Monthly Archives: May 2010

News from Bosnia – ECtHR Dokic decision and guest blogger Massimo Moratti’s view from the field

It can be hard to get around Bosnia in looking at post-conflict housing, land and property (HLP) issues. For better or for worse, Bosnia set the post-Cold War paradigm of mass administrative restitution that laid the ground for the 2006 Pinheiro Principles, and which has since been roundly criticized as raising false expectations in settings with weaker national capacities, vaguer international commitments and less tidy, uniform and (relatively) equitable land and property relations. However, despite the importance of looking beyond the Balkans in developing a clear-eyed view of the HLP challenges that lurk in such heterogeneous settings as Sudan, Afghanistan and Colombia, yet Bosnia refuses to be silent.

Late last week, the Fourth Section of the European Court of Human Rights released its judgment in the Case of Dokic v. Bosnia and Herzegovina (see the press release here and the full text of the decision here). This decision awards compensation for pecuniary and non-pecuniary damages to a military school lecturer who had begun the process of privatizing his socially-owned flat prior to the conflict in Bosnia and was subsequently denied a remedy for the loss of his rights due to a quirk in the restitution laws of one of Bosnia’s two post-war federal “entities” that created special rules for “military apartments” from the pre-war housing fund of the Yugoslav National Army (for a more detailed description of this controversy see section VI.D of a 2005 article I wrote on Bosnian restitution).

In issuing this decision, the Court ties up one of the many legal loose ends that continue to haunt the former Yugoslavia a decade after the fighting stopped. The judgment also further rounds out the restitution and compensation-related jurisprudence of the Court under Article 1 of the first Protocol to the European Convention on Human Rights and – upon becoming final – is likely to have significant political and financial implications in Bosnia and possibly the wider region. Among many of its interesting aspects (to be discussed in more detail in a subsequent post), the judgment also cites not only the Pinheiro Principles but also the more recent Resolution 1708 (2010) of the Parliamentary Assembly of the Council of Europe (see TN posting here) as ‘relevant international documents’.

The Dokic decision carries with it a number of personal associations for me. At the end of my time with the OSCE in Bosnia, I drafted and presented an amicus curiae brief to the Bosnian Constitutional Court that asserted one of the three arguments – failure to demonstrate use of confiscated military apartments for the asserted humanitarian aims – that the ECtHR relies on in finding a violation (see para. 61). And more recently, I had the privilege of assisting the CoE PACE Rapporteur, Jorgen Poulsen, in developing a report that helped lead to the adoption of Resolution 1708.

In this context, it seems fitting that the Dokic decision was nearly simultaneously brought to my attention today by former Bosnia colleagues Massimo Moratti and Javier Leon Diaz, and that the former will be guest-blogging later this week on his view of the longer term repercussions of restitution in Bosnia. Massimo was one of the architects of Bosnian restitution, with  experience opening the process up in Prijedor, the site of notorious ethnic cleansing during the war, as well as managing monitoring and policy formulation at both the regional and national level with the OSCE. Having gotten a bit of perspective as an international consultant and more recently returned to work again in Bosnia, Massimo’s forthcoming observations provide a strong and locally grounded complementary note to the legal conclusions in the Dokic case.

Online events – disaster-proofing housing and the development effect of agriculture

I have a very poor record of “attending” online seminars, but two interesting ones are coming up in the next fortnight and deserved a plug.

First, the Virginia (USA)-based Center for Housing Policy will have a “webinar” this Friday, May 28, highlighting its new “online toolkit to highlight the need for greater proactive mitigation measures for homes in areas vulnerable to natural disasters.” The event is likely to be particularly oriented toward authorities and advocates in the US, but may well have a degree of international resonance, in particular by way of its focus on “ways to help lower income families pay for upgrades and retrofits that can make their homes more resilient to disasters.”

