daniel fitzpatrick. restoring and confirming rights to land

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Restoring and Confirming Rights

to Land in Tsunami-Affected Aceh

A UNDP / OXFAM REPORT

Dr. Daniel Fitzpatrick

14 July 2005


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Daniel Fitzpatrick

Table of Contents

1. Introduction ... 2

2. Context and Background ... 3

3. Current Proposals and Programs 5

3.1. Rehabilitation and Replacement of Lost Land TitleDocuments ..........

5

3.1.1. Replacement of Lost Land Records .. 6

3.1.2. Replacement of Lost Land Title Certificates 7

3.2. Systematic Title Registration ... 7

3.2.1. Issue of Temporary Documentation ... 7

3.2.2. Assistance to Local Government ... 8

3.2.3. Identification and Agreement as to Compensation andAppropriate Sites for Re-Location ...

9

3.2.4. Identification and Mapping of Unsafe or SubmergedLands ...

11

3.2.5. Monitoring and Supervision Arrangements . 11

3.3. Community - Based Land Mapping, Adjudication andPlanning ......

12

3.4. Law Reform 13

4. Specific Recommendations and Programs of Assistance .. 15

4.1. Assistance to BPN .. 15

4.2. Assistance to Local Government 21

4.3. Assistance for Civil Society Monitoring and Advocacy 26


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Restoring and Confirming Rights to Land in Tsunami-Affected Aceh

1. Introduction

UNDP and Oxfam jointly commissioned the following report on restoring andconfirming land rights for internally displaced persons in tsunami-affected Aceh,Indonesia. The report addresses two urgent issues: the need for sufficient tenuresecurity to support housing reconstruction and land allocation; and the need tominimise land grabbing and other land-related forms of conflict. Cross-cutting issuestaken into account include: international standards for sustainable return andrestitution of land rights, re-location proposals and obligations of due process andcompensation, the role of land consolidation, spatial planning and future tsunamiprotection measures, protection of the rights of vulnerable groups (particularlywomen and children), and options for improved institutional coordination.1

Nanggroe Aceh Darussalam (NAD) sits at the northern tip of Sumatra. It is the

westernmost province of Indonesia. The earthquake and tsunami of December 26,

2004, and the subsequent earthquake of March 28, 2005, damaged or destroyed over300,000 homes and displaced over 500,000 people in NAD alone. Substantial damagewas also done to governmental and non-governmental systems of land administration.The government of the Republic of Indonesia (ROI) has identified reconstruction ofland rights as a key element of the rehabilitation phase, which is to run from April 2005to December 2006.2

Certain international principles govern access to land and housing in the

context of displacement and return. They include:

1. The right to voluntary and sustainable return2. The right to adequate housing and secure tenure3. The right to participation, consultation and non-discrimination4. The right to protection in temporary camps5. Rights to livelihood, social security, water, health and education6. Women and children's rights

More detail on these international standards is provided in annexure 1.

Land rights in NAD fall into two basic categories: statutory land titles andcustomary (adat) rights. Most records relating to both types of land rights weredamaged or destroyed in the December 26 tsunami. Where no records existed, thesocial infrastructure underpinning certainty of land rights has also been affected by thedeaths of community leaders and the loss, in some cases, of entire communities.These circumstances demand a rapid response to ensure a solid foundation of land

1 Although this report focuses on rights to land, it includes tenure security measures designed tosupport more general rights to housing and appropriate shelter for vulnerable groups.2 Regulation of the President of Republic of Indonesia Number 30 Year 2005 on Master Plan forRehabilitation and Reconstruction for the Regions and People of the Province of Nanggroe Aceh

Darussalam and Nias Islands of the Province of North Sumatra Book 1 (The Bappenas Master Plan)at II-10, available at http://www.bappenas.go.id


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rights certainty for the process of reconstruction. This foundation should encompasscertificated and uncertificated land, governmental and non-governmental activity. It isimportant not only to minimise land disputes, but also to provide sufficient legal andsocial certainty for re-building, shelter, livelihood and credit programs.

Fieldwork for this report was undertaken in April and May 2005. Interviewswere conducted with officials, NGOs and displaced Acehnese in Banda Aceh,Meulaboh and various sub-districts along the west coast. Some interviewees alsoprovided written responses to detailed questionnaires. The information obtained wassupplemented by library research and the author's own experience living and travellingin Aceh in the 1980s and 1990s. The author is grateful to all those who gave freely oftheir time in such difficult circumstances. He is also grateful for the support andinsights of his colleagues at UNDP and Oxfam, particularly the invaluable assistance ofFakri Karim.

As requested the report is as succinct and action-oriented as possible. Part 2summarises the context and background. Part 3 analyses current proposals andprograms relating to land rights in NAD. Part 4 provides a set of detailedrecommendations.

2. Context and Background

A detailed description of the damage in Aceh may be found in official ROI documents.To summarise relevant aspects of the tragedy in NAD as at 21 March 2005:

126,602 people killed and 93,638 people missing; 514,150 people displaced; 654 out of 5947 villages (desa/gampong) severely damaged or destroyed and

640 village administrations not functioning;3

16 districts/municipalities (kabupaten/kota) out of 21 severely affected or notfunctioning;

252,223 houses totally destroyed or partially damaged as a result of theDecember 26 tsunami;4

Approximately 23,330 ha of rice fields and 126,806 ha of other agricultural orgarden areas damaged by mud, salination, sand or erosion;5

Approximately 300,000 land parcels (170,000 urban; 130,000 rural) out of anestimated 1,498,200 affected by tsunami-related damage;

Destruction of the National Land Agency (BPN) office in Banda Aceh; Loss of approximately 30% of the staff in the Banda Aceh BPN office;

3 Ibid, II-9.4

Ibid, II-6, 10.

5 Ibid, II-5.


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Substantial damage to or loss of land records in BPN and sub-district offices; Widespread loss of personal identity records in tsunami-affected areas; Significant inundation and subsidence of affected coastal lands, in many cases

averaging between 10 and 20% per village area;6

Significant obscuring or obliteration of boundary lines and markers.While these circumstances raise restitution imperatives that are common to

many post-conflict or post-disaster contexts, it is important to distinguish the situationin tsunami-affected NAD in a number of respects.

Unlike former Yugoslavia, there is no significant secondary occupation ofhouses. Thus there is no need for judicially sanctioned evictions as a prelude torestitution of land rights.

Unlike East Timor, Rwanda and Afghanistan, there is no layered history ofdisplacement and dispossession. Thus there is no underlying complexity ofcompeting land claims between different groups of dispossessed. There is alsono significant element of ethnic or inter-communal tension.

Unlike Thailand and Sri Lanka, there have been no significant tourist or othercommercial forms of development along the tsunami-affected coastline ofNAD. Thus there are relatively few underlying disputes between commercialentities and allegedly dispossessed former landowners.

Unlike many other parts of Indonesia, village-level customary institutionsremain comparatively unaffected by uniform village administration structures

established after 1979 by the Suharto government. As a consequence the levelof intra-communal land disputation created by the tsunami has beenremarkably low.

It follows that the situation in NAD may be characterised as primarily one ofdisplacement and the need for sustainable return. While some instances ofdispossession will occur, creating the need for judicial processes of restitution, theoverwhelming priority must be on governmental and community-based mechanismsfor ensuring tenure security in circumstances that demand relatively quick return.7This is not to say that the task will be an easy one. The following challenges will affectrestitution and confirmation of land rights in NAD.

A long-standing context of conflict between secessionist elements andgovernment security forces.

A certain degree of mistrust between civil society organisations andgovernment agencies.

