For the international lawyers and those who take an anthropological interest in their doctrinal debates, there have been a few interesting iterations on old themes recently. They fall into three categories, namely the ‘law of peace’ debate, the ‘justiciability’ debate, and the debate over whether UK Prime Minister David Cameron’s international law advisor is a crank or a mad genius. Lets take them in that order.

First in Opinio Juris,  Gabor Rona posts a concise update (and a forceful argument) to the debate about whether human rights (the ‘law of peace’) and humanitarian law (the ‘law of war’) are to be applied in a complementary or mutually exclusive manner. Rona argues for a limited ‘rule exclusion’ approach to the relationship (e.g. when human rights and humanitarian law rules clash in an armed conflict situation, the latter trumps) rather than a ‘framework exclusion’ approach in which human rights are suspended entirely in favor of humanitarian law at the outbreak of conflict. His piece comes in response to an earlier piece on Lieber Code by Jens Ohlin, and both parties along with some others continue to parse the differences between these frameworks afterward, for instance here and here. Meanwhile in EJIL-Talk, Marko Milovanovic notes that the US position on this point (which previously leaned toward framework exclusion) appears to be softening, as reflected in its fourth periodic report to the Human Rights Committee on compliance with the 1966 civil and political rights covenant.

Continuing with Opinio Juris, David Landau provides a brief summary of his recent article in the Harvard Journal of International Law regarding ‘justiciability’, or the extent to which social and economic rights are equally as suited to court enforcement as the more familiar corpus of civil and political rights. His article moves beyond the tired debates in places like Sweden and the US about whether some rights are really more equal than others and takes a hard look at what is happening in the majority of countries that have just rolled up their sleeves and started ‘justiciating’:

Based on an in-depth case study of Colombia, … and on evidence from other countries …, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefited middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.

Interestingly enough, Mr. Landau’s case-study concentrates on the role of the Colombian Constitutional Court in securing the social and economic rights of internally displaced persons (IDPs). In other words, his inquiry with regard to the judicial role in attaining respect for SE rights tracks Sebastian Albuja’s recent inquiry on this blog regarding the judicial role in attaining durable solutions to displacement. For an interesting, if somewhat esoteric, response to Landau’s arguments by Mark Tushnet, look here.

And finally, we turn to David Cameron’s recent pronouncements on international law. Article A involves a statement commemorating the upcoming 30th anniversary of the Falklands war by accusing Argentina of ‘colonialism’. The specific form of Argentina’s imperial ambitions consisted of demanding renewed talks about the Falkland Islands, which strikes me as a bit less strictly colonial than, oh, say, the invasion of Burma under the pretext of a timber concession dispute or the suppression of the Mau Mau rebellion. Unsatisfied with simply calling the kettle black, Mr. Cameron went on to (via his spokesperson) invoke the right to self-determination of the Falkland Islanders. Accurate? Yes, probably, rather a small “people” at just topping 3,000, but with some historic continuity and a tradition of largely managing of their own affairs. A bit rich, coming from the country that was once a pink blob covering half the globe? ¡Si, claro! Just ask Christina Fernandez de Kirchner.

Article B then involves Mr. Cameron sallying forth to Strasbourg to provide the Council of Europe with a lecture on  what ails the European Court of Human Rights. As noted by Antoine Buyse on the ECHR Blog, the criticisms were in part quite familiar and in part somewhat contradictory. What struck me was the extent to which Mr. Cameron seemed not only to be pushing on an open door, but on a door that was opened years ago. The Court has spurred intense debate by already having taken many of the steps Mr. Cameron proposes, such as long since having adopted a deferential approach to member-state decision-making (margin of appreciation doctrine?) and more recently taking subsidiarity more seriously in part in response to its rising backlog (an issue central to my and Ayla Gürel’s recent analysis of the Court’s property jurisprudence in Cyprus). No pleasing some people? Maybe, but also a good argument for the Court to redouble its efforts to make itself comprehensible and comprehended.