Second, the UN University in New York will hold a web-cast book launch event next week Wednesday for “The (Evolving) Role of Agriculture in Poverty Reduction: An Empirical Perspective” by Luc Christiaensen, Senior Research Fellow at UNU-WIDER, Helsinki, Finland. Mr. Christiaensen will lecture on the effects of investment in agriculture in the developing world: Continue reading

Pinheiro passed over for Croatian candidate

Late last March I posted on how Paulo Sérgio Pinheiro, the author of the famous restitution principles, was a finalist candidate for the new Assistant Secretary General for Human Rights post at UN Headquarters in New York. Turtle Bay more recently reported that the honors went to Ivan Simonovic, a Croatian politician who has been associated with the nationalist former President Franjo Tudjman, and whose current stint as Justice Minister has drawn criticism from Amnesty International for failure to aggressively pursue war crimes prosecutions. Mr. Simonovic has undoubtedly been thoroughly vetted and defended his human rights record in an interview last Friday with Turtle Bay. However, given the policy of some of Mr. Simonovic’s political mentors of ridding the country of much of its Serb minority, one can only hope he himself would have a few good things to say about the Pinheiro Principles in a candid moment after a round or two of rakija…

Mapuche land claims shake post-quake Chile

by Rhodri C. Williams

TN readers of longer vintage will recall that I posted a few times on the humanitarian situation in Chile after the quake that hit at the end of February, only weeks after the devastation in Haiti. However, given the higher level of preparedness in Chile and the fact that government institutions remained intact and capable of responding in a robust manner, the types of acute humanitarian and land issues seen in Haiti did not seem to be at issue.

As a result, it came as a bit of a shock to discover that land may actually be more contested in Chile than in Haiti, and that the potential for land-related violence existed prior to the disaster and may have been exacerbated since, both due to the immediate diversion of attention to the reconstruction effort and the longer term effects of the new law-and-order government of President Sebastian Piñera, who took office just weeks after the quake.

Freelance journalist David Dudenhoefer writes in OpenDemocracy this week on the Mapuche, Chile’s largest indigenous group, which inhabits precisely the area the quake hit hardest. While I would highly recommend that readers go directly to Mr. Dudenhoefer’s article,  a few points are worth summarizing here. The Mapuche were militarily conquered in the 19th century, granted ‘mercy title’ to a fraction of their former territory, and then progressively lost even that in the course of decades of repression, deforestation and commercial pressure on their lands. Continue reading

The Terezin Declaration and new guidelines on inter-generational restitution

by Rhodri C. Williams

A short note to announce an interesting development related to Holocaust restitution. Although the opening of archives and the softening of unenlightened political positions after the Cold War contributed to a surge in efforts to provide reparations to Holocaust survivors, former forced laborers and other victims of the Nazis, these have tended to comprise cash compensation, symbolic acts such as apologies and various forms of rehabilitation. Actual restitution of confiscated real estate has lagged behind, dogged by the usual problems facing inter-generational restitution (loss of witnesses and documentation, competing claims from bona fide subsequent purchasers, etc.) along with grim particularity that so many of the beneficiaries were murdered along with all potential heirs.

However, a little known achievement of the rather stormy Czech EU presidency last year was the convening of a ‘Holocaust Era Assets Conference‘ in Prague in order to “support Holocaust remembrance and education in national, as well as international, frameworks and to fight against all forms of intolerance and hatred.” While the work of the conference focused on a variety of topics from restoring looted art works to education and research, one of the goals set for the participants related more directly to lost property: Continue reading

The Commercial ‘Land Rush’ – human rights-based versus corporate social responsibility models

by Chris Huggins

Over the past few years, investors from high- and medium-income countries, including state agencies, have started to lease large areas of land in lower-income countries for commercial agricultural production. The pattern is likely to continue due to increasing demand for food in emerging super-economies such as India and China, rising oil prices and scarcity of water and land.

Both the numbers of land deals and the size of landholdings being leased or purchased have significantly increased over the past five years. According to the World Bank, the rights to some 50 million hectares in Africa alone have either been acquired since 2006 or are under negotiation, while NGOs like GRAIN estimate that a far greater area is affected. Countries selling or leasing farmland to investors are primarily low-income countries in Africa, and to a lesser extent Asia and Latin America. In Africa, countries selling or leasing very large areas of land include Sudan, Mozambique, Mali, and Ethiopia, and many other countries have seen smaller deals. The Agricultural Investment Agency in Ethiopia is reportedly considering offering foreign firms three million hectares of land over the next two years.

