Monthly Archives: March 2010

Endorois implementation campaign in Kenya

Thanks to Chris Huggins for forwarding a very interesting email announcing the beginning of a campaign by Kenyan human rights actors to ensure the implementation of the African Commission on Human and People’s Rights recent decision awarding restitution of traditional lands to the Endorois indigenous group. Chris previously posted on the likely regional effects of this decision here and I posted on its legal implications for indigenous peoples’ right to property here. In opening the campaign for implementation of the decision, David Malombe of the Kenya Human Rights Commission writes:

Following the ruling on the Endorois land question under the African Union, a number of human rights organizations including the Endorois Welfare Council, Kenya Human Rights Commission (KHRC), Centre for Minority Rights and Development (CEMIRIDE), MPIDO, Kenya National Commission on Human Rights (KNCHR),  Kenya Land Alliance (KLA), International Commission for Jurists (ICJ-Kenya), Action Aid Kenya, Constitution Reform Education Consortium (CRECO) among others are organizing a commemorative and campaign rally in Bogoria on Saturday, March 20, 2010. We are expecting more than 10,000 participants drawn from the affected communities in the country; and state and non-state actors working on land rights and justice issues. After this, we shall have a campaign to ensure that the Government of Kenya complies with the AU recommendations.

It is often the case that winning a groundbreaking precedent decision like that in the Endorois case appears, in retrospect, to have been the easy part. Continuing advocacy work of the nature described above can be crucial to implementation and I will endeavor to provide further updates on this blog regarding how these efforts fare.

Surveyors of the world unite – around a rights-based approach

by Rhodri C. Williams

Many thanks to Erik Petersson at Swede Survey for pointing out some new publications by the International Federation of Surveyors (FIG) that can be downloaded on their reports page. The page itself makes for an interesting browse.

Some of the listed texts are somewhat introspective documents that one imagines would fire the imagination of only a few select initiates outside the circle of licensed surveyors (“Hydrography in Ports and Harbours” anyone?). However, FIG began engaging with sustainable development issues as early as 1991 and has gone on to cover topics as various and broadly relevant as women’s access to land (2001), disaster risk ‘management’ (2006), informal settlement upgrading (2008), and land governance in support of the MDGs (2009).

This year has already seen a raft of new reports including ones on mega-cities, the history of surveying (sounds tame until one considers the motivations people might have to go off and measure other people’s land), the ‘Social Tenure Domain Model’ (a pro-poor land tool), and, perhaps most notably, the ‘Hanoi Declaration’ on land acquisition in developing countries.

The Hanoi Declaration is a very interesting document that sprang from the seventh FIG regional conference last October in the Vietnamese capital. At this meeting, it was noted that states in the region “require urgent action especially in terms of reinforcing methods for land acquisition in fast growing urban areas in developing economies.” As previously indicated in this blog, Cambodia represents one such case, with urban forced evictions now so endemic and politicized that when the World Bank pushed to extend its Land Management and Administration Project (LMAP) to urban areas, the Cambodian government withdrew its support. As the Bank rather diplomatically put it in a September 2009 press release:

[A previously undertaken] review found that LMAP’s successes in land titling in rural areas have not been matched in urban areas where land disputes are on the rise. This was due in part to delays or lack of implementation of some project activities. While originally designed as a multi-pronged approach to addressing a range of land issues, LMAP focused on areas where it could be most successful: titling rural land and building the capacity of the land administration to register and title land and implement policy.

We have shared the findings of the review with the Government but could not come to agreement on whether LMAP’s social and environmental safeguards should apply in some of the disputed urban areas. For the World Bank, the implementation of these safeguard policies is critical. However, we are encouraged by the Government’s statement of its commitment to continuing reforms in the land sector and working towards an improved policy and legal framework for resettlement that reflects their commitment to international treaties.

The result was the termination of an otherwise well-seen and well-established program that had provided title to over a million rural properties. I am hoping to encourage colleagues who have worked recently in Cambodia to guest blog on this incident and the ensuing World Bank Inspection Panel proceedings related to the LMAP in the coming weeks. However, one of the lessons that appears most obvious is the need to promote urban land acquisition policies and practices that are not only in need with the Bank’s own resettlement guidelines but also applicable human rights standards. As indicated in a recent report by COHRE and a number of partner organizations, both Cambodian practice and the World Bank response had fallen short in a number of regards.

