Selected Cases and
Document: Agreement between USSR Ministries of Interior, Finance and Justice/State Committee for Labor and Social Issues and the Councils of Ministers of Armenia and Azerbaijan
According to a June 20 1990 report by the Russian Press Digest, the USSR Ministries of Interior, Finance and Justice/State Committee for Labor and Social Issues and the Councils of Ministers of Armenia and Azerbaijan reached an agreement that the refugees from those republics would receive compensation for material losses to be paid by Armenia and Azerbaijan. According to the report, refugees would be eligible for 210 rubles of compensation for each square meter of living space and a minimum of 7000 rubles per family. Compensation for additional property depends on insurance. For uninsured household goods, a single person would receive 1200 rubles, a two person family would receive 2000 rubles and 500 rubles for each additional person.(3) It is unclear if this was ever implemented.1.2 Bosnia-Herzegovina
Document: Dayton Peace Agreement, Annex 7: Agreement on Refugees and Displaced Persons
Date: November 21, 1995
Annex 7 to the Dayton Peace Agreement created the Commission for Real Property Claims. Article XI of Annex 7 states the mandate of the CRPC: "The Commission shall 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 return."
The commission consists of four members from the Federation of Bosnia-Herzegovina (two with a three year term and two with a four year term), two members from Republika Srpska (one with a three year term and one with a four year term), and three members appointed by the European Court of Human Rights, one of which serves as chair. Currently, the CRPC has a staff of over 160 operating in Bosnia-Herzegovina and Montenegro,(4) in addition to the offices run in Berlin and Oslo. The procedures of the Commission, as outlined by Article XII of Annex 7 ("Proceedings before the Commission") are as follows:
In addition to the framework outlined in Annex 7, on March 4, 1999, the CRPC adopted the "Book of Regulations: On the Conditions and Decision Making Procedure for Claims for Return of Real Property of Displaced Persons and Refugees."(5) These regulations outlined the "General Provisions (Section I)," the procedure for the "Submission and Reception of Claims (Section II)," the "Procedure for Collection and Verification of Evidence Relevant for Deciding Claims for Return of Real Property(Section III)," the procedure for "Deciding Claims for Return of Real Property" (including provisions on "evidence," and the "decision making procedure") (Section IV)," the "Special Procedure for Deciding Claims for Return of Real Property, Confirming an Ownership Right to Real Property, and Acquiring the Right to Just Compensation in Lieu of Return to Property (Section V)," the provisions on "Legal Effectiveness, Delivery and Publication of Individual Decisions of Return of Real Property (Section VI)," the procedure for the "Correction of Errors in Decisions (Section VII)," the "Reconsideration of Decisions (Section VIII)," the provisions for "Decision Enforcement (Section IX)," and the "Transitional and Closing Provisions (Section X)."
The Commission is financed by equal contributions of the Federation and the Republika Srpska and the funds from the sale and lease of real property. In addition, the CRPC has received considerable international assistance. According to the most recent available data,(6) as of May 1998, the European Commission, Switzerland, the US, Japan, Russia, Canada, the Organization of the Islamic Conference, Norway, Ireland, Italy, the Netherlands, Sweden, and the United Kingdom had pledged $4,144,269 and the CRPC had received $1,920,909 from: Switzerland, Italy, Sweden and the United Kingdom.(7)
As of May 1998, the CRPC had "completed and distributed 7,400 decision certificates"(8) out of 100,000 claims that had been registered at that time. In May 1998, the CRPC projected a claim registration rate of 6500-10,000 per month and a claims decision rate of 3200-7500 decisions per month.(9) The claim registration deadline was extended for the Federation until June 4, 1999;(10) the deadline for Republika Srpska has been extended until December 19, 1999.(11)1.3 Bulgaria-Romania
Document: Treaty of Craiova
Date: September 7, 1940
This agreement provided for the compulsory exchange of minorities in North and South Dobruja which was conducted within a three month period. The total number of migrants was: 61,000 Bulgarian and 100,000 Romanian. These migrants were permitted to remove movable possessions duty-free, although there were allegations of harassment at the border. In terms of immovable property, one author describes the transaction as "a state-to-state settlement of property interests."(12) However, according to the author, the determination of valuation of property proved difficult,(13) and eventually resulted in an agreement for the Romanian government to pay a lump sum amount of one billion lei(14) or approximately $10,000,000.(15) In September 1942, the commission established by the 1940 agreement was dissolved. Then on April 1, 1943, an additional agreement was reached, offering a voluntary exchange of populations "to the entire territories."(16) Yet, this too was quickly "abandoned" and only minor and sporadic migrations followed.1.4 Chechnya
Since June 1995,(17) the refugees from the fighting in Chechnya have, in principle, been awarded compensation by the Russian government for housing destroyed in Chechnya. To be eligible, claimants must have left Chechnya between December 12, 1994 and November 23, 1996.(18) The amount of compensation paid to each refugee is based on "the norm of 18 square meters per person and the average market value of housing in Russia."(19) Immediately following budget troubles in which the federal budget allotted only 200 billion rubles when the anticipated costs for compensation would total 3 trillion rubles,(20) compensation payments were stopped.(21) Prior to that, according to a March 1997 quote of the Deputy Director of Russias Federal Migration Service, 20 billion rubles had been paid to 300 families.(22) In response to the budget crisis, the Human Rights Chamber of the Political Consultative Council proposed "state debentures" and "certificates on which investors will give money for construction of new housing."(23)1.5 Cyprus
Document: so-called "Exchange of Populations Agreement of 2 August 1975," Loizidou v. Turkey, European Court of Human Rights
Date: August 2, 1975, December 18, 1996
Because it has been noted in a discussion of compensation in the Palestinian case,(24) the Cyprus case warrants examination. An agreement which the Turkish Republic of Northern Cyprus calls the "Exchange of Populations Agreement" has been referenced as a possible basis for the resolution of property questions in Cyprus. This agreement is said to propose an exchange of properties between the Turkish and Greek communities in Cyprus. However, the provisions contained in this document are highly contested. Not only is the property question subject to ongoing negotiations, but also the Republic of Cyprus contests the existence of this agreement.(25)
