The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

by Massimo Moratti

Protecting the property rights of displaced persons in post-conflict scenarios presents a number of interesting challenges, not least when internally displaced persons (IDPs) face illegal construction on their land and therefore are forced to seek remedies before the relevant institutions, including mass claims mechanisms.

One of these cases, which is probably not an isolated one, occurred recently in Kosovo, where the Kosovo Property Agency (KPA) is the local mass claim mechanism which inherited the competences of the UNMIK Housing and Property Directorate (HPD).  Established in 2006, the Kosovo Property Agency became an independent agency functioning in accordance with the Constitution of Kosovo after the unilateral declaration of independence.  The mandate of the KPA focuses on claims for land and commercial property, which were not addressed by the UNMIK HPD, since the HPD’s mandate did not cover such claims and the local courts were in theory competent for the receiving them. Since its inception, the KPA has collected claims for over 42,000 properties and decided 96% of those claims.

While the process of issuing decisions is approaching its end, the implementation of such decisions in a number of cases is becoming particularly problematic, especially those cases where a new building has been constructed on claimed properties. It is worth recalling that the KPA was created in 2006 and for the period 1999-2006 there was no claims mechanism to deal with claims for land, nor were courts capable of effectively processing such claims.  In the meantime, “a lot has been built in Kosovo”, to quote one of the officers of the Ombudsman office when contacted about the issue of illegal construction.

The problem the KPA is facing now is how to deal with such cases, where an illegal occupant has built a residential or commercial building on a claimed plot of land. In theory, the KPA could resolve to seize and demolish the building, sell it at an auction, broker a lease agreement or place the building under administration. However, practice has departed significantly from the procedures foreseen in the law. The KPA has instead developed a mediation procedure in order to try to solve these cases without resorting to destruction of buildings. IDPs facing illegal construction are now routinely informed by the KPA about the impossibility of demolish such buildings and offered the possibility for mediation.

This offer of mediation raises a number of issues and leaves a number of questions unanswered.  The case KI187/13 recently brought before the Constitutional Court of Kosovo highlights how the procedure of mediation collides with the provisions of the European Convention on Human Rights (ECHR). In this case, a female IDP who left Kosovo in 1999 and has lived in destitute conditions since sought repossession of a large plot of land in an attractive location outside Pristina with significant commercial value. On the same plot, an illegal occupant had built three houses with a swimming pool. The applicant claimed her property in 2006 and a KPA decision in her favor became final and binding in 2013.

The KPA however told the applicant that they could not enforce her claim, because the property had changed since the time she owned it and the KPA lacked the resources to demolish the existing buildings. They offered instead to mediate between her and the illegal occupant. The applicant refused such mediation and instead addressed the Constitutional Court of Kosovo, claiming a violation of her rights to property, to a fair trial and to an effective remedy. Continue reading

One Europe?

by Rhodri C. Williams

As I type this, the points are rolling in for the 2014 Eurovision Song Contest. Its all a little bit surreal. Having done its best to stave off ‘politicization’ of a 2012 contest handed without strings to autocratic Azerbaijan, the organizers of Eurovision are now finding European politics bashing down the door and tracking muddy footprints down the hallway.

At the other end of Europe, it has been another bloody, divisive day in Eastern Ukraine, which is now described by the Guardian as ‘on the brink of civil war’. As mob rule descended on the Eastern city of Mariupol, one local Russian speaking resident described his view of the casus belli as follows: “This is the Donetsk people’s republic! We will destroy the Kiev junta and the Euro-gays! We will win!”

At this end of Europe, the picture could not be more different, with the Euro-gays sitting rather clearly in the ascendancy as the last minutes of the Eurovision contest roll down. A few minutes back, the astonishing transvestite performer Conchita Wurst of Austria passed the point of no return, taking high points not only from predictable Western countries but also east of the Oder locales like Georgia with rather mixed past records on moving past hetero-normativity.

More sadly, a pair of talented twins who happen to hail from Russia (but probably enjoy fairly little direct responsibility for troop movements on the Ukrainian border) initially drew loud and sustained boos from the crowd every time one of Russia’s few remaining friends in the region tipped them their 10 crony points. By the end the boos seemed to be drowned out by cheers, which indicate a far greater capacity to learn quickly from past mistakes on the part of the Eurovision crowd than the Kremlin regime.