It is therefore reassuring to see that the FIG’s Hanoi Declaration breaks with the tendency in South-East Asia (and beyond) to perpetuate a questionable dichotomy between pro-poor development standards and human rights. Both the text and the report are in refreshingly straightforward contrast to the World Bank statement cited above, which makes labored indirect reference to human rights standards (surely the reference to “commitment to international treaties” are not meant to invoke widget standardization or postal union), but cannot bring itself to utter the words. By contrast, the FIG gives human rights their due:

The publication should be seen as an a tool to support politicians, executive managers, decision makers and professional organisations in their efforts to deal with land acquisition in a fair way, based on legal standards, full compensation, and acknowledgement of human rights. Land acquisition should secure that adequate development opportunities are available while land rights and social sustainability are fully protected throughout the process.

The Declaration itself is sufficiently concise to be reprinted in full and not only incorporates many safeguards supported in both human rights and development standards (e.g. related to process and compensation) but also directly invokes human rights and highlights the problem of informality and the needs of vulnerable groups. Specifically the FIG asks that states:

– Provide consistent, transparent and efficient legislation and procedures for acquisition through both voluntary and compulsory means and at low transaction costs.
– Provide clear and transparent rules for inclusion of the parties involved and for determination of adequate compensation which ensures that those displaced are able to re-establish their lives and livelihoods in a proper manner.
– Ensure that good governance principles are applied for conducting the processes of land acquisition whether they are based on compulsory means or voluntary agreements. Processes must be efficient, fair and legitimate.
– Ensure that all rights are addressed including informal rights and human rights especially the rights of the poor and vulnerable.

The report on the Declaration goes on to separately discuss human rights standards in the area of compulsory land acquisition, noting that they are “still under construction” but setting out some key principles (pages 8-9). This section is a bit thin and some of the principles disputable. For instance, while the report asserts that human rights standards tend to require compensation at ‘full replacement cost’, this would not always be borne out, for instance in the jurisprudence of the European Court of Human Rights which tends to only require a reasonable relationship between compensation levels and market value. The section does not refer to specific rules or standards and although the Kothari principles on development-based evictions are referenced later in the text, one is left with the impression that reference to human rights in the report – while significant in principle – remained something of an afterthought in practice.

This said, I should not cavil. The Hanoi Declaration itself adds to the growing list of sensible, pro-poor and, crucially, rights-based standards meant to protect those with high dependence on and low recognized tenure to their homes. The surveyors of FIG have broken new ground (and arguably both some regional and professional taboos) by introducing human rights in a development meeting in South-East Asia. If meaningful change is to be achieved, it is now incumbent on human rights advocates to meet their efforts halfway.

Restitution comes to Hamtramck, Michigan

by Rhodri C. Williams

Yesterday’s New York Times reports on a case of restitution in response to a discriminatory pattern of wrongful evictions carried out beginning in the 1950s and 60s. Lake Bogoria, Kenya? Northern Iraq? Nope. Hamtramck (“pronounced ham-TRAM-eck”), Michigan, just outside Detroit.

By the Times’ account, Hamtramck is a rather independent little place that refused incorporation with the metropolis that now fully surrounds it. It is also a former Polish enclave, which now, despite having become one of the most diverse neighborhoods in the Detroit area, is still busy counting down to this year’s “Paczki Day”, featuring “polka music from Misty Blues, traditional Polish dancers, the Paczki Toss, the “Paczki Express” Historic Bus Tour, a visit from the Detroit Tigers’ mascot, Paws, and much more.”

Finally, it is also one of many American cities that used urban renewal and highway construction as a means of obliterating black neighborhoods in the 1950s and 1960s, atomizing communities, fueling the cynical practice of racial “block-busting” and ultimately driving white flight to the suburbs.

In Cincinnati, Ohio, another mid-western burgh, I grew up in the safety of the ‘burbs without ever considering the strangeness of the fact that the poor black neighborhood north of downtown went by the distinctly teutonic moniker of “Over the Rhine” or questioning why the entire western quadrant of central Cincinnati had been given over to a monstrous tangle of freeways.

It was only later, in college, when I bent my newly minted skills as an urban geography major to analysis of my hometown that I realized the design behind these seemingly random phenomena. The freeways had replaced the West End, a thriving mixed-income black neighborhood, whose uprooted residents were scattered as promised replacement housing fell far short of needs. The arrival of black families into neighborhoods like Over the Rhine was, in turn, used by real estate brokers to put greater urgency into the migration of fourth and fifth generation German immigrants and other whites to the suburban sprawl at the edge of town.

