Monthly Archives: April 2013

That 1990s feeling, or how conflict-related internal displacement never really went away

by Rhodri C. Williams

As we enter a series of twenty year milestones from the meltdown of the former Yugoslavia, it has been a bit too easy for many of us who came of age back then to reflect on internal conflicts – the crucible in which the internal displacement advocacy movement was forged – as a phase we were all moving beyond. Until recently.

Until recently, it was possible to think of conflict displacement as a ‘first wave’, still problematic in the sense that frozen conflicts from the 1990s had entrenched patterns of protracted internal displacement, but no longer of primary concern. With some of the initial nationalist spasms of the post-Cold War thaw exhausted and a practiced UN-led peace-building and mediation response at the ready, it has been easy enough to be lulled by the overall statistics on declining numbers of active internal conflicts.

Moreover, in the wake of the 2004 tsunami and dawning awareness of the effects of climate change, an effective advocacy campaign by then-Rapporteur on Internal Displacement Walter Kälin shifted attention firmly to rights-based responses to a ‘second wave’ of internal displacement, that caused by natural disasters. As reflected in the UN Human Rights Council’s recent undertaking to address internal displacement , the focus on disasters has come to define much of the advocacy in the field, to some degree eclipsing conflict concerns. Meanwhile, a third wave looms as pressure on land and natural resources gives a sharp new edge to the issue of development-induced displacement.

Reading all this, one would be tempted to take some relief in the fact that each new impending crisis appears to be accompanied by changed conditions or improved responses that help to ameliorate the last. If only it were so tidy. While the peaking of sectarian violence in Iraq after 2006 was a wake-up call to the persistence of internal conflict and displacement, it had begun to look like an isolated incident again until recently. However, with Syria now presenting a full-blown ‘human catastrophe’ and Burma accused of  crimes against humanity in Rakhine state, conflict displacement is once again center stage in all its awful glory.

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Land and Post-Conflict Peacebuilding: A new global standard for land administration

by Douglas Batson

Douglas Batson joined the National Geospatial-Intelligence Agency (NGA) as a political geographer in 2004. He previously worked for the U.S. Geological Survey, the U.S. Department of Justice, and is now retired from the U.S. Army Reserve. Batson wrote on “Snow Leopards and Cadastres: Rare Sightings in Post-conflict Afghanistan” in Land and Post-Conflict Peacebuilding, and provides an update in this guest-posting.

My chapter in Part 3 of Land and Post-Conflict Peacebuilding begins with an overview of the challenges faced by U.S. and coalition forces in rebuilding Afghanistan during the 2000s, and specifically the need for a cadastral system that records the array of relationships between people and land. It also discusses the problems of refugee resettlement in the context of the post-war population explosion and the environmental destruction from decades of conflict. The discussion of secure tenure to land describes local initiatives including dispute resolution and management of land resources. It concludes by underscoring the potential of the Land Administration Domain Model (LADM) to record heretofore undocumentable, orally defined forms of customary land tenure.

Shortly after the completion of my chapter, the International Organization for Standardization (ISO) took up the LADM as a draft standard. I had the opportunity to advocate full adoption of the LADM as an ISO standard to the U.S. Federal Geographic Data Committee. This effort included addressing concerns about the cost of conforming 3,100 disparate U.S. county-level Land Administration Systems (LAS) to a new global standard. The LADM’s value, I argued, lies less in its utility for the U.S. homeland, than in its relevance for U.S. security, diplomacy, and development goals, in a context in which 75% of the world’s people-to-land relationships, or 4.5 billion cases worldwide, are not documented. This situation clearly invites land disputes, land grabbing, and violent conflict.

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Safeguarding land rights: An opportunity for the World Bank to lead

by David Pred and Natalie Bugalski

Washington, April 13, 2013 – At the start of the Annual World Bank Conference on Land and Poverty this week, World Bank President Dr. Jim Kim made some welcome remarks about the global land rights crisis.   He did not respond directly to the withering criticism of the role the Bank has played in promoting land grabs.   But he did say that the Bank shares the concerns about the risks of large-scale land acquisitions, and importantly he acknowledged that “additional efforts must be made to build capacity and safeguards related to land rights and to empower civil society to hold governments accountable.”

What caught people at the Conference pleasantly off guard was the Bank’s statement that its own social and environmental safeguard policies, now under review, would be informed by the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Forest and Fisheries.

Inclusive Development International and Oxfam put forward a concrete proposal at the Conference for the Bank to do just that.  We presented a proposal for a new World Bank safeguard policy on tenure of land, housing and natural resources that draws extensively from the Voluntary Guidelines.

The proposal addresses major gaps in the Bank’s current policy framework that have left people affected by Bank operations unprotected from harmful impacts on their tenure rights.  If adopted, these policy measures would ensure that the Bank upholds its responsibility to respect human rights by safeguarding against the weakening of tenure rights, the instigation of land conflict and the exacerbation of inequality in access to land and natural resources by Bank operations.

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Announcing a new book and guest posts on post-conflict land management and peacebuilding

PCNRM cover 9781849712316I’m very happy to announce the forthcoming publication of a volume on Land and Post-Conflict Peacebuilding that I co-edited with Mc Gill Geography professor and land tenure guru Jon Unruh. The volume is the third of six volumes in a series on natural resource management and post-conflict peace building. The books are the fruit of a project initiated by the Environmental Law Institute (ELI), the United Nations Environment Programme (UNEP), the University of Tokyo, and McGill University with a view to analyzing experiences and documenting good practice in post-conflict peacebuilding and natural resource management.