The phenomenon of Conchita Wurst at this moment in European history highlights both the ascendancy of socially liberal values across many parts of Europe and the political division that gapes ever wider between European regimes that can handle individual expression and those that find it threatening. Not that the two never play footsie, mind. Just look at former Eurovision capital Azerbaijan, returned decisively to its draconian ways after the foreign media pulled out and yet all dolled up to assume the chairmanship of Europe’s ever less credible human rights organization, the Council of Europe, in just three days.

And yet, in the afterglow of a Eurovision contest that fell overwhelmingly to an Austrian ‘bearded woman’ who could belt out a power ballad like nobody’s business, the last word is best left to Conchita herself:

Waking in the rubble
Walking over glass
Neighbors say we’re trouble
Well that time has passed

At some point, now or in the future, Moscow will need to decide whether it always wants to be that grumpy neighbor or would rather integrate more meaningfully with a European community it has every claim to be a part of. But Europe would do well in the meantime to be a little more careful about who it welcomes into Conchita’s house.

What future for reform? Tracking changes in forest tenure since 2002

by Alexandre Corriveau-Bourque

Alexandre Corriveau-Bourque is a Tenure Analyst with the Rights and Resources Initiative, and one of the lead researchers of “What Future for Reform?” along with Fernanda Almeida and Jenny Springer. He is currently managing and updating RRI’s various tenure tracking data sets and developing new methodologies to track changes in community tenure.

Few things are as political as the rights to the world’s remaining forest land. Forests are viewed by a wide range of actors as a source of timber, fiber, food, fuel, medicine, carbon storage, biodiversity, spirituality, and as sites of cultural belonging. Vast mineral, gas, and oil resources are also found beneath the world’s forests. As populations and incomes grow, pressure will continue to rise on the shrinking, yet increasingly important forest estate and the resources it contains. To understand the current contestation for these resources, it is important to begin with the following question: Who ‘owns’ or ‘controls’ these resources?

While the answers are rarely clear, and frequently contested, the Rights and Resources Initiative (RRI) and its Partners have been developing approaches to answering it since 2002. RRI’s recent report, What Future for Reform? Progress and slowdown in forest tenure reform since 2002, is the latest in a series of reports tracking developments related to four different statutory forest tenure categories: 1) forest land under government administration; 2) forest land designated for Indigenous Peoples and local communities; 3) forest land owned by Indigenous Peoples and local communities; and 4) forest land owned by individuals and firms.

The report presents tenure data from 2002 and 2013 under these four categories for 52 countries, representing nearly 90 percent of the global forest area.[1]  Of these, the 40 countries that have complete data for each category and time-period exclusively inform the global aggregates. The aggregates for low and middle income countries (LMICs) are drawn from 33 countries.

Key findings

On a global scale, it is clear that while governments have increasingly recognized indigenous and local community control and ownership of forest land, governments retain the lion’s share of the global forest estate. Between 2002 and 2013, the proportion of forests owned or controlled by Indigenous Peoples and local communities increased from just over 11 percent of the global forest estate (at least 383 Mha) to 15.5 percent (at least 511 Mha). The proportion owned by individuals and firms only increased by 0.6 percent over this same time period.  Continue reading

Land and Post-Conflict Peacebuilding: The Peace Deal for Mindanao and its lessons for practitioners of environmental peacebuilding

by Paula Defensor Knack

Paula Defensor Knack is a is a former assistant secretary for Lands and Legislative Affairs at the Philippine Department of Environment and Natural Resources. She wrote on “ Legal Frameworks and Land Issues in Muslim Mindanao” in Land and Post-Conflict Peacebuilding and provides an update in this guest posting. NB: This material may not be published, broadcasted, rewritten or redistributed in whole or part without due reference to the author.

This blog provides a guide to peace-builders in analyzing developments in the Mindanao peace process that occurred since the publication of my chapter on “Legal Frameworks and Land Issues in Muslim Mindanao” (available here in pdf) in Land and Post-Conflict Peacebuilding. The recent signing of the Bangsamoro peace deal for Mindanao or the Comprehensive Agreement on the Bangsamoro (CAB) has received both praise and criticism. It is a work in progress as the CAB has been submitted to Congress for the passage of the Bangsamoro Basic Law.  This posting, therefore, represents a guide to peace-builders in understanding the implications of these latest developments .

