Tag Archives: development

Kyrgyzstan property issues update, part 2 – Unen-durable Solutions

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing last year on the aftermath of the 2010 ethnic riots, Kaigyluu yesterday updated TN readers on the local and regional politics of rebuilding Osh, and today addresses the policy choices of international actors involved in humanitarian response and reconstruction.

While housing, land and property (HLP) rights were put on the agenda in the immediate aftermath of the June 2010 inter-ethnic violence in South Kyrgyzstan, the HLP process was complicated (a) by a lack of clear rationale or objective and (b) strategic choices made at the outset.

With respect to the first point, based upon an initial assessment by the Global Protection Cluster (GPC) conducted in the wake of the June events, UNHCR focused first on the construction of shelter and then on legal assistance to restore HLP documents lost or destroyed. The assumption upon which provision of such legal aid was based proved faulty, in that it was soon discovered that over 80% of affected households had never had proper documentation. And so the HLP project concentrated on obtaining documentation for those whose homes were destroyed, as well as registering the newly constructed replacement shelters.

Nevertheless, the justification for securing documentation only for those whose homes were destroyed, whereas the majority of the affected population – and, indeed, the population at large – also lacked such documentation, was undermined. The project might have been realigned – and was, ad hoc, to provide documents to those whose homes were threatened with expropriation – but the follow-up scoping mission recommended by the GPC to conduct a full situational assessment was never carried out.

This leads into point (b) on strategic choices, namely that the international community chose to channel their support through the State Directorate for Reconstruction and Development for Osh and Jalal-Abad Cities (‘SDRD’ – previously, the State Directorate for Rehabilitation and Reconstruction or ‘SDRR’) set up by the central government, and headed by current Prime Minister Jantoro Satybaldiev. The international community decided to bypass the Osh mayor, Melis Myrzakmatov – understandable, given his nationalist (and often erratic) rhetoric.

Myrzakmatov was opposed to anything directed by Bishkek: an opposition entrenched when he successfully resisted the attempt of the interim government to remove him. Unfortunately, in the case of reconstructed (and, indeed, all) housing, the issuance of building permits was controlled at the municipal level. Therefore, in Osh, construction permission was never granted. And so, the majority of the shelters constructed there remain unregistered; whereas, in Jalal-Abad, where the mayor was successfully replaced (twice) by Bishkek, authorities were more cooperative, building permission was issued, and registration proved relatively simple.

More broadly, apart from reliance on the SDRD, there a choice by the international community – perhaps by default – to opt for a ‘rule of law’ approach, as opposed to one driven by the need for a recognition of rights. That is, the reconstruction and HLP process was channelled through the existing domestic land and housing regime. As such, it became vulnerable to the inefficiencies or gaps in the system, as well as any political or personal manipulation of it.

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Kyrgyzstan property issues update, part 1 – Who’s afraid of the big bad master plan? Rebuilding Osh’s mahallahs in brick

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing on the politics of property in southern Kyrgyzstan after the 2010 ethnic riots, he, she or it now follows up with an update in two parts. Part one focuses on the local and regional politics of rebuilding Osh, while part two, tomorrow, addresses the policy choices of international actors involved in humanitarian response and reconstruction.

International attention on Kyrgyzstan, limited as it was during the Tulip Revolution (Redux) of April 2010 and inter-ethnic riots that followed two months later in the south of the country’s geologically and politically unstable Ferghana Valley, has long since waned and turned elsewhere. Indeed, with the Western military drawdown in Afghanistan, the importance of Central Asia – exemplified by the bidding-war between the US and Russia over the Manas airbase outside of Bishkek – has diminished correspondingly, while the problems in the region continue to fester and grow.

