Monthly Archives: September 2011

Upcoming guest posts: (1) post-disaster rights to housing, and (2) land in conflict prevention

It is a great pleasure for me to both introduce two very interesting new reports and announce that their authors will shortly be providing a more personal introduction through guest-postings on TN.

First, the UN Special Rapporteur on the right to adequate housing, Ms. Raquel Rolnik, has prepared her latest report, which will be presented at the 66th session of the General Assembly in October. Where Ms. Rolnik’s previous report (introduced briefly in TN here) focused on the right to housing in the wake of both conflict and disaster, the current report focuses more narrowly on disasters (a theme the SR also took up in the context of a recent trip to Haiti). Ms. Rolnik’s report cannot be officially distributed until after its presentation to the GA in October, but is currently available on her website. While the report makes for interesting reading as such, I’m particularly pleased to announce that the SR and her team will soon provide further insights in a guest post on TN.

Second, Quiet Diplomacy has just launched a new Handbook on Land and Conflict Prevention. While this might sound like a contradiction in terms to some, the Handbook offers “step-by-step guidance for conflict prevention actors … in finding the space for legal, institutional and policy reform in the land sector, and promoting just and workable solutions.” It sounds like a tall order but one that is all the more important in era when the corrective approach adopted in texts like the Pinheiro Principles is increasingly required to accommodate new distributive demands. And once again, I’m very pleased to announce that the authors, John Bruce and Sally Holt, will shortly be sharing some of their insights on TN.

Serbia masters the difference between restitution and restitution

by Rhodri C. Williams

As part of its EU bid, Serbia has passed a law allowing for the restitution of property nationalized during the Cold War. Curious that the EU should take a strong stand on principle when it comes to rights extinguished three generations ago through distasteful but not necessarily illegal expropriation proceedings, while giving neighboring Croatia a pass on rights extinguished much more recently through acts now unambiguously deemed crimes against humanity. One also wonders whether the EU is making similar headway clarifying the intricacies of the restitution concept to the authorities it oversees in Kosovo. All grist for a much longer post if I only had the time…

The ‘grin nervously’ school of large-scale land dispute management

by Rhodri C. Williams

The BBC is doing a nice job following two unrelated land disputes on opposite sides of the Pacific that are raising related discomforts for the governments that wish fervently they would go away.

In the eastern hemisphere we have China, where the government has now promised to investigate the sale of farmland to factory owners in Lufeng City (Guangdong Province), which sparked several days of ‘sometimes violent’ protests. It is not a big secret that one of the biggest current sources of political grievance in China is the ability of local authorities to capture nearly the entire value ‘created’ by turning peri-urban farmland to industrial or residential use. However, the resulting protests usually tend to take the form of something short of what could be termed ‘riots‘. In this case anger over the loss of ‘ancestral farmland’ appears to have boiled over into something more ominous:

Several hundred people were reported to have attacked a police station and government buildings, and to have used earth-movers to smash down a wall around the seized land.

Although the situation was reported as calm over the weekend, locals interviewed expressed continued anger.

Meanwhile, in the western hemisphere, Evo Morales’ pro-indigenous government in Bolivia is being rocked by indigenous protesters. Just over a month ago, protests began in the capital, La Paz, over an announcement that a road was about to be built directly through the  Isiboro-Secure Indigenous Territory and National Park. Despite government protestations that the road (which is heavily backed by Brazil and would connect its territory with Pacific ports) would promote regional development, local Amazonian Indians began a one month protest march to La Paz. Locals not only expressed anger that they had not been consulted over the road, but also concerns that it would destroy both the human and natural ecology of the area:

Environmental groups and indigenous activists say the road will open the region up to illegal logging, as well as settlement by farmers from the highlands who grow coca leaf – the raw material for illegal cocaine.

With the deployment of police at Yucumo, halfway along the route to La Paz, the march turned to a confrontation earlier this month. Events have moved rapidly since, with the protesters initially breaking the blockade by using the Foreign Minister, David Choquehuanca (who had come to negotiate with them) as  sort of perambulatory ‘human shield’. As of yesterday, the police had been ordered to disperse the protesters and force them onto buses home, sparking the resignation of Defense Minister Cecilia Chacon.

Where the Chinese government bought time by promising an investigation, Mr. Morales “offered to put the issue to a regional referendum” on Sunday. In both cases, and in different ways, the role of democracy is of some interest. In China, where democracy is absent, an investigation remains the only credible means of delivering some meaningful form of accountability (other than further mob self-help). However, in Bolivia, the situation is the opposite.

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

Call for papers – World Bank 2012 Conference on Land and Poverty

Many thanks to Greg Kitt for alerting me to the call for papers recently announced for next year’s annual World Bank Conference on Land and Poverty:

Under the general theme of “Land governance in a rapidly changing environment”, the 2012 conference will focus on innovative ways of dealing with key aspects of land governance in the context of structural change and economic transformation in a pro-poor and gender-sensitive way. These include agricultural investment and productivity growth, climate change and carbon finance, decentralized resource management, land use planning, urban expansion, and dealing with the consequences of or preventing conflict and disaster.

