Monthly Archives: July 2010

Supreme Court of Brazil to rule over Quilombo communities’ rights to land – arguments for a protective approach

by Leticia Marques Osorio and César Augusto Baldi

The Supreme Court of Brazil will start soon the judgement of the constitutionality of Presidential Decree 4887 of 2003 which regulates the procedure for granting property titles to Quilombo communities over the lands they occupy. The Decree establishes the modus operandi of the procedure for granting the Quilombo communities the right to property enshrined in article 68 of the Temporary Constitutional Provisions Act of the Brazilian Federal Constitution of 1988, which must be implemented by the National Institute of Colonisation and Agrarian Reform. If the Supreme Court quashes the Decree, this will paralyze a national land titling programme being implemented to benefit more than 1,400 Quilombo communities throughout Brazil (by the count of the Palmares Cultural Foundation.

Even worse, if the Decree is considered unconstitutional, the previous one – Decree 3912 of 1991 – will prevail and thus reinstate unattainable requirements for granting land titles to the Quilombo communities. For instance, these communities were required to prove that they were actual descendants of the original Quilombo fortresses right back to 1888, when slavery was legally abolished in Brazil. The Decree issued in 2003, by contrast, was elaborated by a multidisciplinary expert group in consultation with a range of civil and Quilombola organisations, and it complies with the Federal Constitution and the relevant international human rights treaties to which Brazil is a State Party, such as the American Convention on Human Rights, Convention 169 of the International Labour Organisation (ILO) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

In 2004 the Democrat Party (former Liberal Party) argued the unconstitutionality of the Decree before the Supreme Court (ADI n. 3239), with the support of the National Confederation of the Industry, the National Confederation of Livestock Producers and the Brazilian Rural Society. The arguments used to challenge the constitutionality and the applicability of the Decree threaten to undermine the rights to property and to access to natural resources of the Quilombo communities, which are recognised by international human rights law and by the Constitution. Article 216 of the Constitution recognises these communities as part of the national cultural heritage as their identity, action and memory form the Brazilian society. As such, they are entitled to be granted special protection by the State as necessary to guarantee respect for their distinct cultural identity, social structure, economic system, customs, beliefs and traditions and the preservation of their traditional way of life.

Although legally recognised, the property rights of Quilombo communities have been adjudicated at a slow pace, leaving them extremely vulnerable to forced evictions and threats by land owners, mining companies and development projects seeking to take possession of their lands and natural resources. Until December 2009, only 177 communities had been assigned ownership titles, comprising only 13% of the estimated 1,408 communities that traditionally occupy 87 territories with a total area of 1,171.579 hectares (according to the Comissão Pró-Indio São Paulo ). Out of this total only eight property titles have been issued by the current Government. The level of protection assigned to these communities will determine the extent of the preservation of their cultural legacy and its transmission to future generations.

The main arguments used by the detractors of Decree 4887 in the Direct Action of Unconstitutionality before the Court refer to (i) the inappropriateness of Decree 4887 to ‘regulate’ the Constitution; (ii) the concept of Quilombo communities; and (iii) the concept of occupied lands.

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The gloves come off – the Boeung Kak land dispute and the demise of the LMAP in Cambodia

by Rhodri C. Williams

Just a quick post to highlight COHRE’s latest ESC rights quarterly, which focuses almost exclusively on a dispute between government-backed developers and long-settled residents in the Boeung Kak neighborhood of the Cambodian capital, Phnom Penh. In the lead article, Natalie Bugalski (formerly of COHRE) and David Pred (of Bridges across Borders) summarize and update a longer report – Untitled: Tenure Insecurity and Inequality in the Cambodian Land Sector – earlier published by COHRE, BAB and Jesuit Refugee Services.

The article details the collapse of a longstanding accommodation between international donors, who hoped to eventually curb rampant land-grabbing in Cambodia through non-intrusive measures such as capacity-building and legislative reform, and the Government of Cambodia, which proved unwilling to continue playing along when international advice began to impinge directly on its core economic interests. It is a fascinating story and one which has not received the attention it deserves to date, despite the implications it has for donor-driven reconstruction and development activities in other post-conflict settings where land is regarded by local authorities as a resource subject largely to their own discretion.