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a  particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent TN guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, the Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

Examples of this phenomenon are legion and far beyond the capacity of any mortal blogger to keep tabs on. However, a number of examples will be familiar to readers. For instance, patterns of land-grabbing in China that leverage official discretion over nationalized land to the detriment of smallholders are now deemed to constitute a threat not only to the political stability but also the food security of the country. Although the recent standoff in Wukan village led to rare concession, with the revolt leader elevated to village chief, Evelyn Chan argues on Open Democracy that such acts of resistance have been effectively coopted into Chinese politics, with the interesting question being “ not whether such protests can lead to reform, but rather: How it is that so many can occur without undermining the Party’s rule?”

Staying in the region, the BBC recently noted that Vietnam is facing an outright national donnybrook next year as an entire generation of twenty-year user rights to the country’s entirely state-owned stock of land come due for extension or discretionary reallocation. In the story’s opening vignette, a farming family that invested heavily in such land (on the apparent assumption that their rights would be extended so that they could pay their debts) is “pushed into a corner” and staves off eviction with home-made mines and shotguns. The nature of this incident implies that the circumstances at the original land distribution may have give rise to subjective expectations of tenure security on the part of millions of farmers – expectations that may be crushed as the rising value of land in rapidly developing Vietnam create incentives to shift it away from smallholders.

The results of such pressures in East Africa is described in Open Democracy by Rene Lefort, who portrays Ethiopia as the “world champion of ‘land grabbing’ – the practice of renting out vast expanses of farmland to local and, in particular, foreign investors.” Mr. Lefort makes an interesting historical argument linking control of land to centralization of power, from Emperor Selassie’s feudalism to the current regime’s policy of commercial agricultural development. Meanwhile, Human Rights Watch, in a new report, spells out the consequences of such policies for the indigenous minority groups currently being driven from their (officially public) lands on the pretext that they are ‘uninhabited’ or ‘underutilized’ (see page 70). The report may make awkward reading for donors active in Ethiopia, as well as the World Bank, which I gather has not entirely regrouped from its recent debacle in Cambodia and responds somewhat defensively to charges that it may again be at risk of violating its own resettlement policy in Ethiopia (page 64).

Nevertheless, there may be a silver lining to all of this. One of the key points made in Shaun Williams’ recent report on the Solomon Islands is that state land (at least in cities) may represent low hanging fruit for governments with low capacity that are interested in quickly increasing legitimate land-related revenues with a minimum of effort and political risk. As the briefing note points out, state land may comprise a smaller sector of post-colonial landholdings than that held in customary tenure, and is typically strategically placed and high in value. Reinforcing Erica Harper’s recent observations on the risks inherent in even the best-intentioned attempts to reform customary tenure systems, the J4P program plunks for starting by recapturing public land for public revenues (and therefore public services) before venturing into the customary territory where even development experts fear to tread.

Meanwhile, the difficulty of gauging good faith by Governments in their land dealings is demonstrated by recent developments in Liberia, where recently re-elected President Ellen Johnson Sirleaf has long been a paragon of pro-poor development and responsible land policies. This makes it all the more concerning that Ms. Johnson Sirleaf apparently unilaterally broke up a meeting voluntarily convened by a foreign palm oil concessionaire with communities negatively affected by its operations. It probably doesn’t help that some international pundits have urged a more top-down, interventionist approach to rural development in Liberia. However, in the words of Silas Kpanan’Ayoung Siakor and upcoming TN guest-blogger Rachael S. Knight in a New York Times opinion piece:

Mrs. Johnson Sirleaf clearly takes seriously her responsibility to attract foreign investment. Her government must now become equally serious about placing Liberia’s citizens ahead of corporations and involving them in government decisions that affect their lands and livelihoods.

Shaun Williams is Land and Natural Resources Governance Adviser to the Justice for the Poor program of the World Bank.