In addition to the ongoing negotiations between the two parties, it is important to note a recent European Court of Human Rights Ruling on a property rights case in Northern Cyprus. Although possibly based on grounds which may not apply in the Palestinian case, it is nevertheless potentially relevant. In Loizidou v. Turkey, the court ruled in favor of a Greek Cypriot who claimed that "the peaceful enjoyment of (her) possessions was being violated by Turkey as a result of its actions in Cyprus."(26) The court ruled that article 159 (1)(b) of the May 7, 1985 constitution of the Turkish Republic of Northern Cyprus which provides for the expropriation of "abandoned or ownerless properties"(27) was invalid. This ruling was on the basis that "the Republic of Cyprus has remained the sole legitimate government of Cyprus Accordingly the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of the TNRC."(28) Therefore, the claimants right to enjoy her property was affirmed and she was awarded compensation for interference with her right to do so.1.6 Czechoslovakia-Germany
In 1945, in response to the environment created by the expulsion of "non-loyal" Germans from Czechoslovakia, 82,000 "anti-fascist" German Czechs (who, on the basis of their war time affiliations, were permitted to stay in Czechoslovakia) opted to leave. These "voluntary" transferees were "allowed to take with them all their movable personal property; it was stipulated that the houses and farms they left behind would be paid for later."(29) It is unclear if this was paid. In contrast, the movable and immovable property of the other German transferees was nationalized by the Czechoslovakian state and no compensation was provided for it. Excluded from this nationalization was the 70kg and 500 reichmarks each person was permitted to export.(30) The request for compensation for the property losses of Sudeten Germans remains pending.1.7 Czechoslovakia-Hungary
Document: "Agreement on Exchange of Population between Czechoslovakia and Hungary"
Date: February 27, 1946
Schechtman has called the property provisions of this exchange agreement "extremely liberal."(31) According to the agreement, the transferees were allowed to take duty and tax-free "all their movable property" excluding "archives, files, deeds, or other documents required to secure the uninterrupted operation of workshops, commercial industrial and agricultural concerns as well as documents concerning non-movable property left behind on the territory of the state which the transferees were leaving."(32) Indemnity for non-movable property less than 50 hectares was to be paid. The amount was to be determined by a Mixed Commission (2 Czechoslovak members; 2 Hungarian, and in cases of non-unanimity a tie breaker who was to be chosen from a UN country).(33)1.8 Czechoslovakia-Soviet Union
Document: Protocol appended to June 1945 Treaty
Date: June 29, 1945
Under a June 1945 Treaty, Czechoslovakia ceded the province of Carpatho-Ukraine to the Soviet Union. Schechtman states that according to the protocol to this agreement, the property question was to be resolved by a mixed Czech-Soviet committee which was established in Prague. This committee was "charged with making the final accounting of mutual claims for compensation to be paid by each state to its respective transferred co-nationals."(34)
Date: July 10, 1946
This additional agreement provided for the "repatriation of the Czech minority in Soviet Volhynia."(35) The agreement allowed for the removal of 1,000 rubles and (in the case of urban transferees) one ton of personal property or (in the case of rural transferees) two tons of personal property. The removal of art, antiques, precious stones and precious metals was prohibited "as far as they are not family property."(36)1.9 Greece-Bulgaria
Document: Convention Respecting the Reciprocal Emigration of Their Racial Minorities based on Article 56 para 2 of the Treaty of Neuilly-sur-Seine
Date: November 27, 1919
Although occurring after the Turkish-Bulgarian exchange, this exchange is widely regarded as the first, as it was the first to implement the property provisions of the governing agreement. The agreement provided for the voluntary exchange of populations over the entire scope of the territories. Eligibility criteria for the transfer and, most importantly, the property provisions were four-fold. Ladas summarizes it as follows: "(1) if they were nationals of the country from which they emigrated; (2) if they belonged to the Greek or Bulgarian racial, religious, or linguistic minority; (3) if they were eighteen years of age; and (4) if they desired to emigrate form the territory of the country of which they were nationals to the country which they were nationally kin."(37) However, there were several important additions to and modifications of this criteria.(38) First, the convention could be applied retroactively to Bulgarians who migrated from Western Thrace before it became part of Greece.(39) Second, the convention applied to those who had emigrated after December 18, 1900, thus including those who left prior to both the war and the Convention, meaning previous migrants could also liquidate their property under the Convention. Third, because some of the territories eligible for exchange had been located in another country prior to the Convention, eligibility was extended to those who had the nationality of a third country or who acquired the nationality of either Bulgaria or Greece.(40) Fourth, eligibility was extended to persons who had migrated to a third country yet had the nationality of either country of emigration or kinship.(41)
The total population transferred was: 30,000 Greeks (who left Bulgaria after the Convention), 16,000 "Hellenes" (who left Bulgaria before the Convention yet "availed themselves of the Convention for the liquidation of their properties"), 53,000 Bulgarians (who left Greece after the Convention) and 39,000 "Slavs" (who left Greece before the Convention yet "availed themselves of the Convention for the liquidation of their properties").(42) Many authors have highlighted the voluntary and reciprocal nature of the transfer specified in the convention. Although noting some violations of the voluntary nature of the exchange,(43) Pentzopoulos also notes that between 82,000-100,000 Bulgarians did not leave Greece.(44)
The agreement provided for a Mixed Commission which was to supervise the exchange of populations, including the property provisions such as appraisal, liquidation, and payment. The Mixed Commission was composed of Greek, Bulgarian and Neutral Members. Each sub-Committee of the Commission was to have a Greek, Bulgarian and Neutral member. The Mixed Commission was funded by the Governments of Greece and Bulgaria. The Greek government paid more of the Commissions expenses in the first two years through paying one half of a Bulgarian members salary.(45)
In terms of movable property, the Convention provided for the duty-free removal of all movable property and the return of all movable property which had been "requisitioned." If the property had been "used" or "sold," the transferees were to be paid compensation. In terms of immovable property, there were two means by which property was disposed of: "direct disposal" and liquidation by the Mixed Commission. The option of "direct disposal" was available to transferees until August 31, 1924. It is noteworthy that this option was also available to those who had already migrated prior to the convention. The Mixed Commission ruled that property of former emigrants whose property had been seized or expropriated should be restored under the "repeal of exceptional measures" so that they could dispose of it freely.(46) However, this was subject to several restrictions. If the following four conditions were met, the property was liquidated by the commission: if it was used to settle refugees,(47) was under an un-expired lease on July 1, 1923, was disputed, or had been subject to substantial improvements.