At least in terms of rebuilding and reconciliation (including international reconstruction assistance) in the aftermath of the June 2010 clashes between ethnic Kyrgyz and Uzbeks in the ‘southern capital’ of Osh, as well as the nearby city of Jalal-Abad, progress would seem to be consolidating. The latest government shuffle, following the collapse of the yet another parliamentary coalition, saw the appointment of Jantoro Satybaldiev as Prime Minister. Satybaldiev, a former Head of the Osh Administration, led the central government’s reconstruction effort following the June 2010 clashes. He was a key partner of UNHCR, the Asian Development Bank (ADB), and other international actors in this, and seen as a counterweight to perceived hard-line nationalists in the south, such as Osh’s current mayor, Melis Myrzakmatov.

Not only can Satybaldiev’s ‘promotion’ be construed as a reward for his work in the South, it is also hoped that his elevation will give him the authority to overcome the last hurdles to secure the housing, land, and property (HLP) rights of those displaced by the June 2010 events.

A ‘friend’ of the post-2010 reconstruction effort is sorely needed in high office. This past summer, the City of Osh began long-threatened expropriation of land and the demolition of at least two dozen houses, as well as several business premises, in order to widen roads: this, despite ‘iron-clad’ assurances to donors that reconstructed houses would be not be touched. It is feared that this is but the precursor for implementation of a new urban plan: one that is rumoured to include the replacement of the traditional Uzbek enclaves with ‘modern’ apartment blocks and, amongst the conspiracy-minded, one that is said to mirror – or even predate and predict – the patterns of supposedly spontaneous destruction that occurred from 11 to 14 June 2010.

The international community funded the reconstruction of almost 2,000 homes damaged or destroyed during clashes. UNHCR and ICRC led the emergency response, providing two-room (28 m2) shelters for affected households before the onset of winter in 2010. The ADB provided an additional $24 million to expand (up to 100 m2) and complete 1,500 of those shelters in a second phase of reconstruction in 2011-12.

However, optimism over Mr. Satybaldiev’s elevation may be misplaced. It is debatable whether the new Prime Minister will wish to expend precious political capital to protect those affected persons, the overwhelmingly majority of whom are from the minority (but substantial) Uzbek community. He seems still to accept, if not actively encourage, the inevitable replacement of the mahallahs – the traditional neighbourhoods composed of walled family compounds favoured by the Uzbeks in the centre of Osh – with high-rise apartment blocks. Off the record, even Mr Satybaldiev’s patron, President Almazbek Atambayev is said to have expressed puzzlement and mild exasperation at the international community’s obsession with preserving and reconstructing the mahallahs, in the face of the inexorable march of modernisation and progress.

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Protection in the past tense: New book on displacement and transitional justice explores the role of restitution

by Rhodri C. Williams

This summer, the International Centre for Transitional Justice (ICTJ) published a new edited volume on Transitional Justice and Displacement (click here for the free PDF version) together with the Brookings-LSE Project on Internal Displacement. The book was based on an initial round of research papers and has been accompanied by a much shorter policy brief. All of these resources have been prominently featured on dedicated pages at both the ICTJ website and at Brookings. The volume forms part of a broader series on Advancing Transitional Justice and was edited by Roger Duthie, a senior associate at the ICTJ and a patient and thoughtful collaborator – qualities I appreciated greatly in drafting the third chapter of the book on housing, land and property (HLP) restitution.

The book’s authors chart the relationship between humanitarian responses to displacement and the traditional components of transitional justice (prosecution, truth-telling, institutional reform and reparations) along with more recently articulated concerns such as gender justice. The broader issue of reparations for displacement was ably addressed by Peter van der Auweraert, head of the IOM’s land and reparations program and past TN guest-blogger. In one sense, my chapter on HLP restitution was much narrower than Peter’s. After all, HLP violations are only one of the many types of injuries typically suffered in the course of displacement, and restitution is only one of the forms of redress that can be applied. At the same time, what I enjoyed most about writing the chapter was the opportunity it gave me to think at the broadest possible level about how the fundamental goals and methods of humanitarian action comport with those of transitional justice and even development assistance.