The cynicism and waste of it all was a revelation, as was the fact that my formative years had been spent in the midst of the resulting tensions and contradictions without me – or any of my peers that I can recall – having ever really questioned them. It was the late eighties then and we were still a few years shy of the great international bloom of what would eventually come to be known as transitional justice initiatives, but my experience with Over the Rhine helped to shape my own sense of the subtle but tenacious grip the past has on the present.

But back to Hamtramck: a remedy for black families displaced under the guise of urban renewal was ordered by a federal court in 1971. Despite a finding that the city had followed a clear strategy to remove blacks, the decision itself became the object of further politicking over the next two decades, according to an AP article published in January:

In 1971, after a three-week trial, a federal judge said Hamtramck had a clear strategy when it demolished housing in poor neighborhoods. Blacks were 14.5 percent of Hamtramck’s population in 1960, but only 8.5 percent six years later, noted Damon Keith, now a judge on the 6th U.S. Circuit Court of Appeals.It took until 1980 for all sides to agree to a solution: Two hundred family housing units, as well as 150 units for senior citizens, would be offered at below-market rates to black plaintiffs in the lawsuit. It didn’t take long to build the senior housing, but construction on the rest didn’t start until 2004.

“Attitudes, funds and skills were the three missing ingredients,” said Michael Barnhart, attorney for the victims. “The city was still fighting it. Secondly, they didn’t have the money. Hamtramck was in and out of state receivership.”

The city’s current lawyer, James Allen Sr., agreed.

“This litigation was used as a political wedge issue. The us-versus-them mentality kept people in political office,” he said.

That changed when Gary Zych became mayor in the late 1990s. He said resolving the discrimination case was a moral issue as well as a practical one. Hamtramck couldn’t develop vacant land for other purposes until it built the subsidized housing.

It has been a long time coming, but restitution is currently well underway in the teeth of the financial crisis, with 100 homes completed for rental or sale and the rest slated for completion within the year. The remedial program also follows a lot of what would elsewhere be called transitional justice best practices. For instance, where direct victims have died since the case was brought, their children and grand-children are entitled to move into the new housing in their stead. Implementation of the program has also been assisted through consultative processes brokered by civil society actors including fair housing advocates and local clergy. And, perhaps most important, delivery of the houses has been accompanied by genuine acknowledgment of the harm that was originally done through the clearances. As reported in the Times:

Just weeks ago, [displaced former resident] Ms. Sanders moved into a new ranch-style house on the same street where her family once lived, and Gov. Jennifer M. Granholm personally handed over the keys. As a young lawyer, Ms. Granholm was a clerk to Judge Keith [who issued the 1971 decision] in the late 1980s.

“We went full circle, and it’s pretty wonderful,” said Ms. Sanders, whose parents, now dead, were among the 250 plaintiffs who sued the city. “To acknowledge that, O.K., they were wrong, that gives me a little satisfaction because my parents were mistreated so. I just wish they were here to see it.”

Restitution in Hamtramck stands out both for the fact that it happened at all and for its isolation. Urban renewal and highway extensions were commonly used to clear black neighborhoods in the decades after World War II, but Hamtramck appears to represent the only judicial challenge to this practice that was brought to fruition. If it were to be taken as a nationwide precedent, the implications for municipal governments across a broad swathe of the midwest from Cincinnati to Syracuse would be significant (to say the least). From a legal perspective, the statutes of limitation for such suits have surely long since run, whatever arguments one might make about the capacity of the victim to bring suits at the time of the violations. Again, from the Times:

The home building is also what experts call a bittersweet finale to one of the longest-running housing discrimination suits to weave its way through court, having begun in the civil rights era. Beyond its age, the case is also distinctive in that it happened at all. While Hamtramck may be an extreme example, experts said housing discrimination against blacks in the mid-1900s was common, but class-action lawsuits were rare because of their expense and complexity.

However, from a social perspective, the Hamtramck decision, along with its belated acceptance and implementation, stand as another reminder of the fact that Americans, even in the age of Obama, still do not benefit from a completely level playing field. The opportunities of my white suburban classmates were shaped by the mobility their ancestors had enjoyed to move out of neighborhoods like Over the Rhine to suburban areas with well-funded schools and subsidized highways. Meanwhile, the opportunities of many black teenagers of my generation were crimped by policy decisions and commercial practices that destroyed the viable neighborhoods built by their grandparents and barred them access to better ones.