As noted above, the Mixed Commission supervised the liquidation properties. Naturally this involved establishing property rights. Ladas documents the "proof" used: titles/deeds, Ottoman titles/deeds, judgments of local tribunals, tax receipts, testimony of "two inhabitants of the commune where the property was situated," testimony of "three inhabitants of the commune," "ancient documents," and "by the testimony, under oath, of old inhabitants of the commune in case the property was situated in places which had been abandoned by the old populations after 1900 in connection with political events."(48) In his discussion of the difficulties of proof which parallel the Palestinian case (Ottoman land ownership patterns and lost/destroyed documentation), Ladas notes that testimonies were often relied upon in establishing property rights.
In the cases of former migrants, particularly of abandoned areas, the aforementioned "proof" was also applied. However, because of the concern that testimonies of applicants could "not be trusted" the Commission sent delegations of applicants and non-applicants to the region (at the Commissions expense) in order to determine property rights.(49) In addition, villages which were abandoned as a result of the fighting of 1912-1913 were found by the Commission to not be "voluntarily abandoned" and were thus able to be liquidated by the Commission.(50) In addition, the Commission decided that forest lands were considered private property and, as such, could be liquidated by the Commission. The implication appears to be that the minority communities could be compensated for these losses.
Following the establishment of property rights, the Mixed Commission had to appraise the properties prior to liquidation. This has been referred to as "the most arduous and difficult task" of the commission(51) which led to sometimes "arbitrary"(52) decisions. Instead of being conducted by the sub-commissions, the appraisals were conducted by committees of "experts." For the purposes of appraisal the property was classified by several characteristics (e.g. lands and buildings) and it is beyond the scope to provide herein an overview of the various processes.(53)
According to the "Plan of Payment" which was adopted on December 8, 1922 and the subsequent "Caphandaris-Molloff Agreement" which was signed on December 9, 1927, the transferees were to receive 10% of their compensation payment for liquidated properties in cash, which, as a result of currency conversion decisions, was paid in dollars.(54) This money was delivered in the form of checks in dollars issued from the National Bank of the country where the property was located; the governments from which the transferees emigrated then paid the banks.(55)
The remaining 90% was paid in the form of public bonds with a 6% interest rate.(56) These bonds were to be paid by the government to which the transferee immigrated.(57) The difference in amount was to be paid in a final lump sum from the debtor government to the creditor government. However, in 1927, when most of the bonds were issued,(58) the Bulgarian bonds sold at 62% of their value (only to later decrease further to 47.8% their value) and the Greek bonds sold at 75% their value. Ladas attributes the depreciation, particularly the differential depreciation, to the fact that a large amount of Bulgarian bonds were issued and these bonds "lack(ed)" the "confidence" of the transferees.(59) The total value of liquidations until April 30, 1929 was: $5,841,193.70 for (Greek property in Bulgaria) and $17,579,505.97 (Bulgarian property in Greece).(60) The estimated value of property un-liquidated at that time was: $2,770,218 for (Greek property in Bulgaria) and $4,123,072 (Bulgarian property in Greece).(61)1.10 Greece-Turkey
According to Pentzopoulos, the first discussion of an exchange of minorities occurred in 1827.(62) According to him, a group of refugees from Western Anatolia proposed the allocation of land in the Corinth Isthmus for the settlement of 2000 families of Smyrna Greek families who would be transferred from the Ottoman Empire. This was never carried out.
Date: May 22, 1914
The exchange of populations was first suggested by Turkey following the 1913 Protocol on the Turkish-Bulgarian exchange. Eleutherios Venizelos, the Greek representative agreed, stipulating that a commission be established for the management of property issues. When WWI broke out, these negotiations were dropped.
Document: "Convention Concerning the Exchange of Greek and Turkish Populations"
Date: January 30, 1923 Signed at Lausanne
In addition to being the first completed exchange of its magnitude, one of the most important aspects of the Convention was its compulsory nature. In contrast to previous agreements which were implemented under the pretext of "voluntary exchange," this Convention explicitly specified the compulsory nature of the population exchange. It is argued that the Greek negotiators favored a compulsory exchange because they thought that the Turkish government would not permit Greek refugee return. Therefore, in order to accommodate these large numbers of Greek refugees, they advocated the repatriation of Turks to Turkey.(63) It is argued that the Turkish negotiators proposed and advocated a compulsory exchange in order to "suppress Greek irredentism" and to replenish depleted manpower.(64)
The Convention applied to two sets of populations:(65) the Orthodox Christians/Greeks who fled Turkey after 1912 and the minority populations of Greece and Turkey who were to be transferred after the agreement was reached in 1923. The identification of this latter population to be transferred was based on religious rather than ethnic or linguistic criteria. Two populations were exempted from this transfer: the Greek Orthodox communities of Istanbul and the Muslims of Western Thrace. As non-exchangeables, they were to retain their properties. However, in practice, the rights of some of these exempted populations was not respected due to the expropriation of their properties by incoming refugees. This later became a significant issue in the work of the commission, as discussed below. The total population transferred was: 847,931 Greeks from Turkey (1912-1922), 115,000 Muslims from Greece (1914 repatriation), 200,000 Greeks from Turkey (under the 1923 Convention) and 388,146 Turks from Greece (under the 1923 Convention).(66)
The Convention contained provisions for both movable and immovable properties. The Convention provided for the removal of movable property including farm implements, crops, vehicles (barring a pending mortgage), gold, tobacco, and tombstones. To this, however, two caveats must be added based upon Ladas discussion. First, this provision only applied to those who left after the Convention and not to those who fled as a result of the war. Second, the removal of all movable property was, in some cases, unfeasible. The transferees could either dispose of the property prior to departure or, if the property was left behind, submit an inventory to the Mixed Commission (discussed below) for liquidation and compensation. However, this provision was not implemented in practice.(67) In addition, much of the movable properties of both those who had fled from the war and those who were transferred by the Convention was "requisitioned" by incoming refugees. The Mixed Commission issued a statement on the illegality of these requisitions. As a result, Greece paid 10,180,194 drachmas to Muslim emigrants for these requisitions.(68) The transferees were also entitled to the removal or transfer of other assets (such as money, stocks, bonds, gold, etc.) and previous seizures had been canceled, although the implementation of this provision was spotty at times. Furthermore, with regard to the movable property of communities, communities were allowed to remove the property so far as they were able. The other assets of the communities (such as endowments) were transferred to the government to which the communities imigrated.