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Announcement – Call for cases related to World Bank resettlement

The World Bank is currently undertaking a review of its various safeguard policies, including that related to involuntary resettlement. Respect for the latter policy has been at issue in a number of countries but perhaps most notably in recent months, in Cambodia. In order to help get the most out of this process, Inclusive Development International (IDI) and the Bank Information Center (BIC) have issued a call for cases involving the application of the policy on forced resettlement. TN readers aware of relevant cases are welcomed to look at the full call for cases, which is reprinted here under ‘resources’.

Say it with a resolution: The UN marks two decades of work on internal displacement as new challenges emerge

by Rhodri C. Williams

I tend to count being slightly outside the Geneva loop as a net positive, but every once in a while it means that I get ambushed by major developments in my own field. This has been such a time, with the IDMC announcing the UN Human Rights Council’s adoption by consensus of a ‘historical resolution‘ on internal displacement. As much as I would love to deliver the inside dish on fledgling Resolution A/HRC/20/L.14′s existential significance, I must leave the honors to IDMC:

The substantive resolution is, for the first time, independent from the mandate of the Special Rapporteur on IDPs, representing a strengthened commitment from UN Member States to recognise their own role in promoting and protecting the human rights of IDPs.

So, it seems that the joint and several UN Rapporteurs on internal displacement have so successfully mainstreamed human rights-based approaches to the protection of internally displaced persons (IDPs) that the UN can promote them on its own. Good news considering the controversy that IDP advocacy efforts have occasionally sparked in the past (see Erin Mooney’s wonderful piece on the early IDP debates). However, I was taken aback to read an observation on the timing of the resolution in its preamble:

Welcoming the twentieth anniversary of the mandate of the Special Rapporteur on the human rights of internally displaced persons and the considerable results achieved since its creation,

A few things went through my mind at this point. One (facetiously) was that it was a bit cheeky of the Council to celebrate the mandate’s twentieth birthday by beginning to make it redundant. But the other was genuine disbelief that we have already been witness to two decades of IDP advocacy. Having started law school in 1996, the height of the post-Cold War, pre-9/11 human rights window, I was hardly present at the creation but had at least heard about it in real time.

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What Rights? Comparing developing countries’ national legislation on community forest tenure rights

by Fernanda Almeida

Fernanda Almeida is the lead author of RRI’s “What Rights?” report and works as an international legal consultant on comparative legal, regulatory and policy research and analysis.

Indigenous Peoples and forest communities have long-established customary land rights to a large proportion of the world’s forests. The recognition of these rights by governments and international law and jurisprudence, has proven to be one of the few success stories in the wake of the Rio Earth Summit in 1992. Where these rights are recognized, Indigenous Peoples and other communities are not only able to enjoy their most fundamental human rights, but also to develop themselves sustainably.

For example, in the case of Amazonian traditional populations in the Extractive Reserve of Marajoí (Brazil), the açaí palm had virtually disappeared due to previous over-harvesting caused, at least in part, by unclear tenure. Once land tenure issues were resolved, traditional populations invested their resources in managing the açai area as a way to bring back wildlife, fish, and the açai palm itself. As a result, biodiversity was restored and the population had secured its means of subsistence.[1]

In spite of the importance of such rights to the promotion of a sustainable development agenda, very little was known about the extent to which governments around the world had recognized them and how. The What Rights? report by the Rights and Resources Initiative begins to fill this gap. It analyzes national laws that relate to the forest tenure rights of indigenous peoples and communities in 27 developing countries, home to 2.2 billion rural people, that collectively contain about 75 percent of the forested land in all developing countries.[2]

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Back to the tyranny of the majority in Bolivia’s TIPNIS dispute

by Rhodri C. Williams

After much equivocation, President Evo Morales of Bolivia has returned to his original position that the population of both departments abutting the Isiboro Secure Indigenous Territory and National Park (‘TIPNIS’ in Spanish) – rather than the residents of the Park themselves – should decide on his long-running ambition to build a road directly through its center:

… Morales said on Tuesday that it made sense for everyone in Beni and Cochabamba to vote on the road because the residents of these two departments would be the ultimate “beneficiaries.”  In contrast, according to Evo, polling the residents of TIPNIS would potentially allow “small groups” of opponents to veto the desires of the majority (perhaps not within the park itself, but within the two departments that would be connected by the road).