Persistent allegations of pre-tsunami corruption involving some provincial6 Ibid, II-9.7 Because of these distinguishing factors in Aceh, in particular the relatively minimal role to be played by

judicial institutions, it is suggested that "best practice" comparative experiences do not offer particularlyuseful templates for land rights restoration and confirmation in Aceh.


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administrators, and fears of post-tsunami land grabbing by well-connectedopportunists.

Temporal imperatives to provide rapid forms of tenure security in order toestablish a secure foundation for reconstruction, without prejudicing the

possibility of future claims or upsetting complex interactions involvingcustomary land institutions.

The need to integrate "bottom-up" processes of community mapping andmicro-planning with "top-down" mechanisms for systematic land titling, spatialplanning and land consolidation.

Relocation requirements for individuals and communities whose land is nowsubmerged, destroyed or heavily contaminated, and concomitant obligations toprovide due process and adequate compensation.

Coordination difficulties arising from a wide range of stakeholders, includingtraditional institutions, civil society organisations, donors and governmentagencies at village, sub-district, district, provincial and national levels.

Requirements for special laws in relation to inheritance, women and children'srights, compensation processes, unclaimed land, unfulfilled pre-tsunamicontracts and contracts for re-building purposes.

Requirements for special protective mechanisms in relation to vulnerablelandholding groups (including orphans, widows/women, lease-holders andcommunities with insecure forms of tenure).

In summary, it is fair to conclude that the problem of land and housing rights in

tsunami-affected NAD is more one of sheer scale than underlying complexity. At themoment the institutions involved in processing the claims of over half a milliondisplaced Acehnese are overwhelmed by the size and urgency of the task. This reportidentifies quick impact measures to assist these key institutions.

3. Current Proposals and Programs

Current programs to restore and confirm land rights in tsunami-affected NAD fall intofour categories: rehabilitation and replacement of lost land records, systematic land

title registration, community-based mapping and adjudication, and proposals for lawreform. These four approaches will be described and evaluated in turn.Opportunities and areas for contribution by UNDP and/or Oxfam will be highlightedas appropriate.

3.1. Rehabilitation and Replacement of Lost Land Title Documents

The ROI Master Plan, prepared by its lead planning agency Bappenas, recognises theurgent need to recover civil rights and issue (or re-issue) evidence of those rights.Delays in this process, particularly in relation to identity cards and land rights, are

contributing to delays in the reconstruction process. Many displaced Acehnese nolonger have identity cards or proof of rights to land. This is hindering access to re-


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building assistance, particularly for poor and vulnerable groups.

The Master Plan proposes the following steps in relation to land rights.

An audit of the physical condition of land (obscured boundaries; unsafe,submerged or contaminated land etc). This proposal is the subject of specificrecommendations for BPN assistance in Part 4.

Replacement of lost land records, and systematic issue of new title certificatesfor previously unregistered land. These issues are now considered in turn.

3.1.1. Replacement of Lost Land Records

Approximately 300,000 land parcels are directly affected by the tsunami (160,000urban, 140,000 rural). It is estimated that 40-50% of tsunami-affected private land inthe city of Banda Aceh, and 5-10% in Meulaboh, is held under statutory land titles.

Thus the total amount of titled land in tsunami-affected areas amounts toapproximately 25% of all land parcels. Records of these titles were held bylandholders and in BPN offices. Almost all landholder records for tsunami-affectedareas were destroyed. All of BPN's records, including the land register books (bukutanah) and cadastral index and land parcel plans, were severely damaged or destroyed.The Japan International Cooperation Agency (JICA) and the World Bank are fundingprograms to repair and digitally reproduce the damaged land books.

Approximately 75% of land parcels in tsunami-affected NAD are classified ascustomary ownership land (hak milik adat). While this land is not certificated, it isoften subject to certain types of written land records. This is an important point thatis not sufficiently recognised in current proposals or programs. These records areusually generated by land sales (akte jual-beli), gifts (hibah), and inheritance-relateddivisions (pembagian hak bersama). In some cases they are issued by the sub-districthead (camat) and witnessed by the village head coordinator (mukim) and village head(keucik). In other cases they are generated by the parties involved, and simplywitnessed by the camat, mukim and keucik.

Copies of these records were held in kecamatan offices.8 In most tsunami-affected kecamatan, these records have been damaged or destroyed. To date, nosystematic program of assistance has been directed at recovery of damaged versions

of these records.9 Current JICA and World Bank programs are directed at recovery ofdamaged BPN records relating to certificated land. Hence there is a risk thatuncertificated land records, generally held by poor landholders who could not affordcertification, will not be recovered or repaired. Part 4 accordingly containsrecommendations relating to recovery of damaged uncertificated land records held inkecamatan offices.

8 In some cases duplicates were also stored in BPN offices. However, these records were not asextensive or up-to-date as kecamatan records; and, in any event, have not been targeted by the WorldBank and JICA programs (most likely because they have been destroyed rather than simply damaged).9 There is a small program of UNDP assistance for records recovery in kecamatan Johan Pahlawan inMeulaboh. The author has inspected the damaged documents in this kecamatan, and confirmed thatmany did not have duplicate copies held in the BPN Meulaboh office.


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3.1.2. Replacement of Lost Land Title Certificates

Replacement of lost land title certificates, in response to applications from the public,is to be distinguished from restoring damaged land records. Articles 57-59 ofGovernment Regulation 24 of 1997 set out the procedure and requirements for

replacing lost land title certificates. An application must be accompanied by a swornstatement made before an official (or head) of the land office. A prescribed fee mustbe paid. The application is then advertised in a local paper. If there are no objectionsafter 30 days, the head of the land office may issue a replacement certificate.

The World Bank property rights and land administration project (discussedbelow) proposes to undertake systematic title registration in relation to previouslyregistered and unregistered land parcels. This would overlay any ad hoc replacementof lost land title certificates by BPN. This report supports this approach. Ad hocreplacement processes will favour the wealthy and well-connected. Systematic

surveying and adjudication, in combination with participatory land consolidation, willoffer greater protection against fraud and injustice. Because there are no equivalentlegal provisions relating to replacement of non-certificate records, such as akte jual-beli, hibah, surat keterangan hak atas tanah, a systematic program will also providegreater equality of opportunity in relation to uncertificated land.

3.2. Systematic Title Registration

The World Bank has received multi-donor trust fund funding, in the order of US$28.5million, to assist reconstruction of property rights and land administration in tsunami-

affected NAD. While the project will also fund community programs andreconstruction of BPN infrastructure, its core element (US$20.34 million) is a programof systematic land title registration. This program will finance surveying and mapping,adjudication and registration of rights, and issue of land titles according to the followingpriorities: (i) Priority 1 - areas designated as settlement and housing areas, includingareas necessary for the construction of public buildings such as schools, hospitals andgovernment offices (estimated at 100,000 parcels); (ii) Priority 2 - all other tsunamiaffected areas (estimated at 200,000 parcels) ; and (iii) Priority 3 - land areasimmediately adjacent to tsunami affected areas (estimated at 300,000 parcels).

This report recommends that UNDP and Oxfam fully support this project. It offers an

established mechanism for extending tenure security to land rights-holders affected bythe tsunami. That said, the report strongly recommends that it be supplemented byUNDP and Oxfam programs in the following respects.

3.2.1. Issue of Temporary Documentation

There is a significant risk that land titling processes, even with reduced evidentiaryrequirements, will not follow community-driven adjudication with sufficient speed tosatisfy urgent tenure security needs in NAD. The World Bank project sets anambitious timeline: BPN will send surveying and adjudication teams no later than 30

days after the completion of community-driven adjudication, and land titles will beissued no later than 90 days from the beginning of the surveying work. Yet, the


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Assistance to these local government institutions is the greatest "missing link" incurrent proposals relating to land rights in NAD. Almost all land-specific proposalstarget two institutions: BPN and NGOs that undertake community mapping. Yet, notonly does local government play an important land administration role, it can also actas a vitally-needed bridge between "bottom-up" processes (community mapping,

participatory planning) and "top-down" programs (land titling, surveying andconsolidation). Most kecamatan have no more than two staff dedicated to landmanagement issues. Many more are needed if the heavy demands imposed by post-tsunami reconstruction are to be met.