As with all the volumes, Jon and mine on land tenure issues is meant to be available exclusively for sale at first, but the chapters will be available for free download on the Environmental Peacebuilding website six months after the official announcement of the book’s publication. For instance, the first volume on high-value natural resources (also announced here on TN) is now available in full here, and the second volume on post-conflict restoration of the natural resource base should be available early next month.

As part of the launch several of the authors in the land volume have kindly agreed to provide guest-postings on TerraNullius updating or elaborating on their chapters. These will included the following:

First out is Douglas Batson, who wrote on the need for a cadastral system that records the array of relationships between people and land in Afghanistan. The chapter discusses the relevance of Land Administration Domain Model (LADM) to record customary land tenures, a theme which he will elaborate on in his guest post.

A second post by Paula Defensor Knack will elaborate on her chapter on “Legal Frameworks and Land Issues in Muslim Mindanao” by describing how the subsequent peace agreement between the Philippine government and the Moro Islamic Liberation Front (MILF) has exacerbated some of the conflict dynamics she describes. Finally, a third post by Arthur “Gill” Green will update his chapter on land tenure and peace-building in Aceh, Indonesia.

I’m very pleased to be able to host these guest postings and hope that some of the other authors may yet be moved to update their excellent chapters. I should probably also do a plug for my own chapters as well – one of which, on Cambodia, will be old hat to readers of this blog, but the other of which, on Bosnia, might provide more novelty.

In the latter chapter, I build on astute analysis by both ESI and Gerard Toal in describing an extraordinarily ambitious, mercifully brief and ultimately shambolic attempt by international officials in Bosnia to control all property transactions in the entire country. A footnote in the history of peace-building, one hopes, although great ambitions never seem to entirely run dry.

Guest posts:

– Paula Defensor Knack, Land and Post-Conflict Peacebuilding: The Peace Deal for Mindanao and its lessons for practitioners of environmental peacebuilding (10 April 2014)

– Dan E. Stigall, Land and Post-Conflict Peacebuilding: The durability of Middle Eastern Civil Codes and durable solutions to displacement (26 September 2013)

– Jennifer Brick Murtazashvili, Land and Post-Conflict Peacebuilding: Customary governance, property rights, and state building in Afghanistan (08 May 2013)

– Douglas Batson, Land and Post-Conflict Peacebuilding: A new global standard for land administration (25 April 2013)

Defining communities in Colombia: the Afro-descendant communities of Curvaradó and Jiguamiandó and communal land rights

by Anouska Perram

Anouska Perram is a Supervising Associate at the London office of Simmons & Simmons LLP, an international law firm. At the request of an international NGO for whom it acts on a pro bono basis, Simmons & Simmons LLP has recently submitted an amicus curiae brief to the Colombian Constitutional Court in relation to international human rights law considerations pertaining to the Curvaradó and Jiguamiandó communities’ case.

Once seen as antipathetic to the individual rights focus of international human rights law, “third generation” and collective rights have – despite lingering controversy – been widely accepted as a fundamental element of the indivisible human rights framework.[1] Driven in particular by the demands of indigenous peoples, national and international law has recognised and protected rights to communal land titles, rights to language, religious practices, specialised education and protection of cultural heritage, and many other rights which are associated with the existence of distinct socio-cultural groups within the boundaries of the wider state.

As they have developed, collective rights have increasingly been applied to groups beyond indigenous peoples. ILO Convention 169 (the Indigenous and Tribal Peoples Convention) extends protections not only to indigenous peoples (described as peoples descended from a pre-colonial society) but also – the clue is in the name – to “tribal peoples”. Unlike the description of indigenous peoples in the Convention, tribal peoples need not be linked by common descent, but rather are characterised by “social, cultural and economic conditions” which “distinguish them from other sections of the national community”.[2]

Taking a similarly expansive approach, the Inter-American Court of Human Rights (IACtHR) has applied collective rights principles to Afro-descendant groups. The Court applies its jurisprudence on indigenous land rights equally to Afro-descendant groups where they have “an ‘all-encompassing relationship’ to their traditional lands, and [where] their concept of ownership regarding that territory is not centered on the individual, but rather on the community as whole”.[3]

The expanding scope of collective rights entails a shift in emphasis in the way these rights are justified. Indigenous rights advocacy has often focused on a claim to right derived from chronological precedence – ancestral descent since time immemorial – perhaps paralleling an orthodox property rights analysis which takes an earlier claim as a better claim. The expansion of rights to other groups such as Afro-descendants – who do not have the same claims to ancestral ownership – moves the focus towards the uniqueness of social and cultural characteristics of the group. In this way, as collective rights have developed juridically, the principle of a distinct social organisation, intrinsically worthy of and requiring protection as a collective has become central to the analysis.

This question brings to the forefront the issue of how to define membership of the “collective” entitled to “collective rights”. Logically the entitlement to protection should follow the contours of the social organisation being protected; how to determine those boundaries in each situation is, however, not necessarily straightforward. This is not actually of course a new question – it arises equally for indigenous peoples – but has perhaps been more readily glossed over in relation to indigenous peoples, in reliance upon the (mythically) objective element of “descent” to determine the boundaries of the group.[4] No such “objective” identifier applies to non-indigenous groups and so the question of how to define the group cannot be avoided.

Lawmakers will remain tempted to adopt an “objective” criterion of descent, which gives an appearance of certainty and also places finite limits on a group. Such an approach, however, has the potential to decouple collective rights from parts of the collectivity being protected. This is the very issue currently before the Colombian Constitutional Court in relation to the Afro-descendant communities of Curvaradó and Jiguamiandó.

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