Category Archives: Admin

Nicholas Fromherz to guest-post on the Chevron-Ecuador case

by Rhodri C. Williams

This being a blog on the legal aspect of conflicts over land and natural resources, it has become increasingly untenable to continue ignoring one of the most bitter and protracted such disputes of all time, namely the Chevron-Ecuador case. At the same time, given the numerous twists and turns this litigation has taken in its various phases, trying to catch up with it, let alone say something meaningful on it, seemed well beyond my faculties.

Based on the reading I have been able to do, I was also aware of the strong passions the case has raised. For instance, this overview in the New Yorker portrays the conflict as a battle of wills between two highly willful lawyers – in effect, the unstoppable victims’ advocate meets the immovable corporate defense attorney. Recent exchanges on Opinio Juris between contributor Kevin Jon Heller, on one hand, and Notre Dame professor Doug Cassell have similarly struggled to keep to the genteel conventions of non-dittohead neighborhoods of the blogosphere (see in particular this exchange in comments).

For all these reasons, I have been cautious in approaching the toxic debate about the toxic lawsuit over the toxic sludge of Lago Agrio. However, I am now all the more happy to be able to provide a forum to repeat TN guest and South American Law & Policy blog author Nicholas Fromherz, who will focus on the broader implications revealed by the case for parties to transnational litigation of all stripes.

Nick’s post has now been published as:
An inconvenient forum: Thoughts on the Chevron-Ecuador Case (30 March 2012)

Back to the Balkans – upcoming guest postings on restitution issues in Bosnia, Serbia and Kosovo

by Rhodri C. Williams

It is a special pleasure for me to announce upcoming guest postings by two old friends and colleagues from the early 2000s, when we were spending all our time monitoring property restitution for the OSCE Mission to Bosnia (including many quality hours in our adjunct office at Sarajevo’s finest čevabdžinica).

First out is repeat TN guest-author Massimo Moratti, who in earlier incarnations brought property restitution to Prijedor and helped to found one of Bosnia’s first extreme sports clubs, but is now engaged as the Team Leader for a legal advising project assisting IDPs from Kosovo in Serbia (full disclosure: I have been brought on as a consultant to the project to provide occasional help with training and legal strategy). Massimo will begin with a piece describing his team’s efforts to build on their individual casework in generating findings indicating which systemic problems still continue to block property restitution and return. This piece is meant to be the first in a series of guest-postings that will highlight new reports generated by the project as they are published.

The issue of durable solutions for Kosovo IDPs is one of the legacies of the 1990s conflicts in the Western Balkans that has slipped so far from the limelight that many people may assume it no longer exists. I wrote about the issue for Brookings last year, focusing on the steps that the Serbian authorities were taking to facilitate integration of IDPs without precluding their eventual right to return. However, Massimo’s pieces will focus on the responsibility of the (de facto, depending on your viewpoint) authorities in Kosovo, as well as their international partners, to respect IDPs’ property rights and create conditions for their voluntary return.

In addition, my mentor in all things Bosnian, Halisa Skopljak, will provide a first time guest posting highlighting emerging judicial practice in Bosnia that threatens to roll back many of the gains made by a post-conflict property restitution process formally deemed complete nearly a decade ago. Halisa, who monitors implementation of the Bosnian criminal codes at the OSCE and graduated in 2010 from Law School in Travnik, will provide an overview of recent jurisprudence in the Serb entity of Bosnia requiring reinstated property claimants to pay exorbitant costs to wartime occupants for alleged improvements.

The following guest-postings have now been published:

Milica Matijevic and Massimo Moratti, Mainstreaming IDP principles in capacity building efforts: A chance missed in Kosovo (13 July 2012)

-Milica Matijevic and Massimo Moratti, In search of a duty-bearer: No remedy for destruction of property during Kosovo’s international supervision (15 May 2012)

-Halisa Skopljak, Unfinished business: Why return issues remain relevant in the process of European integration (03 April 2012)

-Massimo Moratti, Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool (23 March 2012)

Upcoming guest postings by the Brookings-LSE Project on Internal Displacement

by Rhodri C. Williams

Rounding out a run of guest-posting announcements, I am very pleased to introduce an upcoming set of contributions by the Brookings-LSE Project on Internal Displacement. For those of you not familiar with the Project, it is a small unit within the Brookings Institution’s Foreign Policy section that has not only played an outsized role in promoting effective responses to internal displacement, but also in laying the ground for rights-based approaches to humanitarian crises at a broader level.