Given the American allergy to being described by the human rights concepts we were instrumental in developing, it wouldn’t do much good to talk about transitional justice. And anyone who turned up in Hamtramck with a copy of the Pinheiro Restitution Principles would probably end up at the wrong end of the annual Paczki Toss. So, in more American terms, it is at least satisfying to see justice done in Hamtramck and know that even if the settlement there will bring no material benefit to the thousands of families uprooted in other mid-western cities two generations ago, it may at least bring a degree of acknowledgment.

Iraq updates its approach to former regime-related land and property claims

by Peter van der Auweraert

Away from the glare of international attention, Iraq continues to work on addressing the former regime’s wrongful confiscations of tens of thousands of properties during its many years in power. Figures are the best way to show to what extent former regime-related land and property claims remain an important issue in Iraq today:

  • 79,349 claims have been resolved at the first instance level, leaving 80,409 claims for which so far no review has taken place (a first instance decision rate of fifty percent is not bad if you keep in mind that the period in which this was achieved include the violent years 2006 and 2007 (for a comprehensive timeline of the war in Iraq, look here);

  • the picture darkens somewhat, however, if you look at the total number of final decisions which currently stands at around 43,300 claims, i.e. about 25 percent of the total caseload only. No restitution or payment of compensation takes place before a final decision is taken. So in the eyes of the Iraqi public, its only this final decision number that really matters;

  • it is getting into some detail, but there is another figure that is important for a full assessment of the CRRPD process: these figures of resolved claims include 23,170 so-called “annulment decisions” taken in respect of “grossly incomplete claims”. The point is that they took little or no review-time and hence inflate the actual progress (especially since it is unlikely that the 80,409 remaining claims hide another large group of easy claims).

This slow progress has caused quite some discontent with the CRRPD process amongst Iraqi politicians, especially those who represent predominantly Shiite, Kurdish or Turkmen constituencies (most of the claims come from these communities). Feelings are especially strong in Northern Iraq, where land and property claim numbers are high (look here to understand why) and the resolution rate is well below the national average.

Not a big surprise then, that, just before the elections, the Iraqi Parliament voted a new law to overhaul the CRRPD process. This new piece of legislation has been in the works for quite some time: the CRRPD itself presented a first proposal to amend its mandate law almost two years ago (this proposal was followed by an alternative, quite different, proposal from the Prime Minister’s Office). But now that the new law is there, the important question is: will it indeed improve the CRRPD process?

After an initial reading, I would rate the following changes as positive for the process:

  • the increase from one to three appeals chambers. This should speed up the appeals process, currently a massive bottleneck. My fear, however, is that it will not speed up things enough (for the why, read the first bullet point under negative changes here below);
  • it will now be up to the Judicial Committees to decide whether to return the property or pay compensation, where before it was up to the claimant to choose. If this new provision is applied wisely, it will facilitate the conclusion of complicated cases where restitution was never going to be a feasible option;
  • the value date for the calculation of compensation is now no longer the date on which the claim was filed, but the date on which the last valuation was carried out (which is (much) close to time of the first instance decision). A change of valuation date should generally increase compensation amounts, which in turn should facilitate enforcement (anecdotal evidence suggests that enforcement of restitution decisions is patchy, higher compensation may encourage more current occupiers to depart willingly).
  • the permanent appointment of the staff and their guaranteed transfer to the Ministry of Finance once the Commission ends its work was apparently included to reduce incentives for the staff to delay the process. I am skeptical that this will result in considerable efficiency gains, but gave it the benefit of doubt and included it here under the positive innovations.

The following list contains changes that are likely to have a negative impact or that, at least in my view, were wrongly omitted from the new law:

  • the current practice of automatically appealing against any decision where the interests of the Iraqi State are at stake is now enshrined as an obligation in the law itself. In reality, most decisions concern the Iraqi State, either because it has to return property or because it has to pay out compensation (to give an idea, the current appeals rate for claims in Kirkuk stands around 80 percent, mostly because of appeals against state-related decisions).This practice has been the single most important cause of the slow progress of the CRRPD process. It sends the wrong message to claimants (how does this rhyme with the Iraqi State remedying past wrongs?); is a waste of resources (the vast majority of automatic appeals lead to the approval of the first instance decision); and is likely to continue clogging up the appeals process, notwithstanding the increase to three chambers.
  • claimants who felt that they received too little compensation under the CRRPD law, are given the right to apply again for additional compensation. The way this is drafted potentially gives all claimants who received a final compensation decision under the CRRPD the right to obtain additional compensation. Did the CRRPD process really need the re-opening of old cases?
  • the law does not introduce a simplified process for dealing with a significant proportion of the claims that are really quite straightforward. I am thinking of claims by previous owners against the Iraqi State for the return of land that is currently not being used by anyone else. This would have been an easy way to decongest the process, and free-up resources for more complicated cases.