In many emergent states, where significant proportions of property in de-colonized national territory is still held customarily, reform questions around immovable property and development often tend to be focused on rights issues within customary estates. However in these newer nations, state-owned land commonly includes the most economically valuable land, including significant areas of urban land, on which development pressure is high. This land was commonly first expropriated out of customary estates by colonial powers and then subsequently acquired by post independence states as part of a liberation ‘dividend’.

Most departing imperial powers evaded responsibility for restitution of colonial era dispossessions, as subsequently have post independent states, thereby protracting a significant source of much civil discontent.  Many new states have also been unable to overhaul the arcane land administration institutions they inherited, which were designed to service the land needs of long gone, colonial era, church and trading elites, thereby frustrating the configuration of the new elite coalitions of local entrepreneurs needed to accommodate the rapid urbanization they are all experiencing (UN-HABITAT has estimated that 30% of all Solomon Islanders and almost 40% of Vanuatu’ and Timor-Leste’ populations will be living in cities by 2030). As the legitimization, adjudication and enforcement of property rights is a core function of nation states, these failures in turn undermine wider state building projects.

More important perhaps, throughout the developing world poor governance of state land negatively impacts the poor materially. Mismanagement of state land results in loss of significant amounts of economic rent (because of the high value of state land) that could otherwise be spent on the public services or invested in the infrastructure upon which the poor depend. These foregone rents are frequently being captured by the patrons of sometimes corrupt administrators operating within highly discretionary and otherwise dysfunctional regulatory frameworks.

Indifferent management of state land clogs up land markets, notably urban immovable property markets where demand is high and supply is tight.  Poorly managed disposal of state property is equally unlikely to produce better outcomes. Warehousing by speculators of leases and concessions of state owned land, frequently acquired through opaque and uncompetitive allocations, further restricts supply, particularly of urban land, thereby inflating urban land prices and directly contributing to the unaffordability of city housing for both the poor families and low- to middle-income earners.

Recent evidence from Solomon Islands suggests that a reform focus on the governance of state land holdings, even if relatively small in area, can yield outsized benefits. In Solomon Islands, as much as 10 percent of GDP may be affected by how effectively urban state (referred to in the relevant Solomon Islands legislation as ‘public’) land is governed and the World Bank’s Justice for the Poor program, UN-HABITAT, and other partners are working to catalyze interagency coordination to move towards improve urban state land governance.

For more information please see the Justice for the Poor program Briefing Note Public Land Governance in Solomon Islands or the Justice for the Poor website.

The last few weeks have brought a confusing spate of reports that predict the demise of traditional, monogamous one person-one passport citizenship along with others that indicate that states are more determined than ever to retain its essence. So what does this have to do with this blog? Well, for one thing, citizenship is the glue that governments have traditionally used to bind particular populations to the territories they control, completing the triangle of statehood. But the issue also has personal overtones for me as part of the great global expat class. I’ve got two dual citizen kids, and could probably use a bit of dual citizenship myself, at the very least as a matter of administrative convenience.

Should administrative convenience count? The Economist argues yes in an editorial the week before last, noting that traditional citizenship was never an ironclad guarantee of loyalty, and nor is it particularly relevant to security in an age of professional militaries. Although significant complications involving voting rights are acknowledged, the magazine sees and applauds a trend toward routine multiple citizenship as an economic win-win situation, and one in which tax residence can serve as a new and more practical signifier of political loyalties:

Rather than making a fetish out of passports, a better approach would be to use residence (especially tax residence) as the main criterion for an individual’s rights and responsibilities. That encourages cohesion and commitment, because it stems from a conscious decision to live in a country and abide by its rules.

However, an article in the same Economist outlines new restrictions on the acquisition of dual citizenship imposed by EU states such as the Netherlands and Germany. Meanwhile, citizenship law expert Peter Spiro posts on Opinio Juris on how the US – which is already virtually unique in imposing double taxation on its better-earning expat citizens – has now piled on burdensome reporting requirements on assets held abroad. Spiro notes that the requirement may make it impossible for the 4-6 million Americans abroad to open local bank accounts and speculates that many with dual citizenship will go underground or renounce their US citizenship.

