by David Deng
David Deng is Research Director for the South Sudan Law Society. These observations were originally presented at “Turning Point: What future for people and resources? A panel on the trends shaping rural lands and lives” on February 1, 2012 at The Royal Society of London.
The new report by Rights and Resources Initiative (RRI) paints a vivid picture of a world in flux and the various struggles that are emerging over wealth, power, and natural resources. I’d like to pick up on a couple of these themes and flesh them out a bit with examples from South Sudan, where I’ve worked for the past few years on several projects relating to land rights. Most recently, my work has touched on the surge in land-based investment after the 2005 peace agreement, which brought to an end the 22-year civil war between north and south in Sudan.
Investment and conflict
The first issue that I’d like to touch on is the complex relationship between investment and conflict in resource-rich states. I think it is fairly clear to us all that poorly planned investments can contribute to conflict, particularly in fragile, post-conflict states; but what is perhaps a little less obvious is how conflict can actually serve to attract certain types of investment.
Let me explain. Struggles over land and natural resources were among the root causes of the civil war in South Sudan. Foreign investments during this period often contributed to the violence. Oil companies colluded with the government in Khartoum to forcibly displace local populations from oil producing areas, in order to make the land available for oil exploration. Armed groups in South Sudan used local monopolies of violence to control cross-border trade in precious woods.
And in the Nuba Mountains along the border between north and south, where today, we hear reports of mass killings and hundreds of thousands of people at risk of conflict induced-famine, the government expropriated community lands and gave them to foreign and domestic elites in order to establish large-scale mechanized farms. The disregard that Khartoum showed for their community lands caused many Nuba to join the liberation movement in the south. What followed was a long and costly civil war that eventually resulted in the secession of South Sudan.
But with its newfound independence, South Sudan finds itself in a harsh new world. It has a population of only 8 or 9 million, spread across a land area more than twice the size of the UK, considerable supplies of oil and minerals, fertile land and water; all this makes South Sudan an attractive prize in a resource-strapped world.
by Rhodri C. Williams
In a post late last month, I delved into the problem of ‘public/state land’ and the opportunity that this overwhelmingly post-colonial tenure form presents for state predation in a context of spiraling commodity prices. In taking on such a broad and complicated topic, I am afraid I may have oversimplified things. Toward the end of the piece, I noted Shaun Williams’ suggestion (in an earlier TN post) that focusing on effective management of urban public land was likely to be both more feasible and more rewarding than dealing with customary tenure issues for low capacity governments interested in reforming their land systems. Shaun’s insight on the relative tractability of public land issues was reinforced by Erica Harper’s previous description of the difficulties inherent in implementing – or even generalizing about – reform of customary law systems.
All that said, having pushed the ‘publish’ button, I reflected on the fact that this dichotomy between state and customary tenure regimes might be a bit too pat, at least as a global generalization. After all, Shaun’s comments were focused on urban land and the particular context of the Solomon Islands. Was it not actually the case that in rural contexts, in particular, the problem was precisely that the two categories overlapped, with both the state and customary communities essentially ignoring each other’s mutually exclusive claims to the same land until they came into direct conflict? By and large, this seems to be the issue, with the maintenance of public land regimes allowing inchoate colonial era mass-expropriations to be projected into the twenty-first century with a veneer of legality.
This sense of things got a significant boost with the launch last week of a new report – Turning Point: What future for forest peoples and resources in the emerging world order? – by the Rights and Resources Initiative (RRI). As indicated in the launch webpage, RRI has traditionally been concerned primarily with forest tenure. However, this report, as well as an accompanying set of issue briefs by Liz Alden Wily, reflect the fact that forest land now faces many of the same pressures as other rural land, and that the tenure rights of forest dwellers are no more secure than those of smallholders anywhere. The basic issues at stake are set out starkly in the RRI’s press release on the report:
In presenting the results of an analysis of tenure rights in 35 African countries, by international land rights specialist Liz Alden Wily, [RRI Global Programs Head Jeffrey] Hatcher noted that despite the clear potential for bloodshed, “local land rights are being repeatedly and tragically ignored during an astonishing buying spree across Africa.” Alden Wily’s review found that the majority of 1.4 billion hectares of rural land, including forests, rangelands or marshlands, are claimed by states, but held in common by communities, affecting “a minimum” of 428 million of the rural poor in sub-Saharan Africa. “Every corner of every state has a customary owner,” Alden Wily concluded.
The launch of the RRI report was accompanied by a panel discussion describing the effect of large-scale land investments and concessions in a number of settings. One of these was South Sudan, and it is a pleasure to announce that the corresponding observations, by David Deng, will be reproduced in the form of a guest posting on TN tomorrow.