For some changes, it is difficult to know what the impact will be:

  • the appeals process now falls under the competence of the Federal Cassation Court, where before the CRRPD had its own, separate Cassation Commission. Some Iraqi lawyers I spoke to voiced concern that this would lead to a more restrictive (read less victim-friendly) jurisprudence, but I simply do not know.
  • the Commission, while remaining independent, is now institutionally linked to the Parliament rather than the Council of Ministers. Will this change the level of oversight? Difficult to know at this stage.
  • a new goal of the law is “to preserve public money and address the imbalance between the interests of the citizens and state interests”. Again, difficult to say, but will this provision result in a less victim-oriented process?

By the way, the new law also abolishes the CRRPD, replacing it with a new commission called the Property Claims Commission (PCC).  It is much less dramatic than it sounds: the PCC will take over the mandate, staff, buildings and administrative structure of the CRRPD. So its more of a name change than anything else (one parliamentarian told me that the reason for adopting a new law and establishing a new commission, rather than making amendments to the existing CRRPD law, was that the changes would have affected more than half of the CRRPD law’s provisions, a proportion considered unacceptable for a simple amendment). This is one change of which we can be sure that it will have little impact on how the remaining land and property claims are dealt with.

Guest blogger Peter van der Auweraert on Iraq restitution

It’s a pleasure to announce an upcoming guest posting by Peter van der Auweraert of the IOM Reparations Programmes. As discussed in postings from last Friday and Sunday, Peter is an expert on property issues in Iraq and has worked closely with the Iraq Commission for Resolution of Real Property Disputes (CRRPD), the body responsible for addressing pre-2003 restitution claims. Peter will be focusing on an issue he raised in response to Friday’s post, namely the significance of amendments to the CRRPD’s organic law that were passed just before last weekend’s parliamentary elections.

As an administrative aside, I gather that some of you may have been put off from commenting on earlier posts by the formalities apparently involved. As I understand it, the first time anyone comments, the text is put in a queue to await my personal approval. Once you have passed my rigorous inspection (no split infinitives, please) for the first time, all your subsequent comments will apparently be posted without any such rigamarole.

Staying ahead of the rains in Haiti

by Rhodri C. Williams

The latest OCHA situation report on Haiti indicates that the challenges there continue to mount even as the situation there has well and truly slid from the headlines. As reported previously on this blog, humanitarian and early recovery actors are having to focus on a double displacement crisis affecting both the earthquake affected urban areas and large areas of the countryside where the displaced have found shelter with host families. In both cases, significant progress will have to be made before the impending summer rainy and hurricane season if further humanitarian crises are to be averted.

In the cities affected by the earthquake, and notably the capital Port au Prince, emergency humanitarian work remains to be done even as international actors scramble to institute more sustainable, transitional approaches. According to OCHA, as many as 13,000 people in the capital still may have received no aid whatsoever, and only fifty percent of those in need have received emergency shelter materials such as tents and tarpaulins. Direct food distribution is going into a second phase and rising rates of malaria are a harbinger of the rainy season to come. However, greater attention is also now being given to matters such as resuming schooling and providing psycho-social support for children – some 45% of Haiti’s population – as well as working with local partners to monitor the security and human rights situation in displacement sites.

Another crucial – and time sensitive – urban priority involves identifying, securing and preparing safe sites for transitional shelter. Here, the OCHA report’s description of efforts in both the capital and other affected towns indicates the extent to which consciousness of legal tenure as well as the physical appropriateness of sites has been incorporated into shelter planning:

Efforts to decongest overcrowded settlement sites in Port-au-Prince continue, with priority being given to sites that are particularly prone to floods and landslides during the rainy season. Relocating some 200,000 persons currently displaced in high-risk settlements would require approximately 600 hectares of land. The Government has so far identified five sites comprising a total of about 220 hectares in the following locations: Sibert, Villages Des Orangers, Carail Cesselesse, Villages Des Antilles and Tabarre Issa. These five sites identified by the Government for resettlement of displaced people have been assessed and are judged to be fit-for-purpose although some drainage work is required. Preparation of sites will commence in the next three days on 12 hectares of land that are public property; the remainder is still subject to negotiation for purchase with the landowners. Humanitarian actors are currently identifying organizations to support the Government in site planning and development, as well in the preparations for relocation. Meanwhile, the relocation site Santo 17 is almost complete in terms of site development and should be inaugurated shortly.