However, Israel appears to have gone furthest in bucking the trend toward more liberal citizenship rules, with its  Supreme Court deciding last week that Palestinians who marry Israeli citizens may be categorically excluded from citizenship. Sound a bit … oh, well … hard to square with fundamental non-discrimination norms?  Israeli judge Asher Grunis will no doubt long be remembered for his pithy response:

Human rights do not prescribe national suicide.

Well, don’t they now? In a separate and fascinating survey of trends in citizenship law, Peter Spiro argues in the latest American Journal of International Law that perhaps they do. Sadly, the full article lurks behind a subscription-wall, but the abstract can be read here:

State practices relating to nationality and citizenship have historically been insulated from international law. That is beginning to change as citizenship moves into a human rights frame. Citizenship practices relating to naturalization, birthright citizenship, and dual citizenship are being measured against anti-discrimination and self-governance norms. These developments will expand access to citizenship, though the new international law of citizenship may also contribute to the erosion of state solidarities that are important to liberal governance.

In essence, Spiro argues that human rights norms are inexorably curtailing the the traditional prerogative of states to ‘self-define’ their membership through the discretionary grant of citizenship. Given that human rights advocates have focused on forbidding the arbitrary denial of citizenship to long-term residents, liberal theory would ordinarily hold that those eligible for citizenship under such terms would likely have integrated over time and made the type of “conscious decision to live in a country and abide by its rules” the Economist lauds (above) in promoting tax residence as a sort of contemporary proxy for what citizenship has been.

However, Spiro cites the scale of current migration and the nature of globalization in questioning whether such bonds can still be said to automatically result from residency. Ultimately, he raises the question of whether “internationally mandated membership” may not only reduce the levels of solidarity in states, but also – and as a result – their actual capacity to continue acting as the primary guarantors of human rights. Death of states? Not necessarily. Default devolution of some of the central attributes of sovereignty to supranational institutions that will hopefully have the legitimacy and capacity to pick up the slack by then? Well, stay tuned.

So where do my loyalties (or at least my sympathies) lie? I pay taxes and consume services in Sweden, and enjoy a quality of life here that would be the envy of a vast proportion of my fellow global citizens. I participate most emphatically in the culture of Finland, or rather Åland, at least since I got involved in the slightly manic ritual of wrestling the annual midsummer pole up along with the other (and better qualified) yeomen of my wife’s ancestral village. And whenever I get back to the  States again, its like I’ve woken up from a dream. Not a bad one, mind you, but one that has you scratching your head because it seemed so plausible at the time, but could it really have been like that?? I guess a bit of cultural vertigo is the sign of our times.

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada.  She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013).  Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.

In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people.  Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations.  Further, a steady stream of judicial decisions (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.

Not all is well however.  Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing.  Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.

Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples.  Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada.  The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.

This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position.  To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw).  While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted.  The proposed Act would change that.

The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement.  While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.

While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time.  University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands.  Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights.  They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country.  The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.

To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders.  A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat.  But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.

The Internal Displacement Monitoring Centre (IDMC) recently published its latest overview of the situation of internal displacement in Colombia.  Among other things, this document highlights the latest decision by the Constitutional Court of Colombia ruling that, seven years after it started monitoring the situation of IDPs and the Governmental response, the conditions that IDPs face in Colombia still amount to a widespread and generalized violation of their human rights (what the Court calls an ‘unconstitutional state of affairs’; or an estado de cosas inconstitucional or ECI, in Spanish.)

