principle and that the international community has gone to great lengths at a great financial burden to implement this course of action. This change in behaviour from the first half of the twentieth century to the Yugoslav conflict requires explanation.  M . Anderson  32  Part II: Key Normative Changes There are five notable differences in the peace underpinning the Dayton Peace Accords compared to the peace agreements of the first half of the twentieth century. If Dayton were to follow the pattern of peace treaties of the first half of the century, then it would have been premised on the explicit notion of ethnic nationalism, allowed for partition, any reparations would have been paid by the losing states to the winning states, those belonging to the ethnicity of the losing state would be deemed responsible for the war, and the gains made in war would be kept by the winning state. Rather, the settlement saw something vastly different; that is, a preference for civic nationalism, territorial integrity, the individual's right of restitution, individual as opposed to collective responsibility, and the affirmation of individual property rights.  1. Civic not Ethnic Nationalism In 1998, William Montgomery, US Ambassador to Croatia from 1998-2000, stated: "Croatia's interest [...] must have a vision of how to build a better future [...]. One path would continue the pattern of ethnic hatred and conflict that has characterized this region for the past century [... ] The other path, which admittedly is more painful and more difficult in the short term, is to adopt the reconciliation processes implemented in Western Europe following the Second World War and which have led to the establishment of the European Union."  145  William T. Montgomery, "Croatia's Roadmap to Partnership for Peace," Croatian International Relations Review 4, no. 11 (1998): 89.  M . Anderson  33  Montgomery's analogy to WWII is somewhat fallacious, but illustrative of the rhetoric which seeks to justify the ethnic reconstitution of the former Yugoslavia. The path the international community insisted Croatia and B i H pursue after the conflict, namely ethnic reconstitution, was vastly different from the path taken in the aftermath of WWII to promote ethnic homogeneity. WWII had resulted in 40-50 million displaced persons and eighteen million alone after the war.  146  A large number of these were the result of  organized "population transfers" which were explicitly sanctioned and legitimized by the international community.  147  The practice of ethnic cleansing, or "population transfer," as  it had been called, was a legitimate means of nation building.  148  In fact, it was believed  that the transfer of ethnic minorities was a viable solution to "nationality problems,"  149  and that creating ethnically homogenous communities would ease existing or potential ethnic tensions.  150  The path to peace in post-WWII Europe was perceived to be in  ethnically homogenous states whereas in Balkans it has been touted as being secured in a liberal multi-ethnic democracy.  Ethnic nationalism has been replaced by civic nationalism as an international norm. Civic nationalism is "predicated upon political rather than ethnic identity"  151  making state territorial boundaries the legitimate division between political communities. Ethnic nationalism rests upon the notion that identity is determined by ethno-cultural  Philipp Ther, "The Integration of Expellees in Germany and Poland after World War II: A Historical Reassessment," Slavic Review 55, no. 4 (1996): 781. Schechtman, Postwar Population Transfers in Europe: 1945-1955 vii. Jackson-Preece, "Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms." Schechtman, Postwar Population Transfers in Europe: 1945-1955 ix. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1096. Jackson-Preece, "Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Nonns," 840. 146  147  148  149 150  151  M . Anderson  34  *  •  152  origin, and therefore underscores "the political ideal of the homogeneous nation-state." This normative change, in large part, delegitimized the aims of the warring parties in the dissolution of the former Yugoslavia to create ethnically homogenous states. The concept of ethnic nationalism underscores the ideal of self-determination which Woodrow Wilson "hailed [...] as the organizing principle of the 1919 territorial settlement."  153  The right of self-determination was granted to "peoples" who were  understood to be "[inhabitants] of a particular area [having] a unique language and culture."  154  This principle underpinned the post-WWI creation of new nation-states such  as Poland, Czechoslovakia, Austria, Hungary, Romania, Albania, Finland, Estonia, Latvia, and Lithuania. Germany  155  employed  ethnic  cleansing to  achieve  ethnically  homogeneous  populations during WWII. Excluding the "final solution" for the Jews, Hitler's policy of Umsiedlung or resettlement entailed the relocation of ethnic German minorities to secure areas for the expanding territory controlled by the Reich.  156  Germany concluded bilateral  agreements with the Baltic States, Italy, Romania, Yugoslavia, and Bulgaria for the transfer of their ethnic German populations who were then resettled in the Incorporated Territories of Western Poland, Upper Silesia, and East Prussia resulting in the 157  displacement of the Slavs who had previously inhabited these areas.  152 153 154 155 156 157  Ibid. Ibid. Ibid. Ibid. Ibid. Ibid.  820. 818. 823. 825.  M . Anderson  35  Over the past fifty years a normative shift has occurred rendering forced population transfers illegitimate. This is evidenced by the prohibitions and restrictions in humanitarian law, crimes against humanity, human rights texts and emerging law and standards.  Ethnic cleansing is prohibited under humanitarian law by the 1949 Geneva  158  Convention IV Relative to the Protection of Civilian Persons in Time of War and the 1977 Additional Protocols I and II which prohibit the forced movement of civilians.  159  Thus, humanitarian law prohibits the practice of mass deportation in times of war. Crimes against humanity are defined by the London Charter of the International Military Tribunal (IMT) which was adopted in order to lay the legal foundations for prosecuting alleged Nazi war criminals.  160  Article 6 defines crimes against humanity as  "murder, extermination, enslavement, deportation and other inhuman acts committed against any civilian population before or during the war." reaffirmed  by the  Nonapplicability Humanity.  U N General Assembly and  of Statutory  Limitations to  the  161  These prohibitions were  1968  Convention on  War Crimes and  the  Crimes Against  Law pertaining to crimes against humanity covers acts which are committed  Ibid. 832. Protocol II, article 17: "1) The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. 2) Civilians shall not be compelled to leave their own territory for reasons connected with the conflict." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). http://www.unhchr.cli/litnu7menu3/b/94.htm Jackson-Preece, "Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms," 835. Ibid. Convention on the Nonapplicability of Statutory Limitation to War Crimes and Crimes Against Humanity of 1968 (entered into force 11 Nov. 1970), 754 U.N.T.S 73 in Ibid. 158  159  160  161  162  M . Anderson  36  during peace as well as war, and are not exonerated even if they are sanctioned under domestic law.  163  Therefore, expulsions are prohibited during times of peace as well.  Various human rights texts provide both direct and indirect protection against expulsion.  164  The  right  to  self-determination,  protection, against  genocide  and  discrimination, freedom of movement, freedom of religious worship, freedom of *  assembly, freedom of expression, cultural identity, adequate housing, right to education, and protection against forced labour lend support to the prohibition of ethnic cleansing.  165  These rights are found in human rights texts such as the 1945 U N Charter, the 1948 Universal Declaration of Human Rights, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1992 Declaration of the Rights of the Persons Belonging to National or Ethnic, Religious or Linguistic Minorities.  166  Particularly, the delegitimization of population transfers has also been manifested in the development of the right of return. In contrast to the post-WWI and WWII treaties in which ethnic minorities were forcibly exiled and left without the possibility of return, the 1991 Paris Agreement on Cambodia, the 1995 Dayton Accords and various TJNHCR Executive Committee conclusions on Afghanistan, Angola, Tajikistan, Myanmar and  163  1 ;  Ibid. 834-35. Ibid. Ibid. 835. Ibid.  M . Anderson  37  Georgia acknowledge the right of post-conflict return for those displaced as the result of a conflict.  167  There is some suggestion that this shift in policy is not necessarily due to an ideational shift in favour of the human rights paradigm, but rather to the changed political reality in the post-Cold War World. In the context of the Cold War, "refugee law focused on the right of people to leave their home country and to seek asylum in another state. The right of return was generally not a true option."  168  Additionally, "the vast majority of  refugees find asylum in developing countries, which often cannot absorb them [therefore] repatriation [...] has become the most viable option."  169  According to Sadako Ogata,  former U N High Commissioner for Refugees, in the post-Cold war world "refugees are victims of civil war and political conflict, rather than persecution."  170  Regardless of the  reasons for this shift, within the post-Cold War paradigm, the right of return has solidified.  There are a number of human rights texts which directly prohibit forced expulsion. The 1950 Fourth Protocol to the European Convention for the Protection of Human Rights prohibits the individual or collective expulsion of citizens and the collective expulsion of aliens.  171  The 1978 American Convention on Human Rights  prohibit "against expulsion of individuals and mass expulsion targeting national, racial,  It must be noted that these post-war agreements, with the exception of the Dayton Peace Accords foresee the return of refugees and displaced persons to their countries of origin and not their former place of residence specifically. Albert, "The Return of Refugees to Bosnia and Herzegovina: Peacebuilding with People," 10-11. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1119. 167  168  M . Anderson  38  ethnic or religious groups."  The Organization for Security and Cooperation in Europe's  1990 Copenhagen Document. states that "persons belonging to national minorities have the right to freely express, preserve and develop their ethnic, cultural, linguistic or religious identity [...] free of any attempts at assimilation against their w i l l . "  173  The 1995  Council of Europe's Convention for the Protection of National Minorities prohibits "practices aimed at assimilation of persons belonging to national minorities against their will" and "measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities."  174  Throughout the 1990s there have been a variety of calls for further legal codification against ethnic cleansing. These have been manifested in various draft international organizations.  agreements, 175  statements  by  legal,  humanitarian  and  international  These call for further protections and guidelines prohibiting ethnic  cleansing, state that compulsory transfer or population exchanges are "inherently objectionable," and advocate "a specific legal instrument [to] clarify that population transfer is, prima facie, unlawful."  176  Clearly there have been violations of this norm such as the expulsion of Greek and Turkish Cypriots in Cyprus, expulsion of Bulgarian Turks in the 1980s, and the expulsion of various minorities in the aftermath of the breakup of the Soviet Union. Article 3: "No one shall be expelled by means either of an individual or of a collective measure from the territory of a state in which he is a national," Article 4 prohibits "collective expulsion of aliens." Articles 22 (3) and (4) cited in OCHA, An Easy Reference to Humanitarian Law and Human Rights Law: For Humanitarian Coordinators Operating in Situations of Internal Armed Conflict (New York: United Nations, 1999) 2. Section IV (32) as cited in Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 836. Ibid. 836-37. 171  172  173  174  M . Anderson  39  However, as Legro notes "[violations of a norm do not necessarily invalidate it, as is seen, for example, in cases of incest. The issue is whether actors are socially or selfsanctioned for doing so."  177  These developments have not been sanctioned by the  international community, which is evident by various denunciations of them as well as calls for their reversal. In contrast to the rhetoric of ethnically homogeneous states during the first half of the twentieth century, those advocating peace in the Balkans employed a very different discourse. The international community stated many times that the return home of those displaced "lay at the heart of any possible long-lasting peace."  178  For example, in a  speech given during the Dayton negotiations Warren Christopher, US Secretary of State, stated that the US and the E U "share the conviction that Europe's post-cold war peace must be based on the principle of multiethnic democracy."  179  A US objective in  developing and implementing the Dayton Agreement was the destruction of "the myth that Bosnians from different ethnic groups [could not] live together."  180  The extent of the delegitimized status of ethnic nationalism is further illustrated by the language employed by Security Council members during debate. In a debate in May 1992, Hungary stated: "At the end of our century, undisguised efforts to create socalled nation-states, incorporating all people belonging to the same ethnic background,  Jackson-Preece, "Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms," 837-38. Ibid. 838-39. Legro, "Which Nonns Matter? Revisiting the Failure of Internationalism," 35. