Monthly Archives: October 2011

Week in links – week 43/2011

First, can’t we all find a reasonable substitute for palm oil if we put our heads together? The litany of indigenous cultures being wiped off the face of the earth so that the formula we give our kids in the evening won’t clot is becoming mind-numbing. Here, the New York Times reports on the latest victims of tasty, affordable transfats in Malaysia. However, lest we forget that plenty of other threats exist, the BBC reports on the standoff over the Belo Monte dam in Brazil, which threatens the traditional fishing grounds of Amazonian indigenous groups, and the UNHCR describes the plight of indigenous peoples displaced by the violence in Mindanao.

Second, the BBC provides evidence that property issues are already rearing their ugly head in the new Libya. The extent to which the NTC tent will be big enough to accommodate the traumatized residents of Sirte may well depend on how quickly the NTC can get said residents out of tents and back into their homes.

And finally, the New York Times reports on how a middle class suburb in Beijing is now being exposed to the same type of frenetic official land grabbing that its relatively pampered residents thought could only happen to “peasants in the countryside or voiceless city people with no education”. In a curious form of negative egalitarianism, the local government has not hesitated to administer beatings to protesters and harnessed an impressive mix of new and old media to its cause:

From morning until sundown, a van drives through the neighborhood blaring warnings. “Don’t be influenced by other people who might cause you unnecessary loss,” the loudspeaker says again and again. Daily text messages that clog residents’ cellphones drive home that point. More than one resident has had a window smashed. A half dozen homes, their owners having folded, have already been leveled.

Sweeter the second time around? Self-determination gets another chance

by Rhodri C. Williams

In reading Barack Obama’s now-famous May 19 speech on the Arab Spring, I was struck by his repeated use of the term ‘self-determination’ . Technically speaking, the right to self-determination was meant to be a one-off. When the two core global human rights conventions were adopted in 1966, self-determination was placed front and center in each with the goal of making good on the promise of decolonization set out in the UN Charter. As such, the right to self-determination was an unusual right – it was more overtly political than the rest, it was to be exercised collectively (by ‘peoples’) rather than individually, and it was implicitly a single-use right: if you were a people entrapped by colonialism, you exercised your right to self-determination, became an independent nation and never looked back.

So why are we talking about self-determination again? All the ‘peoples’ in the Middle East and North Africa (MENA) region punched their ticket once already right? Well, maybe not.

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NRC consultancy on customary land dispute resolution in South Sudan

NRC has advertised a one month consultancy working on customary law issues related to land administration and dispute adjudication in South Sudan. This is a very important initiative on NRC’s part and a great opportunity to contribute to the development of informed practice in this highly challenging area. See the ToRs posted in the resource page of this blog. The timeline is quite short, so if you are interested, qualified and available, please contact Laura Cunial (laura.cunial@nrc.no) in order to receive the invitation to bid.

Week in links – week 42/2011: land disputes in Bolivia, India, Kyrgyzstan and the UK

This week, we have a few updates on recent stories covered in TN:

First, the indigenous protesters marching against the construction of a road through the Tipnis national park in Bolivia have reached the capital La Paz and are settling in to force the Government to negotiate on the issue. Nicholas Fromherz of Foreign Affairs provides an analysis of the tremendous damage the mishandling of this issue has done to President Evo Morales’ credibility.

Having recently taken China to task for its stereotypically stilted response to public outrage over crooked land takings, as well as its stereotypically draconian response to community resistance to being evicted, I am now presented with the classic counter-stereotype in India, where public acquisition of rural land to facilitate large-scale investment is also a pressing issue. Having adopted a new ‘light footprint’ policy on facilitating purchases of land for industrial use after protests last spring and summer, the government of the Uttar Pradesh province now faces a court decision ordering the return of previously acquired land and compensation for parcels investors already built on. Without taking a position on the actual case, it is a classic instance of the great BRIC dichotomy, with India a trickier business environment than China, but frequently for the right reasons.