Nicholas Fromherz reflects on this news from a procedural justice perspective at South American Law, pointing out that President Morales’ repeated failure to respect the rules on consultation he himself gave constitutional status represents a fundamental injustice.

Granted, the millions who live in Cochabamba and Beni would, as Morales indicates, be the prime beneficiaries of this project.  But would they also suffer the severest of its consequences?  When deciding who should have a say in the matter, we would presumably agree that it would be improper to hand the decision over to the potential “winners” while muzzling the “losers.”

One of my current academic works focuses on this very topic.  Like all big public projects, environmentally-sensitive projects – roads, dams, power plants, etc. – imply winners and losers.  It is my contention that the upsides of these projects are often quite diffuse, inuring to the benefit of large regions or even entire nations.  The downsides, in contrast, are often concentrated in relatively small areas.

This analysis links what have been two of the core concerns discussed in this blog in relation to disputes over land and territory. First, there is the principle, widely accepted in theory and almost as widely flouted in practice, that those forced to bear the direct burden of development projects should end up in in no less favorable a position then they would have been had the project not been carried out.  As Natalie Bugalski observed in these pages, in relation to the Asian Development Bank’s involuntary resettlement policy, fifteen years of practice has brought limited progress:

The rationale behind the policy was a shift away from the perception that development-induced displacement and attendant harms suffered by those physically and economically displaced is a “sacrifice” some people have to make for the larger good. It is apparent, however, that despite the adoption of increasingly progressive and rights-oriented policies, the utilitarian view of development-induced displacement continues to dominate the culture and individual staff views of the ADB and many other aid and development institutions.

Second, the stakes in such controversies are even higher when the parties at the business end of development projects constitute minority groups, and particularly indigenous peoples. In such cases, the failure to give special weight to the concern of such groups can lead not only to the destruction of their livelihoods, but also the loss of their identity. The idea that indigenous peoples whose territory has been incorporated into larger states should be permitted to defend it against the whims of a political community they did not choose to be part of is integral to texts such as the UN Declaration on the Rights of Indigenous Peoples. As I noted in my own first stab at analyzing the TIPNIS imbroglio, resort to majority rule may be tantamount to revoking TIPNIS’ status:

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

The controversy will no doubt rumble on, particularly given that the plight of the indigenous minorities resident in TIPNIS appear to have captured the sympathy of the broader public. However, the abandonment of progressive principles by a President elected on the strength of his commitment to equitable development and accountability through consultation indicates just how much work remains to be done.

New RRI report (and upcoming guest post) on community land rights in tropical forests

by Rhodri C. Williams

The Rights and Resources Initiative (RRI) just released a new report indicating that forest peoples have “quietly gained unprecedented legal rights to the land and resources owned under customary law” over the last twenty years. However, the authors also express concerns about legal obstacles to the exercise of such rights and the risk of their rollback by elite groups seeking to facilitate international land and natural resource deals. According to RRI’s press release:

“Forest peoples are caught between the forces of a drive for environmental sustainability and the intense pressure of economic development”, said Jeffrey Hatcher, Director of Global Programs for RRI, and one of the authors of the new report. “Despite tremendous progress in establishing legal tenure regimes, a lack of political will and bureaucratic obstacles make it a struggle to implement any real action in most forest-rich developing nations. ….”

The report is described as providing “the most comprehensive global legal analysis to date of the status of forest tenure rights held by Indigenous Peoples and other local communities in more than two-dozen developing countries”, which together account for “approximately 75 percent of the forests of the developing world, home to some 2.2 billion people.” It was released together with a separate study on the positive development effects of recognizing customary forest tenure. Both reports taken together constitute the results of an analysis undertaken by RRI on the twentieth anniversary of the 1992 Earth Summit in Rio de Janeiro, in order to inform the upcoming Rio+20 Conference on June 20-22.