The Court first declared an ECI in relation to the situation of IDPs on January 22, 2004, and since then it has maintained oversight of the process towards overcoming the ECI, issuing over 100 follow-up decisions and holding nearly a dozen hearings with stakeholders.  This is not the first time that the Court has ruled that a widespread or structural violation of rights exists in Colombia. It did so for the first time in 1997 and since then on seven subsequent occasions, on issues ranging from prison overcrowding to shortcomings of the national healthcare system.

Much valuable commentary has been written about the role of the Court in shaping and defining IDP policy in Colombia, including by those leading the process from within the bench, as well as about the Court’s invaluable contributions to comparative jurisprudence in the development of social policies in the global South, including in India, South Africa and a number of other Latin American countries.  The aim of this inquiry is to examine the implications of the Court’s latest decision regarding the question of the end of displacement.

International actors have for some time engaged with this question and have sought to provide guidance to help IDPs to sustainably overcome their situation of vulnerability.  The Framework for Durable Solutions, produced after a collaborative process of consultations and testing, and endorsed in December 2009 by the Inter-Agency Standing Committee, provides valuable principles, criteria, and indicators to both guide and assess human rights-based efforts to end internal displacement (including many relating to land and property).

IDPs are the ones who subjectively decide when they no longer consider themselves to be displaced—some displaced people may never see themselves as IDPs while others do not wish to be considered IDPs, or may see their displacement as a permanent condition in their lives. But from a policy and programmatic perspective, having the right elements to determine when durable solutions have been attained by IDP populations as a whole matters, as it does from the perspective of those of us working on estimating global IDP figures.

The Framework advises that the criteria it sets forth are meant to be indicative, and should be adapted and analyzed according to context.  It is up to actors in each context (governments, UN, civil society organizations, etc.) to apply the criteria provided by the Framework, but in practice it may be difficult for such actors, including government officials, to make an objective determination about the end of a situation of displacement, particularly where these decisions are influenced by politics. Such assessments typically support official return programs or the durable solutions selected by Governments in countries with the largest situations of displacement, and ignore altogether the vulnerabilities of people choosing other settlement options.

For these and other reasons, such determinations are unadvisable unless certain conditions are met.  Those conditions, present in the Colombian case, include that the assessment (a) is done by an impartial third party, (b) uses a priori normative criteria to measure and evaluate conditions empirically, and (c) is guided by human rights principles.  In countries with a strong international presence, international actors could be in the position to make such a call, but it is unclear that their legitimacy as foreign actors would be enough to support such a judgment.  So, in reality, it is only a process of adjudication as the one led by the Constitutional Court that can lead to a general assessment that a situation of displacement has ended.

This said, seven years after the Court has ruled its way into displacement policy, how will it rule its way out?  Legal scholars in Colombia—who, by the way, support the Court’s position and the ECI regarding displacement—have nevertheless wondered how and when the Constitutional Court will rule that the ECI has ended—and, effectively, that displacement has ended.  They have argued that the ECI is and should be a temporary mechanism, of analogous but opposite nature to the state of emergency (analogous in the sense that, as the state of emergency, it is meant to be temporary, but opposite in the sense that, while the state of emergency restricts certain rights, the ECI seeks to ensure that rights are fulfilled), and as such should be used with restraint and should last for a finite period of time.  Its prolonged use would be a sign of its inefficacy and could also bring a devaluation of the constitutional and political value of the mechanism.

The Court, while not specifically referring to the IASC Framework in its decisions, has developed twenty process and outcome indicators reflecting the criteria and principles set forth in the Framework, but has not referred to those indicators systematically since they were adopted in 2008.  Its latest decision in October this year, ruling that after seven years the ECI persists, does not apply these indicators systematically. In a decision of 2004 following the seminal ruling T-025, the Court set forth four levels of fulfillment of its directives to the Government, that would serve to evaluate to what extent these were being applied.  Nevertheless, this ruling has not been used by the Court in the years that followed.