The situation in the countryside is also critical, with the closing window of time before the rainy season representing not only a threat (of further disasters) but also an opportunity (to get crops planted in time). Although some early flooding in the region is likely to result in localized crop failure, FAO has begun seed distribution in hopes that most farmers will be able to stay ahead of the rains. The presence of tens of thousands of internally displaced persons (IDPs) in rural host communities has created further pressure on agriculture as well as basic services:

Approximately 160,000 people are also estimated to have arrived to the border areas with the Dominican Republic from other areas affected by the earthquake. The majority of these displaced persons have not been accommodated in camps or settlements but by host families in communities. These communities, particularly in rural areas, where the displaced have arrived and found refuge have historically been very poor. With the arrival of large numbers of people from Port-au-Prince, the basic services there – schools, health centers, water supply – as well as the local economy – have been severely overstretched. UN missions visiting these areas inside Haiti, such as Fonds Verrettes in the South-East, or Ouanamithe in the North-East, have witnessed households that were composed of only 4 to 5 persons before the earthquake, are now housing 12 to 15 individuals.

Under normal circumstances, the fact that we are not hearing about Haiti anymore would allow the public to draw reassuring inferences – the crisis is over, reconstruction is underway. In this case, it may literally be the calm before the storm.

Riots in Jos, Nigeria about land as well as identity

It won’t come as a surprise to many readers here that the recent tit-for-tat ethnic/sectarian violence in Jos, central Nigeria is based on a complex blend of factors including land access disputes and identity issues that go beyond the obvious (Muslim-Christian) to take in some of Africa’s less well known post-colonial neuroses (indigene-settler). NY Times Lede blog has pulled it all together rather nicely today so I will defer to them:

http://thelede.blogs.nytimes.com/2010/03/08/violence-is-not-religiously-motivated-nigerian-archbishop-says/?ref=world

Is the Myanmar junta preparing to “eat the country” a la Cambodia?

by Rhodri C. Williams

The NY Times this morning has picked up an interesting story on a mysterious but extensive sale of state assets underway in Myanmar (Burma). The items on the block run the gamut from the national airline, mines, farmland and factories to health and education facilities. The Times notes that many of the deals seem to have been wrapped up with the existing regime-friendly oligarchs and the military and that the proceeds are likely to aid the current regime’s upcoming election campaign; splashing out can presumably help the incumbents win the 26% of seats they will need, on top of the 25% they have constitutionally reserved for themselves, in order to rule the country.

Nevertheless, the relinquishment of direct state control over many of the means of production is seen as a potentially positive step toward a more liberal variant of ‘managed democracy’:

… the privatizations could also have the effect of injecting some competition into what is an almost Soviet-style economic system, and some analysts here say they may herald a shift in direction. Reformers in the government, they say, may be hoping to follow a path similar to that of China or Vietnam, where the economies have been liberalized but the ruling party has remained firmly in charge and has tolerated little dissent.

Sadly, invoking even the unapologetically authoritarian regimes in China and Vietnam may be setting the bar a bit high. Another viable model in southeast Asia may be Cambodia, where the destruction of both traditional and modern institutions under the Khmer Rouge regime has been followed by an astonishing thirty year run in power by the regime – and the man, Prime Minister Hun Sen – installed by the Vietnamese after their 1979 incursion.

As described in my 2008 report for COHRE, as well as by many other observers, Hun Sen has been incredibly astute at drawing on Cambodia’s historical tradition of patronage in order to shore up political loyalties based on debt and revenue streams while donning and doffing political ideologies as necessary to maximize international support.

Notably in analyzing Burma, Hun Sen was early out in privatizing land, not only because he saw which way the wind was blowing in the late 1980s, but also because it allowed him to lock in this valuable asset for his supporters and exclude restitution claims by the 300,000 exiles in neighboring Thailand, with whom he could reasonably suspect he would soon be forced to come to some type of political settlement.

