New book review on “the Åland example”: Balancing engagement and exclusion in autonomy regimes

by Rhodri C. Williams

I am very pleased to announce that my review of the Åland Island Peace Institute’s book on “the Åland example” was just published in the Nordic Journal of International Law. The editors at NJIL were quite generous in allowing me seventeen pages to discuss the contribution that the book makes to charting the lessons a distant Nordic language conflict that embraced peace may have for the numerous contemporary ethnic conflicts that evade it.

The review can be downloaded in full here so I will not go into detail in this post. However, it is worth noting that one of the consistent strengths throughout this volume is the emphasis on the process by which an autonomy regime is created and sustained, rather than the substance of its rules, as being crucial to its viability. This echoes one of the fundamental lessons of the ‘new constitutionalism’ described in my earlier research on constitution-building for the Folke Bernadotte Academy, namely that founding documents in ethnic conflict settings should emphasize ongoing dialogue rather than finality in order avoid the recurrence of conflict.

The ironic lesson to be drawn here is that the Ålanders ability to maintain a sustained and constructive engagement with the Finnish authorities in Helsinki has been crucial to securing their highly asymmetrical political status within the Finnish state. However, there is a further irony that will come as little surprise in light of my earlier writings on Åland in these pages. This involves the fact that the strong land rights of the Åland Islanders, including a limited right to exclude outsiders from the rest of Finland from acquiring property, may be a crucial part of the Ålanders bargaining power.

Openness resulting from the right to be closed. Hardly an easy sell in conflict-management settings, but far better than most of the alternatives.

Rest in peace Mohamed Al-Sweii

Mohamed images-63221My colleague from my time with UNHCR in Libya, Sam Cheung, passed on the tragic news that Dr. Mohamed Al-Sweii was killed in the heavy fighting in Benghazi earlier this week. In the laconic delivery of the Alwasat article, as filtered through google translate:

…the deceased came out of his workplace Benghazi Medical Center to check on his family and as soon as he entered the area which is witnessing violent clashes was shot in the head, killing him instantly.

The first time I met Dr. Al-Sweii, in March 2012, he was waiting for us at a beachside cafe in Tripoli’s fashionable Gargaresh district. He received us with a dazzling grin, in big fashionable traffic cop glasses and an immaculate suit. I can’t recall exactly what I made of him at the time but I probably assumed at first he was just another one of the good-time boys cruising around liberated Tripoli in shiny cars and tight Italian t-shirts. My notes from early in the meeting are not without a dose of snark in the margins (“not clear if has heard of the Guiding Principles on Internal Displacement”).

Whatever my first impressions, though, the rest of my notes spoke volumes. As the sun sank red to the Mediterranean, Mohamed walked me through a comprehensive aid delivery program built on the same goodwill and amateur enthusiasm that was powering every other government function and public service in Libya at the time. The difference being that his efforts targeted the virtual untouchables of the revolution, the communities driven out from their homes, persecuted and made to bear collective guilt for four decades of humiliation under the ousted dictator Muammar Gaddafi.

The next time I met Mohamed, it was in the cavernous bullet-riddled former Mercedes dealership in the center of town where he spent his days coordinating aid delivery, escaping to unwind in the cool breezes of Gargaresh only late in the afternoon. It was perhaps at this time I heard the whole story of how he had been a medical student in Benghazi when the revolution broke out and volunteered to fly back and forth to the front lines at Ajdabiya, rescuing battle-wounded overnight revolutionaries in a jerry-rigged ambulance.

Dr. Mohamed put a face on those turbulent times for me. It was him, young and idealistic, suppressing his fear by the things he could do with his own mind and his hands, who would build up a new and better country.

Now, three years after the revolution, Mohamed found himself back in Benghazi, once again risking his own life to save those injured in a far murkier and more ambiguous conflict. People like Mohamed, or the human rights lawyer Salwa Al-Bugaighis murdered last June in Benghazi are the most important resource Libya has. A country denied institutions cannot afford to lose the individuals who give of themselves most freely.

Rest in peace Mohamed. Libya, heal thyself.