The Project has been closely associated with the mandate of the UN Special Rapporteur tasked with advising on the human rights of internally displaced persons (IDPs) since 1992 (formally in the guise of a ‘Representative to the UN Secretary General or ‘RSG’ until 2010).  Thus, the ‘LSE’ component refers to the academic home of the current mandate holder, Chaloka Beyani. This comes after a 2004-2010 period as ‘Brookings-Bern’ in reference to prior mandate-holder Walter Kälin, and earlier stint as ‘Brookings-SAIS’ in association with the first RSG, Francis Deng.

In the interest of full disclosure, I should point out that the opportunity to work with Brookings early and often in my consultancy career not only made that career viable but also helped to expand my horizons tremendously. When the legendary IDP advocate Roberta Cohen plucked me out of obscurity to coordinate the development of a comprehensive manual on national response to internal displacement, I was quickly pushed out of my comfort zone of Balkan restitution issues and began to engage with the entire range of humanitarian, human rights and advocacy issues that still bedevil effective responses to the fundamental vulnerability of losing one’s home.

I am therefore happy to observe that Brookings is still going strong and recently published a raft of publications of both broad, humanitarian interest and more narrow relevance for the housing, land and property (HLP) community. The guest postings scheduled for the next weeks will feature a number of these.

First, Elizabeth Ferris, Brookings Project Co-Director, and her collaborators Erin Mooney and Chareen Stark will present their recent report From Responsibility to Response: Assessing National Approaches to Internal Displacement. The report builds on an assessment of the implementation of the non-binding but seminal UN Guiding Principles on Internal Displacement in fifteen of the world’s countries “most affected by internal displacement due to conflict, generalized violence and human rights violations”. The authors not only review the general conclusions of the report but also elaborate some of the most important findings related to HLP issues in internal displacement settings.

Second, Roberto Vidal, law professor at the Javeriana University of Bogota, will be writing on property-related themes related to his extensive recent work with the Project. And, third, authors Yulia Gureyeva-Aliyeva and Tabib Huseynov will be writing on their recent Brookings report “Can You Be an IDP for Twenty Years?” A Comparative Field Study on the Protection Needs and Attitudes Toward Displacement Among IDPs and Host Communities in Azerbaijan. While numerous HLP issues arise in relation to protracted displacement in Azerbaijan, some of the most difficult reflect tensions between IDPs and host communities and have been litigated as far as the European Court of Human Rights in Strasbourg:

At the time of displacement many IDPs in urban and rural areas arbitrarily seized houses and land, which belonged (or were assigned later) to local residents. According to executive decrees, IDPs cannot be evicted from their places of residence—even those which they do not legally own—unless they are provided with alternative living arrangements. This has led some homeowners to take their cases all the way to the European Court of Human Rights, which questioned the existing government practices as a violation of property rights.

UPDATE – the following guest-postings have now been published:

– Yulia Aliyeva, Can you be internally displaced for twenty years? Housing issues and protracted displacement in Azerbaijan (12 September 2012)

– From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights (22 February 2012)

 From National Responsibility to Response – Part I: General Conclusions on IDP Protection (21 February 2012)

Nicholas Fromherz to guest post on the Bolivia TIPNIS debate

by Rhodri C. Williams

Land issues in Bolivia made their debut on TN last Fall, when a dispute over President Evo Morales’ plan to run a road straight through the center of the the  Isiboro-Secure Indigenous Territory and National Park (TIPNIS in Spanish) came to light. Commentators fastened on the seeming irony of Bolivia’s first emphatically indigenous head of state’s decision to compromise the integrity of indigenous land without even observing the constitutional necessity of prior consultation. At the time, I contrasted the problem of lack of democratic accountability in simultaneous land riots in China with the problem of overreliance on majority rule in Bolivia:

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.

 As subsequent analysis would in fact demonstrate, “indigenous peoples” are no more a monolithic category in Bolivia than minority groups are anywhere, and many of the key backers of the road were also indigenous groups with diverging economic agendas and political links to the President. Accordingly, even as protesters forced the government to negotiations by October, the outcome of the issue remained uncertain. At that point, I quoted an interesting commentary in Foreign Affairs chronicling the “tremendous damage” the mishandling of the TIPNIS issue had done to President Morales’ credibility. Unbeknownst to me, the author, Nicholas Fromherz, was a fellow blogger at South American Law & Policy. When Nicholas later picked up on a TN piece on Colombia, I began to realize how much good, locally informed analysis is out there on the TIPNIS controversy.