I am very pleased to announce that Fernanda Almeida, the lead author of the report, will be guest-writing on TN next week in order to provide further analysis of the results of RRI’s research and insights on how these findings may be of practical assistance in efforts to secure the tenure rights of forest peoples.

Fernanda’s guest-posting can now be read at the following link:

What Rights? Comparing developing countries’ national legislation on community forest tenure rights (11 June 2012)

 

 

Cambodian mothers and grandmothers behind bars after facing off the most powerful men in the region: Will the World Bank stand by them?

by Natalie Bugalski and David Pred

David Pred and Natalie Bugalski are co-founders of Inclusive Development International. They co-authored the complaint to the World Bank Inspection Panel on behalf of the Boeung Kak community.

Last week thirteen Cambodian women representatives of the Boeung Kak Lake community were sentenced up to two-and-a-half years in prison after a summary trial. The women, including a 72-year old grandmother, were arrested on May 22 whilst singing at a peaceful protest to support 18 families whose homes had been buried in sand by a private developer (view the video). The arrest, trial and sentencing took place within 48 hours, with no time for the women’s lawyers to prepare a defense. During their trial, the police arrested two more community representatives who were waiting outside the courthouse prepared to testify as witnesses for the 13 women on trial.

Photograph: Housing Rights Task Force

The women, who call themselves the League of Boeung Kak Women Struggling for Housing Rights, have waged a multi-year battle to defend their homes and land in the bustling center of Phnom Penh. Their campaign has included everything from publicly burning effigies to rid the city’s authorities of evil spirits to baring their breasts at demonstrations to display their desperation. It has also involved a sophisticated legal advocacy strategy, including the submission of a complaint to the World Bank’s Inspection Panel, an internal watchdog mandated to investigate alleged violations of the Bank’s operational policies.

The women’s family homes were being threatened by one of the wealthiest and most powerful Cambodian tycoons, who is also a ruling party Senator, backed by China’s Inner Mongolia Erdos Hongjun Investment Corporation. In early 2007, Senator Lao Meng Khin was granted a 99 year lease over 133 hectares in central Phnom Penh, which covered Boeung Kak lake and its surrounding villages, home to some 20,000 people. The lease was granted for a mere $79 million US dollars, a fraction of the estimated $2 billion value of the property. Soon afterwards, the company began filling in the lake and coercing its denizens to leave the area for a measly sum in compensation.  Attempts by the community and civil society advocates at persuading the Senator’s company and the government to stop the mass forced eviction appeared futile. They remained impervious to the outcry against what threatened to be the biggest single mass displacement of Cambodians since the Khmer Rouge emptied the cities in 1975.

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Online books on land law in Africa

Just a brief announcement regarding a pair of very interesting online books from last year that are available for free download from the website of the Pretoria University Law Press. Both are edited by Robert Home and address the theme of African Land Law.

The first is a series of case-studies. While most take up development themes, the first two, by Patrick McAuslan and Geoffrey Payne, focus on post-conflict issues. In the case of McAuslan in particular, the analysis appears to further unpack development-based critiques of the Pinheiro Principles of the sort initially raised by the Overseas Development Institute.

The second book features a series of essays, including a discussion of the influence of Islamic Land Law in Africa by Siraj Sait, and several pieces on the trend toward recognition of indigenous peoples’ land rights, in contradiction to the post-colonial impulse to treat untitled land as the property of the state.

The need to move from recognition of such rights to implementation was recently highlighted by a report on Kenya by the Working Group on Indigenous Populations in Africa. According to reports earlier this month by the Nation and the Star, the report highlights not only Kenya’s failure to implement the findings of the African Commission of Human and People’s Rights in the Endorois case, but also ongoing land depredations that continue to threaten other minority groups in Kenya (as reported on earlier in TN here).