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1114. Fabry, "International Norms of Territorial Integrity and the Balkan Wars of the 1990s," 173. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1112-13. 175  176 177  178  179 180  M . Anderson  40  and the blatant use of force to achieve this aim through territorial conquests, are completely inadmissible and inexcusable."  181  The representative from Equador stated: "It  is indispensable that the rights of ethnic minorities be respected. It is indispensable that the principle of the self-determination of peoples be respected. That right should be accorded to the political entities that can assert self-determination rather than to the minorities in those political entities."  182  The representative from the Russian Federation  stated that efforts must be taken in order to "put an end to the bloodshed which continues...on the basis of agreed-upon principles such as recognition of the territorial integrity and sovereignty of States and renunciation of the 'ethnic purity' of regions, and in order to protect the rights of national minorities and others."  183  The United Kingdom  stated that: Enforced expulsions on the ground of ethnic origin [... ] [is] an [affront] to morality and [is] contrary to all the provisions of international humanitarian law [...] It is appalling that in the last decade of the 20  th  century, [ethnic cleansing] should be prevalent. The forcible removal of civilian populations is wholly contrary to the accepted tenets of international humanitarian law.  184  In April of 1994, Turkey stated "never in history has peace prevailed where injustice, aggression, and racism were rewarded. For a just and viable peace settlement, the  181  S/PV.3082, 30 May 1992 in Bethlehem and Weller, eds.,  The 'Yugoslav'  Crisis in International  Law:  General Issues, Part 7 85. 182 183 184  Debate, S/PV/3082, 30 May 1992 in Ibid. 19-20. Debate, S/PV/3082, 30 May 1992 in Ibid. 20. S/PV.3106, 13 August 1992 in Ibid. 102.  M . Anderson  41  consequences of 'ethnic cleansing' and genocide should be reversed without further delay."  185  During the drafting of the Dayton Accords, some individuals within the US administration suggested that a peace approach based on the interwar transfers (as specified in the treaties of Neuilly in 1919 and Lausanne in 1923) be adopted to resolve the Yugoslav crisis.  186  However, this approach was rejected because it was believed that  this would "aid and abet ethnic cleansing, while rewarding and legitimizing Serb aggression [...] [and the US was].[u]nwilling to accept that it might not be possible to lead the parties to live together in multiethnic harmony."  187  The concept of civic nationalism meant that individuals could not be legitimately deprived of their rights nor afforded preferential treatment on the basis of their ethnicity. Specifically, it meant that people could not be legitimately deprived of their homes on the basis of their ethnicity.  2. Territorial Integrity The concept of territorial integrity had a significant bearing on the outcome of the peace agreement. Upholding this norm meant that borders could not be legitimately altered by force and any legitimate changes had to fall along existing internal administrative boundaries.  188  Accordingly, while the international community accepted  the right of the former Yugoslav republics to secede (Slovenia, Croatia, B i H , and  S/TV.3370 in Ibid. 429. Maynard Glitman, "US Policy in Bosnia: Rethinking a Flawed Approach," Survival 38, no. 4 (19961997): 71. Ibid. 72. Fabry, "International Norms of Territorial Integrity and the Balkan Wars of the 1990s," 145.  185  186  187  188  M . Anderson  42  Macedonia) it repudiated attempts of sub-republic units, such as the Krajinan Serbs, the Bosnian Croats and the Bosnian Serbs, to secede.  189  In justifying this distinction, four  arguments were made: the second wave of secessions were motivated by ethnicism; did not take place along administrative borders; secession for republics only was foreseen under the Yugoslav constitution; and that it is international recognition which makes borders inviolable.  190  The Serbs and Croats, conversely, wanted a tripartite partition of B i H into Serb, Croat, and Muslim parts creating a de facto Greater Serbia and Greater Croatia.  191  The  statement of the Dutch Presidency of the E C , in closing the London Conference, exemplified this inconsistency: "The principle of self-determination cannot exclusively apply to the existing republics while being deemed inapplicable to national minorities within those republics [...] if the aim is to reduce the number of national minorities in every republic, better borders than the present ones could be devised."  192  However, the  proposal to allow changes in republic borders was rejected by the eleven other E C member states because of three stated reasons. They believed it could open a Pandora's box of borders disputes; it was "out of date" to draw state borders along ethnic lines; and separate pockets of ethnic groups throughout B i H would make deciding on border lines difficult.  193  After WWI and less so after WWII, borders were redrawn to reward victors or better reflect ethnic composition. Mark Zacher details the development of the norm of territorial  1 8 9  190 191 192 193  Jean E. Manas, in The World and Yugoslavia's Wars, ed. Richard Ullman, 48. Ibid. Gow, Triumph of Lack of Will 253. Owen, Balkan Odyssey 32. Ibid.  M . Anderson  43  integrity from the seventeenth century to 2000 dividing its development into three major stages. The classical acceptance was that borders could be changed by force and/or without consent of the people who lived on the territory.  194  Using Martha Finnemore and  Kathryn Sikkink's three-stage model for norm development of emergence, acceptance, and internalization, Zacher outlines these three phases of the norm's development. Zacher traces the emergence of the norm to the period between WWI and the end of WWII. During this period, the concept was articulated in Article 10 of the League of Nations Covenant: "The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League."  195  As a result of the post-WWI settlements, however, Italy  was given a piece of Austro-Hungarian territory—South Tyrol—where few Italians lived, and Czechoslovakia and Poland obtained territories in which large numbers of ethnic Germans lived.  196  This is illustrative of the classical practice of territorial conquest.  By the 1930s, the great powers were divided in their commitment to territorial integrity. The second period of norm development is acceptance, which is characterized by growing support for the norm and its integration into treaties to the point where it is viewed as legally binding by most countries.  This period is from 1946-1976; beginning  with Article 2:4 of the U N Charter and ending with the CSCE's Final A c t .  198  The norm  became increasingly entrenched throughout the 1960s and 1970s and was manifested in such conventions as the 1960 U N Declaration which stated that colonies rather than  194  Mark Zacher, "The Territorial Integrity Norm: International Boundaries and the Use of Force," Organization 55, no. 2 (2001): 220. cited in Ibid. 219. Ibid. Ibid. 236.  International 195 196 197  M . Anderson  44  ethnic groups were entitled to self-determination, the Organization of African Unity (OAU)'s 1963 Charter which supported respect for inherited boundaries, and the CSCE's Helsinki Final A c t .  199  The third period, internalization, is designated from 1976 to the  present in which there have been no major cases of territorial aggrandizement.  200  Zacher  states that the response of states to individual conflicts has strengthened the norm such as in Somalia's war against Ethiopia from 1976-1980, Iraq's invasion of Kuwait from 19901991, the dissolution of Yugoslavia in the 1990s, and the referendum in East Timor in 1991.  201  During this period the International Court of Justice (ICJ) based a number of its  decisions on the concept of uti possidetis, that is, states have rights to territories that were legally ceded to them by prior governing states and other states do not have the right to take them. 202 Zacher attributes the development of the norm in the international system to both instrumental and ideational factors. The ideational factors are "rooted in changing views of ethical behaviour toward other peoples and states."  203  Instrumental reasons include the  perceived relationship between possible territorial aggressors and the major powers supporting the norm.  204  The Western industrialized states have accepted them because  they have associated territorial revisionism with major wars.  205  Non-western or  developing states have accepted them due to "the existence of ethnic groups that overlap borders and can provoke territorial irredentism, the military weakness of many  198  Ibid. 276. Ibid. 237. 200 Ibid. 201 Ibid. 202 Ibid. 203 Ibid. 204 Ibid. 205 Ibid. 238. 199  M . Anderson  45  developing states vis-a-vis Western supporters of the norm."  206  Zacher notes that "both  instrumental and ideational factors influence the evolution of norms" and applying an 'either/or' approach.. .is wrong."  207  The norm of territorial integrity was manifested in the many repudiations given by the international community in response to attempts by both Serbia and Croatia to alter the existing borders  of the republics.  208  Fabry notes "Whereas Western states and  international organizations displayed plenty of expediency, inconsistency and wavering towards the Balkans, this position remained principled and consistent throughout the wars in the two republics."  209  This norm re-enforced the norm of civic nationalism discussed previously. It was deemed illegitimate for Croatians, Serbs, or Muslims to demand their own homeland. Rather, the borders which became the international frontiers were those which had previously been the internal republic frontiers,  in accordance with international  customary law. Thus, the ethnic make-up and self-determination of peoples was not taken into account. This again indicates that the legitimate boundaries of political community are based on territorial divisions rather than ethnic demographics. Maintaining these borders  required  substantial  commitment  and  resources  from  the  international  community. Partition along ethnic lines would have, in fact, required fewer resources.  In addition to reinforcing civic nationalism, it would seem that the norm of territorial integrity for states coupled with the human rights paradigm allows transference  206 207  208 209  Ibid. 241-42. Ibid. 237. Fabry, "International Norms of Territorial Integrity and the Balkan Wars of the 1990s," 146. Ibid.  M . Anderson  46  of the norm from the state to the individual level. The delegitimization of the use of force has made achieving objectives through its use dubious. This raises the question of whether the traditional rights of the states are becoming the rights of the individual. Although this issue is beyond the scope of this thesis to explore, it seems that both territorial integrity and increasing protection for individual property rights indicate the increasing inviolability of property generally—whether belonging to the state or individual.  3. Restitution to Individuals as Opposed to States A major difference between the restitution regimes in the former Yugoslavia and previous restitution regimes is that restitution is being made to individuals as opposed to states. After WWI and after WWII "[restitution] was made to the government of the country from which the removal took place."  210  Restitution was a part of the larger  concept of reparations which "referred to a fine among states '' and was levied by the 1  winners of the war against the losers under the pretext that the losers had caused the war and were therefore obliged to compensate the countries which had suffered as a result.  211  Consequently, "reparations were [...] a relatively unambiguous and tangible form of 'victor's justice.'"  212  This concept was reflected in the fact that states were the sole  legitimate subjects of international law until after World War I I .  213  Working within the paradigm, in the immediate aftermath of WWII, it was nations, not individuals that claimed reparations and restitutions. The Jews as a nation demanded  2 1 0  2 1 1  2 , 2  Vasarhelyi, Restitution in International Law 169. Torpey, Politics and the Past: On Repairing Historical Injustices 4. Ibid.  M . Anderson  47  restitution for property lost during the Nazi regime.  Immediately after the war, Jewish  organizations lobbied the Allies to force the Germans to pay reparations. However this was not a priority for the Allies and consequently the Allies did not invite Jewish representatives to attend the 1945 Paris Reparations Conference.  Through intense  lobbying Jewish organizations received unofficial status and were awarded minimal restitution which amounted to a few million dollars.  216  This compensation was to come  from German property held outside Germany. The Allies considered this small amount 217  of compensation to have dealt with the issue of reparations.  218  In Germany, which had been divided into four zones occupied by the British, French, Soviets, and Americans, restitution was most successful in the American zone. In this zone, the US military government named the Jewish Restitution Successor Organization (JRSO) the legal successor of heirless property.  219  The JRSO petitioned more than  100,000 claims, three-quarters of which were solved in a few years. Half of these were settled in one lump sum.  220  In 1951, Jewish groups made a final attempt to have  reparations imposed upon Germany.  