Since the peace agreement in 1991, the regime has continued to treat the country’s land resources as a slush fund, resulting in the widespread grant of dubious concessions, land-grabbing, speculation and ultimately flight to wretched urban informal settlements for many of the country’s hard-pressed rural majority. Land has remained such an issue that it has not infrequently been invoked as Cambodia’s number one human rights problem – an impressive achievement considering that the competition includes the muzzling of press freedoms, arbitrary arrests and detention and a tradition of discouraging the political opposition that began spectacularly in 1997 with Hun Sen’s party killing or exiling most of the high-ranking members of its main coalition partner.

The rate at which the Hun Sen regime has continued to “eat the country” (in a local phrase describing patronage behavior that will be eerily familiar to Kenya observers) appears to have accelerated recently in light of at least two developments. First, an increasing amount of Cambodia’s development aid is now coming from China. Where the West has traditionally encumbered their extensive support to the Cambodian budget with troublesome (if relatively easily circumvented) human rights demands, China has been more laissez faire in attaching conditions to its investments. Indeed, the relatively superficial impact of three decades of Western human rights evangelism was recently laid painfully bare when China used its influence to secure the refoulement of twenty ethnic Uighurs who had sought asylum in Cambodia. The UNHCR, which had previously viewed Cambodia as “a refugee model for southeast Asia“, sent personnel to the airport in vain to try to physically stop the deportation.

A second factor has been the global financial crisis and the accompanying trend toward the acquisition of land in developing countries by companies and governments of developed ones. Given the continued lack of rule of law and rent-seeking behavior of Cambodian officialdom, the Guardian’s spectacular assertion in April 2008 that foreign interests had been permitted to buy nearly half of the country’s territory was all too credible. Although Cambodia has subsequently moved toward more uniform regulation of foreign investment in land and property, concerns remain that this could be another instance of legislatively closing the barn doors after the horses have already bolted. Indeed, the recent discovery of oil reserves in Cambodia has highlighted the extent to which natural resources, like land, have been squandered for short term profit. Global Witness alleged in 2009 that

… rights to exploit oil and mineral resources have been allocated behind closed doors by a small number of powerbrokers surrounding the prime minister and other senior officials. The beneficiaries of many of these deals are members of the ruling elite or their family members. Meanwhile, millions of dollars paid by oil and mining companies to secure access to these resources appear to be missing from the national accounts.

Last week, Global Witness condemned a new wrinkle in Cambodia’s marriage of modern investment promotion and traditional predatory government behavior, namely the formation of  forty-two “official partnerships” between private businesses and Cambodian military units. This program, apparently backed by Prime Minister Hun Sen, is described as effectively turning the military into a private security force available to the highest bidders:

“Yet again, Cambodia’s donors are being mocked by the government’s blatant violation of basic governance and transparency standards. The existence of a strong patronage system between the military and private business is not new. But what is different and shocking is that it has become official government policy,” said [GW Campaigns Director Gavin] Hayman. “Donors should send a firm and decisive message that Cambodia’s military exists to protect the people, not the financial assets of a privileged few.”

The World Bank has repeatedly noted that economic growth in Cambodia, while consistent and high over the last years, has tended to increase inequality. In a report last year, the Bank identified inequality as one of three “challenging areas for further analysis” along with urban management and environmental stress:

Various indicators show that inequality has indeed increased significantly over the past four years: such rapid increase in inequality is not only politically and socially undesirable, it also tends to be inimical to sustained rapid growth.  (executive summary, xvi)

The Bank also noted in a report two years earlier that inequality was exacerbated by “increased concentration of land ownership, together with insecure land tenure” (executive summary, i). In a 2006 poverty assessment of Cambodia, the Bank noted that Cambodia’s inequality not only set it apart from other emerging economic powers in the region, but threatened the country’s potential to continue its post-Cold War growth spurt:

The experience of countries (e.g. Vietnam) which have created broad-based growth which includes the poor to a greater degree suggests also that such patterns of shared growth are more stable (and often higher) than growth patterns (such as that seen in Cambodia) which are based on a few enclave sectors and in which the benefits of growth accrue disproportionately to those who are already rich. (page 30)

Returning to Myanmar, one is left with the conclusion that the Vietnamese development path may would be highly desirable but may not be in the cards. For a regime that is hungry to remain in power, eager to consolidate conflict gains before engaging in political reconciliation, and now apparently willing to treat property it supposedly held in trust for the country as a means of securing short-term cash and political loyalty, the Cambodian development path appears a lot more likely.