A targeted program of local government assistance would provide a meansboth to support kecamatan land management functions, and allow distribution ofbenefits to kemukiman andgampong level institutions. Part 4 sets out such a program.It particularly suggests that the camat should play a key role in forming village landmapping/adjudication committees; liaising between BPN and village institutions; and

keeping records relating to community maps/adjudication and land consolidations. Italso suggests that the camat (with the keucik and mukim as key verification agents)could play a key coordinating role with BPN in issuing temporary land documentation(SKTPS).

The program of local government assistance set out in Part 4 is designed to beintegrated with the World Banks Kecamatan Development Program (KDP). Furtherliaison in this regard will be essential.

3.2.3. Identification and Agreement as to Compensation and Appropriate

Sites for Re-Location

A large amount of land in NAD is now unsafe or submerged as a result of theearthquakes and tsunami. This was confirmed by aerial UNDP inspection of theaffected coastline. This creates imperatives for land consolidation and, in some cases,re-location. Re-location of certain administrative and economic facilities is alsoproposed in the Bappenas Master Plan. In the author's view, re-location is likely to bethe major cause of land-related conflicts in post-tsunami NAD. Assistance in relationto re-location is not directly covered by the World Bank's property rights and landadministration project.

Early proposals for reconstruction in NAD included a uniform coastal bufferzone in which re-building would not be allowed. A similar proposal has caused conflictin Sri Lanka. This proposal has been dropped in NAD. Instead, the Bappenas MasterPlan offers a set of spatial planning guidelines that are to be elucidated in regional(kabupaten/kota) special plans. These principles include proposals for green belts andrestricted development zones.11 The restricted development zones allow for thereturn of fishing communities and associated infrastructure. The green belts includethe possibility of plantation and commercial forest zones. Although the Master Planemphasises the principle of voluntary re-location,12 there is significant potential for

11

The Bappenas Master Plan, supra n 1, V-12 V-18.

12 Ibid, VI-1.


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non-consensual re-locations and some risk that commercial interests will exploit greenbelt opportunities. Part 4 contains a set of recommendations for civil society-basedmonitoring and advocacy measures relating to these issues. It also containsrecommendations for local government assistance in relation to re-location anddeveloping sub-district spatial plans.

A related issue concerns compensation for those communities that are re-located, and for persons whose land is acquired for public purposes. The Master Plansets out current government policy on this issue. It states that the amount ofcompensation is to be determined in accordance with existing regulations and thegovernment's financial capacity. Those that will receive compensation include peoplewho are re-located, and those whose land is required for tsunami protection andescape facilities. Additionally, the government proposes to provide assistance to thosewhose land is destroyed, submerged or contaminated. For destroyed, lost orsubmerged lands, government assistance will take the form of 200 square metres of

substitute land with a core house of 36 square metres per family "at a locationstipulated by the government". This assistance will not derogate from thebeneficiaries' rights to their original land. However, for land that "technically is nolonger feasible to be occupied" the government will provide the same form ofassistance but the original land "will become government property withoutcompensation". This proposal appears to apply to those re-located due to spatialplanning considerations.13

For all those who have lost houses in this tsunami disaster the government also

proposes to contribute towards a core house of 36 square metres for each family, byproviding 28 million rupiah for totally destroyed houses and 10 million rupiah for lightlyand moderately destroyed houses.14

As with re-location generally, compensation disputes are a major potential

source of conflict in post-tsunami NAD. The law and practice of land-relatedcompensation has caused significant conflict across Indonesia. These conflicts stemfrom procedural weaknesses, particularly in relation to consensual negotiation withlandholders, and a substantive failures to pay market value for acquired (or "released")rights to land. Both issues are inconsistent with international standards for thecompulsory acquisition of rights to land for public purposes (further elucidated inannexure 1).

Part 4 contains detailed recommendations for assistance relating to re-locationand compensation issues. This includes an audit process of available state and privateland, to be conducted by BPN in consultation with the Forestry Department andrepresentatives from kabupaten, kecamatan and civil society organisations. This isessential in order to avoid the "honeypot" effect created by ad hoc searches for re-location sites. The recommendations also include valuation and consultationmechanisms that link BPN, kecamatan, NGOs and village groups in order to ensureconsensual and participatory re-location processes. Finally, monitoring and advocacy

13

Ibid.

14 Ibid, VI-2.


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mechanisms are suggested in relation to specific re-location and compensation cases.Although not the subject of a specific recommendation, the report also suggests thatconsideration be given to direct donor contribution to ROI compensation funds. Afterall, it is a lack of money that is often the root cause of governmental failure to paymarket rates of compensation.

3.2.4. Identification and Mapping of Unsafe or Submerged Lands

A related issue concerns accurate identification and mapping of unsafe or submergedlands. This is important to prevent inappropriate forms of re-building, and minimiseconflicts arising from re-location or land consolidations. In relation to submergedlands, this may be a relatively easy procedure that could accompany land surveying andmapping programs. In relation to unsafe lands, particularly where the soil structure isnot sufficiently stable for proposed reconstruction, technical expertise and supportmay be necessary to complete identification and mapping programs in a timely fashion.

Part 4 contains a number of specific recommendations relating to internationalexpertise and capacity-building measures in this area.

3.2.5. Monitoring and Supervision Arrangements

The World Bank program of assistance for systematic land titling includes a sub-component for monitoring, evaluation and complaints-handling. This component willfinance a hotline to be operated by a private organisation that will receive complaintsthrough telephones and letters. The private operator will log all complaints andsubmit them to the project management unit and the steering committee. This report

recommends additional monitoring and supervision measures to supplement thisWorld Bank project sub-component. While on balance this report does supportsystematic land titling programs for tsunami-affected NAD, they do contain a numberof inherent risks for poor and vulnerable landholding groups. These risks may besummarised as follows.

Very large numbers of people, a majority in many communities, were killed inthis tsunami disaster. Special measures are thus required to protect theinterests of heirs, particularly children and dispersed relatives.

The large number of deaths and rapid extension of community mapping andplanning by NGOs creates another problem for titling programs. How can

new plots, agreed through participatory planning and consolidation processes,be titled without prejudicing the claims of pre-tsunami landholders and theirheirs? This issue is discussed further below.

Islamic inheritance principles and patriarchal traditional structures maydiscriminate against women (particularly widows) in terms of rights and accessto land. Comparative experience is that public information programs are not inthemselves an adequate response to this threat of discrimination.

Comparative experience also suggests that systematic land titling programs,particularly in areas characterised by customary land institutions, can

discriminate against secondary land rights-holders and those less capable ofaccessing State institutions. This is a particular issue in Aceh because


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customary land institutions are not well-understood by outsiders. It is alsoimportant because a number of coastal landholders in urban areas wereleaseholders only. These rights should be protected and perhaps evenupgraded where the landowner is deceased and no heir is forthcoming.

Systematic land titling will not solve - and in some cases may exacerbate -problems caused by restrictions on access to common resources (e.g. maritimeareas, fringing reefs, and forest lands). This issue requires law reform,including clarification of the boundaries of State land and the status ofcommunal land rights (hak ulayat).