So, while the indicators developed by the Court are the cornerstone of its verification process, it is still not clear when, according to the Court, vulnerability will no longer exist, i.e., what will be an acceptable level of enjoyment of rights for the ECI to be lifted.  For example, the Court established indicators for the fulfillment of the basic necessities of life such as the following: “number of families that have access to adequate and enough food, number of IDP families that have access to adequate housing, number of IDPs affiliated to the subsidized health system.”

But the Court has not determined when these indicators will have been fulfilled: is it when all IDPs enjoy full access to all their rights, or when all IDPs enjoy full access to a group of core rights, or when a percentage of IDPs enjoy access to all their rights, or when most IDPs enjoy their rights within and acceptable range according to an index as proposed here, and so on and so forth? Further, is the level of enjoyment of rights by IDPs going to be compared to that of the non-displaced population, in a context where the non-IDP population does not have the full enjoyment of their rights, including economic and social rights?

The Court has written repeatedly in its decisions that “the criterion to declare the end of the ECI is not a budget increase, the redesign of new policies, the adoption of new or better legislation, the creation of new administrative structures, the periodic delivery of assistance to IDPs, or the passage of time, but the effective fulfilment of the rights of IDPs.” This criterion seems to go beyond the standard contained in the Framework on Durable Solutions, which refers to vulnerabilities related to displacement.

While the Framework determines that Governments have obligations of result (and conduct) to raise IDPs up to the level of the non-displaced population, at which point the standard of progressive realization applies to IDPs as it does to the rest of the population, the Court’s criterion seems to create a higher requirement of fulfilment for IDPs in the long run, based upon results beyond displacement-specific vulnerabilities.  If so, this would be problematic, because it would counter the principle of equality before the law by giving IDPs a different standard than the rest of the population.

If this is the case, the concern of some observers about an eventual devaluation of the ECI may be well-founded.  But beyond legal arguments—and to keep things in perspective—the real threat is not that IDPs will enjoy too much rights but that they will continue to live in deplorable conditions by any objective standards and in comparison to the rest of the population.  So it is important for the Court to continue monitoring both process and outcomes in IDP response, but at some point it will have to clarify according to what standards it will rule that the ECI has ended.

First out will be Sebastian Albuja, who is the Internal Displacement Monitoring Centre (IDMC) country analyst for Colombia, and has previously guest-posted on the country’s new restitution framework here and here. This time, Sebastian will introduce the IDMC’s recently updated profile of internal displacement in Colombia and discuss the implications – both positive and negative – of the strong role the country’s Constitutional Court has taken in setting criteria for determining when displacement there can be said to have ended.

Also in the next days, Anneke Smit and Gloria Huh of the University of Windsor Law School will provide a short piece summarizing recent debates in Canada over property and housing for indigenous peoples as well as links to further sources of information. As described in a recent article in the Globe and Mail,  proposals to facilitate private property ownership on First Nations’ reserves have sparked significant discussion and controversy.

Shaun Williams, the Land and Natural Resources Governance Adviser for the World Bank’s Justice for the Poor Program, will be guest-posting on the governance of disputed ‘public land’ in post-colonial countries, an issue of particular significance in urban areas characterized by high development pressures. The posting will build on research undertaken in the Solomon Islands.

In addition, Rachael Knight will present the results of a project on Community Land Titling that she managed for the International Development Law Organization (IDLO), summarizing a set of recently released reports related to experiences in Liberia, Mozambique and Uganda. Rachael was also a contributor to the study on customary justice presented by IDLO Senior Rule of Law Advisor Erica Harper in a guest-posting last November.

Christopher Aston, who works at Coffey International Development with the Governance, Security and Justice team, will be guest-posting with some of the key conclusions of his 2011 master’s thesis at the  Irish Centre for Human Rights:

The piece will discuss the rights-based approach to peacebuilding and its value to protecting vulnerable and marginalised groups and emphasising a state’s obligations regarding their welfare and providing remedies for violations.  Whilst there has been little progress in treating economic, social and cultural abuses as violations of human rights and providing a legal remedy, property restitution based on the right to return to one’s home of origin and the right to a legal remedy is an exception.