As a result, I am very grateful to Nicholas for agreeing to post on TN with an update on TIPNIS that will pull together some of the threads from the various media and blogosphere sources Nicholas covers. To update the story a little since TN’s last coverage, South American Law has chronicled the progress of the protesters, their arrival in La Paz, Morales’ initial acquiescence to their demands, and the adoption of a bill in late October quashing the road project. However, by December proponents of the road had organized, leading to legislative reconsideration of the TIPNIS bill and a decision by Morales to revisit the issue in consultation with all affected parties. Nicholas also provided an analysis of the requirement to consult in the Bolivian Constitution, linking it with broader research he is undertaking on whether resettlement standards should require actors to merely seek or actually secure informed consent.UPDATE: Please see Nicholas’ guest-posting here.

New report on railway rehabilitation and displacement in Cambodia – Natalie Bugalski to guest-post

by Rhodri C. Williams

Bridges Across Borders Cambodia (BAB-C) released a new report this week on displacement in Cambodia caused by donor-funded rehabilitation of the country’s railway system (the PR is reprinted after the jump, below).

The findings are consistent with bad practice in development-induced displacement everywhere – poor planning, little consultation, thinly-veiled coercion, badly located and serviced resettlement sites, resulting in precisely the type of impoverishment risks that the standards long espoused by donors such as the World Bank and (more to the point in this case) the Asian Development Bank (ADB) are meant to prevent.

However, the report also reflects a particularly Cambodian failure to act on decades of advice and occasional pressure to comply with standards that would allow the country – at relatively little cost – to be seen to live up to its international commitments and to avoid the human tragedy and bad optics associated with forced evictions. After all, it is only six months since the Cambodian Government appeared to make tactical concessions in a standoff with the World Bank over evictions in Phnom Penh, but subsequent events indicate a reversion to form.

In this case, it is also over a year since early research on the very project criticized in the BAB-C’s new report forecast the problems that the latter now documents. For instance, Natalie Bugalski guest-posted at the time on the tragic drowning death of two children sent to fetch water because water sources available at the resettlement site where they lived were “polluted by chemicals used for rice growing and … caused skin diseases and other illnesses.”

Natalie will shortly be providing TN readers with another guest-posting with observations on BAB-C’s new report. As is often the case in Cambodia, all of this will make awkward reading not only for the Cambodian government, but also for international donors (in this case the ADB and AusAid) that are responsible for ensuring that the Cambodian Government accepts their resettlement standards along with their funding. For the time being, acceptance of this principle remains elusive.

UPDATE: read Natalie’s guest-posting here:  The ADB involuntary resettlement policy: Fifteen years on, the poorest still bear the brunt of development (23 February 2012)

Continue reading

TN turns two!

by Rhodri C. Williams

Thanks to readers, commentators and guest authors alike for another great year. In the interest of providing the briefest imaginable stockholder report, I will try to illustrate just a few key trends since our little blog turned one last year.

First, hits are steadily going up from a total of 12,500 a year ago to precisely 29,000 now, or about a 25% increase. Not stratospheric, but no risk of a bubble either! Second, and maybe even more reassuring, this growth comes when the overall rate of posting has slowed from the occasionally frenetic pace of year one (120 posts or ten per month) to something a bit more manageable (around 90 posts this year). Meanwhile, guest-postings leveled out with 17 registered last year, followed by 15 this year, along with some interesting cross-postings from Landesa’s Field Focus blog.

In order to give TN’s prolific guest authors the props they deserve, I have set up a new tab that includes an alphabetical directory of all who have contributed to date, along with links to their respective pieces. And in order to encourage both regulars and first-timers to consider writing guest posts, I’ve also laid on some fairly non-demanding guidelines on how to go about proposing and writing pieces on TN.

Its been a very enjoyable year for me, and one where the blog itself has branched out considerably from its narrow initial base of post-conflict housing, land and property (HLP) issues. As I mentioned at the turn of the year, the most significant developments have come in response to the Arab Spring, with more systematic attention being given to the territorial aspects of minority rights and self-determination issues (in the MENA region – see links below – and beyond).

However, many recent guest-bloggers have also explored development and conflict prevention-related lines of inquiry, and I have also made a few forays into broader questions of social and economic rights (particularly in the Swedish context) and citizenship. So, thanks once again to everyone who has contributed in small ways and large and I look forward to seeing what the next twelve months brings. Continue reading

New report on the ‘global land grab’ – and guest-posting by David Deng

by Rhodri C. Williams

In a post late last month, I delved into the problem of ‘public/state land’ and the opportunity that this overwhelmingly post-colonial tenure form presents for state predation in a context of spiraling commodity prices. In taking on such a broad and complicated topic, I am afraid I may have oversimplified things. Toward the end of the piece, I noted Shaun Williams’ suggestion (in an earlier TN post) that focusing on effective management of urban public land was likely to be both more feasible and more rewarding than dealing with customary tenure issues for low capacity governments interested in reforming their land systems. Shaun’s insight on the relative tractability of public land issues was reinforced by Erica Harper’s previous description of the difficulties inherent in implementing – or even generalizing about – reform of customary law systems.