Part 4 contains a number of recommendations relating to monitoring and supervisionof the proposed systematic land titling programs in NAD. These recommendationsinclude support for: guardian institutions to assert and hold land rights on behalf oforphans, advocacy and monitoring institutions relating to women's rights andsecondary land rights-holders, evaluation and research mechanisms in relation to theimpact of titling on customary land institutions, and advocacy and monitoring measuresin relation to common property resources.

3.3. Community-Based Land Mapping, Adjudication and Planning

The third element of current land-related programs in NAD concerns community-based land mapping, adjudication and planning. As at July 2005 the following areas hadbeen the subject of community mapping by specialist NGOs:

Over 80% of Banda Aceh (FBA, YIPD, UP-Link, Pugar) Parts of Aceh Besar (UP-Link) Parts of Lhong (Mama Mia) Approximately 16 villages in Nagan Raya (KMS).

It appears that substantial areas in the West Coast districts of Aceh Barat andAceh Jaya have yet to be the subject of NGO community mapping activity. The WorldBank project includes a component (US$1 million) to assist extension of community-driven adjudication to all tsunami-affected areas.

UN Habitat has prepared a set of modules and guidelines for community-basedmapping, adjudication and planning processes. These modules and guidelines will besupplemented by technical manuals prepared with the assistance of the World Bank.

This report fully supports community-driven mapping, adjudication andplanning processes in NAD. Communities know their own land rights, boundaries andplanning needs best. This said, the following issues have arisen that may requirefurther donor responses.

Uncertainty concerning (1) the legal status of community maps produced orfacilitated by NGOs, and (2) the relationship between these maps and BPN'ssurveying and titling activities.


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Indications that NGOs are focusing more on participatory planning and landconsolidation than identification and adjudication of pre-tsunami land rights.

Corresponding indications that BPN will insist on surveying land boundariesboth before and after NGO-facilitated community planning.

A lack of qualified surveyors to undertake boundary determination for BPN in atimely fashion.

A certain degree of mistrust between NGOs and BPN.UNDP has previously proposed support for a working group, a funded

secretariat and a series of workshops to improve cooperation between BPN andNGOs undertaking community mapping activities. These proposals are repeated inPart 4. They would supplement the World Bank-supported technical manuals. It isalso recommended that these manuals (and accompanying regulations) move beyondbilateral issues of BPN/NGO coordination, and clarify the specific roles andresponsibilities of such actors as owners/occupiers, village institutions and sub-districtofficials in the community-based mapping, adjudication and planning process.Recognising and identifying specific roles for village institutions and sub-district officials(camat, mukim and keucik) will increase the prospects for BPN acceptance of NGO-facilitated community mapping initiatives.

Part 4 suggests programs to allow the camat to play a key role in (1) formingvillage land mapping and adjudication committees, (2) liaising between BPN and villageinstitutions, and (3) keeping records relating to community land maps, adjudicationsand consolidations. The proposed program of local government assistance will also

help village-based institutions to undertake land rights adjudication in circumstanceswhere NGO-facilitated programs have focused on land consolidation and participatoryplanning. In the author's view, the urgent circumstances and institutional capacityissues are such that NGO-facilitated community planning and land consolidation shouldnot be unduly delayed by legalistic arguments that reconstructing pre-tsunami rightsand boundaries is a necessary pre-condition to planning and consolidation. Wheresubsequent titling programs issue certificates in accordance with post-tsunamicommunity plans, supported village adjudication institutions can help resolveconflicting claims from pre-tsunami landholders and their heirs. This would be a moreefficient and practical response to the emerging risk that future-oriented community

planning and land consolidation - an urgent and essential part of tenure securityrecovery in NAD - will prejudice claims from pre-tsunami landholders and their heirs.

Part 4 also recommends support for a national Indonesian NGO to evaluate,monitor and make advocacy recommendations in relation to community-basedmapping, adjudication and planning programmes in NAD.

3.4. Law Reform

The Bappenas Master Plan has identified the following issues that require legalattention:

Demographic data relating to precise numbers of survivors, deaths and missingpersons;


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Civil law data relating to pre-tsunami marriages, divorces and inheritance; The status of unclaimed personal property including movable assets, bank

accounts and life insurance policies etc;

Evidentiary requirements relating to proof of property rights; The status of ongoing contracts affected by the tsunami (e.g. death of parties;

impossibility of performance)

The status of destroyed, contaminated and/or submerged land; The status of scanned copies of evidentiary material; The status of post-tsunami land transfers or transactions; Legal responsibility for the land documentation reconstruction process; The status of the Baitul Maal (community religious treasury) as a land-owning

entity; Possible acceleration of the process for replacing land title certificates

(including shortening the announcement and oath periods);

The status of communal land rights (hak ulayat); The mechanism for identifying and utilising land for refugee camps and other

disaster-response activities.15

The World Bank has also identified the following legal issues that may requirespecial regulation: (i) clarification of inheritance in accordance to the Syariah law; (ii)

treatment of mortgages of properties already destroyed by the Tsunami; (ii) waiverof fees and charges for land titling for Tsunami affected areas; (iv) public notificationperiods; and (v) surveying regulations.

A further important legal issue concerns the identity and duties of guardianinstitutions to hold land rights on behalf of orphans until they reach adulthood.

The World Bank's property rights and land administration project will supportthe provision of consulting services to undertake analysis and provide options relatingto these issues. The Bappenas legal committee is also drafting a number of laws forNAD's regional parliament (DPRD). Part 4 recommends support for a high-level land

rights advocacy and advisory council in Banda Aceh that will inter alia assist andmonitor these activities. It also recommends support for four important legalassistance and advocacy NGOs in NAD: Lembaga Bantuan Hukum (LBH) LembagaKonsultasi dan Bantuan Hukum untuk Wanita dan Keluarga (LKBHuWK), LembagaBantuan Hukum Pakattabela (LBH-PT) and Koalisi HAM. Finally it recommends specificsupport for BPN's legal bureau in relation to land-related law reform requirements.

15 Ibid, IV-11.


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4. Specific Recommendations and Programs of Assistance

Three programs of assistance are recommended. It is suggested that the first two -assistance to BPN and Local Government - should be pursued by UNDP. The third --advocacy and monitoring -- should be supported by Oxfam. As discussed in Part 3,

the recommended programs of assistance are carefully designed to complementWorld Bank assistance to BPN, and the various forms of donor assistance to NGOsundertaking community mapping. There may be some overlap in certain identifiedareas. Further liaison and coordination will be required in this regard, and the authorhas separately recommended employment of another land rights consultant by UNDPto undertake this coordination activity.

Finally, it is noted that the recommendations are global in nature. As eventsunfold, some geographical selection and focus may become appropriate. It may alsobecome appropriate to cherrypick or farm out some of the recommendations in

consultation with other donors.

4.1. Assistance to BPN

Title

Facility to support rapid restoration and enhancement of land rights certainty intsunami-affected Aceh, through assistance to the National Land Agency (BadanPertanahan Nasional: "BPN").

Summary

The facility will provide targeted assistance to BPN in order to facilitate sustainablereturn and reconstruction in tsunami-affected NAD. It is directed at short-termpriority needs relating to the restoration and enhancement of land rights certainty. Itwill not support longer term infrastructure requirements, or the extension of land titlecertification programs. As such, the facility represents a priority component of a largerprogram of assistance to BPN in tsunami-affected NAD. This larger program willinvolve inputs and contributions from other multilateral and bilateral donors.

Objectives

The overarching objective is quick confirmation and enhancement of land rightscertainty in tsunami-affected areas of NAD.

Detailed Description of Activities

UNDP has identified the following priority areas that may be suitable for BPNassistance. This assistance complements the proposed World Bank programme ofsupport for BPN.