Land and property issues figure prominently in conflict and a rights-based approach to these issues can contribute to peacebuilding including, supporting the rule of law, IDP and refugee returns, protection of vulnerable groups and reconciliation.  The piece will look at the role of land and property issues in the Kosovo Conflict and the contribution and limits of a rights-based approach to these issues and particularly property restitution to peacebuilding in the country.

And, in early February, Christopher Thornton will blog on some of the main findings of his 2011 masters thesis from the Graduate Institute of International and Development Studies which is shortly to be published as part of the Institute’s e-paper series:

It is considered axiomatic that justice and property restitution are inextricably linked. However, this link is far from universal and indeed highly context-specific. In order to better understand the justice implications of property restitution it is important to interrogate the philosophical ideals which are at the foundation of this “right” and consider how property restitution looks through different philosophical lenses. The forthcoming guest post will consider property restitution through both corrective and distributive justice paradigms. We will see how these very different perspectives imply very different things about the justice of property restitution.

Complain as I might about life in the frozen wastes of Scandinavia, the long dark nights are not without their benefits. I am just back from a few weeks of largely voluntary internet abstinence and believe it may have done some good. That said, its nice to be dipping my toe back into the news junkie mainstream again. Before I get too carried away by blogging as usual, I thought I might step back and work on my wish list for 2012.

First of all, I hope the hits keep coming – WordPress checked in with its annual report on the blog for 2011, and it seems TN received 16,000 hits last year, a 33% increase over its first full year and the equivalent of six sold-out performances at the Sydney Opera House. Of which speaking, I am also pleased to say that the Australians appear to have forgiven me for the injudicious title of the blog and are a significant chunk of my readership, while the US and the UK top the chart. Sweden placed third, gratifyingly, and large contingents also checked in from Colombia, Egypt and Kenya. My weakest region is Asia, which seems odd given the heavy coverage of Cambodia last year (including the single most popular post of 2011).

Second, I would love to see even more active participation, comments and guest-postings. Housing, land and property (HLP) might be flatteringly portrayed as a niche field of practice or less flatteringly as a broad cross-cutting issue. Either way, readers should feel free to contact me if they feel that they would like to describe their own experience and insights or otherwise contribute to the discussion that still, by all appearances, remains all too sporadic and infrequent between humanitarian actors, human rights advocates, transitional justice and rule of law practitioners and those in the development field. And, lest we forget that ordinary human beings and communities are profoundly affected by these issues, I would like to extend the invitation beyond the expat experts as well.

Third, I would like to express my hope that TN readers will forgive (and even embrace) the shift in emphasis over the course of 2011 from a tight focus on HLP questions to a broader focus on the significance of land to questions of self-determination and minority rights. Given the relevance of HLP to so many other fields and the window that examining HLP issues provides on broader social and political questions in any given context, it can sometimes seem like a bit of an international law and policy gateway drug. Last year, it would simply have been remiss to ignore the way in which the Arab Spring re-ignited history. I trust 2012 will be similarly eventful, and I hope TN will continue to serve as a place where the legal, political, economic and cultural implications of the relationship between people and their patch of turf can be highlighted.

What with all the current speculation over the fate of the Euro, little attention has been given to other EU matters that might make headlines under ordinary circumstances. Last week, however, the European Parliament, long derided as an ineffectual talk-shop stuffed with protest vote populists, got its human rights groove on. By a vote of 326 to 296, the Parliament exercised its right under the 2009 Lisbon Treaty to reject the proposed one year extension of a 2006 EU fishing agreement with Morocco. In doing so, it fired off a belated but significant  shot for the Sahrawis, one of the last remaining colonized peoples that has been denied the right to self-determination.

