Monthly Archives: April 2011

Week in links – week 17/2011

A somewhat abbreviated WiL this week as the family is on Åland for an extended Easter break.

BBC coverage of this week’s Communist Party congress in Cuba leads with the news that private property rights will be allowed again, though the details have yet to be released. The main rule at this point appears to be that “concentration of property” will not be permitted. One is tempted to wonder if part of the motivation is to cut off restitution claims by Cuban exiles. As a stratagem, this worked rather well in Cambodia, but that was the Eighties…

– The European Journal of International Law (EJIL) has released its latest issue online. The focus is on the ‘human dimension of international cultural heritage law’, with quite a lot on the restitution of cultural property but also a number of interesting articles on indigenous peoples’ rights, including to land.

– The New York Times reports that scientists met in Aleppo, Syria this week to develop strategies for combating new diseases afflicting wheat. Let us hope that they are not hit by any stray bullets from the strategies the Syrian security forces have developed for combating new diseases afflicting authoritarianism.

– Tim Dunne and Jess Gifkins do a nice job in OpenDemocracy of pushing along the debate on how the current Libya intervention may both support and undermine the new concept of ‘responsibility to protect’ (R2P).

– Finally, the New York Times reported first on the pending collapse of a promising flurry of regional cooperation over damming the Mekong in Southeast Asia – and then its actual collapse.

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What’s in a border?

by Rhodri C. Williams

The headlines these days still have me scratching my head and I can’t imagine I’m the only one. For example, this morning I learn that the Government of Syria, having solemnly declared that an armed insurgency threatens the life of the nation yesterday, duly responded  by lifting a thirty year state of emergency today.  I guess they figured there wasn’t much point closing the barn doors once the constituency had bolted.

It all seems a bit comical at times, but of course it is deadly serious and symptomatic of the way in which the ructions we are currently witnessing are straining the normal responses states would employ against civil unrest precisely because the neighborhoods involved are not inhabited by ‘normal’ states. Instead, places like Cote d’Ivoire, Libya, Nigeria and Syria tend to be recent confections, with a territory defined by borders drawn to the convenience of some other country, a population composed of whoever happened to be living within those bounds at the time and effective control now exercised by those who managed to scramble to the top of the heap or be successfully implanted and hang on. Much of the Middle-East is still a good decade short of a century of sovereignty and I’m older than a few independent states in Sub-Saharan Africa.

Its easy to forget much of this when things are going well. Somehow, describing a country as a state and giving it a little stenciled name tag at the UN General Assembly creates all of these reassuring associations that may or may not apply. Certainly, institutions might not be perfectly democratic and economies may be shaky, but statehood implies a totality that is greater than the sum of the parts, bound up in some kind of national identity that can accommodate and eventually subsume local ethnic, sectarian and tribal loyalties. As previously noted with regard to Sudan, however, the elites that inherited these foundling post-colonial states well understood their fragility and embraced the lesser risks entailed by retaining colonial borders over the greater ones that could be triggered should the question of borders be re-opened.

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Next steps in Cambodia

by Rhodri C. Williams

Nearly six weeks have passed since the Board of the World Bank issued a Report acknowledging both specific failures previously identified by the Bank’s Inspection Panel in the implementation of land programming in Cambodia as well as the general dilemma of working with a government whose past approach to land issues might fairly be described as predatory.

As described at the time in TN, one of the main findings of the Report was that the Bank had no choice but to continue to engage with the Cambodian Government on land issues until it was clear that such engagement was counterproductive. Although the Board implied that it might review its broader programming in Cambodia, it did so in an oblique manner, perhaps reflecting the fact that the arrival of investors such as China has reduced its bargaining power.

In a recent commentary for the Bretton Woods Project, Cambodia experts David Pred and Natalie Bugalski (who will, with any luck, grace these pages with another guest posting soon), highlighted the dilemma faced by a bank with declining leverage over borrowing governments and increasing commitments to be accountable to those affected by the projects it funds:

The predicament in which the Bank finds itself highlights the limits of its ability to be accountable to those harmed by its projects – even if it wants to be. The institutional architecture of the Bank requires it to rely on the cooperation of borrowing governments in any effort to remedy harms resulting from safeguard policy violations.  This structure becomes highly problematic when the government in question is notoriously unaccountable to its own people and is the perpetrator of the violations at hand.

More than 15 years since the establishment of the Inspection Panel, there continues to be no guarantee that claimants whose rights are vindicated by the Panel will receive any remedy whatsoever. If the Bank continues to lend to governments that consistently violate safeguard policy obligations and refuse to remedy harm, then it must be prepared to provide reparations unilaterally. In the absence of such a redress mechanism, the Bank will continue to suffer from an accountability deficit and demands for stripping the Bank’s legal immunity will grow ever louder.