1. Community-based land surveying processes.2. Community-based land consolidation processes.


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3. Coordination with village, sub-district and NGO land mapping processes.4. Preparation and issue of temporary land documents.5. An audit process to identify appropriate sites for re-location.6.

Identification and mapping of unsafe and submerged lands.

7. Legal information and reform programs.8. Coordination with kota, kabupaten and kecamatan offices.

Each of these activity areas will now be described in turn.

1. Community-based Land Surveying Processes (Estimated cost - US$100,000)Land surveying involves accurate measurement and mapping of land boundaries.While BPN has sole legal authority to conduct land surveys, it will need to

cooperate with local communities as they know their pre-tsunami boundariesbest. Ideally, land surveying should also be integrated with programs to identifypre-tsunami land rights, undertake land consolidation measures (wherenecessary), and plan public facilities and land-use patterns.

As at April 12 2005, BPN had already surveyed 28 Kampong in Banda Aceh. Withcurrent staffing and equipment levels, it is estimated that land surveying will takeat least 1 year in Banda Aceh and 2 years in all tsunami-affected areas of NAD.Speeding up this process is a priority because sustainable reconstruction requiresaccurate information and social consensus as to land boundaries. It is also

important to prevent delays in community mapping and participatory planningprocesses.

UNDP proposes to assist the following activities. It is envisaged that this supportbe short-term in nature. In the medium term, it will be overtaken by the WorldBank property rights and land administration project.

1). Employment of mobile surveying teams from other parts of Indonesia.2). Transport for these teams, both to Aceh and within Aceh.3). Training and employment as necessary for extra surveying staff in NAD.4). Technical, communications and office equipment for surveying teams intsunami-affected areas of NAD.5). Staffing, salary and office requirements for accurate record-keeping relating

to land surveys.

6). Staffing, salary and transport requirements for effective liaison withcommunities whose land is being surveyed.

2. Community-based Land Consolidation Processes (Estimated cost - US$150,000)Land consolidation involves the regularisation and adjustment of boundaries withina village territory. It is particularly important in tsunami-affected NAD because ofthe extent of unsafe or submerged lands. Land consolidation should be


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consolidation and application for verification of rights in land within theirterritorial boundaries. NGOs have the legal right to assist communitieswhere that assistance is requested by the community through a process ofconsensus and deliberation.

Ultimately, the objective of all groups is the same: to confirm and enhanceland rights certainty in tsunami-affected NAD in as timely a manner aspossible.

UNDP proposes to assist the following activities:

Secretariat staff and equipment for a BPN/NGO working group on landmapping processes.

Training and information workshops by BPN for NGOs, kecamatan staff,mukim and/or village representatives in relation to community mapping

processes. Record-keeping at kecamatan and BPN offices relating to community land

mapping processes.

4. Urgent Issue of Temporary Land Records (Estimated cost - US$600,000)Senior BPN staff in NAD have raised the possibility of issuing temporaryacknowledgement of registration letters (surat keterangan pendaftaran tanah

sementara - SKPTS). These letters would not derive from pre-tsunami landrecords, but from community-based surveying, mapping and land consolidation

processes. They would not be definitive statements of land rights, and would beinterim steps only in any process of systematic land titling. Nevertheless, theywould be essential documents in terms of establishing a rapid legal foundation forre-building, shelter, livelihood and credit programs.


Employment of mobile BPN teams to coordinate with local governmentofficials in processing and issuing SKTPS.

Where necessary, employment of these mobile teams from BPN officesoutside NAD.

Transport for these teams, both to Aceh and within Aceh. Training and employment as necessary for extra BPN staff to assist the issue of

SKTPS in tsunami-affected NAD.

Technical, communications and office equipment for SKTPS teams in tsunami-affected areas of NAD.

Record-keeping at kecamatan and BPN offices relating to the SKTPS process. Employment of a seconded BPN liaison officer to each tsunami-affected

kabupaten and kecamatan to assist information-flows, record-keeping andcoordination in relation to the SKTPS process.


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5. Identification and Socialisation of Lands for Re-Location (Estimated cost -US$500,000)

A large amount of land in NAD is now unsafe or submerged as a result of theearthquakes and tsunami. As noted, this creates imperatives for land

consolidation and, in some cases, re-location. Re-location of certainadministrative and economic facilities is also proposed in some districts by theBappenas Master Plan. Re-location creates the potential for conflict, particularlyin relation to substitute lands and demands for compensation. There is an urgentneed to anticipate and minimise these conflicts.


Mobile BPN teams to identify and survey boundaries of available State land forre-location purposes, in consultation with Forestry Department, kabupaten,kecamatan and civil society representatives.

Each team to check with Forestry Department, kabupaten, kecamatan and civilsociety representatives to ensure that the land is not subject to pre-existingclaims.

Each team to provide their findings and data to a central "land bank" databaseat BPN Banda Aceh's offices.

Where necessary, each team to identify and value appropriate private land (andits owner(s)) for re-location purposes.

Each team to liaise with consultation committees that link BPN, kecamatan,NGOs and village groups in order to ensure consensual and participatory re-location processes.

Each team to coordinate with livelihood assistance programs through liaisonwith relevant provincial, kota, kabupaten, and kecamatan livelihoodcommittees.

After negotiation and agreement with affected communities, mobile BPNteams to survey boundaries and issue appropriate land title certificates in re-location sites.

6. Identification and Mapping of Unsafe or Submerged Lands (Estimated cost -US$400,000)

Accurate identification and mapping of unsafe or submerged lands is important toprevent inappropriate forms of re-building, and minimise conflicts arising from re-location or land consolidations. In relation to submerged lands, this may be arelatively easy procedure that could accompany land surveying and mappingprograms. In relation to unsafe lands, particularly where the soil structure is notsufficiently stable for proposed reconstruction, technical expertise and supportmay be necessary to complete identification and mapping programs in a timelyfashion.


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UNDP proposes to assist the following activities.

Employment of mobile BPN experts to identify and map unsafe or submergedlands, in conjunction with land surveying and consolidation processes intsunami-affected areas.

Where necessary, employment of these experts from BPN offices outsideNAD.

Transport for these experts, both to Aceh and within Aceh. Training and employment as necessary for BPN staff to assist identification and

mapping of unsafe or submerged lands in tsunami-affected NAD.

Technical, communications and office equipment for these BPN experts. Record-keeping at kecamatan and BPN offices relating to the unsafe or

submerged lands identification and mapping process.

Employment of a seconded BPN liaison officer to each tsunami-affectedkabupaten and kecamatan to assist information-flows, record-keeping andcoordination in relation to the unsafe or submerged lands identification andmapping process.

7. Legal Information and Reform Programs (Estimated cost - US$400,000)A number of issues may require special legal regulations for tsunami-affectedNAD. They include: the status of community maps, letters of interim landregistration (SKPTS), inheritance claims, re-location and compensation,

submerged and unsafe lands, land for which there are now no claimants, rights oforphans and women, and jurisdictional limits and authorities. Comprehensiveinformation relating to these regulations, and the underlying legal structure forland-related programs, needs to be made available to all those affected by thetsunami, including in particular communities, NGOs and government officials.

UNDP proposes to assist the following activities.

Employment and support for extra legal staff in the BPN legal bureau. Policy workshops convened by BPN, Bappenas/Bappeda and Bapel in Banda

Aceh on land-related legal issues arising from the tsunami.

Legal information workshops (in conjunction with kabupaten and kecamatanstaff) to be held in each kecamatan in tsunami-affected areas of NAD.

8. Coordination with Kota, Kabupaten, and Kecamatan Offices (Estimated cost -US$400,000)

All of the above activities require a high degree of coordination with kota,kabupaten, and kecamatan levels of government. This coordination imperativeparticularly relates to inter-governmental liaison, record-keeping and exchange,and localised mechanisms for effective consultation and information-flows.