Abstracts are due by October 31…

Oxfam on the global land rush – UPDATED

by Rhodri C. Williams

Update – One of the disadvantages of speed-blogging is that you sometimes post on new reports without remembering to link to them! (See also the PR here). I should also highlight the appended case-study on evictions in Uganda carried out in furtherance of a carbon credit program run by the UK-based New Forests Company. This item has received considerable media attention on its own merits (as here in the New York Times and here in the Guardian). The latter piece includes a quote from an NFC spokesman that shows just how easy it remains for many African states to bank on the inherited colonial legal fiction that land not held in formal title is the exclusive property of the state (previously discussed on TN here, at bottom): 

In a series of communications with Oxfam, the company says: “Evictions from government land – which go on in Uganda every day – are solely in the hands of the government and its designated authorities such as the Uganda Wildlife Authority, the National Forestry Authority, and the Ministry of Lands. We are expressly prohibited from dialogue and interaction from any illegal encroachers.”

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Recent statements by Oxfam have strengthened the emerging consensus that large scale investment in developing countries’ land is both destructive of local livelihoods and a source of corruption and political instability. Oxfam itself has been a longstanding critic of this trend, as reflected in a brilliant little satire they produced on Glengarry Glenross. So what do their most recent statements add to the litany of international criticism?

First, as picked up on in the Guardian, Oxfam has alleged that the scope of the phenomenon to date may be significantly larger than previously thought:

The NGO has identified 227m ha (561m acre ha) of land – an area the size of north-west Europe – as having being reportedly sold, leased or licensed, largely in Africa and mostly to international investors in thousands of secretive deals since 2001. This compares withabout 56m ha identified by the World Bank earlier this year, again predominantly in Africa.

Second, as reported by the BBC, Oxfam has maintained its focus on the connection between the land rush and other global trends, inferring that the trend is likely to grow both more pronounced and more overtly problematic.

The organisation said that land grabs had accelerated especially since 2008, when soaring prices highlighted the issue of food security.

It said an increasing demand for food, combined with climate change and the increase of agricultural land being used to grow biofuels, meant that the number of such deals would be likely to only rise in the future.

It called on the EU to scrap its target of obtaining 10% transport fuels from renewable sources by 2020 – which has fuelled the planting of crops for biofuels – and asked investors and governments to implement policies to ensure land deals are fair and those affected are properly consulted.

A third important effect of Oxfam’s statements are to keep the debate alive. Although it is highly significant that consensus is forming regarding the destructive nature of the land rush in its current form, there is not the same degree of clarity about how the problem might be addressed. Meanwhile, the risk is that the global land rush becomes just another problem – like global warming – that lands in the ‘too big to handle’ category for policy-makers.

Week in links – Week 37/2011: Palestinian statehood and other matters

With Mahmoud Abbas’ (by all accounts rather persuasive) affirmation today that Palestine would seek full membership in the UN, the stage is set for a showdown in the most dramatic and controversial attempt to exercise the right to self-determination in some time. This development has been bemoaned by a ‘pro-Palestinian anti-statehood’ school of thought perhaps best expressed in a recent legal opinion by Oxford professor Guy Goodwin-Gill. The New York Times editorial page and other observers have also raised concerns that a vote for statehood will also derail the possibility of negotiations entirely, delaying yet further a sustainable end to the conflict. And as noted by Robert M. Danin at Foreign Affairs, the decision to seek de jure status may also lead to the abandonment of a project of de facto state building that appeared to be working:

By focusing on state-building, the PA had improved living conditions and strengthened security for Palestinians. All along, one of its aims was to create a peaceful and conducive environment for negotiations, rendering Israel’s occupation unnecessary and ultimately unjustifiable. And indeed, slowly and without fanfare, Israelis have taken steps to lift the burden of the occupation on Palestinians, opening the West Bank a little more to the movement of people and goods and allowing Palestinian security forces to expand their control over larger parts of the West Bank. The under-the-radar approach made such tangible improvements possible.

In fact, the Israeli response has been to warn of the ‘harsh and grave consequences’ of UN recognition of Palestine, fuelling speculation that this could lead to outright annexation of parts of the West Bank. And lest anyone forget the complications involved in the territorial question, David Makovsky has provided a fascinating graphic of the current proposals as an Op-Ed in the New York Times.

Meantime, perhaps the parties to the Middle East conflict may be inspired by Belgium, which has finally resolved a deadlock focused on three contested municipalities near Brussels and may get a government 15 months after elections.

In less uplifting news, the ramifications of the oil pipeline fire in a Nairobi slum that killed scores of residents continue to unfold, with competent officials passing blame back and forth. To make a long story short, it reads like the fact section in the Öneryildiz case before the European Court of Human Rights several years back, in which Turkey was held responsible for violations of the right to life and property for having failed to take reasonable steps to prevent the foreseeable explosion of a garbage dump located near a slum. Perhaps some jurisprudence for the fledgling African Court of Human and People’s Rights to consider.