The question of immovable property was to be handled by the Mixed Commission which was established by the Convention. The Commission consisted of four Turks, four Greeks, and three neutrals (from countries that did not participate in the 1914-1918 war). The commission appears to have been funded equally by the Greek and Turkish governments.(69) The Mixed Commission was charged with the responsibility of both appraising and liquidating the immovable properties of transferees. According to the provisions of the Convention, during the process of this evaluation and liquidation, the properties were to be at the "disposal"(70) of the government in which it was located. Upon completion of the appraisal and liquidation, the owner would receive notification of the amount "due to them"(71) ("in principle" they would be given property of equal value)(72) and then the property would be transferred to the state in which it was located. However, the work of the Commission became increasingly mired by a violation of treaty accords and pronounced lack of agreement, particularly regarding the treatment of property of "non-exchangeables."
Much of the immovable property of "non-exchangeables" had been seized by the governments for the accommodation of incoming refugees. Beginning in 1925, the governments attempted a series of negotiations to resolve their differences. The "Agreements of Athens" (signed June 21, 1925) and the "Agreement of Angora" (signed December 1, 1926) provided that the properties of "non-exchangeables" would be returned to them, unless it was not possible (as in cases of refugee resettlement), in which case the state in possession of the property would pay compensation to the owner. The appraisal of the properties began and continued until 1928 when lump-sum negotiations began.(73) At that point, 2000 appraisals had been completed.(74) Finally, on June 10, 1930, the two governments reached a final agreement.
Document: Ankara Accord
Date: June 10, 1930
This agreement resolved both the question of the status of "non-exchangeables" / "established" persons and the property question. Persons were considered "established" (and therefore, by the language of the original convention exempt from the exchange and allowed to either return or claim compensation for property) irrespective of their birthplace or date of arrival if they were Greek Orthodox present in Istanbul or Muslims resident in Western Thrace. Those excluded from the category of "established" were those who: either "resided in Istanbul before 1918 but had left prior to 1922 without Turkish passports" or "left Western Thrace without Greek passports."(75) Because the former vastly outnumbered the later, this arrangement was largely to Turkeys benefit.(76)
The immovable property of the exchangeables was transferred to the governments, "confirming a condition of long standing."(77) The determination of the amount of the "set-off," or "lump-sum" was, naturally, complicated. The method of direct individual appraisal by a neutral party which had been employed for the initial batch of "non-exchangeable" property was rejected as unduly costly and slow.(78) Thus, the method of "lump-sum" or "set-off" was selected, except for "bank deposits of all kinds"(79) which were to be released to the owners. The negotiation of lump sum amounts appears to have begun with an exchange of vastly different amounts based on elaborate calculations, sometimes complete with adjustments such as coefficients for exaggeration and truthfulness. This did not lead to a resolution of the matter.
Apparently, the matter of the lump sum amount was determined through a somewhat opaque process of an exchange of figures to which the neutral members were not active participants.(80) This exchange concluded in an agreement that the exchangeables properties were roughly equivalent(81) and thus the only remaining matter was the valuation of "non-exchangeables" property which would not be returned. It is important to note that the Greek Orthodox property owned by the Greek Orthodox of Istanbul which was located inside Istanbul was returned and only the property of outside of Istanbul was subject to transfer to the Turkish government and thus for compensation. The Greek government acquired a limited and specified amount of the property of Muslims of Western Thrace (although exempted from the transfer). This was done not only with the requirement of compensation but also under Decision XXVIII of the Mixed Commission which required that "the development of the economic life of the Moslem community was not damaged thereby."(82) To resolve outstanding compensations for the transferable non-exchangeable property, the Greek government was to pay to the Mixed Commission from a 1926 deposit to the commission(83) £425,000 pounds sterling. This would be distributed as follows:
"(a) £150,000 sterling to the Greeks established in Constantinople whose properties had been requisitioned by the Turkish government
(b) £150,000 sterling to the Muslims established in Western Thrace whose properties had been requisitioned by the Greek government
(c) £125,000 sterling to be paid in three installments to the Turkish Government as a balance in the set-off of Greek and Turkish properties of non-exchangeable persons."(84)
According to Ladas, the first two categories of sums were to be dispersed by the Mixed Commission, as it determined. The third category of payment was to be paid out by the Mixed Commission in the following fashion: "£62,000 was to be paid within the month following the coming into effect of the Convention; the second installment of £47,000 was to be paid as soon as the neutral members of the Commission should be convinced that all the properties belonging to Greek subjects and situated within the zone of Constantinople had been restored to them. The last installment of £15,000 was to be remitted to the Turkish government after the neutral members found that Turkey had carried out all its obligations under the convention."(85)1.11 India-Pakistan(86)
Document: Inter-Dominion Accord and the Agreement Between India and Pakistan on Minorities
Date: December 1948 and April 8, 1950
Following the 1947 partition of India, almost 13 million people became refugees. When fleeing inter-ethnic strife, these refugees left behind considerable amounts of properties. The value of these properties total "several billion dollars."(87) The management of the problem of evacuee property has been an extensive and complicated process.
The first stage of managing the property problem was the agreement reached on August 29, 1947 which mandated the establishment of "Custodians of Evacuee Property" in each country. Following this, each country established the Custodianship and passed legislation which protected the "unconditional" right of refugees to have their property returned.(88) However, following this, according to Schechtman, Pakistan passed a number of measures which ultimately undid this right. These included measures which allowed for the settlement of evacuee property by incoming refugees, limited the ability to transfer property, and made reclamation of property contingent on return to Pakistan.(89) Therefore, he stated, "unable to recover, sell, or exchange their property in Pakistan, the refugees from Pakistan have seen their right to it largely to become nudum jus."(90) India responded by passing similar measures and adding a modification of the definition of "evacuee" which included those who could not "supervise their property or business."(91)
Following these developments, over the course of 1948 to the beginning of 1949, the two countries negotiated the Inter-Dominion Agreement.(92) Schechtman distinguishes the treatment of three types of property under what he calls the "Inter-Dominion Scheme." These are: agricultural property, urban immovable property, and movable property. A summary of his discussion of each category follows:
I. Agricultural property
-Agricultural property was to be exchanged by governments who would have to pay "fair value" which was to be determined "by a joint Valuation board on which each dominion was to have a representative. Fair value was to be determined according to the average prices prevailing between June 1927 and June 1947."(93)
-Pakistan ultimately opposed the government-to-government basis of this proposal.(94) Thus, agreement was never reached. Rents on requisitioned agricultural property were to be paid, yet, according to Schechtman, the valuation of rents proved contentious.