As described in a rather useful backgrounder from BBC, the Sahrawis formed a resistance movement, the Polisario Front, that succeeded in destabilizing Spanish colonial rule by the early 1970s. However, in their rush for the door, the Spaniards allowed the Sahrawi territory of Western Sahara to be partitioned between neighboring Mauretania and Morocco in 1975. While the former withdrew in 1978, Morocco has pressed its claims, fighting the Polisario Front to a standstill in 1991 while allowing settlers to move to the territory from Morocco and exploiting Western Sahara’s large reserves of phosphates. All this makes Western Sahara a distant cognate to West Papua, which also shook off overseas colonial rule only to be invaded by a more populous (and better armed) neighbor. The parallels with the fate of other North African pastoral peoples slighted by the post-independence uti possedetis lottery, such as the Bedouins and Tuareg, is also striking.

In principle, the Sahrawis enjoy the distinct advantage of having been effectively recognized as a people entitled to self-determination by the International Court of Justice (ICJ), which ruled in 1975 that they should be allowed to shape their own political fate through a referendum. However, in practice, the Sahrawis have been marginalized over the course of years of fruitless negotiations over the process of holding a referendum, during which the bulk of their population has lived in wretched refugee camps in neighboring Algeria. All the while, the Moroccan de facto authorities in Western Sahara have consolidated their position and it is now thought that more than half of the population of the territory may consist of settlers from Morocco proper.

In this context, the 2006 fishing agreement has not been a striking economic success for either side but represented something of a political coup for Morocco in its quest for de jure recognition of its authority over Western Sahara. In the words of one Swedish parliamentarian quoted in the BBC:

Isabella Loevin of the Swedish Green Party told the European Parliament this week: “74% of the EU fleet capacity does operate in the waters of Western Sahara and the people of this region have not been consulted on the matter.

“It is extremely clear that Morocco only wants to keep the fisheries agreement with the EU for one reason – to legitimise Morocco’s illegal occupation of Western Sahara by making the EU an accomplice in this criminal act.”

In fact, the EU has been split over the issue, with countries with large and vociferous fishing fleets positioned near Western Sahara (guess which?) having generally dominated the debate. Sweden, which happily subsists on its mildly toxic local stock from the Baltic Sea, has taken a particularly hard line against the agreement, with some observers calling for outright diplomatic recognition of Western Sahara as an independent state. (Sound familiar?)

In a less strident vein, prominent Swedish international lawyer (and colleague, by way of a human rights course I lecture in), Pål Wrange provided the EU Parliament with a succinct and credible set of legal reasons to reject what he referred to as the ‘disgraceful agreement’ with Morocco. However, it was not at all clear that they would. As late as November 22, the Parliament’s fisheries committee had overridden a critical report and recommended approval of the extension. However, the vote in plenary went against the extension, leaving Dr. Wrange to observe that the Parliament had rescued the EU from itself.

Interestingly, a subsequent resolution that passed by a much higher margin explained what would be necessary to fix the agreement.

In a separate resolution, MEPs stressed that a new protocol must be economically, ecologically and socially sustainable and mutually beneficial.

In the future, the allocation of fishing opportunities should be based on scientific advice and EU vessels should be allowed to fish only surplus stocks. Financial support for the development of local fisheries must be used properly and more efficiently while monitoring of where the money goes must be improved.

MEPs also called on the Commission to ensure that a new protocol fully respects international law and benefits all affected local populations, including the Sahrawi people.

While Sahrawi representatives must doubtless feel vindication at finally receiving some recognition from Morocco’s trading partners, one might imagine that some umbrage could nevertheless be taken to the above statement, which not only relegates their political claims to a clear secondary status vis-a-vis better stock management, but also treats them as essentially equivalent to all other “affected local populations”, presumably including the settlers they fear are there in order to nullify the rights affirmed in their favor by the ICJ decision. Given the carefully calibrated huff that Morocco has gone into, further negotiations are sure to follow. It will be interesting to see how far European institutions will be willing to go in balancing the moral and economic issues at stake.