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Admin note – FAO on Haitian agriculture and upcoming guest-blog on the Quilombos case in Brazil

Following on to my prior post on Haiti, FAO has now reported that rural reconstruction continues to lag behind in Haiti, primarily due to lack of funding. In doing so, the FAO describes its cooperation with the Haitian Ministry of Agriculture and “over 170 non-governmental and international organizations” (!) in the agricultural cluster, providing an interesting example of an attempt to make the occasionally arcane terminology of humanitarian reform a bit more accessible to the general public.

Also interesting is the fact that investments in rural agriculture continue to be justified both on the basis of the decentralization concept and food security. In the words of FAO Senior Emergency and Rehabilitation Coordinator for Haiti Etienne Peterschmitt, “[g]reater investment in agriculture and the creation of jobs in rural areas are needed urgently to stem the flow of displaced people back into Port-au-Prince and to support food security throughout the country.” In addition, the FAO remains cognizant of the strain that hosting IDPs has placed on rural families:

“Immediately after the disaster hit in January we focussed on areas directly affected by the earthquake,” said Cristina Amaral, Chief of FAO Emergency Operations Service. “Now we are focussing on assisting host families whose coping mechanisms were severely strained by the influx of displaced persons into their communities and to prepare for the hurricane season.”

In other news, I am happy to announce that TN will soon be hosting a guest post on the Quilombos case in Brazil by Leticia Osorio and César Augusto Baldi. The post will give a thorough background briefing on the case involving the Quilombos indigenous people that is currently pending before the Supreme Court of Brazil. The forthcoming decision will determine the constitutionality of Presidential Decree 4887 of 2003 which regulates the procedure for granting property titles to Quilombo communities over the lands they occupy. The authors have also promised a follow-up guest posting once the Court’s decision is issued.

Haiti post-quake land issues emerge into the mainstream debate – UPDATED

NB: Yesterday’s New York Times reports that a fairly minor storm hit the planned shelter area referred to in the below post earlier this week, destroying hundreds of tents and rendering about a quarter of the IDPs resettled there homeless. Several people were injured – and one infant killed – by windblown debris and lightning. Camp managers have taken this as a wake-up call and the construction of sturdy transitional shelters may begin as early as today. The article does not clearly address how the many squatters in the area in flimsier shelter fared, or whether any measures are being considered to protect them from more serious storms that are thought to be on the way.

by Rhodri C. Williams

Six months after the Haiti quake, the significance of land disputes to reconstruction now seems to be sinking in. This is highlighted in a fascinating Washington Post article on the problem of finding land to resettle earthquake IDPs in Port au Prince.

The piece focuses on Corail-Cesselesse, an area north of the capital that has been designated to be a new “Zen city” (I’m not making this up!), combining planned housing for quake-affected persons with access to jobs in a new manufacturing zone. So far, this has led to an initial planned transfer of IDPs from particularly dangerous (or objectionable?) camps followed by a large-scale incursion of squatters hoping (and encouraged?) to stake out their piece of a bright new future.

The article is particularly illuminating on the nature of land disputes, with powerful interests close to the government that won contracts to manage the development process facing resistance from the owners of the land in question. Thus, while IDPs and squatters are present more in the way of pawns than as direct parties to the dispute, they bear the brunt of the resulting violence. To paraphrase the article: Continue reading

TN at five months

by Rhodri C. Williams

As three more months have raced by since my two month report, I thought one more administrative post might be in order before things slow down for the summer. The big news is that readership has gone up steadily with hits per month almost doubling from 732 in April to 1,344 in June. This has been gratifying, coming as my pace in posting has gotten more realistic after the initial burst of of energy last winter. I’ve got some family vacation coming up in July and the beginning of August, but I’m hoping to drop the odd post in myself now and then – and promise to rush any relevant guest posts to press as well.

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Note on the UN Register of Damage for the Occupied Palestinian Territory

by Rhodri C. Williams

I recently wrote an introductory note for publication in International Legal Materials related to a set of rules of procedure adopted last year by the UN Register of Damage (UNRoD). The Register was set up in order to develop a record of all damages resulting from the construction of Israel’s “security fence”, referred to by the UN General Assembly as the “Wall”, in the Occupied Palestinian Territory. As such, it represents an interesting development both in the attempt to resolve the Middle East conflict and in the evolution of institutional responses to mass claims for reparations.