More dispiriting follow-up to the ethnic mayhem in Kyrgyzstan last year, this time in OpenDemocracy. First, Bruno de Cordier gives a bleak overview of structural violence in Central Asia in the form of rentier politics and patronage societies. Then Elmira Satybaldieva portrays how these patterns are reflected in the fragmented and untransparent politicking in the leadup to Kyrgyzstan’s 30 October elections. With the land disputes and other grievances underlying last year’s violence still unresolved, the prognosis is worrisome.

FAO has described how Sweden, notwithstanding its past ambiguity on the right to water, is funding a highly innovative scheme to help farmers in eastern Kenya develop greater resilience in the face of climate instability, in part through better water management techniques. IRIN, for its part, reports on how poorly Kenya fares in general in advance mitigation of disasters, whether of the natural variety or man-made examples such as last month’s appalling pipeline fire.

And just to recall that housing and land issues remain relevant in the Global North, the New York Times reports on the messy beginnings of the eviction of a traveler community from the Dale Farm encampment they have occupied for years in Essex, UK – while the Guardian documents the surprisingly peaceful end of the process. On OpenDemocracy, Justin Baidoo-Hackman explores the issue of whether the evictions qualify as ethnic cleansing (my take: forced evictions are already plenty bad).

When do home and property part ways? New paper on the ECHR and the Cyprus property question

by Rhodri C. Williams

I’m very happy to announce the release of a new paper on the European Court of Human Rights and the Cyprus property issue (available here) that I wrote together with Ayla Gürel for the PRIO Cyprus Centre. The primary goal of the paper is to parse through the implications of the Court’s recent jurisprudence for the resolution of the property issue in the context of ongoing talks on the reunification of Cyprus. Our main conclusion is that the effect of these cases is to rule out some of the more extreme proposals from both sides, effectively tightening the legal parameters within which the negotiators nevertheless retain considerable discretion to arrive at a political compromise.

The analysis revolves around a series of judgments that subtly broke with the Court’s earlier caselaw on Cyprus and culminated in the March 2010 decision in Demopoulos v. Turkey. As I described in an earlier note on this decision for International Legal Materials, the Demopoulos Court rejected the Greek Cypriot position that a remedy for property violations resulting from the 1974 Turkish invasion of northern Cyprus would have to take the form of restitution except in cases where this was ‘materially impossible’. Instead, the Court approved a Turkish Cypriot property commission that was mandated to offer remedies involving compensation or exchange (rather than restitution) in a much broader range of circumstances than material impossibility.

While the implications of this decision for the broader discourse on ‘housing land and property’ (HLP) issues remains highly topical, we focus our analysis on how the Demopoulos line of decisions fits into the Court’s evolving caselaw on the application of the European Convention on Human Rights (ECHR) in ‘transitional’ settings such as Cyprus. One of the issues we look at, for instance, involves debates surrounding the application of the Court’s new ‘pilot judgment procedure’ in these cases. However, I think one of the most interesting aspects of the case – and one which seems to have drawn surprisingly little attention to date – is the extent to which the Demopoulos ruling demonstrates the power of Article 8 analysis (on the right to the home under the ECHR) in shaping Article 1 Protocol 1 outcomes (related to the right to property).

The mutually reinforcing nature of Article 8 and Article 1 Protocol 1 is hardly news, and the significance of this linkage in restitution settings has been commented on by a number of observers including Antoine Buyse, author of the ECHR Blog. What is striking in the Demopoulos case is that one of the implicit grounds for the Court’s ruling appears to be a determination that the protection of rights to the home under Article 8 of the ECHR have by and large shifted from Greek Cypriot property claimants (who remain legal owners but are increasingly unlikely to be found to have significant links to homes they left behind two generations ago) and to Turkish Cypriot occupants. While the Court does not directly state that occupants of claimed property are now protected under Article 8, such a finding is arguably implicit in the Court’s concern that blanket restitution could give rise to  ‘disproportionate new wrongs’ (para. 117):

The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, …. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. (para. 116)

In other words, it appears that the Court has accepted that long-term occupation of claimed property can give rise to protected rights to the home, and that the existence of these rights can legitimately limit the ‘possibility’ of restitution in favor of owners. If this proposition holds up, it may come to be seen as a significant precedent that the current debates surrounding post-conflict HLP rights will need to come to grips with. On the other hand, it will also be crucial to distinguish the Court’s findings based on a number of factors unique to the Cyprus context such as the protracted nature of displacement there and the failure of the parties to date to achieve a negotiated settlement.