All that said, having pushed the ‘publish’ button, I reflected on the fact that this dichotomy between state and customary tenure regimes might be a bit too pat, at least as a global generalization. After all, Shaun’s comments were focused on urban land and the particular context of the Solomon Islands. Was it not actually the case that in rural contexts, in particular, the problem was precisely that the two categories overlapped, with both the state and customary communities essentially ignoring each other’s mutually exclusive claims to the same land until they came into direct conflict? By and large, this seems to be the issue, with the maintenance of public land regimes allowing inchoate colonial era mass-expropriations to be projected into the twenty-first century with a veneer of legality.

This sense of things got a significant boost with the launch last week of a new report – Turning Point: What future for forest peoples and resources in the emerging world order? – by the Rights and Resources Initiative (RRI). As indicated in the launch webpage, RRI has traditionally been concerned primarily with forest tenure. However, this report, as well as an accompanying set of issue briefs by Liz Alden Wily, reflect the fact that forest land now faces many of the same pressures as other rural land, and that the tenure rights of forest dwellers are no more secure than those of smallholders anywhere. The basic issues at stake are set out starkly in the RRI’s press release on the report:

In presenting the results of an analysis of tenure rights in 35 African countries, by international land rights specialist Liz Alden Wily, [RRI Global Programs Head Jeffrey] Hatcher noted that despite the clear potential for bloodshed, “local land rights are being repeatedly and tragically ignored during an astonishing buying spree across Africa.” Alden Wily’s review found that the majority of 1.4 billion hectares of rural land, including forests, rangelands or marshlands, are claimed by states, but held in common by communities, affecting “a minimum” of 428 million of the rural poor in sub-Saharan Africa. “Every corner of every state has a customary owner,” Alden Wily concluded.

The launch of the RRI report was accompanied by a panel discussion describing the effect of large-scale land investments and concessions in a number of settings. One of these was South Sudan, and it is a pleasure to announce that the corresponding observations, by David Deng, will be reproduced in the form of a guest posting on TN tomorrow.

Those familiar with the increasingly urgent debates surrounding the ‘global land rush’ will be aware that Mr. Deng authored a report published last March by Norwegian People’s Aid (NPA) indicating that as much as nine percent of South Sudan’s territory – an area larger than Rwanda – may have been ‘spoken for’ before the country came into formal existence. Mr. Deng was also one of the contributors to a massive study on transnational land deals and human rights undertaken by the NYU Center for Human Rights and Global Justice (CHRGJ) in support of the UN Special Rapporteur on the Right to Food. He is now Research Director for the South Sudan Law Society. 

Upcoming TN guest-postings in early 2012

Early 2012 has brought a bumper crop of guest postings that I will aim to spread out over the next weeks. Many of these postings address controversial questions or put forward considered and well-founded but debatable (and debated) assertions, so I would welcome readers to engage with them, comment on them and even be moved to guest-post themselves.

First out will be Sebastian Albuja, who is the Internal Displacement Monitoring Centre (IDMC) country analyst for Colombia, and has previously guest-posted on the country’s new restitution framework here and here. This time, Sebastian will introduce the IDMC’s recently updated profile of internal displacement in Colombia and discuss the implications – both positive and negative – of the strong role the country’s Constitutional Court has taken in setting criteria for determining when displacement there can be said to have ended.

Also in the next days, Anneke Smit and Gloria Huh of the University of Windsor Law School will provide a short piece summarizing recent debates in Canada over property and housing for indigenous peoples as well as links to further sources of information. As described in a recent article in the Globe and Mail,  proposals to facilitate private property ownership on First Nations’ reserves have sparked significant discussion and controversy.

Shaun Williams, the Land and Natural Resources Governance Adviser for the World Bank’s Justice for the Poor Program, will be guest-posting on the governance of disputed ‘public land’ in post-colonial countries, an issue of particular significance in urban areas characterized by high development pressures. The posting will build on research undertaken in the Solomon Islands.

In addition, Rachael Knight will present the results of a project on Community Land Titling that she managed for the International Development Law Organization (IDLO), summarizing a set of recently released reports related to experiences in Liberia, Mozambique and Uganda. Rachael was also a contributor to the study on customary justice presented by IDLO Senior Rule of Law Advisor Erica Harper in a guest-posting last November.