221  The Israeli government requested 1.5 billion  dollars, which represented about one-quarter of all property seized, for the support of half a million Holocaust survivors to settle in Israel. Of the three types of property lost—1) Private 2) Heirless and 3) Communal—the Jewish representatives at the 1949 claims  213 214 215 216 217 218 219 220 221  Ibid. Barkan, The Guilt ofNations: Restitution and Negotiating Historical Injustices 4-5. Ibid. 6. Ibid. ix. Ibid. Torpey, Politics and the Past: On Repairing Historical Injustices 7. Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices 1. Ibid. 8. Ibid.  M . Anderson  48  conference demanded restitution for the loss of types two and three.  However, despite  these claims, minimal restitution was made to the Jews initially. Elsewhere in Europe, Hungary was unwilling to compensate Jews until 1994, Jewish religious property only in 1997,  224  223  Poland allowed the return of  and as of 2000 "no meaningful private or  communal restitution has taken place in the Ukraine, Belarus or Russia."  225  Another example which demonstrates state-to-state restitution was the revenue that Canada generated by liquidating—under the provisions of the Treaty of Versailles— German property it had seized during the war. The German citizens who lost property as a result of this seizure were not entitled to apply to the Canadian government for compensation, but the German government was responsible for compensating its own citizens for their losses.  226  Additionally, the revenues gained by the Canadian government  were available for Canadians to claim compensation for having suffered as prisoners of war, property damage, personal injuries etc.  227  As the individual had no standing in  international law he/she was unable to hold other states accountable for losses suffered at their hands. In short, an individual had a legitimate relationship with his/her own state, and states dealt with other states.  The concept of the individual as a subject of international law grew out of a response to the German atrocities against sub-national groups such as Jews, Gypsies,  Ibid. 4-5. Ibid. 145. Ibid. 146. Ibid. Roberts-Moore, "Studies in Documents. The Office of the Custodian of Enemy Property: An Overview of the Office and Its Records, 1920-1952," 96. Ibid.  222 223 224 225  226  227  M . Anderson  49  homosexuals and the handicapped.  "The human rights instalments promulgated by the  United Nations after WWII were drafted to ensure that human beings would not, in the future, exercise their barbarous impulses on others without the latter having a juridical leg to stand on—especially when the perpetrator was the victim's own government."  229  The concept of human rights, which asserts that each individual has inalienable rights, is a significant paradigm shift. The human rights paradigm legitimizes claims of individuals, and does not allow them to be negated in the name of state interests. The regimes in the former Yugoslavia exemplify this point. The state has taken upon itself the obligation to restore the rights of individuals lost due to its own persecution of them. The property restitution regime solves each case individually. Unlike the reparations given to the Jews as a nation, the property restitution regimes in B i H and Croatia purport to solve each case on its own merits, restoring to each individual what s/he lost as a result of the conflict.  4. Individual as Opposed to Collective Responsibility The insistence of the international community upon the establishment of property restitution regimes for all those who lost property, including Serbs, indicates a shift from the assigning of collective responsibility. The fifteen million ethnic Germans expelled throughout Europe after WWII without individual trial, were assumed to have collaborated with the Nazis and thus deemed collectively responsible for the Nazis' atrocities.  2 2 8  230  The Czechoslovak decrees, which called for the expulsion of three million  Torpey, Politics and the Past: On Repairing Historical Injustices 4.  M . Anderson  50  Germans and the confiscation of their property, were explicitly based on the concept of collective guilt.  231  In challenging their expulsion and deprivation of property a Czech  court ruled that the expulsion of the Sudeten Germans and confiscation of their property had been legitimate because of their assumed collaboration with the Nazi regime.  232  This  illustrates the perceived acceptability of collective punishment. Due to the assumed guilt of the German nation, the question of paying reparations was deemed unnecessary.  233  The response to the various factions involved in the former Yugoslavia stands in contrast to the above-mentioned treatment of the ethnic Germans. Generally, the Serbs have received the lion's share of the blame for the conflict and the atrocities committed. Yet, the international community has made no distinction between those of Serb ethnicity and others regarding the right to reclaim their property.  5. The Strengthening of Property Rights and the Evolution of Restitution The population expulsions and seizures of enemy property during the first half of the century did not envision allowing owners to retain control over, or in most cases to receive compensation for their losses. Although the Treaty of Lausanne offered compensation to those who had lost property as the result of the transfer, compensation is clearly a weaker form of property rights recognition than is the right to return and repossess. There was a recognition of the transferees' loss of property, but there was no consideration of restitution since the goal was to transplant the transferees with the  Robert M. Hayden, "Schindler's Fate: Genocide, Ethnic Cleansing, and Population Transfers," Slavic Review 55, no. 4 (1996): 728. Ibid. 729. 2 3 1  2 3 2  M . Anderson  51  intention of them becoming part of another state. Nevertheless, the modern conception of property ownership includes the right not to use the property. With such a conception, transferees could have maintained control over their properties. However, they did not. This indicates that property rights were connected to property use. Throughout the conflict, there were repeated calls for allowing those displaced to be allowed to return or receive compensation if they did not return. It is significant that there was little controversy surrounding whether there should be return of displaced persons. The Security Council passed a number of resolutions which stressed that "the voluntary return of all refugees and displaced persons to their pre-war homes were to be part of the lasting solution to the conflict."  234  The Dayton accords were highly specific in  specifying a displaced person's right to return to his/her "home of origin."  235  The 1995  Dayton Peace Accords on the former Yugoslavia insists specifically upon not only the right to return to one's country of origin, but the right to return specifically to one's home: "All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them."  236  The emerging norm of post-conflict repossession of property, although not codified as such, can be observed in international law, other post-cold war peace settlements, U N  Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1110. Elizabeth M. Cousens and Charles K. Cater, Toward Peace in Bosnia: Implementing the Dayton Accords. (Boulder: Lynne Rienner Publishers, Inc., 2001) 72. Annex 7: Article 1(1) of The General Framework Agreement for Peace in Bosnia and Herzegovina 1995. www.ohr.int/dpa/default.asp?content_id=380 235  236  M . Anderson  52  resolutions, and a developing body of E C H R jurisprudence. The deprivation of property during wartime as a means of ethnic cleansing is now clearly in violation of international law. The Universal Declaration of Human Rights grants the right to own property and prohibits the arbitrary deprivation of such property. However, the inclusion of this provision was controversial, and Article 17 is the result of a compromise. From the outset, many states were reluctant to include property rights in international legal instruments. Article 17 states: "1) Everyone has the right to own property alone as well as in association with others. 2) No one shall be arbitrarily deprived of his property." The controversy surrounding private property was due to the fact that "[a] new social system which prevailed in many states proclaimed the eventual abolition of private property, and even the Western democracies readily recognized that if there was a right to private property, its scope was severely mitigated by the public interest."  237  The resulting  provision was weak due to the use of the word "arbitrarily" which was understood to mean "unlawfully." This provided for deprivation of property if it were in accordance with domestic law and therefore established no international standard at a l l .  238  Compared  to previous state declarations of property such as the US Bill of Rights which states, "no person [shall] [...] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" or the Declaration des Droits de Vhomme et du Citoyen which described life, liberty, and property as fundamental and inviolable rights,  239  the provision in Universal Declaration  of Human Rights is weak indeed.  237  William A. Schabas, "The Omission of the Right to Property in the International Covenants," of International Law 3, no. 4 (1992): 136.  Hague  Yearbook  M . Anderson  53  The controversial nature of a right to property is further illustrated by its absence in both the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights. In fact, the U D H R ' s provision on property has the distinction of being the only article in the Universal Declaration with no counterpart in the multilateral treaties which were intended to give it binding effect."  240  In the drafting of the European Convention on Human Rights (ECHR) a provision relating to property was dropped. Later, Protocol 1 was added which states: 1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2) The preceding provisions shall not, however, in any way impair therightof a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Since it is questionable whether the U D H R holds the force of customary international law,  241  it affords little protection for property rights. Although the ICCPR  does not have a clause specific to property protection, it does provide protection for the home. Article 17 states: "1) No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2) Everyone has the right to the protection of the law against such interference or attacks." The allocation of one's home to others and the denial of the right  240  Ibid. 136.  M . Anderson  54  to use it could fall under the ambit of this article. However, the law specifically prohibits "arbitrary" and "unlawful" interference. Therefore, it must first be determined whether the interference is justified under the given circumstances. This clause is mitigated by Article 4 which grants states a "margin of appreciation" in determining whether or not emergency conditions permit derogation for particular provisions. A state party could legitimately derogate from its commitments under the ICCPR, if it were in accordance with the procedural and substantial requirements set out by Article 4. Article 4 states: 1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language or social origin. 2)  No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11 15, 16, and 18 may be made under this provision.  3) Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.  41  H. M. Kindred, ed.,  M . Anderson  International  Law: Chiefly as Interpreted  and Applied  in Canada  (Toronto: 55  This article contains seven principles which must be satisfied in order for the derogation of provisions to be in accordance with the I C C P R .  242  These are: exceptional threat;  proclamation; notification; non-derogability of fundamental rights; proportionality; nondiscrimination; and consistency. Property rights are much stronger in regional conventions. Article 23 of the 1948 American Declaration on the Rights and Duties of Man states that "every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home." The Organization of American State's Convention on Human Rights, Article 21 states: 1) Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2) No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3) Usury and any otiier form of exploitation of man by man shall be prohibited by law.  243  The Racial Discrimination Convention provides for "freedom from discrimination in the enjoyment of property ownership."  244  The American Convention states that no  person shall be deprived of his property "except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms  Wordsworth Communications, 2000) 813. Jaime Oraa, Human Rights in States of Emergency in International Law (Oxford: Clarendon Press, 1992) 3-4. American Convention on Human Rights, OEA/Ser. K/XWI.l, Doc. 65 Rev. 1 Corr. 1 (1970), 65 AJTL, p. 679, Pan American Treaty Series 36, 9 ILM, p. 673 as cited in Schabas, "The Omission of the Right to Property in the International Covenants," 164. Article 5(d)(v) 242  243  244  M . Anderson  56  established by law.'"  143  Article 14 o f the African Charter states: "the right to property  shall be guaranteed. It may only be encroached upon in the interest o f public need or in the general interest appropriate l a w s . "  o f the community and in accordance with the provisions o f  246  The European Convention on Human Rights grants the right to "the peaceful enjoyment o f [...] possessions"  247  and prohibits the deprivation o f such possessions  "except in the public interest and subject to the conditions provided for by law and by the general principles o f international l a w . "  248  Therefore although states still retain the right  to limit property rights in the course o f an armed conflict "[ajssuming that the existence o f an internal armed conflict constitutes a public emergency satisfying the requirements for derogation,"  249  deprivation must be justified and legitimized through the payment o f  compensation. Therefore, although there is not an absolute prohibition o f the deprivation o f property during a conflict, there are restrictions upon it.  