“Endorois decision” update – Kenyan task force appointed

Last Tuesday, Minority Rights Group International Legal Fellow Rebecca Marlin contributed a guest post on the failure of the Government of Kenya to take any meaningful steps to implement the groundbreaking “Endorois decision” issued in 2010 by the African Commission on Human and Peoples’ Rights. However, by Friday, the situation had improved, if only slightly.

My first notice came in a comment to a subsequent post by Sam Marigat, the head of the Endorois Welfare Council, but the news was also quick to make the Kenyan press. While the details remained nebulous, it seemed that the Kenyan Government had finally appointed the task force responsible for looking into the concrete modalities for implementation of the decision.

Today, a hat tip to colleagues at MRG, who have acquired a copy of the appointment order and given their first analysis of it in a press release. While the order is a welcome sign of progress, MRG has noted a number of serious concerns, not least the fact that the task force is not required to consult with the Endorois community, nor is there an Endorois representative included.

Meanwhile, the phrasing of the mandate, which refers to assessing ‘the practicability of restitution’ and ‘the potential environmental impacts on Lake Bogoria… of implementation’ leaves ample room for skepticism. While the appointment of the task force is a necessary and overdue step toward implementation of the ACHPR’s findings, it must be watched carefully to ensure that it does not simply become a means of thwarting them.

As Mr. Marigat pointed out in response to MRG’s original post, the signs have been grimly clear so far:

Our Kenyan government has not demonstrated any iota of commitment to implement the ACHPR recommendations. Some of the Endorois elders who suffered personal injury are either terminally ill or dead. We buried 2 recently.

Upcoming discussion of restitution at Stockholm University

Just a quick note to say I will be giving a talk on the right of restitution in two weeks at the Stockholm Center for International Law and Justice. Any TN readers locally-based or passing through are welcome to join!

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“The Endorois decision” – Four years on, the Endorois still await action by the Government of Kenya

by Rebecca Marlin

Rebecca Marlin is currently the Legal Fellow at Minority Rights Group International (MRG) in London. She earned her B.A. from Wellesley College and her J.D. from Fordham University School of Law. During her time at MRG she will be working extensively with the Endorois to achieve implementation of the 2010 African Commission decision granting them rights to Lake Bogoria.

For the Endorois of Kenya’s Lake Bogoria, the process of reclaiming their land from the government of Kenya has been one step forwards and two steps back. In 2003, MRG and partner organisation Centre for Minority Rights Development (CEMIRIDE), acting on behalf of the Endorois Welfare Council, went before the African Commission on Human and Peoples’ Rights to demand that the Kenyan government recognise the rights of the Endorois to Lake Bogoria.

The Endorois had inhabited Lake Bogoria for over 300 years before being evicted by the government in the 1970s. In 2010, the Endorois won the landmark case Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya. The land rights aspects of this groundbreaking decision have been discussed on this blog here and some of the regional implications here.

A pattern of empty promises emerges

Immediately following the Commission’s ruling in February 2010, the government of Kenya welcomed the decision, promising to begin implementation. A large celebration of the decision was held at Lake Bogoria; the Minister of Lands was in attendance and the momentous occasion was broadcast on television nationally. Kenya’s progressive National Land Policy had been enacted only a few months prior to the ruling and, with a forward-thinking new Constitution in the drafting stages, it seemed the decision might soon be translated into restitution of land, compensation, and benefit-sharing for the Endorois.

However, in May 2010, a report on implementation due to be submitted by the government of Kenya to the African Commission failed to arrive. Throughout 2010 and 2011, the government of Kenya failed to take any significant action on the recommendations. One MP openly challenged the Minister of Lands in Parliament about this delay in January 2011; the official response from the Minister was that he would not be able to take any action until he received an official sealed copy of the 2010 decision – despite the fact that the decision had been officially adopted and published one year earlier. A sealed copy was thereafter delivered to the Minister, but this did little to improve the situation.

When pressed on the matter, the government continues to affirm that it supports the decision and is taking steps to carry out the Commission’s recommendations. Yet, steps taken by the government indicate the exact opposite and new legislation on Lake Bogoria threatens to further separate the Endorois from their land.