-Schechtman states that, "almost the entire immovable property abandoned had been disposed of by the respective governments."(95) The same article and other sources appear to indicate that no compensation has been delivered and it is unclear if rents have been delivered.
II. Urban Immovable Property (this included "substantial shops and houses in rural areas" and "commercial and industrial undertakings, factories and workshops."
-The governments were to be given the right to requisition property. However, a "fair" compensation would be paid to the owner This "fair amount" was to be determined by a Joint Government Agency in which both countries would have "equal representation." In the mean time, owners were to receive rents.
-As was the case with agricultural property, there were disagreements as to whether transactions should be government to government or on an individual basis.(96) Thus, the resolution was that "free exchanges and sales of urban evacuee property were to be allowed."(97)
-As was the case with agricultural properties, rents on immovable urban property were to be paid, yet, according to Schechtman, the valuation of rents proved contentious.
-India stated that in 1949 only one sale took place in Pakistan and 49 sales or exchanges occurred in India; Pakistan maintains that 1,999 sales have occurred "in addition to many cases of exchange."(98)
-As for the rest of the properties, Schechtman states that, "almost the entire immovable property abandoned had been disposed of by the respective governments."(99) The same article and other sources appear to indicate that no compensation has been delivered and it is unclear if rents have been delivered.
III. Movable Property
-Movable property was to be restored to the owners (and facilities provided for it). However, in cases where the property was "requisitioned," full compensation would be paid.
-Agreement on this proposal appears to have been reached. However, the status of implementation is unclear.
In addition, there were several controversies surrounding the negotiations, such as Indias legislation creating a category of "intending evacuee" and disputes over the areas to be covered. India sought to apply the Custodianship of Evacuee property to the entirety of India whereas Pakistan interpreted the agreements as confined to restricted areas.
Schechtman notes that from 1947-1949, the management of the evacuee property descended into a spiral of reactive unilateral domestic legislation.(100) He states that "both Pakistan and India had abandoned all attempts to achieve a mutually satisfactory solution and proceeded to enact legislation governing evacuee property in their respective territories."(101) It appears that for a large area of both India and Pakistan, this is still the case. From the most recent material available, it appears that the management of immovable property in areas covered by the Inter-Dominion Accord remains a matter of municipal law in most areas.
In addition to the Inter-Dominion Accord, in response to increasing inter-ethnic strife in East and West Bengal, the New Delhi accord was reached on April 8, 1950. This agreement appears to apply only to the areas of: East Bengal, West Bengal, Assam, and Tripura (and in certain cases Bihal).(102) According to Schechtman, the provisions of this agreement have provided better property management mechanisms than the areas covered by the Inter-Dominion Accord.(103)
In terms of movable property, this agreement provided for the removal of all personal effects, 150 rupees per adult, 75 rupees per child and the subsequent transfer of all remaining cash and personal effects from deposits at banks. Immovable property was to remain owned by the evacuee. In cases of return by December 31, 1950, immovable property would be returned except in "exceptional cases" where the migrant would be compensated. In cases of non-return, the immovable property will continue to be owned by the migrant and placed in the "trusteeship" of a committee "consisting of the minority and presided over by a representative of Government." This trust was "empowered to recover rent." The provincial and state governments were to enact supporting legislation and also "provide all possible assistance for the discharge of the Committees functions."(104)
Subsequent negotiations and implementation have determined that the proceeds from the sale of movable property which had been vested in the Custodian could be paid either to the evacuee or the government. Schechtman adds that a final agreement on immovable property had not been reached.(105) However, by 1951, according to government sources, as cited by Schechtman, many of the evacuees have returned to reclaim their property. Schechtman states: "of the 234,000 Moslem migrants who returned to East Bengal by the end of May 1951, abandoned land property was restored to 189,240 .of the 31,660 Hindus who returned to the localities of Maria, Shepur and Dohara 30,893 have got back their houses and agricultural lands."(106)
In reviewing those developments, particularly those areas under the Inter-Dominion Accord, Schechtman comments that "(r)ealistically speaking, the problem of abandoned immovable property in West Pakistan and India boils down to that of compensation to be paid by the government of the country of departure to its evacuees for their property which it has appropriated and distributed to its co-national refugees. No noticeable progress has thus far been made in this respect."(107) A review of events from 1947-1997 in "A Chronology of Events"(108) indicates that there has been no change in this state of affairs regarding immovable property from the time of the publication of Schechtmans work.
With regard to movable property and bank accounts, however, an agreement was reached in March 1955 on movable property,(109) and an "agreement on the restoration of Movable property assets"(110) was reached on April 22, 1958.(111) In addition, in December 1961, following the deliberation of an implementation committee "which was established under the India-Pakistan Movable Property and Banking Agreements, it was announced that India and Pakistan has agreed to expedite the exchange of bank accounts from the "non-agreed" areas on a matching basis.(112) However, in April 1980, "it was officially disclosed that the Reserve Bank of India had not as yet transferred to Pakistan assets now estimated at Rs. 855 million had held by it since 14 August 1947."(113) The preceding discussion indicates that the Indian and Pakistani governments are able to agree on the principles governing movable properties (despite implementation problems), whereas, except in the limited cases of return and restitution covered by the 1950 New Delhi Accord, matters of compensation for immovable property have not been fully resolved.1.12 Iran-United States (Claims Tribunal)
Document(s): "Algiers Accords"
Date: January 19, 1981
The Iran-United States Claims Tribunal was created on January 19, 1981(114) and is situated at the Hague. The Iran-US Claims Tribunal, "is divided into three Chambers, each consisting of one Iranian Judge, one American colleague and a third country member as chairman."(115) Initially, 3,868 claims were filed with the tribunal; 2,795 were small claims.(116) As of May 1998, the "total number of number of cases finalized by award, decision or order" was 3,919. (117)
According to Charles N. Brower, who was a member of the Iran-US Claims Tribunal, the cases "can be divided into two categories: (1) property lost during the height of the civil turbulence occurring from November 1978 to February 1979; and (2) property over which the Islamic Government assumed control or ownership after that time."(118) In addition to this, other case classifications are utilized. The first is government-to-government which is broken down into "A" class cases (which are cases concerning the "interpretation of the Algiers Accords") and "B" class cases ("concerning the sale and purchase of goods and services"). (119) The second is small claims (less than $250,000) and large claims.