A body o f E C H R jurisprudence has developed which indicates that the peaceful enjoyment o f possessions has been interpreted as a property right. The European Court o f Human Rights has interpreted this article to contain three rules.  250  The first one is that o f  Article 21 Aftrican Charter on Human Rights and People's Rights, OAU Doc. CAB/LEG/67/3 Rev. 5, 4 EHRR, p. 417, 21ILM, p. 58 as cited in Schabas, "The Omission of the Right to Property in the International Covenants," 165. Article 8 Article 1, Protocol 1 of the ECHR cited in Kalin, Walter, Guiding Principles on Internal Displacement: Annotations: Studies in Transnational Legal Policy. Washington: The American Society of International Law: The Brookings Institution: Project on Internal Displacement, 2000. p. 163. Walter Kalin, Guiding Principles on Internal Displacement: Annotations: Studies in Transnational Legal Policy (Washington: The American Society of International Law: The Brookings Institution: Project on Internal Displacement, 2000) 164. These were explicated in the James and Others judgment of 21 February 1986, Series A no. 98-B, p. 29, para. 37 Donna Gomien, Harris, David, Zwaak, Leo, Law and Practice of the European Convention on Human Rights and the European Social Charter (Strasbourg: Council of Europe Publishing, 1996) 312. 2 4 i  2 4 6  247  2 4 8  2 4 9  2 5 0  M . Anderson  57  the right to peaceful enjoyment of possessions. The second rule concerns deprivation of possessions subjecting it to the conditions of being in the "public interest," and in accordance with "law and the principles of international law." The third rule stipulates that states may control the use of property in accordance with the "general interest." Thus the second and third rules lay out specific conditions for legitimate state interference, in the forms of both deprivation and control, with the first.  251  Therefore in any given case, in  order to determine whether or not there has been a violation of the first rule, it is necessary to determine whether or not either the second or third rules are applicable. The court has specified the aspects of the difference between the two in the Air Canada judgment.  252  In this case, United Kingdom customs authorities, having found a large  quantity of drugs on an aircraft, seized it and returned it to Air Canada after it had paid the required fine later the same day. Subsequently, Air Canada brought a claim against the U K government alleging that the aircraft had not been "liable to forfeiture" and therefore constituted an unjust deprivation of property. A claim was eventually launched before the ECHR, which ruled that no deprivation had occurred because "the seizure of the aircraft amounted to a temporary restriction on its use and did not involve a transfer of ownership."  253  Therefore, the primary distinctions between deprivation and control are  the length of time a restriction is placed upon the possession, and the whether there is a transfer of ownership.  A 1996 admissibility decision of the European Court of Human Rights in a case brought forth by a Turkish Kurd against Turkey alleging a violation of Article 13 of the  A i r Canada judgment of 5 May 1995, Series A no 316-A, paras. 33-34 in Ibid. 316. A i r Canada judgment of 5 May 1995, Series A no 316-A, paras. 33-34 in Ibid.  M . Anderson  58  ECHR—the right to an effective remedy—implied that the Turkish government was derelict in its duties by not offering redress to those displaced by the destruction of their villages by state security forces.  254  In another judgment relating to a case brought against  Turkey by an individual who lost access to her private property in Turkish-occupied Cyprus the court ruled that: The complaint [was] not limited to access to property but [was] much wider [... ] because of the continuous denial of access the applicant had effectively lost all control, as well as all possibilities to use, to sell, to bequeath, to mortgage, to develop and to enjoy her land [...] The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. I.  255  The court's judgment infers that the European Convention obliges states to "institute property restitution procedures or to pay compensation in lieu of return and that failure to do so may constitute a violation of the right to peaceful enjoyment of 256  possessions."  Consequently, the court ruled that there had not been a change in  ownership and the plaintiff remained the rightful owner of the property, but ordered Turkey to pay pecuniary damages "for the loss of rental value and increased market value  "[T]he court considers it significant that the Government, despite the extent of the problem of village destruction, have not been able to point to examples of compensation being awarded in respect of allegations that property has been purposely destroyed by members of the security forces or to prosecutions having been brought against them in respect of such allegations." In Akdivar and Others v. Turkey, Judgement of the European Court of Human Rights 16 September 1996, Reports 1996-IV, at para. 96. As cited in Simon Bagshaw, "Property Restitution and the Development of a Normative Framework for the Internally Displaced," Refugee Survey Quarterly 19, no. 3 (2000): 218. Loizidou v. Turkey, Judgement of 28 November 1996, Reports 1996-IV, at paras. 58 and 63. As cited in Ibid. Ibid. 219. 255  256  M . Anderson  59  of the land" and non-pecuniary damages "for distress and anguish; costs and expenses; and interest on amounts unpaid."  257  Although the arbitrary deprivation of property is clearly in violation of international and national legal norms, the post-conflict repossession of property is not as yet enshrined in international law. However, it may be argued that the norm is tending in this direction through the development of customary law, case law and practice. There is a current trend towards the establishment of the norm of restitution of property in addition to repatriation. The 1994 Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict between the Government of Guatemala and the Unidad Revolucionaria  Nacional Guatemalteca states that "[a]n essential element of the  resettlement process is legal security in the holding (inter alia, the use, ownership and possession) of land...[T]he Government undertakes to revise and promote legal provisions to ensure that such an act is not considered to be voluntary abandonment, and to ratify the inalienable landholding rights."  258  The 1995 Dayton Peace Accords on the  former Yugoslavia insist specifically upon not only the right to return to one's country of origin, but the right to return specifically to one's home: "All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities  Leckie, ed., Returning Home: Housing  and Property Restitution Rights of Refugees and Displaced  Persons 42.  Sec. II, paras. 8-9, Agreement on Resettlement of the Population Group Uprooted by the Armed Conflict, signed in Oslo on 17 June 1994, cited in Bagshaw, "Property Restitution and the Development of a Normative Framework for the Internally Displaced," 216. 258  M . Anderson  60  since 1991 and to be compensated for any property that cannot be restored to them." This issue will be discussed further in Part 111-4.  Annex 7: Article 1(1) of The General Framework 1995. www.ohr.int/dpa/default.asp?content_id=380  259  M . Anderson  Agreement for Peace in Bosnia and  Herzegovina  61  Part III: Explanations for Changes in Restitution Practices The above sections established that there are far-reaching changes in how states and the international community more broadly have dealt with the issue of restitution following war. Restitution in the former Yugoslavia is a significant example of this change, but exists within a context of emerging regulations and other restitution regimes throughout the world which reveal that it is not just an anomaly. This paradigm change comprises a shift from ethnic to civic nationalism, border malleability to territorial integrity, state-to-state restitution to state to individual restitution, collective to individual responsibility, and dispossession without recourse to restitution as a right. These shifts are reflected in changing discourse about acceptable practices, and institutionalized in Security Council resolutions, peace treaties, 10 policies and human rights case law. Not only has there been a change in rhetoric, but these changing ideas have had palpable effects on behavior. In short, this thesis establishes that there has been a significant normative change in how the international community deals with restitution. But this leads us to the question of the cause of those normative changes. Are they best understood as products of normative changes in the standards of behavior in international, society, or better understood as the by-product of power politics and the pursuit of selfinterest by the interested players? In this section of the thesis I analyze the explanations for these changes offered by the main theoretical approaches in the scholarly field of international relations. Much rests on this assessment, since the findings tell us the scope  M . Anderson  62  for normative change affecting millions of people in an era characterized by civil and ethnic wars.  1. Rationalist explanations: Self-interest, Refugees and the Imminent US Presidential Election In the field of international relations, rational choice theories posit that states act on the basis of their own self-interest defined in material terms. The state is conceived as a unitary actor. The state makes decisions by defining its goals and objectives, examining possible options to meet those objectives, forecasting the likely consequences of each alternative and then making a value-maximizing decision.  260  Rational choice theory  assumes that states act on their own self-interest defined materially. International events, then, are the outcomes of "aims and calculations of governments."  261  Through a rational choice theoretical lens, the establishment of restitution regimes is the result of key powerful states, such as Germany and the US, seeking to reduce the burden of supporting hundreds of thousands of refugees unable to return to their homes because of the conflict. Eric Rosand, John Scheib, and Richard Holbrooke suggest that such a concern played a role in the outcome. Rosand claims that the right of return originated from the concern to contain the conflict.  262  Scheib and Holbrooke suggest that  once the US took the lead in trying to find a resolution to the conflict, the German government pressured the US to ensure that "any agreement [would] [...] encourage the  Graham Allison, Essence ofDecision: Explaining the Cuban Missile Crisis (New York: Harper Collins Publishers, 1971) 18. Ibid. 13. Rosand, "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent," 1107. 260  261  262  M . Anderson  63  refugees to return home." 2 6 4  With 300,000 refugees who had fled to Germany as of 1995,  their inability to repatriate was extremely costly for Germany.  265  Although this may be  one of the factors which contributed to the policy of the overall right to return, it does not explain why refugees must have the right to return to their homes specifically. If habitable, they were usually occupied by other displaced persons of a different ethnicity. In practicality, the return home for one refugee meant the displacement of others, many of whom had already been displaced once themselves. Untangling chains of housing occupation has proved slow and difficult. If the primary objective had been to simply repatriate as many refugees as quickly as possible, other options would have achieved this objective much more easily—by, for example, allowing the consolidation of ethnic cleansing and encouraging refugees to return to areas of their ethnic majority. A system could have been established whereby refugees would receive compensation for their properties, and their house could then be assigned to someone of the "appropriate" ethnicity. A second rationalist explanation for the US's desire to intervene was that the US's solving of the B i H problem was beneficial to President Clinton's reelection campaign. This explanation holds that the motivation for the US's intervention was due to Clinton's presidency being at stake. According to William Hyland, by 1995 B i H had become a  Richard C. Holbrooke, To End a War, 1st ed. (New York: Random House, 1998) 275. Ibid. John M. Scheib, "Threshold of Lasting Peace: The Bosnian Property Commission, Multiethnic Bosnia and Foreign Policy," Syracuse Journal of International Law and Commerce 24, no. Fall (1997). More generally, it has been suggested that Western concern regarding refugee flows is "an ambiguous mixture of compassion for the plight of the unfortunates who have been case adrift and of fear that they will come pouring in." Aristide R. Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (New York: Oxford University Press, 1989) v. 263  264 265  M . Anderson  64  symbol of Clinton's failed foreign policy.  Clinton's foreign policy advisors believed  that the US must end the war in B i H prior to the 1996 election campaign.  267  Domestic policy concerns may explain the timing for intervention. Although, they may be a factor in determining action, the precise nature of the action taken is not explained by this theory. Rather, the intervention taken by the Clinton Administration could have taken any number of forms. The long-term commitment to creating a viable and liberal democracy clearly exceeded a solution which would have sufficed to end the bloodshed during an election campaign. If the US had intervened solely to increase the Clinton administration's chances of securing the 1996 election, it would be expected that immediately after an election victory, the US's involvement would have diminished substantially. Instead, the US has followed through on a much longer-term commitment to B i H .  