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Scotland chooses a bird in the hand

by Rhodri C. Williams

I declined to comment in advance on the Scottish referendum in part because I have been too busy to blog much at all, but also in part because it is none of my business. The wonderful thing about free and fair referenda like this is that they render outside observations almost entirely superfluous. Unless you actually have information that bears directly on the outcome – like EU experts – you are just projecting your own concerns onto somebody else’s drama – like the Spanish government panicking about Catalonia’s impending independence bid. Or China freaked out by any state reaction to regional agitation short of obsessive centralized control.

Perhaps the most spectacular example of such projection has been Russia’s cringe-inducing effort to project its new non-linear warfare to Caledonia. As described in the Guardian, a Russian monitoring team has rubbished the vote there because the rooms where the ballots were counted being “too big”. The same article quotes a Russia Today host questioning the high turnout as “what you would expect in North Korea”. Perhaps they are expecting the Scots to begin demanding an intervention by little green men? Perhaps they had a few geographically challenged paratroopers in the belly of the superannuated bomber they sent to buzz Scotland on referendum day?

As nicely skewered by the “Darth Putin – KGB” twitter account, Russia was clearly hoping that a truly legitimate independence referendum in Scotland would not only distract London from things like sanctions but also somehow cast unearned retroactive legitimacy on the shambles Russia staged in Crimea. However, as observed by Thomas De Waal at the time, the Crimea referendum was not only aggression masquerading as self-determination (even accepting that minorities can secede from states that have blatantly violated their rights, this did not apply in Crimea), but also a departure from what Scotland has now consolidated as international best practice for negotiated democratic decision-making on sovereignty.

Despite some post-referendum ugliness in Glasgow, the Russians’ blatant attempt to make hay on a genuinely democratic referendum, and their misreading of public sentiment afterwards may at least give both sides something to chuckle about. Is it really so inconceivable that placing the fate of a nation in its own hands would not inspire widespread and passionate participation? RT’s cynicism on this point says far more about the state of contemporary Russia than it does about Scotland. Notwithstanding the bruised feelings on both sides, Kevin McKenna points out that the combination of passion and civility throughout the campaign does all sides proud:

Scotland has delivered to the world a new gold standard in how modern political democracy ought to function. This was achieved during a struggle that was as passionate, raw and emotional as anything ever previously encountered in these islands. Yet not a bullet was fired and nor were there any physical casualties. The conduct of those chiefly involved in both campaigns was exemplary and, if not entirely chivalrous, certainly characterised by dignity and mutual respect.

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Controversial World Bank safeguard policies rewrite goes to consultations

by Rhodri C. Williams

Perhaps unsurprisingly, the World Bank’s rollout of a draft set of reworked safeguard policies took little note of a critical petition initiated last month by Inclusive Development International. However, even as the Bank announced a consultation period scheduled to run through the end of November, IDI elaborated on its concerns in a comment in Devex.

Without having yet had time to read through the Bank’s draft, it is difficult not to be concerned by the fundamental nature of the regression indicated by IDI’s criticisms. Elimination of the requirement to prepare advance resettlement plans, removal of substantive monitoring rules, the right to opt out of indigenous peoples safeguards, and an approach so flexible that the World Bank Inspection Panel “would have no hard rules against which to hold the World Bank accountable.” As Nezir Sinani notes in Huffington, the opt-out provision alone could undo a real – but fragile – sea change in the recognition of indigenous rights in parts of Africa.

Its hard to imagine what progressive innovations could offset the negative effects of all the above, but the Bank’s plug for the new draft is both disarmingly bullish and alarmingly bland, checking off all the catchphrases without giving any meaningful indications of the actual changes involved:

Through the revision of our environmental and social safeguard policies, the World Bank is ramping up its standards to ensure the delivery of an environmental and social framework which is more efficient and comprehensive; includes a strengthened approach to the management of environmental and social risks that will support sustainable development through standards that are clear to those impacted by the projects we finance, those who implement, and those holding us to account.

It is no secret that the Bank’s public statements tend to run more progressive than its practice, and that there are real dilemmas that the Bank faces in trying to live up to its own standards. But to gut the standards while claiming to strengthen them would not only be wrong, but downright Orwellian.