In order to be eligible to file a claim before the Tribunal, the party must: evidence that the claim was "outstanding" on January 19, 1981, be a citizen of the US (including dual nationals whose "dominant and effective" citizenship is American),(120) or a company at least 50% owned by US citizens, and be filing against the government of Iran or any part thereof.(121)
From the period of November 1978 to February 1979, "virtually all of the 40,000 American citizens who prior to that time had been in Iran left that country, never to return again."(122) 1500 of these persons filed claims against Iran on the basis of "wrongful expulsion." Concerning the basis of these claims, Brower explains the Tribunals decision, "Each of the three Chambers of the Tribunal concurred that an alien could be wrongfully expelled, not only by specific application of force or as a direct governmental order, but also constructively, i.e., if the circumstances in the country of residence are such that the alien cannot reasonably be regarded as having any real choice."(123) These cases were resolved as part of a lump-sum agreement between the US and Iran in 1990. Before the lump-sum agreement, only one of these cases had been ruled upon.(124) These claims are now being adjudicated by the United States Foreign Claims Settlement Commission to determine payment and distribute payment following completion of all adjudication.(125)
This lump-sum agreement involved a total of 3000 small financial claims and a settlement of $105 million. This includes 2784 claims filed by Americans for the "loss of personal property and wages" (and presumably including the "wrongful expulsion" cases as well). These 2787 claims were awarded $40 million from Iran.(127) It appears that a number of the large claims (some of which involve private property holdings) may be outstanding. Although it is beyond the scope of this summary to analyze the evolving case law of the Iran-US Claims Tribunal and its implications for the Palestinian case, it is possible to summarize one such analysis which has been conducted. According to a 1987 analysis of case law of the Iran-US Claims Tribunal:(128)
Document: UNSC Res. 687; UNSC 692; UNSC Res. 705; UNSC 706; UNSC 986
Date: April 3, 1991; May 20, 1991; August 15, 1991; August 15, 1991; April 14, 1995
The United Nations Compensation Commission (UNCC) was established as a subsidiary organ of the United Nations Security Council by UNSC resolution 692 in order to "process claims and pay compensation for losses resulting from Iraqs invasion and occupation of Kuwait."(133) The UNCC has noted that, "the legal responsibility and liability of Iraq for those losses and damages has been established by the Security Council and expressly accepted by the Government of Iraq." The UNCC adds, therefore, that as a result, "the Commission operated more in an administrative manner than in a litigation format." (134)
The UNCC consists of three bodies. First is the Governing Council, which consists of the UNSC and sets policy. Second is the Secretariat, which "provides administrative support" and manages the compensation fund. Third is the Commissioners. The Commissioners are chosen by the Executive Secretary and are organized into 18 panels of three.
The UNCC was financed until December 1996 from "the Working Capital Fund of the United Nations," "voluntary contributions from Governments"(135) and from "proceeds of Iraqi oil sold after the invasion of Kuwait that had since been frozen by various Governments." After the implementation of the "oil for food" program, beginning in December 1996, the UNCC was funded by 30% of the proceeds from the sale of oil.
Overall, the UNCC has received almost 2.6 million claims amounting to over US $300 billion. The UNCC organized these claims into six different categories. The claims are as follows:
A. These are defined as; "claims submitted by individuals who had to depart from Kuwait or Iraq between the date of Iraq's invasion of Kuwait on 2 August 1990 and the date of the cease-fire, 2 March 1991. Compensation for successful claims in this category was set by the Governing Council at the fixed sum of US $2,500 for individual claimants and US $5,000 for families. However, where a claimant who had filed claims in category "A" only, he or she was eligible to receive a maximum category "A" payment of US $4,000 for individuals and US $8,000 for families."(136) The deadline for submitting this category of claim was January 1, 1995. Because the UNCC decided to make the processing of individual claims a priority, the processing of this category of claim was fast-tracked by the UNCC. The claims in this category were evaluated by utilizing: "computerized matching of claims and verification information, sampling, (and) individual review."(137) This category of claim was also given priority for disbursement of payment.
B. These are defined as: "claims submitted by individuals who suffered serious personal injury or whose spouse, child or parent died as a result of Iraq's invasion and occupation of Kuwait. Compensation for successful claims in this category was set at US $2,500 for individuals and up to US $10,000 for families."(138) The deadline for submitting this category of claim was January 1, 1995. Again, because the UNCC decided to make the processing of individual claims a priority, the processing of this category of claim was also fast-tracked by the UNCC. Since the number of claims in this category were small, the UNCC was able to review these claims on an individual basis. This category of claim was also given priority for disbursement of payment.
C. These are defined as: "individual claims for damages up to US $100,000 each. Category "C" claims can be made for twenty-one different types of losses, including those relating to departure from Kuwait or Iraq; personal injury; mental pain and anguish; loss of personal property; loss of bank accounts, stocks and other securities; loss of income; loss of real property; and individual business losses."(139) The deadline for submitting this category of claim was January 1, 1995. Again, because the UNCC decided to make the processing of individual claims a priority, the processing of this category of claim was also fast-tracked by the UNCC. The claims in this category were evaluated by utilizing: "computerized matching of claims and verification information, sampling, individual review and for some loss elements statistical modeling."(140) This category of claim was also given priority for disbursement of payment.
D. The claims are defined as: "individual claims for damages above US $100,000 each. The types of losses that can be claimed under category "D" are similar to those under category "C", with the most frequent being the loss of personal property; the loss of real property; the loss of income and business-related losses."(141) The deadline for submitting this category of claim was January 1, 1995.