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Employment of seconded BPN officers in each tsunami-affected kabupaten andkecamatan office to assist information-flows, record-keeping and coordinationin relation to all the above UNDP/BPN activities.

Transport, communications and office support for these seconded BPN staffmembers.

Total estimated cost = US$2.6 million

4.2. Assistance to Local Government

Title

Facility to support rapid confirmation and enhancement of land rights certainty in

tsunami-affected Aceh, through support to local government.

Summary

The facility will provide targeted grants to tsunami-affected kecamatans to assist thefollowing activities:

a. Community-based land mapping and adjudication.b. Land management functions ordinarily performed at kecamatan level.c. Repair and restoration of damaged land records held in kecamatan offices.d. Improvement of adjudication and dispute-resolution functions at village level

(kemukiman and gampong)

Community-based land mapping and adjudication has been identified as a keymechanism for promoting land rights certainty in NAD. A primary vehicle fororganising and facilitating this activity will be kecamatan and village level institutions.Kecamatan offices also have an important role in terms of generating, verifying andstoring land records relating to uncertificated land. Although many of these recordshave been damaged or destroyed, no systematic program of recovery has beendirected at their recovery. Finally, kecamatan and village officials have important roles

in terms of minimising land-related conflict, and coordinating land administrationactivities at the local level.

The facility will be integrated with the World Bank's Kecamatan DevelopmentProject (KDP) and Urban Poverty Project (UPP). It is consistent with other UNDPprograms ofkecamatan assistance.


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Objectives

The objectives are rapid extension of community land mapping and adjudication, andrapid restoration and enhancement of local government land administration functions,in tsunami-affected areas of NAD.Expected Results

Rapid implementation of community land mapping and adjudication in tsunami-affected areas of NAD.

Protection of the property rights of displaced Acehnese, particularly poor andvulnerable groups that held inadequate or uncertificated land records.

Adequate quality control of community land mapping and adjudicationprocesses through technical manuals, workshops and monitoring programs.

Adequate record-keeping in relation to community land mapping andadjudication processes, particularly at kecamatan and village levels ofgovernment.

Adequate coordination both between local government institutions, and withBPN and other relevant government agencies.

1). Capacity building for local government and village institutions involved inadjudications and resolving land-related conflicts.

Detailed Description of Activities

This description of activities draws on the following World Bank categorisation ofdamage in kecamatans directly affected by the tsunami.

Level of damage Number ofkecamatans

Heavy 43

Medium 20

Light 10

The facility will provide targeted grants to tsunami-affected kecamatan for thefollowing activities.

1). Formation of Village Land Mapping and Adjudication Committees (Total cost- US$248,500)

While technical assistance and training will be required, in all cases communityland mapping and adjudication should primarily be undertaken by villagemembers. Based on the UNDP consultant's observations and discussions, it isestimated that each village land mapping and adjudication committee will haveapproximately 11 members. Each member will be paid an honorarium of40,000 rupiah a day. The chair will be paid 60,000 rupiah a day. On average,each village will take approximately 7 days to complete community land


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mapping and adjudication. There are 656 directly affected villages (although alarge number of these are spread across several hamlets). Cost -US$235,000.

Each village land committee will require the following items: boundary

marker stakes, ropes, ownership/occupancy marker signs and tape measures(up to 50 m). Based on the UNDP consultant's observations and discussions,the total cost of these items perkecamatan is estimated at 1.5 million rupiah(US$180). Cost - US$13,500.

These activities would be preliminary steps in the World Bank-supportedsystematic land titling programs by BPN. In a number of cases, communitymapping will have been completed already with the assistance of NGOs.These village land committees are designed as an ongoing quality control andcoordination mechanism in relation to community mapping, and as an

institution that will coordinate with the BPN land titling program. Theyshould also be linked to the village Development Councils proposed in theMaster Plan.

2). A Tiered Program of Consultant Facilitators (Total cost - US$1.7 M)This component will build on the World Bank's KDP program ofkecamatandevelopment facilitators. Each kecamatan will have dedicated communityland mapping and adjudication facilitators, calculated as follows:

Category A - 5

Category B - 3Category C - 1

These facilitators will (1) help train and supervise village land committeemembers, in conjunction with specialist NGOs commissioned for thispurpose, (2) provide technical support and advice, including in relation toBPN requirements and available NGO services, and (3) ensure properrecord-keeping and quality control. Cost - US$1.1 m.

KDP management units at provincial and district levels will also have

seconded community land mapping and adjudication facilitators. (3 xprovince; 1 per district). These facilitators will perform appropriatecoordination and monitoring functions. Cost - US$20,000.

In all cases, appropriate communications, transport and technical equipmentsupport will be provided. Office and administrative support is a subject ofcomponent 4 below. Cost - US$580,000.

This component will also need to be integrated with the World Bank-supported systematic land titling program. The aim is to provide capacity-building for local government institutions in order to improve coordinationwith BPN activities.


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3). Capacity-building in Relation to Community Land Mapping and Adjudication(Total cost - US$270,000)

"Training the trainers": workshop and training programs for specialist NGOsthat will train local government facilitators and village land committee

members. These programs will have BPN inputs and will encompasstechnical manuals for community land mapping and adjudication. Cost -US$20,000.

Training programs and technical assistance for each village land committee, tobe undertaken as appropriate by specialist NGOs with the assistance ofkecamatan facilitators. Cost - US$100,000.

Workshops and training programs for government officials, includingkecamatan, district and provincial facilitators, calculated as follows.

Category A: 10 workshops in different areas of the kecamatan to be heldwithin six months. Participants to include designated facilitators, camat,kecamatan administrative staff, mukim, keucik and tokoh adat.

Category B: 5 workshops in different areas of the kecamatan to be heldwithin six months.

Category C: 2 workshops in different areas of the kecamatan to be heldwithin six months.

Cost - US$100,000.

Workshop for provincial, district and city officials on community land mappingand adjudication process. Cost - US$10,000.

Information programs and workshops for villages in relation to communityland mapping and adjudication (leaflets, videos etc). Cost - US$40,000.

4. Community Land Mapping and Adjudication Support Units (Total cost -US$920,000)

Each kecamatan in tsunami-affected areas will have community land mapping andadjudication support units. These units will have appropriate office equipment,computer operators and administrative staff to support the community landmapping and adjudication process. The total number of support unit staff perkecamatan is calculated as follows.

Category A - 3

Category B - 2

Category C - 1

Cost - US$720,000.


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Each tsunami-affected mukim will have a community land mapping andadjudication support unit. These units will have 1 administrative staff member andappropriate equipment for monitoring and coordination purposes. Cost -US$200,000.

5. Rapid Repair and Restoration of Damaged Land Records Held in KecamatanOffices.

Repair and restoration activity will require national and international experts toidentify, collect and repair damaged records from directly affected kecamatan.Costing of this activity will require further needs assessment.

6. Restoration and Enhancement of Land Management Functions OrdinarilyPerformed at Kecamatan Level (Total cost - US$840,000)

Extra staff and support equipment will be stationed in each tsunami-affectedkecamatan to assist with ordinary land management functions, calculated asfollows.

Category A - 3

Category B - 2

Category C - 1

Cost -US$540,000

Separate workshops and training programs will be provided to these staffmembers (and existing staff members) in relation to land regulation, communityconsultation and conflict-mediation. Cost - US$300,000.