Innovations in forced eviction series #3: China

by Rhodri C. Williams

In following housing rights issues, I have been increasingly struck by the frenetic pace of innovation demonstrated by local authorities worldwide in forcing people out of their homes. The first ‘aha’ moment came when I read about the use of sand pumps by workers draining a lake in central Phnom Penh to literally flood the homes of families in the adjoining neighborhood with mud. The next noteworthy development came when Israel – admittedly a country with some tradition in this regard – began notifying Bedouins in the Negev Desert that they would be charged for the periodic demolition of their homes.

However, China has set the bar at a new level and deserves full recognition for their initiative. As reported by the BBC, the Chinese authorities have responded to one village’s failure to comply with an eviction order (their village was flooded by a dam but they moved back to the shore of the resulting lake without permission) by refusing to issue official documents to the residents, effectively rendering them stateless:

“When [children] are born, when they grow up, when they to school, get married, find a job, there is no way to show they exist,” [one resident] says. “When they die we just bury them.”

In recognition of the tireless work of the anonymous bureaucrats who labor day and night to come up with such outside-the-box solutions, I have decided to begin a formal series in TN on innovations in forced evictions. Whenever I read of a new practice that demonstrates unusual initiative, I will ensure that it gets the exposure it deserves. Readers are encouraged to submit nominations anytime.

More Arab than Spring?

by Rhodri C. Williams

In skimming OpenDemocracy’s latest analysis of the Arab Spring, I came across a curious pair of coincidences. The superficial one involves ten percent, that being the percentage of the Egyptian population made up of Coptic Christians, as well as the population of a set of North African and Sahel countries centered on Libya composed of the Tuareg people. The less superficial coincidence relates to the effect of years of allowing these minorities to be used as a scapegoat.

The more obvious case is described by Nelly van Doorn-Haarder and relates to Coptic Christians, a religious minority in Egypt that have come under increasingly violent attack since the 1970s and tend to be blamed for their own misfortune: “Justifications for the attacks abounded: a village feud, two merchants fighting, Copts had raped a Muslim girl.  Attacking Christians became the new normal; somehow they deserved what happened.”

Harking back to the Economist’s plug for an Arab Spring guided strictly by individual rights of the civil and political variety last May (and my response), the Coptic Christians probably make up one of the most favourable examples for this viewpoint. They are not only a minority that has its home in Egypt (e.g., has no clear secessionist agenda), but also one that suffers from egregious discrimination in the civil and political arena.

A great deal could be done to redress their situation, in other words, through measures ensuring effective equality, e.g. without having to go as far as endorsing any group-specific rights for them. Moreover, the incentives to take such steps should exist – after the most recent rioting, the BBC reported that the violence had not only caused the biggest stock market slide since last March but could also derail parliamentary elections set for next month if it continued.

On the other hand, the Tuareg present a more complicated scenario, raising issues that the Economist’s formulation of human rights cannot necessarily answer. As a transnational ethnic and linguistic minority, the Tuareg of the Sahel are in a similar situation to the Kurds – a nation that had the same potential, in principle, as many others to form a state, but which was ultimately hit with the uti posseditis stick and ended up as a series of contiguous minorities in states dominated by others.

In a fascinating analysis in OpenDemocracy, Hugh Brody notes that this fate may explain why the Tuareg of Libya (well, some of them) have turned out to be the one group demonstrating unswerving loyalty to the Ghaddafi regime clear through to the bitter end. Citing a prescient (pre-Arab Spring) commentary on the Tuareg by Jeremy Keenan in Al-Jazeera, Brody notes that many countries in the region had found it expedient to accuse the Tuareg of Al Quaeda ties during the late, unlamented era of the Global War on Terror.

