Commission (HPD) – again based on Chapter VII of the UN Charter – to protect property rights of
refugees and displaced persons, the vast majority of which belong to Kosovo’s minorities.
Institutionally modelled on the Bosnian Commission, the HPD was also a mixed local and
international claims collection and decision-making body. But, in contrast to Bosnia, the HPD was
also responsible for the execution of its decisions – through eviction of illegal occupants with the
support of the law enforcement authorities.
Despite many administration and implementation problems into which I do not want to go right now,
both property restitution systems can be deemed a success, certainly in comparison to the lack of
hardly any property rights protection after the Second World War. It is true that not all refugees and
IDPs returned to their homes of origin. But with an undisputed internationally recognized title, they
could return to their property or sell or rent it out and use that money as capital to build an existence
somewhere else. Seen from a historical and also international perspective, this is real progress and
sets standards in protecting minority rights after violent ethno-political conflict.
But how does it look in the Global South, for example in African countries with big refugee numbers
like in Burundi, Congo or Sudan? How about property-related legal remedies in post-war countries
without an international intervention that can impose structures to protect minority rights? How about
property restitution or compensation in post-colonial states whose laws and institutions cover only 10
or 20 per cent of the territory? Would property-related mass claims processes work in countries in
which the majority of the population, irrespective of whether belonging to a majority or minority
group, neither has access to the courts nor to the police? Where there are neither roads, nor means
of transport to bring potential claimants to the next provincial capital where they could file their
claims? Where claimants are either illiterate or do not understand a minimum of legal language
required to fill out claims forms?
There also many problems with proving legal title for those property rights that have not been
registered. These rights can either belong to individuals or qualify as collective rights of local
communities. In many cases, national land administration legislation does not protect collective
ownership or land use rights, for example over pastoral lands. This is because the land laws of many
African states are based on Western legal traditions that do not recognize such category of rights.