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Explaining the international community’s insistence on real property restitution in Bosnia-Herzegovina and Croatia, 1995-2003 : exploring normative foundations Anderson, Miriam J.

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 BiH 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 BiH 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. 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 EC/EU. Their intersubjectively understood identity in international society as liberal democracies necessitated consideration, if not adherence, to these norms.

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