Those familiar with the increasingly urgent debates surrounding the ‘global land rush’ will be aware that Mr. Deng authored a report published last March by Norwegian People’s Aid (NPA) indicating that as much as nine percent of South Sudan’s territory – an area larger than Rwanda – may have been ‘spoken for’ before the country came into formal existence. Mr. Deng was also one of the contributors to a massive study on transnational land deals and human rights undertaken by the NYU Center for Human Rights and Global Justice (CHRGJ) in support of the UN Special Rapporteur on the Right to Food. He is now Research Director for the South Sudan Law Society.
Its official! The world’s latest country and one of its most hard-won and fragile can take its seat in the General Assembly. As background reading, my previous musings on the topic here, and a lyrical defense of a right to minority secession by Timothy William Waters here on EJIL Talk.
On an administrative note, apologies to TN readers for the long gap since the last posting. I wish I could say it was because I’d already gone on summer vacation but its actually because, in classic consultant style, I am currently consumed by the work I must finish before I can contemplate taking summer vacation! Please bear with me, some interesting postings and guest-postings forthcoming.
- Preliminary results of the referendum in southern Sudan indicate an overwhelming majority in favor of secession after a surprisingly orderly process. The potential for serious violence in Abyei appears to be the main cloud on the horizon, with Foreign Affairs highlighting a worrisome link with the ongoing conflict in Darfur. A further aspect of the Abyei dispute that has gotten less attention in the mainstream press (but is well reflected in humanitarian reports such as OCHA’s latest bulletin) is the fact that its location not only invites conflict over oil and grazing land, but also constitutes a significant choke point for North to South return movements:
Organized returns have been suspended since 9 January, as a result of a series of security incidents involving returnees from northern to southern Sudan. Small convoys of spontaneous returnees have continued, with some reports of continued harassment and obstruction along the journey in Southern Kordofan and Abyei. Another convoy was reportedly shot at on 17 January in Abyei. Security incidents come despite a 13 January agreement reached between traditional leaders of the Misseriya and Ngok Dinka to cease hostilities and allow safe passage of returnees.
- The institute formerly known as RDI has departed the terse world of beltway bandit-style acronyms and re-fashioned itself as Landesa, in an unusually lyrical reference to the fact that LANd so often determines DEStinies. Its transformation has been accompanied by the founding of a promising blog on land and development issues.
- The initial posts in the Landesa blog include a considered response to a recent New York Times article on the effects of the global land rush in Africa, which itself draws on last September’s World Bank report on the topic.
- Landesa also blogs on the destabilizing effects of feudal land relations in Pakistan. Pakistan’s failure to reform its highly inequitable land relations were a rallying point for the Taliban in their bid to take over the Swat Valley, with the ironic result that the success of the Army’s campaign to retake the area was determined by whether large landholders could be convinced to return and recreate the inequitable conditions that fueled the insurgency.
- And finally, on a non-HLP vein, a wonderfully concise summary by Tihomir Loza in Transitions OnLine of the so-near-and-yet-so-far state of Bosnian ethnic politics.
This week picks up a few interesting items from the end of last year as well as some more updated texts:
- Now that the referendum on South Sudan’s separation appears to have gone off peacefully, attention is turning to the contested territory of Abyei. As described in this NYT article, Abyei represents a microcosm of the North-South conflict but one which has, alarmingly, been left on the sidelines of last week’s putative solution. Here’s a sample:
“We will go to war over this,” said Rou Minyiel Rou, a veterinarian in Abyei. “This is about land, and we can’t compromise on land.”
- Anyone remember Osh? Fortunately Transitions OnLine does, and they released a series of reports last week on the aftermath of last June’s orchestrated attacks on Uzbek minority communities in this town in southern Kyrgyzstan. The first two reports focus squarely on land and property issues, including the plight of women left behind to safeguard destroyed family homes, and ongoing ethnic tensions over land access in the region. Against a chilling backdrop of arbitrary arrests of Uzbek men, the latter report notes that the reconstruction of Uzbek neighborhoods may not take place according to the victims’ preferences:
Other unsubstantiated claims center around the urban plan under discussion by city authorities. Few details have been released, but the plan is said to include building apartment blocks in place of the traditional family compounds where many Uzbeks live. Uzbek neighborhoods take up large areas of the city, particularly in central districts and around the famous Suleiman Mountain.
- Carl Soderbergh of Minority Rights Group International (MRG) wrote a two part report in the MRG Blog late last year on the threatened land rights of the Maasai in Tanzania. The first part of the report analogizes latter day practices of removing this indigenous group from the environs of a wildlife park with the colonial doctrine of terra nullius (sound familiar?) used to justify earlier annexations. The second part examines the violent expulsion of another group of Maasai from a wildlife sanctuary acquired on disputed legal grounds by the American tour operator Thomson Safaris. Fully 37 years after the facts that triggered the Endorois decision by the ACHPR in neighboring Kenya, this must be only one of many more such cases in the making.
by Rhodri C. Williams
On day three, all signs indicate that the referendum on the separation of Southern Sudan from Khartoum is going shockingly well. Continued high turnout bodes well for achievement of the key threshold of 60% of registered voters and the mood appears to be nigh on festive at many polling stations. Violence has flared in the contested Abyei region, but it remains to be seen whether this dispute will join the ranks of the intractable (along with Jerusalem, Kirkuk and Nagorno Karabakh) or can eventually be arbitrated into submission (a la Bosnia’s Brcko District). So why are there still some long faces in the world of diplomacy?