And in a final touch of sad irony, the timing and circumstances of this belated economic ‘opening’ are such that it is likely to destroy one of the few potential assets accrued during the decades of dirigiste stagnation, namely preservation of a capital city in Asia that had remained beyond the reach of the wave of charmless high rise megalomania that had overtaken many of its peers. As reported by the Times:

In recent days, the country’s Privatization Commission produced a list of 176 assets in Yangon, the main city, to be auctioned off sometime over the next few weeks. The 18-page list, which was shown to prospective buyers, includes a wide-ranging roster of buildings in Yangon worth hundreds of millions of dollars.

The list, which covers only part of the privatization plan, features many former government offices, notably the lakeside office of the attorney general, the national archives, the auditor general’s headquarters, the archaeology department and the Ministry of Industry.

The buildings were abandoned when the capital was moved to the more remote location of Naypyidaw in 2005, and their sale would seem to ensure that the move was irreversible.

The businessman said it was likely that dozens of colonial-era buildings would be torn down. “I feel like I’m bleeding,” he said.

We can only hope that the decision to supplement bogus democratization with crony privatization does not leave Myanmar worse off than when it had neither.

More to come on property issues in post-election Iraq

Just a quick update on Sunday evening, at which time it appears that sporadic but significant violence in Iraq was shrugged off, with high turnout throughout the country. Following up on my last post, I should refer readers to an interesting comment in response by Peter van der Auweraert, who pointed out that the law on pre-2003 restitution was amended just before the election – and apparently not in an entirely constructive manner.

For more background, it is worth reading an excellent report on property issues in Iraq by Peter together with Debbie Isser at USIP. And for those who can’t resist the lure of legal prose, the laws leading up to the amendments Peter references include the original regulations by the Coalition Provisional Authority (numbers 4, 8 and 12) as well as the 2006 Iraqi law which continued the process begun under the prior CPA regs while amending their terms considerably. It is the latter law which was apparently recently amended.

Iraq’s next Parliament to inherit unresolved displacement and housing crises

by Rhodri C. Williams

Parliamentary polls in Iraq have gotten off to a bloody start and pre-election controversies over attempts to bar former Baathists from running – as well as ongoing tensions along the boundary with the Kurdish region in the north – do not bode well for stability in the post-election period. However, in its latest overview of internal displacement in Iraq, IDMC issued a timely reminder yesterday that the human consequences of earlier rounds of violence remain unresolved.

For starters, hundreds of thousands of Iraqis remained displaced within Iraq and in neighboring countries as a result of the sectarian violence that exploded after the 2006 bombing of the Al-Askari shrine in Samarra, and one of the main obstacles to durable solutions remains occupation of their homes:

There are significant numbers of unresolved property issues for pre- and post-2006 IDPs. The current extent of secondary displacement is not known, though an estimated 15 per cent of returned IDPs and 56 per cent of repatriated refugees were in 2009 reportedly unable to access their property (UNHCR, December 2009). In September 2008, MoDM reported that almost 3,500 properties were illegally occupied, including houses, flats, other buildings and land, though anecdotal evidence suggests higher rates of secondary occupation. Nearly 36 per cent of IDPs report their property has been destroyed or damaged and 18 per cent that it is being occupied illegally by militias, local residents or other IDPs; many fear harassment should they attempt to reclaim property (UNHCR, December 2009).

Meanwhile, the background to this displacement crisis is a housing crisis of monumental proportions, with some 1.3 million housing units – or just under one-third more than the current nationwide total of 2.8 million – needed in order to meet demand. The NY Times recently reported on the effects of the shortfall in housing, a daily round of “bathroom crises” that loom larger in the lives of many ordinary Iraqis than lustration of Baathists or distribution of oil revenues:

Beneath the grand issues hanging over Iraq, like the coming national elections or the continuing violence, the day-to-day lives of most Iraqis turn on more quotidian concerns: the lack of electricity; the pervasive corruption; and a housing shortage that forces two, three, even four families to live under the same roof.

Finally, an ongoing process of returning property wrongfully confiscated by the Baathist regime before 2003 is likely to constitute a headache not only for the next round of Parliamentarians but the next…and the next…and the next. A statement by Peter van der Auweraert of IOM at a conference on Iraqi displacement last November indicated that even this fairly well-established restitution program will take two decades to complete at current rates of processing.

As Mr. van der Auweraert and other observers have noted, relatively simple reforms could drastically speed both the pre-2003 and post-2006 restitution processes. Moreover, implementation of a National Housing Plan currently under development with input from UN HABITAT could both facilitate restitution in the short term and put paid to the thousands of bathroom crises over the longer view. A pretty tall order for a new Parliament, but a crucial one.