7. Capacity-Building for Village Adjudication and Dispute-Resolution Institutions(Total cost US$250,000)

A programme of local government assistance, through established KDPstructures, is the most practicable and systematic means to provide capacity-building for village institutions engaged in adjudications and dispute-resolutionrelating to land. These institutions are described in Part 3 above. Funding will beprovided for:

Land mediation training programs. Land issues awareness programs (including rights of women and children). Legal issues training programs. Administrative and secretarial support for mukim and keucik in tsunami-

affected areas (calibrated according to category A, B or C damage).

8. Monitoring and Evaluation (Total cost - US$50,000).Monitoring will take place through established KDP structures. This would


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include the KDP master database, complaints mechanisms, and auditrequirements. Additional funding will be provided for these purposes. Furtherfunding will also be provided for a competitively selected NGO to monitor andreport on the progress of local government activities in relation to confirming andenhancing land rights in tsunami-affected areas. Cost - US$50,000.

Total Amount Requested for Local Government Assistance: US$4,278,500.

4.3. Assistance for Civil Society Monitoring and Advocacy

Title

Facility to support monitoring and advocacy in relation to land rights in tsunami-affected Aceh, through support to civil society.

Background

This report has recommended substantial programs of government assistance becausegovernment agencies, including village officials, are in the front-line of restoring andconfirming land rights in tsunami-affected in NAD. This approach builds on the factthat, in many cases, civil society organisations are not legally or institutionally capableof substituting for specific land-related governmental roles and responsibilities. Thissaid, however, there are risks in providing funds to unpopular or potentiallydysfunctional government institutions. Thus it is essential that the governmentassistance recommendations in this report be complemented by the following civil

society-based monitoring and advocacy mechanisms.

The following land-related issues have been identified as requiring particularmonitoring and advocacy attention:

Re-locations due to spatial planning decisions, or loss of habitable land. Compensation for re-located communities, those who have lost land, and

those whose land is expropriated for tsunami-protection purposes.

The need to identify and regulate the duties of guardian institutions that holdrights to land on behalf of orphans.

The vulnerable status of women's rights and secondary rights-holders (lesseesetc), particularly in the context of systematic land titling.

The need to evaluate and monitor the impact of titling on customary landinstitutions.

Access and rights to common property resources (maritime areas, fringingreefs and forest lands) by local communities.

Legal reform requirements (as set out in Part 3).


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Description of Proposed Activities16

1. Support for NGOs able to provide legal, mediation and information services

relating to land.

Four such NGOs in NAD are Lembaga Bantuan Hukum (LBH) Lembaga Konsultasidan Bantuan Hukum untuk Wanita dan Keluarga (LKBHuWK), Lembaga BantuanHukum Pakattabela (LBH-PT) and Koalisi HAM.

Employment and training of dedicated staff directed at the issues listed above.Training could be provided by an experienced national Indonesian NGO (e.g.HuMa, KPA).

Such staff to be stationed as appropriate in each kabupaten (with mobile teamsable to visit remote kecamatan).

Transport and communications support as required for NGO land rights staff. Communications, transport and workshops support for relevant Acehnese

NGOs to link with national Indonesian NGOs.

Support for distribution of leaflets/information products (processes and rightsrelating to land, including in relation to women and children, inheritance, re-location and compensation etc).

2. Support for the Faculty of Law, Syiah Kuala University. Placement of staff and students with NGOs that provide legal assistance

services.

Capacity-building for staff members engaged in monitoring, evaluation andpolicy advice activities.

Capacity-building and applied research project for Law School staff members,and commissioned sociologists and anthropologists, to undertake a study of theeffect of post-tsunami land titling on customary land institutions.

3. Non-Governmental Land Monitoring and Advocacy Council in Banda Aceh.This council would provide high-level policy advice and advocacy to government

agencies, including the reconstruction authority, in relation to land rights. It wouldalso have a strong media information component to publicise cases/abuses andadvocate policy recommendations.

Commissioning of a National NGO (e.g. HuMa or KPA) to establish the councilwith representatives from Acehnese NGOs and civil society organisations.

Funding for office, transport and communications support. Dedicated fundingfor experienced media information officers.

Support for preparation of leaflets/videos/information products (processes and16 Specific cost estimates in relation to all these activities will require further input from Oxfam orUNDP officers.


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rights relating to land, including in relation to women and children, inheritance,re-location and compensation etc).

Support for workshops for lawyers, mediators and information experts. Support for database on disputes etc.


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ANNEXURE 1

Relevant International Standards relating to Land, Housing and Property

Rights17

General Instruments

International Conventions

EUROPEAN CONVENTION ON HUMAN RIGHTS Art 1, Protocol 1; Art 2,Protocol 4

Protocol 1

ARTICLE 1

Every natural or legal person is entitled to the peaceful enjoyment of hispossessions. No one shall be deprived of his possessions except in thepublic interest and subject to the conditions provided for by law and by thegeneral principles of international law.

The preceding provisions shall not, however, in any way impair the right of aState to enforce such laws as it deems necessary to control the use of propertyin accordance with the general interest or to secure the payment of taxes orother contributions or penalties.

Protocol 4

Article 2 Freedom of movement

1. Everyone lawfully within the territory of a State shall, within thatterritory, have the right to liberty of movement and freedom tochoose his residence.

2. Everyone shall be free to leave any country, including his own.3. No restrictions shall be placed on the exercise of these rights other than

such as are in accordance with law and are necessary in a democraticsociety in the interests of national security or public safety, for themaintenance of ordre public, for the prevention of crime, for theprotection of health or morals, or for the protection of the rights andfreedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas,to restrictions imposed in accordance with law and justified by the publicinterest in a democratic society.

17 Further detail on the standards may be obtained from the Centre of Housing Rights and Evictions(COHRE). COHRE is the leading international NGO in the field of land, housing and property rights.


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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Art 12, 26

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory,have the right to liberty of movement and freedom to choose hisresidence.

2. Everyone shall be free to leave any country, including his own.3. The above-mentioned rights shall not be subject to any restrictions except

those which are provided by law, are necessary to protect nationalsecurity, public order (ordre public), public health or morals or the rightsand freedoms of others, and are consistent with the other rightsrecognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.Article 26

All persons are equal before the law and are entitled without anydiscrimination to the equal protection of the law. In this respect, the law shallprohibit any discrimination and guarantee to all persons equal andeffective protection against discrimination on any ground such as race,colour, sex, language, religion, political or other opinion, national or socialorigin, property, birth or other status.

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS

OF RACIAL DISCRIMINATION Art. 5(e)(iii)

Article 5

In compliance with the fundamental obligations laid down in article 2 ofthis Convention, States Parties undertake to prohibit and to eliminateracial discrimination in all its forms and to guarantee the right ofeveryone, without distinction as to race, colour, or national or ethnic

origin, to equality before the law, notably in the enjoyment of thefollowing rights:

(e) Economic, social and cultural rights, in particular:

(iii) The right to housing;

(iv) The right to public health, medical care,social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural

activities;


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Article 5 of the International Convention on the Elimination of All Forms ofRacial Discrimination (the Race Convention) provides that "everyone, withoutdistinction as to race, colour, or national or ethnic origin," is entitled to equalenjoyment of rights, including "[t]he right to freedom of movement andresidence within the border of the State." [FN143]

UNIVERSAL DECLARATION OF HUMAN RIGHTS Art. 13(1),(2)

Article 13

1. Everyone has the right to freedom of movement and residence withinthe borders of each State.

AMERICAN CONVENTION ON HUMAN RIGHTS

Article 22. Freedom of Movement and Residence

1. Every person lawfully in the territory of a State Partyhas the rightto move about in it, and to reside in it subject to the provisionsof the law.

2. Every person has the right to leave any country freely, including hisown.

INTERNATIONAL LABOUR ORGANISATION (ILO) CONVENTION NO.