2. R e a l i s m a n d S e c u r i t y C o n c e r n s : P r e v e n t i n g a P r e c e d e n t for Border and Ethnic Disputes  Realist theorists might offer an alternative account focusing on core security interests of states. Realism posits that the primary objective of states is ensuring their own survival. Therefore, states are concerned with their security defined as power where power is understood as material and military capability. Therefore states take whatever 268  course of action which best ensures their survival. According to neo-realism, this is the result of a fundamentally anarchic international system. Neo-realism emphasizes the  2 6 6  Hyland, Clinton's World: Remaking American Foreign Policy 39.  2 6 7  Ibid. 46.  M . Anderson  65  structural realities under which states are defined. The anarchic system necessitates state self-help as states cannot be sure of assistance from any other state.  269  As all other states  are potential adversaries, states are concerned with any material or security gains made by other states (relative gains). Assuming that national security concerns were at the heart of the motivations does not account for the liberal version of peace imposed on BiH. Holbrooke suggests that US negotiators believed that allowing territorial gains to be kept by the Serbs and the Croats "might unleash a new round of ethnic and border conflicts in Central and Eastern Europe"  270  and in particular "serve as a precedent for ethnic groups in Russia to rise up  against Moscow, risking widespread chaos in a region rich in nuclear weapons."  271  Within this framework, then, the insistence upon return to the home of origin is the result of the desire to prevent secession and consequently set a precedent for other regions. This concern is based on the fear of compromising the norm of territorial integrity. The international community could have continued to insist upon territorial integrity, however, without insisting upon return.  Realist tenets, it seems, called for quite the opposite approach in the midst of the war. In 1993 John Mearsheimer, a prominent realist, advocated the partitioning of B i H into three ethnically homogeneous states with mandatory population transfers under U N auspices. This would allow minority populations trapped within the new state borders to  Hans Morgandiau, Politics among Nations:  The Struggle for Power and Peace, 6th ed. (New York:  McGraw-Hill, 1985). Robert Keohane, Neorealism and Its Critics (New York: Columbia University Press, 1986) 54, 62. Holbrooke, To End a War 232. Glitman, "Us Policy in Bosnia: Rethinking a Flawed Approach," 67. 2 6 9  2 7 0  2 7 1  M . Anderson  66  join their respective "kinstates."  The Serb and Croat statelets, in turn, would be free to  join Serbia and Croatia respectively—creating the Greater Serbia and Greater Croatia both Croats and Serbs sought to achieve through the war. Mearsheimer further proposed that the U N establish a "Balkan Population Exchange Commission" modeled after the Refugee Settlement which managed the transfer of over 1.5 million people between Greece and Turkey between 1923 and 1931.  273  A realist solution would have called for  expediency in securing state interests, in this case order, without regard to internationally held norms of appropriate behaviour. The liberal objectives of the Dayton Peace Agreement is not accounted for within a realist paradigm.  3. Bureaucratic Explanations of Diplomacy and Bargaining. Theories of bureaucracy and diplomatic bargaining point us to important ways in which outcomes of diplomacy are rarely the result purely of domestic and international interests and values. That is, the process itself often matters for the outcome. Robert Putnam asserts that international agreements should be analyzed in terms of "two-level games" which are the result of the interaction between international and domestic factors.  274  At the national level "domestic groups pursue their interests by pressuring their  government to adopt favourable policies, and politicians seek power by constructing coalitions among those groups."  275  At the international level, "national governments seek  to maximize their own ability to satisfy domestic pressures, while minimizing adverse  John Mearsheimer, "The Answer," The New Republic 203 (1993). Ibid. 26. Robert Putnam, "Diplomacy and Domestic Politics: The Logic of Two-Level Games," International Organization 42, no. 3 (1988): 428-30. Ibid. 434.  272  273 274  275  M . Anderson  67  consequences o f foreign developments." factors can influence domestic factors. model which  envisages  277  organizations  Peter Gourevich also notes that international Allison outlines the organizational behavioural and bureaucrats  as somewhat  autonomous,  possessing the scope to define their critical tasks in a way that serves preferences that arise from the organization itself and its managers.  278  Essentially, the organizational  behaviour paradigm sees decisions as constrained by the complexity and character o f organization.  279  Ivo Daalder claims that the Dayton Peace Agreement was the result o f a bureaucratic process in which the negotiating team on the ground enjoyed a good degree o f autonomy from the U S administration. This gave the negotiators a high level o f freedom to draft the agreement with minimal interference from Washington.  280  Daalder  explains that within the administration there was both a "minimalist" and a "maximalist" position.  281  The minimalist position, espoused  by Washington, simply wanted an  agreement which would end the war, reestablish the U S ' s leadership position in Europe and remove B i H as a pending issue in the upcoming presidential election campaign. Conversely, the maximalists, those drafting the agreement, "sought to build a viable and lasting peace within the basic contours o f a single [...] B o s n i a . "  282  Holbrooke states that  "the negotiators' strategy was to achieve as much as possible in the Dayton Accords [...]  Ibid. Peter Gourevitch, "The Second Image Reversed: The International Sources of Domestic Politics," International Organization 32, no. 4 (1978): 882. Allison, Essence of Decision: Explaining the Cuban Missile Crisis 110. Ibid. 165-85. "[W]e were concerned that if the unprecedented degree of flexibility and autonomy we had been given by Washington were reduced, and we were subjected to the normal Washington decision-making process, the negotiations would become bogged down." Holbrooke, To End a War 170. IvoH. Daalder, Getting to Dayton: The Making of America's Bosnia Policy (Washington, D.C: Brookings Institution Press, 2000) 173-74. 2 7 6 277  2 7 8  2 7 9 2 8 0  281  M . Anderson  68  Our goals were ambitious: first, to turn the sixty-day cease-fire into a permanent peace and, second, to gain agreement for a multiethnic state."  283  Excepting provisions regarding  the operations of the Implementation Force (IFOR) and sanctions, the draft of the Agreement was not reviewed by other agencies in the US government until a few days before the Dayton peace conference began.  284  Due to this particular bureaucratic arrangement, Holbrooke's ambitious aims had considerable latitude. And these aims had a significant bearing on the shape and content of the Dayton Peace Agreement. This suggests that the particularly liberal outcome is the result of a particular bureaucratic arrangement in which a group of idealistic lawyers had sufficient freedom to draft an agreement while relatively unfettered by bureaucratic constraints.  285  The question remains, however, as to from where Holbrooke's team drew the principles which they promoted in Dayton. Although a bureaucratic examination of the outcome may shed light on the various influences of certain individuals, it does not account for where the norms came from which were implemented, unless, of course, Holbrooke's team is seen to be the norm entrepreneurs of post-conflict restitution of property. Rather, it would seem that Holbrooke's team developed a policy they believed to be in accordance with international law and norms and with ones they wished to promote. This policy received widespread support in the international community, as evidenced by U N Resolutions, Council of Europe accession agreements, and statements  1UIU.  Holbrooke, To End a War 232. Daalder, Getting to Dayton: The Making of America's Bosnia Policy 174 footnote 10.  Ibid. 174.  M . Anderson  69  by European politicians. It was also in accordance with the principles advocated throughout the conflict by the U N and the EC. Clearly this was not the result of a specific group of people, but rather a policy which enjoyed widespread support and had much resonance internationally. Therefore, considerations of a bureaucratic organizational model do not suffice to explain the rise of restitutions regimes in the Balkans in the 1990s. The above explanations are not necessarily mutually exclusive with that of the pivotal role of norms. Most likely there are a range of factors which contributed to the specific outcome of the peace agreement in the former Yugoslavia. These hypotheses, while illuminating certain concerns of the international community, neglect to examine the normative underpinnings which make the Yugoslav case clearly different from previous cases of post-war settlements. The IR theories discussed above are inadequate in explaining normative change, or explaining the role of norms in determining the establishment of restitution regimes. I now turn to constructivism to explain this phenomenon.  4. Constructivism This section gives a brief overview of the theoretical school of constructivism and details the development of the norm of post-conflict property restitution and the establishment of restitution regimes within its paradigm. I will discuss the international system, relevant actors, their interests and identity, and theories of norm development within constructivism's framework.  M . Anderson  70  Constructivism comprises two central tenets common to all critical theory. These are that "[t]he fundamental structures of international politics are social rather than strictly material,"  286  and "[t]hese structures shape actors' identities and interests, rather than just  their behaviour."  287  These social structures comprise the three elements of shared  intersubjective knowledge, material resources which are only meaningful "through the structure of shared knowledge in which they are embedded," and practices.  288  Reality,  then, is not divisible into material factors, on the one hand, and ideational components, on the other. Hence, constructivism focuses on the interaction between norms, interests, and power.  289  Relevant actors are states, sub-state and transnational groups, and individuals embedded in a particular social structure of international society. Unlike the English School's conception of a society of states, constructivists envisage a transnational society, which comprises state and non-state actors.  290  In contrast to a realist paradigm,  states' interests are not only material or predominantly self-survival seeking, but also moral.  9Q1  States' embeddedness in international society requires that their interests be  Alexander Wendt, Social Theory ofInternational Politics (Cambridge: Cambridge University Press, 2000)71. Ibid. Ibid. 73. Thomas Risse and Kathryn Sikkink, "The Socialization of International Human Rights Norms into Domestic Practices," in The Power of Human Rights, ed. Stephan C. Ropp Thomas Risse, Kathryn Sikkink (Cambridge: Cambridge University Press, 1999), 9. Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders (Ithaca: Cornell University Press, 1998) 201. Ethan Nadelmann, "Global Prohibition Regimes: The Evolution of Norms in International Society," 287  288  289  290  291  International Organization 44, no. 4 (1990): 524.  M . Anderson  71  understood as contingent on their role within this society. Consequently, the sources of states' preferences are not located solely within the state.  292  The conception of an international society implies guiding principles, rules, and norms created by and constituting actors in that society. These norms influence the preferences and behaviour of actors in that they "provide [them] with understandings of what is important or valuable and what are effective and/or legitimate means of obtaining those valued goods." things.  294  293  That is, international society socializes them to want certain  Therefore, states' interests change depending on their self-perception and  intersubjectively understood role in international society.  A norm is "a standard of appropriate behaviour for actors of a given identity." Norms must be understood not just as subjective, but intersubjective.  296  295  They are  differentiated from ideas in that they hold prescriptive status. They are delineated further into regulative and constitutive.  297  Regulative norms regulate and constrain behaviour.  Constitutive norms "create new actors, interests and categories of action."  298  Norms are  employed "to make demands, rally support, justify action, ascribe responsibility, and assess the praiseworthy or blameworthy character of an action."  292  7.  Martha Finnemore, National  Interests in International  Society  299  (Ithaca: Cornell University Press, 1996)  Ibid. 15. Ibid. 2. Martha Finnemore and Kathryn Sikkink, "International Norm Dynamics and Political Change," International Organization 52, no. 4 (1998): 891. Finnemore, National Interests in International Society 22. Ronald Jepperson, Alexander Wendt, and Peter J. Katzenstein, "Nonns, Identity and Culture in National Security," in The Culture of National Security: Norms and Identities in World Politics, ed. Peter Katzenstein (New York: Columbia University Press, 1996), 54. Ibid. Friedrich V. Kratochwil, Rules, Norms and Decisions (New York: Cambridge University Press, 1989) 686. 