E. These claims are defined as: "claims of corporations, other private legal entities and public sector enterprises. They include claims for: construction or other contract losses; losses from the non-payment for goods or services; losses relating to the destruction or seizure of business assets; loss of profits; and oil sector losses."(142) The deadline for submitting this category of claim was January 1, 1996. This category of claim is reviewed individually.
F. These claims are defined as: "claims filed by Governments and international organizations for losses incurred in evacuating citizens; providing relief to citizens; damage to diplomatic premises and loss of, and damage to, other government property; and damage to the environment."(143)
The deadline for submitting this category of claim was January 1, 1996, except for environmental claims which were accepted until February 1, 1997.
The D, E, and F categories of claims are all reviewed individually. These claims are organized into sub-categories in order to enable "precedent-setting procedures." After the files have been computer coded, checked for compliance with the rules of the UNCC, and additional information needed obtained, each of the claims in these sub-categories is reviewed by a panel of Commissioners. In reviewing the claim, the panel also receives Iraqs response and additional information (such as on-site visit reports). After a period of 6-12 months, the panel completes the review and submits a report to the Governing Council which then makes the final decision.
The UNCC determined that categories A, B, and C would be given priority for payment. Therefore, only after initial payments are made to "each successful claimant in categories A, B and C"(144) will payments to claimants in categories D, E and F begin. The payment is delivered through either the government or international organization which submitted the claim on behalf of the claimant. In order to "offset the cost" of this procedure, governments and international organizations are permitted to deduct a "processing fee" of 1.5% for categories A, B, and C and 3% for categories D, E and F. The governments and international institutions are required to submit payment reports; if the payment is not dispersed within 12 months, the money is returned to the Commission until the claimant is located. The status of claims and payment can be found in the following table: (145)
to be resolved US$
|No of claims
sought by claims
|US$ paid ***|
Date: 7 April 1999
* The asserted values of category "A" and "B" are calculated based on fixed amounts payable in these categories.
** Including one consolidated claim filed by the Central Bank of the Government of Egypt on behalf of 915,5127 of its nationals with approximately 1,240,000 claims (the "Egyptian Workers' Claims").The claim was awarded US $84,393,992 in respect of 223,817 claims.
*** First round payments made pursuant to Governing Council decision 17 (including the Egyptian Workers' Claims).
The figures above are subject to change during claims processing.1.14 Karelian (Finnish) Transfer
Document: Act of Parliament
The March 12, 1940 treaty between Finland and the USSR ceded the Karelian Isthmus to the USSR. As a result, most of the Karelian Finns left. In response to this first of three transfers of the Karelian Finns, the parliament "granted 3 million marks for the compensation of evacuees for property left in Karelia. Full compensation was projected for values not exceeding 320,000 marks; not more than 10,000 marks could be paid in cash."(146) When Finland invaded the USSR in 1941, the Isthmus was recovered. Thus, the fate of this compensation is unclear.1.15 Poland-Soviet Union
Date: September 9 and 22, 1944.
The Polish and Soviet governments signed three unpublished agreements on the exchange of populations. The agreements provided that transferees were allowed to take two tons of movable property, excluding "cash, paper money, gold or silver coins with the exception of amounts not exceeding 100 paper zlotys or rubles for every person. The removal of gold, silver, platinum, and precious stones, as well of as objects of artistic and archeological value was also prohibited. All mechanical vehicles, arms, and photos (with the exception of personal pictures) were also barred from exportation." The property left behind "was to be paid for in accordance with the laws of Poland or the Soviet republics." (147)
Date: July 6, 1945
An additional agreement was signed that "was also applicable to former Polish citizens of Polish or Jewish ethnic nationality living on the territories of the Soviet republics other than the Ukrainian, White Russian, and Lithuanian S.S.R."(148) This agreement contained largely the same property provisions except that transferees were permitted to remove 1000 rubles or zlotys and amounts in excess of this figure were to be deposited in national banks and then credited at local banks in the new country.(149)1.16 Turkey-Bulgaria
Document: The Convention of Andrianople. This was a supplemental agreement to Section C of the Protocol which was Annexed to the September 1913 Peace Treaty between Bulgaria and Turkey.
Date: November 2, 1913
This agreement is regarded as the first population transfer agreement. It contains several provisions. First is the purported voluntary nature of the population exchange. The accuracy of this characterization has been challenged by authors who assert that the agreement was a de jure recognition of a fait accompli.(150) Importantly, however, as noted by Pentzopoulos and Marrus, the Convention nevertheless enabled a mechanism for the management of the consequences of the previous migrations, particularly questions of property. Also noted is the limited nature of the transfer. This agreement only covered a fifteen km strip:(151) the areas of Kirk-Kilisse and Andrianople (to which Turks migrated) and Thrace (to which Bulgarians migrated).(152)
In order to manage the property issues arising from the property transfer, the Convention established a Mixed Commission which was comprised of six Turkish and nine Bulgarian members.(153) In the course of its work from June-October 1914 when it was dissolved, the Mixed Commission determined that 48,570 Turkish persons had migrated whereas 46,764 Bulgarian persons migrated.(154) The work of the commission was interrupted by the onset of WWI and the property valuation work (based upon an examination of governmental fiscal registries)(155) and payment of compensation was never completed.
Document: Turko-Bulgarian Agreement
Date: October 18, 1925
Schechtman(156) also notes an agreement reached between Bulgaria and Turkey on October 18, 1925 which provided for a voluntary population transfer between the entire territory of the two countries. This agreement was supplemented by agreements in 1936 and 1937(157) and was implemented over the course of the next 26 years. The agreement provided for the unlimited and duty free removal of movable property and the unfettered disposal of immovable property prior to departure. In 1950, there were allegations that Turkish refugees from Bulgaria, who were the primary émigrés, were given only two weeks to liquidate property and were actually permitted only limited exports.(158)1.17 Turkey-Rumania
Document: Turkish Rumanian Convention on the Dobruja Turks
Date signed: September 4, 1936(159)
Date in effect: April 1, 1937
In response to increasing immigration of Bulgarian Turks beginning in 1934, the Turkish government sought to "regularize" migration beginning in 1935 with informal agreements permitting the duty free export of movable possessions. The agreement between the Turkish and Rumanian governments provided for the voluntary transfer of 35,000 Turkish families from Rumanian Dobruja, based on predetermined annual quotas.(160)
According to the agreement, the ownership of 247,100 acres of rural land(161) was to be transferred to the Rumanian government. The Romanian government was to pay a lump sum amount of approximately $14,820,000(162) to be paid in to the Turkish Governments account in the Rumanian National Bank over the course of seven years. It is also interesting to note that the Turkish government "undertook" to use these funds for the purchase of Rumanian goods which could be exported duty-free.
