Reparation of the Rights to Property and Home of Displaced Persons Arising from Armed Conflict Under the European Convention of Human Rights: Falling Short of the Exigencies of International Law and the Humanistic Purpose of Human Rights?

Abstract

The chapter discusses the question of the reparation of the rights to property and home in the context of the ECHR when these rights have been affected by forcible displacement. It observes that the ECtHR does not exclude the payment of compensation by the responsible state for the deprivation of property in the case of military occupation. Although the case law at question is neither sufficient nor clear enough to allow drawing conclusions as to whether it only concerns displacement in the context of the Cyprus issue and what are the conditions to be met to shift from restitution to compensation for loss of property, this is what the Court has done in its recent case law concerning the Cyprus issue. The argument built in that respect in the paper is that downgrading from restitution to compensation goes against international law, both primary and secondary. Although the human rights at issue may suffer limitations (especially if a human rights friendly agreement is reached between the involved states, settling the issue and establishing the condition for a new era of peaceful co-existence, or in case of a friendly settlement of the dispute between the victim and the respondent state), limitations are difficult to justify in the case of unlawful military occupation. The right to return home (i.e. the restitution of property/home) amounts to an essential remedy against occupation and should, in principle, be selected as the main form of reparation.

Keywords: ECHR, Human Rights, Displacement, Right to Home, Right to Property, Remedy, Reparation