293 294 295  296 297  298  299  M . Anderson  72  International norms are produced and reproduced via interaction "through cognitive and communicative processes by which actors try to determine their identities and interests and to develop collective understandings of the situation in which they act and of the moral values and norms guiding their interactions." transformation of interests.  301  300  This can result in the mutual  Identity defines a social "we" and "[delineates] the  boundaries against the 'others.'"  302  Various theories of normative change emphasize the role of dominant states, pedagogical techniques employed by norm entrepreneurs, and socialization processes. Dominant states may play an important role in promoting normative change by imposing norms. Often, the norms they promote "reflect not only the economic and security interests of dominant members of international society but also their moral interests and emotional dispositions."  303  Norm entrepreneurs may use various techniques to further  certain norms. Richard Price notes four pedagogical techniques for stimulating normative change. These are: disseminating information, establishing networks for proselytizing to generate broad support for normative change, grafting a new norm onto existing norms, and demands on states to publicly justify their positions (Socratic method).  304  In regards  to change in the area of human rights, there are three types of socialization processes which are necessary (often taking place simultaneously): adaptation and strategic bargaining  300  7. 301 302  8.  (instrumental  adaptation  to  pressure  for strategic  purposes),  moral  Risse and Sikkink, "The Socialization of International Human Rights Norms into Domestic Practices," Keck and Sikkink, Activists Beyond Borders 214. Risse and Sikkink, "The Socialization of International Human Rights Norms into Domestic Practices,"  Nadelmann, "Global Prohibition Regimes: The Evolution of Norms in International Society," 524. Richard Price, "Reversing the Gun Sights: Transnational Civil Society Targets Landmines," International Organization 52, no. 3 (1998): 3. 303 304  M . Anderson  73  consciousness-raising—"shaming", institutionalization  and  argumentation,  habitualization—that  is,  dialogue a  and  "taken-for-granted"  persuasion, quality.  305  Margaret Keck and Sikkink note that "individuals and groups may change the preferences of not only their own states, but also of other states by persuasion, socialization, and pressure.  »306  Constructivism provides the essential theoretical framework with which to understand the development of the norm of post-conflict property restitution from 1945 to the present, and the international community's unwavering position on the right of property restitution as evidenced by the extensive restitution regime established in BiH, and  Croatia's  eventual,  if nonetheless  sluggish, movement  to  acceptance  and  implementation of restitution. The principle of displaced persons' right of return to their homes of origin was vigorously promoted during and after the conflict. This stands in sharp contrast to the active promotion of population transfer and property dispossession during the first half of the twentieth century. Alternate explanations failing, this points to normative change since 1945. I propose that the aforementioned five norms coalesced to construct certain parameters into which fell the envisaged right of restitution for all those displaced from their homes as a result of the conflict.  Martha Finnemore and Kathryn Sikkink's three-stage model provides an explanatory framework within which to understand the development of the norm of postconflict restitution of property from its birth in the aftermath of WWII to the current trend  Risse and Sikkink, "The Socialization of International Human Rights Nonns into Domestic Practices," 12-17. Keck and Sikkink, A ctivists Beyond Borders 214.  306  M . Anderson  74  toward its institutionalization and internalization. Finnemore and Sikkink envisage a three-stage process of norm socialization: emergence; acceptance; and internalization.  307  Norm emergence, is characterized by "norm entrepreneurs" who, based on their own convictions and beliefs, create norms. In order to make their norms more attractive, or to "pitch" them to a wider audience, they attempt to frame them so that they resonate with broader public understandings. Once the norm reaches a "critical mass" or a "tipping point," a norm cascade is created, propelling the norm to the next phase. The acceptance period is characterized by key countries and NGOs' advocacy of the norm and the existence of some multilateral declarations.  308  At this point, non-compliant states may  change their behaviour in order to remain within what is considered the "civilized community of states."  309  The third and final phase is internalization. This phase is  characterized by norms which have gained a taken-for-granted quality. socialization compliance."  has occurred "external pressure  is no longer needed  310  Once  to ensure  311  In the case of the norm of post-conflict restitution of property, norm emergence occurred between 1948 and 1990. It was first expressly articulated in the 1948 General Assembly Resolution 194 on Israel which stated that: Refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those 307 308 309 310  Finnemore and Sikkink, "International Norm Dynamics and Political Change," 897. Zacher, "The Territorial Integrity Norm: International Boundaries and the Use of Force," 236. Finnemore and Sikkink, "International Norm Dynamics and Political Change," 904. Ibid. 897-901.  M . Anderson  75  choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.  312  This principle was reiterated in the case of Cyprus. The 1974 General Assembly Resolution 3212 states that: "all the refugees should return to their homes in safety and calls upon the parties concerned to undertake urgent measures to that end."  313  As noted  above, different ideological viewpoints during the Cold War prevented strong protection for property rights within international conventions, and the U N H C R Statute adopted by the U N General Assembly in 1950  314  used language advocating return to the country of  origin rather than to one's home specifically.  315  Furthermore, the political reality of the  Cold War favoured an emphasis on asylum as opposed to repatriation. These. factors meant that the norm of post-conflict restitution remained weak and had limited influence on state behaviour during this period.  The collapse of the USSR removed the ideological barrier to high standards of private property protection and changed the aims of the refugee regime. This new political reality, coupled with the explosion of regional conflicts, opened the door for widespread acceptance and has, unfortunately, provided many opportunities for its expression. The acceptance phase, throughout the 1990s, is characterized by explicit recognition of the right of restitution in voluntary repatriation agreements, E C H R  311  Thomas Risse-Kappen, Steve C. Ropp, and Kathryn Sikkink, The Power of Human Rights: International Change (New York: Cambridge UP, 1999) 11. UN Doc.A/RES/194 (III)(1948), adopted 11 December 1948. UN Doc. A/RES/3212 (XXIX) (1974), adopted 1 November 1974. UN Doc. A/RES/428 (V) (1950), adopted December 14, 1950 as cited in Leckie, ed., Returning Home:  Norms and Domestic 312 313 314  Housing  and Property Restitution  M . Anderson  Rights of Refugees and Displaced  Persons  27.  76  jurisprudence, and 10 missions which promote, monitor, and often assist in the implementation of restitution for displaced persons.  Voluntary repatriation agreements that explicitly include this right are Liberia (1996), Angola (1995), Rwanda (1995), Georgia, Abkhazia and the Russian Federation (1994), Myanmar (1993), Mozambique and Zimbabwe (1993), Afghanistan and Iran (1992), the Congo (1991), and Guatemala (1991).  316  Peace agreements explicitly  recognizing the right of restitution are inter alia Kosovo (1999), Guatemala (1995), Mozambique (1992), Cambodia (1991), and Ethiopia and Eritrea (2000).  317  Restitution  regimes have been established in inter alia Tajikistan, South Africa, Kosovo, the Czech Republic, and Estonia.  318  Significant E C H R judgments are Lozidou vs. Turkey and Akdivar and Others vs. Turkey as discussed above in Part II-5 which demonstrate that, within the European human rights regime, the state is responsible for providing redress for lost property and that individuals cannot be legitimately deprived of property ownership due to conflict.  The norm is being increasingly incorporated in the policies of key IOs and may be moving toward explicit enshrinement in international law. UNHCR, for example, explicitly includes the issue of property restitution into its policies and actively promotes it. In 2001, U N H C R issued an internal memorandum to all its offices stating that:  The resolution pledged member states to "[assist] the High Commissioner [for refugees] in his efforts to promote the voluntary repatriations." UN Doc. A/RES/428 (V) (1950), adopted December 14, 1950 as cited in Ibid. Ibid. 13-14. Ibid. 15-16. 315  316 317  M . Anderson  77  Recovery of refugees' homes and property in their countries of origin needs to be addressed consistently to ensure that effective solutions to refugee displacement are found. [...] Human rights law in relations to die right to adequate housing has evolved significantly over the past decade. The right of a refugee to return to her/his country is now increasingly coupled with her/his right to adequate housing. In this context, the right to adequate housing has developed to extend to the right not to be arbitrarily deprived of housing and property in the first place [... ] UNHCR should attempt to play an active role in negotiations leading to peace agreements, with a view to ensuring that the housing and property aspects of voluntary repatriation are fully taken into account. UNHCR should seek to ensure that such agreements explicitiy include provisions on the housing and property rights of those choosing to repatriate and that judicial or other mechanisms designed to ensure the implementation of such rights are established. Where refugees voluntarily settle elsewhere, it should be stipulated that this does not affect their right to property restitution or, should this not be possible, compensation or other form of reparation. .  31 9  Recognizing that restitution was not explicitly recognized in international law, Principle 29 of the 1998 Guiding Principles on Internal Displacement  320  state that:  Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the UNHCR Inter-Office Memorandum No. 104/2001, Nov. 28, 2001, UNHCR Field Office Memorandum No. 101/2001, Nov. 28, 2001 as cited in Ibid. 27-29. Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission on Human Rights resolution 1995/57. Compilation and analysis of legal norms, UN Doc. E/CN.4/1998/53/Add.2 (1998) in Simon Bagshaw, "Property Restitution for Internally Displaced Persons: Developments in the Normative Framework," in Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, ed. Scott Leckie (Ardsley, New York: Transnational, 2003), 377. 319  320  M . Anderson  78  extent possible, their property and possessions which they left behind or were disposed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.  321  The United Nations Committee on the Elimination  of A l l Forms of Racial  Discrimination (CERD)'s 1996 General Recommendation No. 22 states that:  All refugees and displaced persons, displaced by foreign military, nonmilitary and/or ethnic conflicts, have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void.  322  Rhetoric, court judgments, increasing implementation, inclusion of the norm into the policies of key IOs indicate the increased acceptance and a norm cascade. The right to restitution of property lost due to conflict is not only being touted rhetorically in a few instances, but is now widely referred to and having palpable effects on behaviour. The increasingly widespread recognition of restitution regimes, as well as growing numbers of cases in which they are established is propelling this "norm cascade" to the final phase of internalization—the "taken-for-granted" quality of the norm characterizing this phase. Internalization can be deemed to have occurred once restitution is explicitly enshrined in  321 322  Ibid. 379. UN Doc. A/51/18 as cited in Ibid. 383-84.  M . Anderson  79  international law, does not have to rely on the coalescence of the five norms cited in this thesis, and occurs, as a matter of course, in virtually all relevant post-conflict situations.  The cases of Israel and Cyprus in which the international community has called for, but failed to enforce, return and property restitution, indicate that there are other factors at play in addition to normative constraints in determining whether these calls will be implemented. However, as final peace agreements have not been reached to resolve these conflicts it remains to be seen whether property restitution will follow a similar model to the one set out in the Dayton Peace Agreement. In fact, instead of weakening the norm, these cases may, in fact, serve to strengthen it if indeed the insistence upon a resolution for lost property serves to be an impediment for the conclusion of an agreement. This would indicate that the right of restitution has become a legitimate claim in international society and one which requires resolution before a comprehensive agreement can be reached.  