Principle investors include governments and firms from Bahrain, China, Egypt, India, Japan, Jordan, Kuwait, Libya, Malaysia, Qatar, Saudi Arabia, South Korea and the United Arab Emirates. Investors are motivated by both profit margins and domestic concerns over food security. The global agriculture sector is faring well despite the ongoing financial crisis, as demand for food is less income-elastic than other commodities. This suggests that foreign direct investment for food production is likely to increase, rather than decrease, in the future. Demand for bio-fuels is also likely to contribute to this trend, as long-term projections suggest increases in the price of oil. In addition, the impending water crisis is likely to have an impact. Governments leasing agricultural land abroad also use foreign water to grow the crops, effectively importing ‘virtual water’ along with the food. Continue reading

Upcoming guest-postings – Chris Huggins on the ‘Global Land Rush’

I am very happy to announce that Chris Huggins, who previously wrote here on the implications of the AfCHPR ‘Endorois decision’ for East Africa, will shortly be guest-posting again in TN. This time, he will be looking at development and rights-based responses to the ‘Global Land Rush’ (which has also been described less flatteringly as a ‘Land Grab’ and more cautiously in terms of new ‘commercial pressures on agricultural land’). However, one describes it, the land rush appears to present some fairly serious challenges, both to an emerging normative conception of land relations in which settled use of untitled land gives rise to rights, and, at a more practical level, to the need to ensure that foreign investment results in equitable local development in a time of fluctuating food prices, climate change, and increasing food insecurity in many parts of the world.

It is Chris and my sincere hope that it may be possible to trigger a non-strident but substantive discussion of this important issue on TN. However, while readership remains high, we haven’t succeeded in generating a great deal of debate in the wake of past postings (sadly, the spammers still have the upper hand). I would therefore like to invite readers who are interested in the issue to consider responding to Chris’ introductory piece, ideally in the form of a guest posting. Please contact me directly if you are interested and if we can get enough responses going, I will aim to move the discussion to a dedicated page on this blog.

In the meantime, I remain interested in receiving proposals related to guest-posting on other land and property related topics. I am pleased to say that a number of such postings are in the works, ranging from reflections on the long-term effects of post-conflict restitution in Bosnia to feudalism in Central Asia and perfidy in Cambodia, but more reflections on other topics in other parts of the world are always welcome!

Back from the property frontlines…

A quick administrative note to apologize for the recent gap in postings – in addition to a heavy workload, my family recently found itself faced with the need to vacate a sublet apartment on fairly short notice and we launched ourselves into the awesomely expensive and numbingly over-regulated Stockholm real estate market. I could start a whole blog on that, but suspect that interest may be limited! Suffice it to say that from now on, my philosophical ramblings on the nature of property rights will be infused with the elemental urgency of one who has just taken on a very large mortgage in a foreign currency with far too many zeros for anybody’s good.

Also, in followup to the recent guest posting by Alexandre Corriveau-Bourque on customary institutions and land conflict in Liberia, I would like to point out a recent article in IRIN, brought to my attention by Laura Cunial. The article notes that tensions over land in Liberia have not abated, with about 250 deaths since the end of the conflict attributed to disputes over land and property. It also points out that mediation and customary adjudication, for all the flaws identified by Alexandre in his report and posting, remain the only viable mechanism for the time being to containing such conflicts on the ground.

Liberia’s ‘Peace Imperative’ – can it undermine tenure security? An introductory commentary to the NRC report ‘Confusions and Palava’

by Alexandre Corriveau-Bourque

Since the end of the civil war in 2003, the Liberian government and the United Nations peacekeeping mission (UNMIL) have been working to stabilise the country and rebuild a functioning state. Despite their ability to (arguably) maintain political stability at the macro scale, the ability of the state to effectively intervene in localised problems is limited. Many of these localised disputes manifest themselves over land, as individuals return to their pre-war homes or resettle in an attempt to rebuild their lives and encounter a complex web of often conflicting claims on the same parcel.

This process is situated in a context of recent massive social disruption which indelibly altered the pre- war systems of authority that regulated access to land resources.  Since the judiciary can only intervene in the rare cases in which formal title deeds are involved, the state is limited in its ability to enforce the rule of law with regards to land relations.  As a result, individuals are predominantly reliant on customary and informal institutions to resolve disputes. For reasons articulated in a recent report from the United States Institute of Peace, many Liberians prefer to use mechanisms for informal mediation, even for disputes that could technically be handled by the courts.

However, the repeated displacement and return of populations has forced individuals and groups to forge new networks and relationships, giving rise to new opportunities to question or challenge the legitimacy of pre-war authorities. As such, while disputes may be between individuals, their ability to seek out alternative fora for a resolution that will satisfy them often brings multiple systems or networks into conflict with each other. The NRC report notes that opportunities for individuals to forum-shop increases as one gets closer to official cities in Lofa County. One means to secure contentious claims is through formal land title, which cannot necessarily be acquired in all parts of Lofa County. As one travels further away from the cities, customary authorities appear to command a stronger control over local communities’ land practices and relationships. Continue reading