The proper name of the final version of this article is “Introductory Note to the United Nations Register of Damage (UNRoD) Rules and Regulations Governing the Registration of Claims” and it was published in its final version in the Volume 49 No. 2 issue of International Legal Materials. The version reproduced below is an edited draft.

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Introduction

On June 16, 2009, the Board of the United Nations Register of Damage (UNRoD) issued a set of “Rules and Regulations Governing the Registration of Claims” (Rules). The Office of the UNRoD is a subsidiary organ of the General Assembly operating under the administrative authority of the Secretary General, with a mandate to develop “a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem.”[i]

The issuance of the Rules comes over two years after the January 2007 establishment of the Office of the UNRoD by UN General Assembly Resolution ES-10/17[ii] and the subsequent May 2007 appointment by the Secretary General of the Office’s Board.[iii] The length of time it has taken to issue the Rules, combined with the fact that they do not fully resolve a number of open questions surrounding the scope and nature of the registration process, is likely to fuel concerns about the effectiveness of the Office. On the other hand, the fact that the Rules have been issued at all confirms that the UNRoD is evolving from a recommendation into a real institution. This development will inevitably influence not only the ongoing efforts to resolve the conflict in the Middle East, but also broader debates related to the role of reparations for individual victims of international law violations in the context of protracted peace negotiations.

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IOM on Haiti – relocation of vulnerable community thwarted by land dispute

Many thanks to Peter van der Auweraert at IOM for bringing the below IOM Press Note, dated 02 July 2010, to my attention. It provides a rather vivid depiction of the less than constructive role of Port au Prince’s large landowners in the effort to provide transitional shelter to victims of the January earthquake (as alluded to yesterday in my post here).

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When armed thugs allegedly hired by landowners threatened violence on IOM staff and support workers earlier this week, a sensitive operation to rescue families from a desperate situation came grinding to a halt.

Some 263 families cling precariously to life in Parc Fleurieux; their sad tents hug the bank of a football field that’s flooded with stagnant water contaminated by a nearby open sewer. Women wash their clothes in a muddy creek using water that emerges from the grime of Port-au-Prince . Naked children wander through the camp scratching at skin infections, while residents suffering from malaria and other illnesses sit bleary-eyed in their tents.

The Haitian Government, IOM, international and non-governmental actors agreed that the health situation of the group was critical and that urgent action was required to prevent a public health crisis. After discussion with the local mayor, a location was found on an informal space with room for extra families and work on preparing the site with gravel and drains began.

Once force was threatened during the voluntary relocation, the whole operation was called off pending negotiations with the landowner’s representatives. It was left to Renald, the 29-year old elected site representative to break the disappointing news to his fellow residents. An eloquent man who speaks fluent English and French and Creole, he says he has been both homeless and unemployed since the 12 January earthquake.

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Haiti reconstruction stalled by land disputes

by Rhodri C. Williams

Haiti’s summer rains, long described as looming, threatening and impending are apparently now simply falling. And in the meantime, the reconstruction of affected areas – and particularly the efforts to move thousands out of exposed camps and into planned transitional shelter areas – appear to have stalled entirely. According to a recent AP story, a report prepared for the US Senate’s Foreign Relations Committee painted a grim picture:

Millions displaced from their homes, rubble and collapsed buildings still dominating the landscape. Three weeks into hurricane season, with tropical rains lashing the capital daily, construction is being held up by land disputes and customs delays while plans for moving people out of tent-and-tarp settlements remain in “early draft form[.]”

The report notes that while basic humanitarian assistance is being provided, the reconstruction effort has stalled, and attributes much of the blame to both the government of Haitian President Rene Preval and Prime Minister Jean-Max Bellerive. Along with former US President Bill Clinton, Mr. Bellerive co-chairs the newly constituted reconstruction commission proposed in the UN donor conference for Haiti in March.

In an interview with AP, Mr. Bellerive acknowledged criticism of the failure to provide transitional shelter to quake victims but claimed that “officials are working hard behind the scenes to ensure reconstruction does not simply mean the rebuilding of barely livable slums.” However, international officials appear to be growing impatient with the government’s inability to deliver land for shelter purposes; indeed, the government’s expressed scruples about not recreating slums seem a bit far-fetched given the conditions under which quake survivors are currently living.

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