The particularities of both post-war B i H and Croatia provide a number of factors which require interpretation through the lens of constructivism. B i H has the character of a semi-protectorate having a High Representative who can impose legislation and dismiss elected officials if they fail to comply with property restitution legislation. Conversely, Croatia has maintained a sovereign government and therefore possesses significantly greater independence in its interactions with the international community. Due to this fundamental difference, in examining the property restitution regime in B i H , the focus should be on the motivations of the international community in imposing and enforcing  M . Anderson  80  the regime. In examining the development of the Croatian regime, Croatia's identity and role in international society must be examined. The E C / E U and US's identities as liberal democracies moulded their options to those appropriate to or in line with norms, principles, and rules consistent with their interests intersubjectively understood as such. Although, the U N , the E C / E U and the US all promoted the principle of property restitution, the most insistent proponents of the right to restitution of property throughout the conflict were the E C / E U and the US which drafted the Dayton Peace Agreement and directed the peace negotiations at Dayton. Within the constructivist paradigm these actors can be understood to have promoted principles consistent with their perceived identity in international society; as liberal democratic states and as such proponents of human rights.  As post-conflict restitution of property is primarily a human rights norm, the dual role of human rights norms merits consideration. Human rights norms "have the dual role of both [prescribing] rules for appropriate behaviour, and [helping to] define identities of liberal states."  323  Through this lens, employing solutions consistent with human rights  norms is both a reflection of the US and E U ' s perceived identity as liberal democracies and consistent with rules that they must adhere to as such.  In explaining Croatia's reluctant acceptance of the norm of post-conflict restitution of property, constructivism provides a tenable explanation that may be understood using Thomas Risse-Kappen and Kathryn Sikkink's five-phase spiral model of normative change resulting in the socialization of the offending state into international society  Risse and Sikkink, "The Socialization of International Human Rights Norms into Domestic Practices." M . Anderson  81  through the eventual acceptance of international norms.  Risse-Kappen, Ropp, and  Sikkink focus on the role of transnational advocacy networks in affecting change.  325  They  envisage a five-phase model which details how norm-violating states eventually succumb to rule-consistent behaviour. Although this model refers to the pressure of transnational advocacy networks in particular, parts of this model may be extrapolated to explain how states socialize other states to accept and implement various norms. Essentially, this model posits that states initially act in accordance with the norm out of self-interest to pacify advocacy networks, but eventually entrap and entangle themselves in a discourse which ultimately leads to their compliance.  326  Phase one is defined as "Repression and activation of the network."  327  In Croatia's  case, this phase is the government-supported expulsion of Serbs and allocation of their properties to ethnic Croats from 1991 to 1998. As detailed earlier, the international community castigated this process. Phase two is characterized by the norm-violating state being placed on the international agenda during which time the state denies the relevance of the norm.  328  Croatia claimed that Serbs had voluntarily "abandoned" their homes and  that the humanitarian crisis they faced legitimized using their homes to accommodate refugees and others—while at the same time prescribing that the secondary occupants would become the owners of the properties after a period of ten years. Phase three is characterized by tactical concessions—"the norm violating state seeks cosmetic changes  Risse-Kappen, Ropp, and Sikkink,  The Power of Human Rights: International Norms and Domestic  Change 25.  Ibid. 28. Risse and Sikkink, "The Socialization of International Human Rights Norms into Domestic Practices," 22.  326 327  3 2 8  Ibid.  M . Anderson  82  to pacify international criticism."  This explains Croatia's enactment of the Return  Program in 1998. Although the program prescribes a procedure for owners to repossess their properties, the program makes repossession contingent upon the provision of stateowned alternative accommodation, which is extremely limited, to the occupant. The stipulation for alternative accommodation has served to stymie the process of repossession almost indefinitely. Phase four is characterized by the norm acquiring prescriptive status for the previously norm-violating state.  330  Although Croatia continues  to insist upon the provision of alternative accommodation to secondary occupants prior to the repossession of property by owners, it has taken out substantial foreign loans to accelerate this process.  331  It has also rescinded legislation which prescribed the ability of  occupants to acquire ownership after a period of ten years of uninterrupted occupancy. This indicates that although Croatia recognizes the right of Serb owners to repossess their homes, it does not accept this as an absolute right such that it supercedes the interests of the secondary occupants to their homes. Within the five-phase spiral model concerning private property, Croatia may be placed in phase four. Regarding the resolution of occupancy rights, after denying any obligation for restitution or compensation, Croatia has now acknowledged that those former occupancy rights owners who do return are entitled to receive compensatory housing. On this issue, Croatia may be seen at phase three—making minor concessions, which are still ineffective, to pacify the international community.  Ibid. 25. Ibid. 29. 331 Ministry for Public Works, "Progress in the Process of Return of Displaced Persons and Refugees in the Period from 2000 - End September 2003," 2. 329  330  M . Anderson  83  Croatia's gradual acceptance of the norm of post-conflict restitution of property may also be interpreted as a function of Croatia's self-conception as a European state. Cornerstones of Croatia's foreign policy are membership of the E U and N A T O for reasons of both disassociating itself from other former republics of Yugoslavia and to realize its self-perceived identity as fundamentally 'European.' In this light, Croatia has accepted human rights norms, committing itself to vast array of human rights instruments, the attachment to which indicates its 'European' identity. Even if Croatia has signed on to a plethora of human rights instruments for instrumental reasons, it has entrapped itself in a discourse which requires eventual compliance.  Intersubjective understandings of a state's identity allow other states to appeal to it to compel compliance. US Ambassador Montgomery, speaking in reference to Croatia's bid to join Partnership for Peace stated: "We emphasize [the principle of equality] because it is a fundamental tenet of all western democratic societies, which value tolerance and diversity in and of themselves—that people be treated equally and as individuals regardless  of their race,  religion  or ethnicity."  332  Montgomery was  not  only  demonstrating the US's identity as a liberal democracy, but also appealing to Croatia's self-conceived identity as 'western.'  Montgomery, "Croatia's Roadmap to Partnership for Peace," 89.  M . Anderson  84  Conclusion This thesis seeks to explain the establishment of post-conflict property restitution regimes in B i H and Croatia. Their establishment is a dramatic departure from the European peace settlements of the first half of the twentieth century, raising the question as to what accounts for this change in policy. I have sought to extrapolate the relevant factors through a comparative analysis of dispossession in the two periods. I have found that contrasting norms lie at the heart of the different regimes. The massive property dispossessions of the first half of the twentieth century occurred as a result of territorial conquest, discriminatory confiscation, wartime seizure of enemy property, and mass population transfers. The dispossessions were underpinned by ethnic nationalism, the malleability of borders, a state-centric international legal system, weak international protection for property rights, and the concept of collective responsibility. Conversely, in the Yugoslav cases, calls for restitution are premised on civic nationalism, territorial integrity, the legal standing of the individual in international law, the increasing inviolability of property rights in international law, and a belief in individual rather than in collective responsibility.  The concepts of civic nationalism and territorial integrity together legitimize the state as the viable political community. Thus, ethnically-motivated calls for partition are deemed illegitimate, and human-rights violations inflicted in the name of nationalism are considered abhorrent. The post-WWII human rights paradigm gives the individual legal standing in the international system. This has allowed a strengthening of individual rights generally. Coupled with a strengthening of property rights, the human rights paradigm  M . Anderson  85  ensures a legitimate claim to restitution rights specifically. This focus on the individual is discordant with any notion of collective responsibility. Therefore, together these norms have created a framework where arbitrary conflict-related property seizure is illegitimate. And should it occur, restitution is necessary. In searching to explain these distinctive normative changes, I employed various international relations theories to project expectations and assessed the explanatory power of each. Realism, focusing on security concerns, fails to explain the vision of ethnic reconstitution. It provides a plausible explanation for the maintenance of territorial integrity to avoid setting a precedent for secession based on ethnic demographics, but fails to account for the insistence upon the right of return to one's home. Rationalist models, focused on material self-interest, project that the international community would have encouraged return to alleviate the refugee burden on key states such as Germany. However, this model again fails to explain the right of return to one's home. In fact, the return process would have been smoother if ethnic cleansing had been considered a fait accompli and the international community had advocated return to a region of ethnic majority. A rationalist model does account for the US Administration's concerns about an upcoming presidential election and its actions as an attempt to gain domestic popularity. Although this may explain the timing of US-led N A T O intervention and the ensuing peace negotiations, it does not account for the US's long-term commitment to return and property restitution, or the specific content of the Dayton Peace Agreement. A bureaucratic organization model posits that decision-making processes are relevant in shaping outcomes. Accordingly, this model concludes that the character of the Dayton Peace Agreement is the result of particular bureaucratic arrangements. Although it  M . Anderson  86  explains the process, it does not address the content of the agreement which resonated internationally and was in accordance with proposals which were advocated throughout the conflict. Ruling  out  the  explanatory  power  of realist,  rationalist,  and  bureaucratic  organizational theories to provide a comprehensive account of normative change, I conclude that a constructivist paradigm provides the most complete and accurate analysis. Within the framework of constructivism, the five key normative changes I have identified are plausible causal factors of the restitution regimes in the former Yugoslavia. Through this paradigm, these norms coalesced to provide constraints within which a solution had to fall. Predominantly, these norms fit into the category of human rights norms, which makes them both constitutive and regulative for states which identify themselves as liberal democracies. The primary architects of peace proposals throughout the conflict were the US and the E C / E U . Their democratic liberal identity necessitated consideration, if not adherence, to these norms.  The very successful restitution regime in B i H is primarily the result of the international community's resolve demonstrated through their military, material, and political commitment. Since B i H functions as a quasi-protectorate, the achievements made cannot be considered voluntary on the part of the B i H government. Rather, the restitution regimes are the manifestation of the perceived identities of the international community, in particular of the US and the E U . However, despite their political unpopularity,  M . Anderson  municipalities have  become  increasingly effective  at implementing  87  property legislation initially due to foreign donors tying successful return and property restitution to international funding.  333  The sluggishness of Croatia to facilitate restitution is attributable to lingering ethnic tensions and hostilities and the unpopular nature of Serb return among the electorate. Although Croatia continues to impede restitution, it does not deny that Serbs have a right to repossess their properties. Its recognition of the norm is made evident by the fact that it employs extraordinary justification—its responsibility to the secondary occupants—to explain its delay providing property restitution to the owners. This indicates, in accordance with the five-step socialization process, that Croatia recognizes the norm, but has not yet reached the stage of internalization. It has made significant progress toward internalizing the norm of post-conflict restitution evidenced by its recognition of the right of Serb return, the renunciation of its initial pledge to give ownership rights to the secondary occupants after ten years of uninterrupted occupation, its substantial financial expenditure to build housing for secondary occupants so that they will vacate the properties of the owners, and its recent acknowledgement of the rights of former occupancy rights holders to compensatory housing should they return.  