Christopher Aston, who works at Coffey International Development with the Governance, Security and Justice team, will be guest-posting with some of the key conclusions of his 2011 master’s thesis at the  Irish Centre for Human Rights:

The piece will discuss the rights-based approach to peacebuilding and its value to protecting vulnerable and marginalised groups and emphasising a state’s obligations regarding their welfare and providing remedies for violations.  Whilst there has been little progress in treating economic, social and cultural abuses as violations of human rights and providing a legal remedy, property restitution based on the right to return to one’s home of origin and the right to a legal remedy is an exception.

Land and property issues figure prominently in conflict and a rights-based approach to these issues can contribute to peacebuilding including, supporting the rule of law, IDP and refugee returns, protection of vulnerable groups and reconciliation.  The piece will look at the role of land and property issues in the Kosovo Conflict and the contribution and limits of a rights-based approach to these issues and particularly property restitution to peacebuilding in the country.

And, in early February, Christopher Thornton will blog on some of the main findings of his 2011 masters thesis from the Graduate Institute of International and Development Studies which is shortly to be published as part of the Institute’s e-paper series:

It is considered axiomatic that justice and property restitution are inextricably linked. However, this link is far from universal and indeed highly context-specific. In order to better understand the justice implications of property restitution it is important to interrogate the philosophical ideals which are at the foundation of this “right” and consider how property restitution looks through different philosophical lenses. The forthcoming guest post will consider property restitution through both corrective and distributive justice paradigms. We will see how these very different perspectives imply very different things about the justice of property restitution.

To read these postings, see:

Rachael Knight
– Empowering communities to document and protect their land claims: A solution to the global land grab? (19 July 2012)

Christopher Thornton
– Pinheiro and the political philosophers: Achieving justice through post-conflict property restitution (06 March 2012)

Sebastián Albuja
– Judicial oversight and the end of displacement in Colombia (12 January 2012)

A year in the life of a blog – 2011

by Rhodri C. Williams

Complain as I might about life in the frozen wastes of Scandinavia, the long dark nights are not without their benefits. I am just back from a few weeks of largely voluntary internet abstinence and believe it may have done some good. That said, its nice to be dipping my toe back into the news junkie mainstream again. Before I get too carried away by blogging as usual, I thought I might step back and work on my wish list for 2012.

First of all, I hope the hits keep coming – WordPress checked in with its annual report on the blog for 2011, and it seems TN received 16,000 hits last year, a 33% increase over its first full year and the equivalent of six sold-out performances at the Sydney Opera House. Of which speaking, I am also pleased to say that the Australians appear to have forgiven me for the injudicious title of the blog and are a significant chunk of my readership, while the US and the UK top the chart. Sweden placed third, gratifyingly, and large contingents also checked in from Colombia, Egypt and Kenya. My weakest region is Asia, which seems odd given the heavy coverage of Cambodia last year (including the single most popular post of 2011).

Second, I would love to see even more active participation, comments and guest-postings. Housing, land and property (HLP) might be flatteringly portrayed as a niche field of practice or less flatteringly as a broad cross-cutting issue. Either way, readers should feel free to contact me if they feel that they would like to describe their own experience and insights or otherwise contribute to the discussion that still, by all appearances, remains all too sporadic and infrequent between humanitarian actors, human rights advocates, transitional justice and rule of law practitioners and those in the development field. And, lest we forget that ordinary human beings and communities are profoundly affected by these issues, I would like to extend the invitation beyond the expat experts as well.

Third, I would like to express my hope that TN readers will forgive (and even embrace) the shift in emphasis over the course of 2011 from a tight focus on HLP questions to a broader focus on the significance of land to questions of self-determination and minority rights. Given the relevance of HLP to so many other fields and the window that examining HLP issues provides on broader social and political questions in any given context, it can sometimes seem like a bit of an international law and policy gateway drug. Last year, it would simply have been remiss to ignore the way in which the Arab Spring re-ignited history. I trust 2012 will be similarly eventful, and I hope TN will continue to serve as a place where the legal, political, economic and cultural implications of the relationship between people and their patch of turf can be highlighted.

Happy Holidays!

I meant to write this a week ago on the ferry to the Åland Islands for an internet-free holiday season, but the perennially bad wireless on the boat was non-existent. So Happy Holidays to all TN readers and best wishes for all success in 2012! I will be back online by next week and have a set of extremely interesting guest-postings coming up, along with the usual HLP updates.