In looking at land issues in conflict, it is helpful to recall that various individuals’ and groups’ asserted property rights are not the only relevant claims. States have traditionally had rather an important vote as well. Indeed, until recently states were relatively unfettered in their ability to regulate and expropriate property rights and forcibly remove people from their homes and lands when they deemed it necessary. Sovereignty-related concerns related to development, national security and territorial integrity were paramount.
Since the end of Cold War, greater attention to both regional and global human rights standards and the assertion of doctrines such as human security and responsibility to protect (R2P) have altered this balance. As a result, while states continue to enjoy broad discretion over the use of their land resources, they have come under increasing pressure to recognize that their ‘territory’ is co-terminous with the homes, homelands, property and possessions of their citizens, and to respect the rights accruing to affected individuals and groups as a result.
The resulting situation should in theory ensure that the costs of necessary government action that infringes on private property interests are not externalized solely onto those directly affected. As I blogged on earlier here, both development and human rights standards are converging on this understanding. In situations where these rights are egregiously violated in the context of war and ethnic cleansing, legal remedies such as restitution have come to the fore, both in practice and in standards such as the Pinheiro Principles.
However, as many commentators have pointed out, the current exercise of self-determination by the people of southern Sudan hearkens back to older understandings of the primacy of state territorial control and threatens the integrity of a longstanding legal consensus of such age and fixity that it has been anointed with a Latin phrase. “Uti possidetis” or “as you possessed” is a sort of interstate rule of adverse possession that originally ratified territorial conquests in warfare and later shaped the process of liberation of former colonies.
I owe about a month in links this time, given the blur in which last December passed! However, I have tried to exercise a bit of restraint in order to keep things current.
- The New York Times covers Bashir’s conciliatory trip to Juba and sets out the case for a peaceful referendum on secession in southern Sudan next weekend, including hints that a last minute fix could resolve the territorial dispute in Abyei. Along with shared incentives over oil (the South will have the bulk of reserves and the North controls access to the world market), focused international attention and pressure is credited with keeping the parties on course. However, this observation underscores the risks presented as international attention wanders from other theatres of unresolved conflict. For instance, this week has also seen news of the forthcoming closure of the ostensibly short-term UN Mission established in Nepal in 2007 to consolidate what remains a very shaky peace deal there. The outgoing SRSG in Nepal is expected to move on to head a significantly curtailed UN Mission in Burundi, where large scale violence has ended but human rights abuses remain rife and rebel groups are said to be re-arming.
- The New York Times recently ran two pieces demonstrating how ostensibly local urban policies reflect and shape broader politics. The more straightforward of the two discusses how urban squatting in Buenos Aires reflect a national political rivalry in Argentina. However, the second piece, on the renovation of the Old City of Aleppo, Syria, came as a revelation. By involving poor communities rather than displacing them, this project is aimed not only at achieving truly sustainable preservation but also at retaining the traditional family housing models that are thought to avoid the social tensions that can fuel Islamic radicalism. The key question going forward is how to inspire similar approaches to the architecturally less interesting but socially volatile shantytowns at the edge of the city:
…how to make the final link between historic preservation and the creation of a contemporary city remains blurry. Many preservationists working here, including some at GTZ, see the last 70 years as unworthy of their interest. And most contemporary architects, whose clients are almost uniformly drawn from the global elite, are out of touch with the complex political realities of the poor in the region.
- Paul Krugman on how climbing commodity prices signal the fundamental good news/bad news arithmetic of our times – increasing global demand based on resilient growth in the developing world, climate change, and the absolute scarcity of the natural resources we depend on.
- Open Democracy contributors Christophe Solioz and Denis MacShane differ on whether the Kosovo organ trafficking allegations raised at the Council of Europe are a devastating indictment of the dark grip of the past and international passivity in the West Balkans or a glorified rumor hijacked by Serbian nationalist interests.
by Rhodri C. Williams
Based on my early experience of both, working on international soft law standards seems a bit like parenthood – you have a limited period to create a warm, protective space around the text that will give it the resilience and flexibility to make a difference in the world and then you let it go and watch its fitful progress with your heart in your mouth. Maybe you don’t hear from it in a while and then, for better or for worse, there it is in the morning paper.