These developments, within the context of the post-Cold War rise of reparations regimes, and along with the establishment of property restitution regimes for displaced persons since the end of the Cold War, indicate the growing strength of the norm of the right of post-conflict restitution. With the increasing push to explicitly enshrine this norm in international conventions, justifications and calls for compliance will rely less on other  Garlick, "Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina," 76.  M . Anderson  88  norms such as those detailed in this thesis and will be able to appeal to the norm of postconflict restitution itself. These case studies lend support to constructivism's paradigm of a transnational society in which actors are socialized to have interests particular to their perceived identity. Sociology reparations literature provides content for constructivism's structure in which reparations regimes are the reflection of a post-Cold War international morality "that privileges ethical along with traditional realpolitik considerations."  334  There is compelling evidence that the norm of post-conflict restitution of property is nearing internalization. This will be marked by explicit enshrinement of the norm in multilateral conventions, and widespread compliance. The outstanding cases of Israel and Cyprus, with seemingly intractable restitution issues, provide hard test cases for the norm in the future. The enthusiasm for the establishment of restitution regimes must be tempered by the reality of return for those formerly displaced. Every house repossessed does not correspond to a family that has returned. Many individuals formally repossess and then sell their properties, or sell their occupied properties at significantly reduced market prices. Some individuals return, but realize their communities have changed and so leave again. Of the estimated 300,000 to 500,000 Serbs displaced from Croatia, 105,800  335  are  registered as having returned (21-35%). This is a strikingly low figure compared to ethnic Croats who have returned: 209, 300  336  of an estimated 220,000 displaced during the  Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices 317. Ministry for Public Works, "Progress in the Process of Return of Displaced Persons and Refugees in the Period from 2000 - End September 2003," 1. Ibid.  334 335  336  M . Anderson  89  conflict (95%). In BiH, of the estimated 2.3-3.2 million persons displaced, 976,810  337  (31-44%) are estimated to have returned. These figures indicate that total ethnic reconstitution is illusory, despite the right to repossess one's home. It also means, however, that the option exists to wait until conditions improve to return, or to sell or rent one's property, while settling elsewhere. The establishment of restitution regimes indicates the power of norms in international society. The cases of B i H and Croatia illustrate that norms may significantly influence the shape and content of peace agreements even when their implementation is extremely costly for those involved. This means that the effects of war do not provide justification to drive people out or does the threat of conflict justify expulsions to create ethnic homogeneity. For those who have lost their home during war, this represents increased hope that they will be able to return. This is a significant step forward for the implementation of human rights standards and the ability to obtain redress when they have been violated.  539,927 Internally Displaced Persons (IDPs), 436,883 Refugee Returns. UNHCR Representation in Bosnia and Herzegovina, Returns Summary to Bosnia and Herzegovina from 01/01/1996 to 30/09/2003 (UNHCR Sarajevo, September 30, 2003 2003 [cited November 28, 2003 2003]); available from http://www.unhcr.ba/return/T4-0903 .pdf. 337  M . Anderson  90  Bibliography Albert, Sophie. "The Return of Refugees to Bosnia and Herzegovina: Peacebuilding with People." International Peacekeeping 4, no. 3 (1997). Allcock, John B., Marko Milivojevic, and John J. Horton. Conflict in the Former Yugoslavia: An Encyclopedia. Denver: ABC-CLIO, 1998. Allison, Graham. Essence of Decision: Explaining the Cuban Missile Crisis. New York: Harper Collins Publishers, 1971. Bagshaw, Simon. "Property Restitution and the Development of a Normative Framework for the Internally Displaced." Refugee Survey Quarterly 19, no. 3 (2000). . "Property Restitution for Internally Displaced Persons: Developments in the Normative Framework." In Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, edited by Scott Leckie. Ardsley, New York: Transnational, 2003. Barkan, Elazar. The Guilt of Nations: Restitution and Negotiating Historical Injustices. 1st ed. New York: Norton, 2000. Bell, Christine. Peace Agreements and Human Rights. New York: Oxford University Press, 2000. Bethlehem, Daniel, and Marc Weller, eds. The 'Yugoslav' Crisis in International Law: General Issues, Part I, Cambridge International Documents Series: Volume 5. Cambridge: Cambridge University Press, 1997. Carlson, Joachim. "The Right to Property in Croatia in the Aftermath of the Dissolution of the Former Yugoslavia (Draft)." Uppsala, 2000. Cater, Elizabeth M . Cousens and Charles K. Toward Peace in Bosnia: Implementing the Dayton Accords. Boulder: Lynne Rienner Publishers, Inc., 2001. Daalder, Ivo H . Getting to Dayton: The Making of America's Bosnia Policy. Washington, D.C.: Brookings Institution Press, 2000. Fabry, Mikulas. "International Norms of Territorial Integrity and the Balkan Wars of the 1990s." Global Society 16, no. 2 (2002): 144-74. Finnemore, Martha. National Interests in International Society. Ithaca: Cornell University Press, 1996. Finnemore, Martha, and Kathryn Sikkink. "International Norm Dynamics and Political Change." International Organization 52, no. 4 (1998): 887-917. Garlick, Marcus Cox and Madeline. "Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina." In Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, edited by Scott Leckie, 65-82. Ardsley, New York: Transnational,. 2003. General Framework Agreement for Peace in Bosnia and Herzegovina. December 15, 1995. Glitman, Maynard. "Us Policy in Bosnia: Rethinking a Flawed Approach." Survival 38, no. 4 (1996-1997). Gomien, Donna, Harris, David, Zwaak, Leo. Law and Practice of the European Convention on Human Rights and the European Social Charter. Strasbourg: Council of Europe Publishing, 1996. M . Anderson  91  Gourevitch, Peter. "The Second Image Reversed: The International Sources of Domestic Politics." International Organization 32, no. 4 (1978): 881-911. Gow, James. Triumph of Lack of Will. London: Hurst & Company. Hayden, Robert M . "Schindler's Fate: Genocide, Ethnic Cleansing, and Population Transfers." Slavic Review 55, no. 4 (1996): 727-48. Herzegovina, U N H C R Representation in Bosnia and. Returns Summary to Bosnia and Herzegovina from 01/01/1996 to 30/09/2003 U N H C R Sarajevo, September 30, 2003 2003 [cited November 28, 2003 2003]. Available from http://www.unhcr.ba/return/T4-0903.pdf. Holbrooke, Richard C. To End a War. 1st ed. New York: Random House, 1998. Hyland, William G. Clinton's World: Remaking American Foreign Policy. Westport: Praeger, 1999. Jackson-Preece, Jennifer. "Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms." Human Rights Quarterly 20, no. 4 (1998): 817-42. Jepperson, Ronald , Alexander Wendt, and Peter J. Katzenstein. "Norms, Identity and Culture in National Security." In The Culture of National Security: Norms and Identities in World Politics, edited by Peter Katzenstein. New York: Columbia University Press, 1996. Kalin, Walter. Guiding Principles on Internal Displacement: Annotations: Studies in Transnational Legal Policy. Washington: The American Society of International Law: The Brookings Institution: Project on Internal Displacement, 2000. Keck, Margaret E., and Kathryn Sikkink. Activists Beyond Borders. Ithaca: Cornell University Press, 1998. Keohane, Robert. Neorealism and Its Critics. New York: Columbia University Press, 1986. Kindred, H . M . , ed. International Law: Chiefly as Interpreted and Applied in Canada. Toronto: Wordsworth Communications, 2000. Kratochwil, Friedrich V. Rules, Norms and Decisions. New York: Cambridge University Press, 1989. Leckie, Scott. Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources. Vol. 7, Sources. Amsterdam: Primavera, 2001. , ed. Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons. Ardsley, New York: Transnational Publishers, Inc., 2003. Legro, Jeffrey. "Which Norms Matter? Revisiting the Failure of Internationalism." International Organization 51 (1997): 31-63. Manas, Jean E. In The World and Yugoslavia's Wars, edited by Richard Ullman. Mearsheimer, John. "The Answer." The New Republic 203 (1993): 22-27. Ministry for Public Works, Reconstruction and Construction-Office for Displaced Persons, Returnees and Refugees (MPWRC-ODPR). "Progress in the Process of Return of Displaced Persons and Refugees in the Period from 2000 - End September 2003." 1-3. Zagreb: Ministry for Public Works, Reconstruction and Construction-Office for Displaced Persons, Returnees and Refugees (MPWRCODPR), 2003.  M . Anderson  92  Montgomery, William T. "Croatia's Roadmap to Partnership for Peace." Croatian International Relations Review A, no. 11 (1998): 87-91. Morganthau, Hans. Politics among Nations: The Struggle for Power and Peace. 6th ed. New York: McGraw-Hill, 1985. Nadelmann, Ethan. "Global Prohibition Regimes: The Evolution of Norms in International Society." International Organization AA, no. 4 (1990): 479-526. OCHA. An Easy Reference to Humanitarian Law and Human Rights Law: For Humanitarian Coordinators Operating in Situations of Internal Armed Conflict. New York: United Nations, 1999. OHR. Office of the High Representative: General Information OHR, 2003 [cited November 1 2003], OHR/OSCE/UNHCR/CRPC. Implementation of the Property Laws in Bosnia and Herzegovina Reached 90 Per Cent [Press Release]. OHR/OSCE/UNHCR/CRPC, November 1 2003 [cited November 15 2003]. Available from http ://www. ohr.int/ohr-dept/presso/pressr/default. asp?content_id=31164. . RS and FBiH Reach Same Ratio of PLIP at End of August [Press Release]. OHR/OSCE/UNHCR/CRPC, 2003 [cited October 15 2003]. Available from www. ohr.int/ohr-dept/presso/pressr/default. asp?content_id=3 0913. Oraa, Jaime. Human Rights in States of Emergency in International Law. Oxford: Clarendon Press, 1992. OSCE. "Report of the OSCE Mission to the Republic of Croatia on Croatia's Progress in Meeting International Commitments since 18 April 1996." Zagreb: OSCE, 2001. . "Status Report No. 11." Zagreb: OSCE, 2002. Owen, David. Balkan Odyssey. London: Victor Gollancz, 1995. Price, Richard. "Reversing the Gun Sights: Transnational Civil Society Targets Landmines." International Organization 52, no. 3 (1998): 613-32. Putnam, Robert. "Diplomacy and Domestic Politics: The Logic of Two-Level Games." International Organization 42, no. 3 (1988): 427-60. Risse, Thomas, and Kathryn Sikkink. "The Socialization of International Human Rights Norms into Domestic Practices." In The Power of Human Rights, edited by Stephan C. Ropp Thomas Risse, Kathryn Sikkink. Cambridge: Cambridge University Press, 1999. Risse-Kappen, Thomas, Steve C. Ropp, and Kathryn Sikkink. The Power of Human Rights: International Norms and Domestic Change. New York: Cambridge UP, 1999. Roberts-Moore, Judith. "Studies in Documents. The Office of the Custodian of Enemy Property: An Overview of the Office and Its Records, 1920-1952." Archivaria 22 (1986): 95-106. Rosand, Eric. "The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent." Michigan Journal of International Law 19, no. Summer (1998): 1091-139. Schabas, William A. "The Omission of the Right to Property in the International Covenants." Hague Yearbook of International Law 3, no. 4 (1992): 135-70. Schechtman, Joseph B. Postwar Population Transfers in Europe: 1945-1955. Philadelphia: University of Pennsylvania Press, 1962.  M . Anderson  93  Scheib, John M . "Threshold of Lasting Peace: The Bosnian Property Commission, Multiethnic Bosnia and Foreign Policy." Syracuse Journal of International Law and Commerce 24, no. Fall (1997): 119-42. Ther, Philipp. "The Integration of Expellees in Germany and Poland after World War II: A Historical Reassessment." Slavic Review 55, no. 4 (1996): 779-805. Torpey, John C. Politics and the Past: On Repairing Historical Injustices, World Social Change. Lanham, Md.: Rowman & Littlefield, 2003. United Nations, Department of Public Information. Yearbook of the United Nations: 1991. Vol. 45. New York: Martinus Nijhoff Publishers, 1992. . Yearbook of the United Nations: 1992. Vol. 46. New York: Martinus Nijhoff Publishers, 1993. . Yearbook'of the United Nations: 1993. Vol. 47. New York: Martinus Nijhoff, 1994. . Yearbook of the United Nations: 1994. Vol. 48. New York: Martinus Nijhoff Publishers, 1995. Vasarhelyi, Istavan. Restitution in International Law. Budapest: Hungarian Academy of Sciences, 1964. Weiss, Thomas G. and Pasic, Amir. "Dealing with the Displacement and Suffering Caused by Yugoslavia's Wars." In The Forsaken People: Case Studies of the Internally Displaced, edited by Roberta and Deng Cohen, Francis M . Washington: Brookings Institution Press, 1998. Wendt, Alexander. Social Theory of International Politics. Cambridge: Cambridge University Press, 2000. Zacher, Mark. "The Territorial Integrity Norm: International Boundaries and the Use of Force." International Organization 55, no. 2 (2001): 215-50. Zolberg, Aristide R., Astri Suhrke, and Sergio Aguayo. Escape from Violence: Conflict and the Refugee Crisis in the Developing World. New York: Oxford University Press, 1989.  M . Anderson  94  

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0091249/manifest

Comment

Related Items