It appears that the urban properties of migrants were liquidated based upon the amount determined by a Mixed Commission of four Rumanian officials and two delegates of the transferees. The same payment procedure was applied to the proceeds of the sale of urban properties, only the amount was paid into the migrants account.(163) It is unclear from the source if this agreement was fully implemented.1.18 Uganda
Date: Expulsion in 1972 Legislation, "1982 Expropriated Properties Act"
On August 9, 1972, Idi Amin issued a degree which expelled an estimated 80,000 Ugandans of South Asian descent.(164) In September 1982, in an effort to court foreign investment, the Expropriated Properties Act was promulgated; it provided for the repossession of or compensation for properties left in Uganda. Claimants were required to file within 90 days of the act coming into effect.(165) This legislation was criticized for its ambiguity regarding the nature of the valuation of compensation and method of restitution and compensation. It was also criticized for the requirement that British citizens of South Asian descent file individual claims whereas Anglo-British citizens benefited from British government filing of claims.(166)
It has been reported that in 1991 it was determined that 7500 properties were eligible for restitution. According to one report, the tenants of residential properties were allowed to remain for one year and the tenants of commercial properties were allowed to remain for two.(167) It was reported that in 1992, an estimated 4000 properties had been recovered.(168) Furthermore, according to another report, the Ugandan government paid $1,600,000-$3,977,172.92(169) to the government of India for the payment of compensation for property losses to those expellees who were classified as stateless and fled to India.(170)1.19 West Germany and Austria-Jews,
Document(s): Luxembourg Agreements: Shilumim Agreement (also called "Israel Agreement), Protocol 1 (and the Federal Indemnification Law of 1953 and subsequent legislation), and Protocol 2
Date: September 10, 1952
There were four distinct agreements which were part of the Luxembourg agreements. Under the first, the Shilumim Agreement (also called "Israel Agreement"), the West German government agreed to pay the state of Israel DM 3.45 billion(171). This agreement was a "payment of collective Jewish claims for heirless private and communal property and a compromise rationalization of the cost of resettlement and integration in Israel of refugee European Jews."(172) Two thirds of this amount was to be provided in goods and the rest in foreign exchange.(173) In order to implement this treaty, four agencies were established: the Israel Mission (the Israeli government representative), the Bundesamt fur gewerbliche Wirtschaft (the German government representative), the Mixed Commission (which "supervis(ed) the operation and implementation of the treaty"), and the Arbitration Commission (which settled disputes for both the Shilumim agreement and Protocol 2).(174) The payments were to be paid over a course of 12-14 years. They payment schedule and composition was negotiated under a series of protocols. (175)
Under the second agreement, Protocol 1, which was between the Federal Government and the Conference on Jewish Material Claims against Germany, "the Bonn government incurred the obligation to initiate new legislation for individual compensation to the victims of Nazi persecution."(176) This legislation appears to be the Federal Indemnification Law of 1953 which provided for "compensation for loss of life, damages to body and health, including medical costs, reduction of income, loss of freedom, incarceration, arrest, property losses, capital losses, discriminatory taxes, impairment of economic and professional advancement, etc." (177)
This appears to have been followed by additional federal laws on compensation and restitution: the Supplemental Federal Law for the Compensation for the Victims of Nationalist Socialist Persecution (October 1, 1953); the Federal Law for the Compensation for the Victims of Nationalist Socialist Persecution (June 29, 1956); and the Final Federal Compensation Law (September 4, 1965). Balabkins puts the total of payments under Protocol 1 from 1954-1965 at DM 4.318 billion.(178) Kubursi states that the total paid as of January 1, 1984 was DM 56.2 billion and future payments were anticipated to total DM 13.8 billion. (179)
This legislation appears to have been supplemented by additional legislation specially concerning restitution. This is the Federal Restitution Law (July 19, 1957).(180) Under this legislation, DM 3.912 billion had been paid as of January 1, 1984; another DM 338 million in future payments was estimated. (181)
The third agreement, Protocol 2, between the Federal Government and the Conference on Jewish Material Claims against Germany, provided for the payment of DM 450 million for the "rehabilitation of Nazi victims."(182) The fourth agreement "provided that Israel undertake to refund to Germans the value of their secular property, mostly that of the Knights of the Templar, located in Israel."(183)
In addition to the provisions of the Luxembourg agreements, Zweig notes that prior to 1952, there had been several different types of measures for the restitution of individual and heirless assets. Legilation was enacted in the American zone in November 1947, the British zone in 1949 and the French zone in 1951 that allowed for surviving Jews, their heirs, or the Jewish Restitution Successor Organization (in the case of heirless assets-the majority of cases) to claim assets. Zweig notes that in the American zone, claims made after a fixed period had to be "defended in German courts."(184) Zweig argues that, because of the length of adjudication and the political sensitivities surrounding it, many "German Land Governments" reached "bulk settlements." Zweig places the value of the claims and settlements at US $300-400 million (in 1993 dollars).(185) He is unable to estimate the value of individual recovered assets.
In addition to German reparations, restitution and compensation, Austria has also paid both compensation and reparations. Following the end of WWII, Austria paid $1.2 billion "to the Jewish Community for the Nazis seizure of thousands of apartments, businesses, furniture, jewelry and other property."(186) In addition, in 1990, the Austrian government decided to pay 6000 surviving Austrian Jews Social Security benefits which are expected to cost $250 million over the course of 10 years. An additional $25 million was paid to "old age homes, hospitals, and other welfare organizations helping Jewish survivors."(187)
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The PRRN/IDRC compensation workshop was funded by IDRC and the Canadian International Development Agency thrrough the Expert and Advisory Services Fund. PRRN is a project of the Interuniversity Consortium for Arab Studies (Montréal).
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