Finally, the New York Times provides some timely political analysis of the land struggle currently shaking the Bajo Aguán valley in northern Honduras.

Sweden versus social and economic human rights? Part 2: The right to water

by Rhodri C. Williams

In 2006, when I was still relatively new to this part of the world, I started participating in a working group run by Swedish Water House on water as a human right. At the time, only four years had passed since the UN Committee on Social and Economic Rights had read a right to water into the right to an adequate standard of living in their groundbreaking General Comment 15. The UNDP had just released its 2006 human development report on the global water crisis, which pinned blame firmly on misguided policies, not absolute scarcity or technical issues. DFID had just officially notified the world that water was a human right. The wind was at our backs. But not the Swedish Foreign Ministry.

In effect, what I had assumed would be an exercise in enlightened Swedes lecturing the world on the importance of recognizing the right to water turned out to be an exercise in enlightened Swedes lecturing official Sweden on this point. Neither the Foreign Ministry nor the Swedish International Development Cooperation Agency (Sida) had recognized the right to water, nor did they evince much enthusiasm. After a year of prodding, a pleasant but slightly beleaguered Foreign Ministry official attended an October 2007  seminar and conceded that “the government recognizes the right to water as emanating from the right to an adequate standard of living in article 11, paragraph 1 of the ICESCR” (seminar report, 12).

However, the lawyers had clearly been at work, and the “emanating” formulation (as opposed to recognition as a “free-standing right”) became a means of maintaining opposition to normative developments then underway in Geneva:

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USIP HLP course and NRC HLP position (for francophones)

Just a reminder to TN readers that USIP will shortly be holding its third course on Land, Property and Conflict, in Washington, DC (Oct. 11-14). The course typically attracts a very stimulating mix of practitioners from different backgrounds and comes highly recommended.

Second, I am breaking my usual rule on not advertising HLP-related positions (not because I have an issue with them, but simply because I’m hard enough put to keep up with my usual content)  because NRC urgently needs a francophone HLP expert for a very important and timely position in Cote d’Ivoire. This is the type of work that can really make a difference, so I would encourage all readers to pass this on to anyone they know who might be a suitable candidate.

The view from Sarajevo, 12 September 2001

by Rhodri C. Williams

On the tenth anniversary of 9-11, I thought it might be more appropriate to post on what I thought then than what I think now. Then was Sarajevo, working on property restitution with the OSCE, my then girlfriend (now wife) ‘A-L’ in New York doing an LLM. What to say about the decade that followed? Turns out Ehud read the tea leaves better than I did, I guess. My endless gratitude to ‘H’ for having a proper filing system and digging this ancient email up.

During World War II, a fighter on patrol got lost in fog and hit the Empire State Building.  It made a big hole that was patched and life went on.  Thats the first thing I thought of when my boss called me in my office to tell me the news yesterday afternoon.  Simultaneously, some other part of my mind was tracking A-L’s morning bus route past the twin towers.  The rain was pouring down outside, and the email I was typing on the stage during which an administrative decision becomes executable under Bosnian law stopped in its tracks.

CNBC was the only channel we could get in the guard room, which was already packed with colleagues.  Smoke was pouring out of both towers into a hazy blue New York sky, the likes of which had greeted me so many bleary mornings on the way to law school.  As the Pentagon caught fire and the south tower went in a vast cloud of smoke, the world ground and slowly rotated from its bearings.

Anything was possible.  The urban architecture of the eastern seaboard was steadily being demolished in paced five minute blasts.  Every airplane in the sky had gone mad.

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Sweden versus social and economic human rights? Part 1: Benchmarking human rights

by Rhodri C. Williams

Last weekend, Swedish international lawyer Krister Thelin published a provocatively commonsensical proposal in Dagens Nyheter, one of Sweden’s two big broadsheets. In his article, Thelin, who sits on the UN Human Rights Committee, recommended that the countries of the world be assigned grades allowing comparison of their human rights performance. He argues that overcoming UN hesitations in this area would place greater pressure on non-compliant states and provide benchmarks to guide the performance of governments genuinely interested in performing better. Mr. Thelin also suggested that such an approach would be of immediate assistance in encouraging progress toward democracy and respect for human rights in the course of the ongoing ‘Arab Spring’ in the Middle East and North Africa.

This argument is sound in principle. Human rights are meant to be universal and applicable in equal measure to all the states of the world. Moreover, the vast majority of states have ratified human rights conventions and virtually none deny the existence or applicability of human rights as a matter of official policy. From this perspective, the failure of states to uniformly apply human rights is not only morally repugnant but hypocritical, and a grading system as proposed by Mr. Thelin would further expose this hypocrisy. The establishment of such a system would probably be more complicated than Mr. Thelin lets on, given that it would add further fuel to a number of debates within the field of human rights as well as in regard to the related fields of humanitarian assistance, development cooperation and transitional justice. However, one of the striking aspects of Mr. Thelin’s proposal, as it now stands, is that it does not entirely acknowledge the existence and significance of these debates.

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