With a sixty day deadline for the Bank’s management in Cambodia to report back to the Board on the implementation of its ‘revised Action Plan’ looming, the signs are not all good. In a piece in the Diplomat blog late last month, Irwin Loy noted that little had changed in the Phnom Penh neighborhood of Boeung Kak, where the whole controversy started. An eviction order issued around the same time as the Bank’s Report still stood, and residents were taking painful decisions to settle at the risk of losing everything. With a few weeks remaining, the Bank has a hard but important row to hoe.

Yugoslavia Tribunal issues Gotovina judgment – discriminatory property laws deemed persecution

by Rhodri C. Williams

The International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted two Croatian Generals, Ante Gotovina and Mladen Markač, and acquitted one, Ivan Čermak, of charges of crimes against humanity and violations of the laws or customs of war. The charges were related to crimes committed during the Operation Storm military campaign between July and September 1995, during which Croatian forces reasserted control over the breakaway Krajina region and displaced as many as 250,000 Croatian Serbs to Bosnia and Serbia.

The Storm campaign has been described both as the largest land offensive in Europe since World War II and as the single most egregious act of ethnic cleansing in the first round of fighting surrounding the breakup of the former Yugoslavia (the consecutive expulsions of Kosovo Albanians and Serbs in the 1999 Kosovo conflict would give it a run later). While I have not yet had time to read the full decision (which weighs in at hundreds of pages), the ICTY press release and summary of the judgment are more accessible and provide a picture of an important and sweeping ruling.

The Court appears to have taken further steps to shift the post-Cold War phenomenon of ethnic cleansing more clearly into the legal category of crimes against humanity involving persecution. In doing so, they have provided an important (and overdue) recognition of the central role that administrative confiscation and reallocation of property and homes play in consolidating such acts. Whether this ruling will have an impact on the somewhat murky negotiations now going on between Croatia and Serbia over compensation for the effects of these acts – in the form of the permanent loss of many Croatian Serb homes – is another question.

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Week in links – week 15/2011

Apologies to TN readers for having been a little incommunicado in the last days! Have been too busy to even chase down some interesting guest postings that are in the works, let alone write, but I hope to pick up the pace again in the next weeks. Lots of interesting items out there in the HLP-related world as usual:

First, on womens’ land rights, the Landesa blog includes an interesting piece on the recent ‘revolution’ in Bengal that resulted from the inclusion of an extra line allowing registration of land grants in both spouses’ names. Earlier this month, the fourth Women’s Land Link Africa (WLLA) Land Academy was held in Arusha, Tanzania, with participants from fourteen African countries.

The Financial Times reported on the land issues now awaiting the attention of Ivory Coast’s new President Alassane Ouattara, now that the technicalities of the succession appear to have been resolved. As anticipated in Barbara McCallin’s earlier guest-post and report, both the technical and political obstacles will be sobering:

Some immigrants – many of whom have now lived in Ivory Coast for decades – have been thrown off their farms and may now want to return. This is a delicate issue for Mr Ouattara, and risks further alienating Mr Gbagbo’s supporters – those who already see the president-elect as a foreigner who favours immigrants. “He can’t be seen as someone who wants to take away the land from the indigenous groups,” the analyst added.

As documented in the report on a recent seminar held by Swedish Water House, the Swedish Government has come around to the notion of a human right to water after a surprising amount of circumspection (compared to peers such as the UK, which took the plunge in 2006). While Sweden is undoubtedly a progressive country, it has for various reasons been historically reluctant to consistently express this outlook in a vocabulary of rights. The official justification given for the delay in this case is somewhat lame – if everyone waited for the results of contradictory and bumbling UN processes instead of pushing them along, who knows where we would be right now. But the apparently enthusiastic embrace of this right by a key player in the water business is more than welcome.

The ICJ case pitting Georgia against Russia that I blogged on earlier here has been dismissed without examination on the merits. For a good analysis of the reception of this news in Georgia and Russia, see this recent piece in Opinio Juris. Presumably, the rather innovative interim measures previously ordered by the Court to protect the property of displaced persons have lapsed as well. More jaded readers may be tempted to wonder whether anyone on the ground will notice… (UPDATE – a bit more analysis by Marko Milovanovic at EJILtalk)

Finally, as if you didn’t have enough to peruse, the Forum for International, Criminal and Humanitarian Law has published a 440 page door-stopper of a book on ‘Distributive Justice in Transitions‘. It focuses heavily on land issues, with lots of case-studies on Colombia, and looks to be a fascinating read.