My first brush with the ‘Pinheiro Principles’ on property restitution for displaced persons came during their infancy, when I sent comments on a draft and was invited to participate in a March 2005 expert consultation to groom the text for presentation to the UN Sub-Commission on Human Rights. I was fresh from my prolonged engagement with Bosnian restitution and pleased to see so much of what we had struggled to articulate there being expressed in the draft. At the same time, a prior consultancy job with IPA had put me on notice that both the nature of post-conflict property issues and means of addressing them could take many forms.
A short but interesting list this week:
-IDMC reminds us that its been a year since the groundbreaking Kampala Convention was passed, committing African Member states to address internal displacement. However, only two member-states have ratified to date, leaving thirteen to go until entry into force.
- IRIN published a short article on the prevalence of land-grabbing after natural disasters and new efforts to secure land tenure.
- NYU’s Center for Human Rights and Global Justice published a report on the global land rush and human rights based on three negative case-studies (Tanzania, Sudan and Pakistan) and one more hopeful one (Mali).
- IRIN also reports on the connection between land and water scarcity and conflict in Yemen, a fundamental issue that appears to have been overlooked in the rush for political solutions:
“Social violence is the greatest threat to Yemen over the long term,” said Abdul-Ghani al-Iryani, a Yemeni political analyst. “Political violence and violence by the state against the population can be reversed relatively easily; there could be a new political settlement. But diminishing resources is an intractable problem that cannot be solved by political consensus. It will require much more work.”
- OpenDemocracy ran a long and thoughtful piece on the forthcoming Sudan referendum. In addition to pointing out the various tensions that risk returning the region to all out warfare, this comment also provides some useful background on the recent history of referendums in Africa and notes the potential of African and regional institutions to contain the potential for fiasco.
- David Cronin posts in OpenDemocracy on corporate capture of trade agreement negotiations and some of the more unpleasant social and environmental consequences.
This week’s food for thought:
- Continuing the nervous drumbeat on the upcoming Southern Sudan referendum, here is Open Democracy on the apparent new delay to the Abyei referendum, and a good news-then-bad news analysis by Phillipe De Pontet at the Carnegie Endowment for International Peace.
- The International Law Observer notes that the Human Right to Water and Sanitation is now official – a recent decision by the Human Rights Council brings the number of states that have gone on the record to 178.
- Meanwhile, the FAO Right to Food people are about to release a guideline on responsible land tenure management and the right to food (it is available now in Spanish).
- Lyric Thompson reports in Open Democracy on the whiff of UN politics behind the anticlimactic tenth birthday party in the UN Security Council for Resolution 1325.
- In case anyone forgot the link between land and identity, here is a comment in the Jerusalem Post on what the construction ban and its absence is seen to signify by some in the Middle East. In the meantime, the NYT reports on the resumption of construction plans in East Jerusalem, and Open Democracy has news of a possible response, with the Arab League apparently considering whether to “appeal directly to the UN to recognise the state of Palestine.”
- From the US, Paul Krugman reports on the ongoing fallout of the mortgage crisis and the fact that it now appears that the USA, one of the world’s great proponents of rule of law and the sanctity of property, is witnessing foreclosures by banks that are unable to actually document the mortgage agreements they are enforcing.
- And in the unremarked on but terrifying land violence category, IRIN reports on inter-clan skirmishes over land in northeastern Kenya that displaced 600 families.
- Finally, the ECFR has issued a new short comment and report on the ‘spectre of a multipolar Europe with a fairly provocative set of findings:
- The post-Cold War order is unravelling. Rather than uniting under a single system, Europe’s big powers are moving apart. Tensions between them have made security systems dysfunctional: they failed to prevent war in Kosovo and Georgia, instability in Kyrgyzstan, disruption to Europe’s gas supplies, and solve frozen conflicts.
- The EU has spent much of the last decade defending a European order that no longer functions. Russia and Turkey may complain more, but the EU has the most to lose from the current peaceful disorder.
- A frustrated Turkey still wants to join the EU, but it is increasingly pursuing an independent foreign policy and looking for a larger role as a regional power. In the words of foreign minister Davutoglu, Turkey is now an ‘actor not an issue’. Its accession negotiations to the EU should be speeded up, and it must also be engaged as an important regional power.
- Russia never accepted the post-Cold War order. Moscow is now strong enough to openly challenge it, but its Westpolitik strategy also means that it is open to engagement – that is why Dmitri Medvedev suggested a new European security treaty a couple of years ago.
- Obama’s non-appearance at the 20th anniversary of the fall of the Berlin Wall was the latest sign that the US is no longer focused on Europe’s internal security. Washington has its hands full dealing with Afghanistan, Iran and China and is no longer a European power.
Posted in Week in links
Tagged ECFR, europe, FAO, Israel, Kenya, OPT, Resolution 1325, right to food, right to water, Sudan, USA