By doing so, these countries were in a position to forge valuable ties with Western security forces and simultaneously continue longstanding depredations against Tuareg land and natural resources. However, they left a legacy of bitterness that translated into an otherwise inexplicable loyalty to Colonel Ghaddafi, the only leader in the region who had seen a tactical interest in doing anything to ameliorate the Tuareg’s situation (notably through preferential economic treatment rather than any meaningful political autonomy).

In light of their situation, the Tuareg present a dilemma to the new Libyan authorities as a group, rather than as individuals, and a sustainable resolution of the conflict is likely to require guarantees of some degree of recognition of this group identity, rather than individual guarantees of equality. The last word goes to Hugh Brody, who summarizes both the nature of the problem and the nature of any meaningful solution:

Thus have the Tuareg come to be at the centre of Libyan events, for which many of them may find themselves paying a dreadful price.  They have had few friends, and may now have increased the animosity of their old enemies.  The Libyans who are taking over their country need to find the fullest and most intelligent understanding of the history that has shaped the lives and decisions of the Tuareg.  They must bring the Tuareg a new justice rather than yet another level of retribution.

Bolivia road protests continue

by Rhodri C. Williams

Following up on my earlier post on indigenous peoples’ protests against a road project in Bolivia, it seems there have been further developments. In brief, the minister responsible for the violent removal of the protesters has now resigned and the march to La Paz has resumed. The fate of Bolivia’s Isiboro Secure Indigenous Territory and National Park (‘Tipnis’ in Spanish) continues to hang in the balance.

In addition to providing updated coverage of the issue, the BBC has also recently provided a useful analysis of why President Morales, himself both indigenous and an advocate of the rights of indigenous peoples, would persist in backing the proposed road (“Bolivia Amazon protesters resume Tipnis road march”, 01 October 2011). The analysis merits quoting at length: Continue reading

Avoiding conflict through early and effective management of land disputes

by John W. Bruce

The last decade or so has seen growing recognition of the major role played by competition for land in generating conflict. However, the often extremely complex and embedded nature of such conflicts—and associated political sensitivities—is such that both international and national actors have in many cases shied away from fully engaging with them. In other cases, forms of intervention have not always sufficiently taken into consideration their major—and potentially recurring—causes. The challenge is to better understand the role played by land, combined with related factors, in the generation of conflict—both in terms of the conditions that create a vulnerability to conflicts and events that tend to trigger violent conflict—as a basis for preventing or de-escalating violence.

I had worked on land issues from a development standpoint in Mozambique, Sudan and Cambodia, but a 2009 study in Rwanda for the Overseas Development Institute and follow-up work with UN-Habitat made me aware that the humanitarian community working in peacebuilding contexts had developed new ways of looking at land conflict and useful short-term approaches for addressing it. The land tenure in development community had little knowledge of these and often saw land policy and administration exclusively through an economic development lens. At the same time, those in the humanitarian community working with post-conflict land issues lacked familiarity with the role of land tenure in development processes and sometimes did not appreciate what was needed to lay the basis for sustainable, sound land governance.  These bodies of understanding and differing perspectives about land issues had not been integrated-an integration that is essential to the development of effective strategies for prevention and mitigation of land-related conflict.

With these challenges in mind I agreed to work with the Initiative on Quiet Diplomacy (IQd) to develop a handbook on Land and Conflict Prevention The handbook is one of a series providing third party actors with practical guidance in addressing issues that are frequently the sources of tension before violent conflict (re)erupts. IQd’s approach to me coincided with a train of thought that began when I worked with UN-Habitat on post-conflict land issues. I was struck by the fact that the valuable thinking that had been going on in the post-conflict context needed to be walked back through time, as it were, into the pre-conflict period, asking “What do we know about land and conflict that can be mobilized for prevention?” The result is a blend of ideas and practical guidance for preventing land-based conflict drawn from both the post-conflict and developmental contexts.

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