169 CONCERNING INDIGENOUS AND TRIBAL PEOPLES (1989) adopted 27

June 1989, revising the Indigenous and Tribal Populations Convention no. 107

of 1957.

Article 16:

Subject to the following paragraphs of this Article, the peoples concerned shallnot be removed from the lands which they occupy.

Where the relocation of these peoples is considered necessary as an

exceptional measure, such relocation shall take place only with their free andinformed consent. Where their consent cannot be obtained, such relocationshall take place only following appropriate procedures established bynational laws and regulations, including public inquiries where appropriate,which provide the opportunity for effective representation of the peoplesconcerned.

Whenever possible, these peoples shall have the right to return totheir traditional lands, as soon as the grounds for relocation cease toexist.


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When such return is not possible, as determined by agreement or, in theabsence of such agreement, through appropriate procedures, these peoplesshall be provided in all possible cases with lands of quality and legal status atleast equal to that of the lands previously occupied by them, suitable toprovide for their present needs and future development. Where the peoples

concerned express a preference for compensation in money or in kind, theyshall be so compensated under appropriate guarantees.

Persons thus relocated shall be fully compensated for any resulting loss orinjury.The following 13 States have ratified Convention 169 Concerning Indigenous andTribal Peoples:

Bolivia, Colombia, Costa Rica, Denmark, Ecuador, Fiji, Guatemala, Honduras,Mexico, Netherlands, Norway, Paraguay, and Peru.

International Declarations and Recommendations

VANCOUVER DECLARATION ON HUMAN SETTLEMENTS (1976), adopted by

the UN Conference on Human Settlements in 1976.

Chapter II (A.3) states:

The ideologies of States are reflected in their human settlement policies. Thesebeing powerful instruments for change, they must not be used to dispossess

people from their homes or land or to entrench privilege and exploitation.The human settlement policies must be in conformity with the declaration ofprinciples and the Universal Declaration of Human Rights.

United Nations Resolutions/Declarations/Reports

Security Council resolutions:

1287 (2000) [on Georgian conflict]

Art 8.Reaffirms the unacceptability of the demographic changes resulting from theconflict and the imprescriptible right of all refugees and displacedpersons affected by the conflict to return to their homes in secure

conditions, in accordance with international law and as set out in theQuadripartite Agreement of 4 April 1994 (S/1994/397, annex II), and calls uponthe parties to address this issue urgently by agreeing and implementingeffective measures to guarantee the security of those who exercise theirunconditional right to return, including those who have already returned;


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1244 (1999) [on Kosovo conflict]

Preamble.Reaffirming the right of all refugees and displaced persons to return to theirhomes in safety,

1199 (1998) [on Kosovo conflict]

Preamble.Reaffirming the right of all refugees and displaced persons to return to theirhomes in safety,

1036 (1996) [on Georgia conflict]

Preamble.

Reaffirming also the right of all refugees and displaced persons affected by theconflict to return to their homes in secure conditions in accordance withinternational law and as set out in the Quadripartite Agreement of 14 April1994 on voluntary return of refugees and displaced persons (S/1994/397, annexII),

971 (1995) [on Georgia conflict]

Preable.Reaffirming also the right of all refugees and displaced persons affected by theconflict to return to their homes in secure conditions in accordance withinternational law and as set out in the Quadripartite Agreement on voluntaryreturn of refugees and displaced persons (S/1994/397, annex II), signed inMoscow on 4 April 1994,

947 (1994)

Affirms the right of all displaced persons to return voluntarily to their homes oforigin in safety and dignity with the assistance of the international community

876 (1993) [on Abkhazia and Georgia conflict]

Art 5.Affirms the right of refugees and displaced persons to return to their homes,and calls on the parties to facilitate this;

859 (1993)

further affirms [the] ... [r]ecognition and respect for all displaced persons toreturn to their homes in safety and honor

820 (1993) [on Bosnia and Herzegovina]


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Preamble.Insisting that all displaced persons be enabled to return in peace to theirformer homes,

General Assembly resolutions:

51/126 [on Israel/Palestine conflict]

Art 1.Reaffirms the right of all persons displaced as a result of the June 1967 andsubsequent hostilities to return to their homes or former places of residence inthe territories occupied by Israel since 1967;

Sub-Commissions Resolutions

Sub-Commission on the Prevention of Discrimination and Protection of Minoritiesresolutions 1998/26

The UN Sub-Commission on Prevention of Discrimination and Protection ofMinorities resolution 1998/26 entitled Housing and Property Restitution in theContext of the Return of Refugees and Internally Displaced Persons on 26 August1998:

Conscious that human rights violations and breaches of internationalhumanitarian law are among the reasons why refugees, as defined inrelevant international legal instruments, and internally displaced personsflee their homes and places of habitual residence,

Recognizingthat the right of refugees and internally displaced persons toreturn freely to their homes and places of habitual residence in safetyand security forms an indispensable element of national reconciliationand reconstruction and that the recognition of such rights should beincluded within peace agreements ending armed conflicts,

Recognizing also the right of all returnees to the free exercise of theirright to freedom of movement and to choose ones residence including

the right to be officially registered in their homes and places of habitualresidence, their right to privacy and respect for the home, their right toreside peacefully in the security of their own home and their right toenjoy access to all necessary social and economic services, in anenvironment free of any form of discrimination,

Conscious of the widespread constraint imposed against refugees andinternally displaced persons in the exercise their right to return to theirhomes and places of habitual residence,

Also conscious that the right to freedom of movement and the right toadequate housing includes the right of protection for returning refugees


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Daniel Fitzpatrick

and internally displaced persons against being compelled to return totheir homes and places of habitual residence and that right to return totheir homes and places of habitual residence must be exercised in avoluntary and dignified manner,

Aware that intensified international, regional and national measures arerequired to ensure the full realization of the right of refugees andinternally displaced persons to return to their homes and places ofhabitual residence and are indispensable elements of reintegration,reconstruction and reconciliation,

1. Reaffirms the right of all refugees, as defined in relevantinternational legal instruments, and internally displaced

persons to return to their homes and places of habitual

residence in their country and/or place of origin, should they

so wish;

2. Reaffirms also the universal applicability of the right to adequatehousing, the right to freedom of movement, the right to privacy andrespect for the home and the particular importance of these rightsfor returning refugees and internally displaced persons wishing toreturn to their homes and places of habitual residence;

3. Confirms that the adoption or application of laws by States whichare designed to or result in the loss or removal of tenancy, use,ownership or other rights connected with housing or property, theactive retraction of the right to reside within a particular place, or

laws of abandonment employed against refugees or internallydisplaced persons pose serious impediments to the return andreintegration of refugees and internally displaced persons and toreconstruction and reconciliation;

4. Urges all States to ensure the free and fair exercise of the rightto return to ones home and place of habitual residence by all

refugees and internally displaced persons and to developeffective and expeditious legal, administrative and other proceduresto ensure the free and fair exercise of this right, including fair andeffective mechanisms designed to resolve outstanding housing and

property problems;5. Invites the United Nations High Commissioner for Refugees, in

consultation with the United Nations High Commissioner for HumanRights, to develop policy guidelines to promote and facilitate theright of all refugees and, if appropriate to her mandate,

internally displaced persons, to return freely, safely and

voluntarily to their homes and places of habitual residence;

Sub-Commission on the Prevention of Discrimination and Protection ofMinorities resolutions 1994/24


37/38


38/38

Daniel Fitzpatrick

COMMITTEE ON THE ELIMINATION OF RACIAL

DISCRIMINATION, GENERAL RECOMMENDATION XXII (forty-

ninth session), A/51/18 (1996)

Article 5

all ... refugees and displaced persons have the right freely to return to theirhomes of origin under conditions of safety