This blog post is part of a continuing analysis, shared with the 700 or so members of the Environmental Peacebuilding group and policymakers, regarding each phase of this protracted conflict and its series of failed peace agreements. The analysis raises questions relevant to conflict studies, negotiation, mediation, law, political science, natural resources and environmental management, governance and peacebuilding, which may serve as guidance to both students and practitioners. A full-blown academic  analysis of this latest peace deal is to follow, but readers are also encouraged to familiarise themselves with the volumes in the Environmental Peacekeeping series related to land, natural resources and governance for case-studies providing lessons on effective post-conflict governance.

The Demands on a Peacebuilder

The work of peacebuilder can be complex, demanding and even life-threatening. Continue reading

Land grabs jeopardize peace in Sri Lanka

by Christina Williams

Christina Williams is an attorney and founder of Reinventing the Rules, a website dedicated to covering the latest trends and lessons learned in the rule of law sector. She has worked on human rights campaigns related to Sri Lanka for several years and is currently focusing on women and land rights in the region.

The end of the 25-year armed conflict in Sri Lanka in May 2009 signaled what many in the international community hoped would be the beginning of a new era marked by peace and reconciliation. Over the past five years, however, one of the key instigators of the civil war has resurfaced. Land grabs, which were systematically taking place prior to the armed conflict, are once again accelerating at a frightening pace. Shielded by the rhetoric of security and development, the rise of land grabs has left few positive prospects for long-term peace and stability.

Who is behind the land grabs?

The Sri Lankan military, sanctioned by the Government, has played a primary role in confiscating public and private land from the Tamil population, which predominantly inhabits the North and East of the island. Despite the end of the war, militarization of Tamil areas has been the main reason land grabs continue unabated.

In 2008, during the latter stages of the armed conflict, Sri Lanka reportedly had a force of 60 soldiers for every 1,000 civilians or 1 soldier for every 16.6 civilians in the North. In July 2012, the Economic and Political Weekly of India estimated that there is a “ratio of 1 security personnel for every 5.04 civilians in the Northern Province.” The military, which is almost entirely composed of ethnic Sinhalese from the South, includes at least 15 army divisions and personnel from the navy, air force, civil defense force, intelligence, police, and special task force. This conservative estimate roughly translates into 198,000 soldiers or 70% of the security personnel in 14% of the country. View a map of militarization in Sri Lanka here.

The trend towards militarization has only increased with Sri Lanka’s defense budget for 2014 reported to be the highest allocation of funds thus far, at $1.95 billion or 12% of the country’s total spending.  The rate at which militarization grows in Tamil areas five years after the war ended is a concerning trend given the significance land played as one of the root causes of the war. Land will likely continue to play an important role in determining whether peace and a return to normalcy can be achieved.

Tactics used to seize land

The seizure of land marked as high security zones (HSZ) during the conflict and the unwillingness to return much of this property to the thousands who were displaced has contributed to the slow return to normalcy in the former war zones. While some of the HSZ have been disbanded, existing HSZs still occupy significant amounts of valuable agricultural land and no one other than the army is allowed to enter, including elected officials. During the war the legality of the HSZs rested on emergency regulations, which have now been repealed. Five years after the end of conflict, there is no clear legal basis for the remaining HSZ.

Since the armed conflict ended, the military has continued to confiscate public and private land largely under the pretext of security. While many military camps have been created for the army and navy, the government has also resettled thousands of Sinhalese soldiers and civilians from the South in Tamil areas by incentivizing them with free land and permanent housing. This is occurring while 57% out of 138,651 households already residing in the North remain in transitional or emergency shelters while only 32% have permanent homes. Consequently, land grabs are reigniting fears of a concerted effort by the government to change the demographics of Tamil areas in the North and East.  Continue reading

Sweden faces up to past discrimination against its Roma minority in a new ‘White Book’

by Rhodri C. Williams

One week ago, the Swedish integration minister Erik Ullenhag presided over the long-awaited release of a government “White Book” documenting the country’s treatment of Roma during the 20th century. As appropriate to the aims and nature of this inquiry, the initial publication was a Swedish family affair; while the context of broader European antiziganism – or racism against Roma – is discussed and acknowledged, there has yet to be an official translation of the White Book in English (let alone romani ćhib), although a summary and fact sheet are now available.

Greater accessibility and dissemination will no doubt follow, if for no other reason than to show compliance with Sweden’s EU-mandated integration policy, and respond to specific criticisms of the Advisory Committee for the Council of Europe Framework Convention on National Minorities. However, for the time being, coverage, dissemination and discussion of the White Book have been in Swedish, with the exception of the Local and Swedish Radio. While this has emphasized the extent to which this effort is driven by and aimed at addressing local concerns, it has also resulted in a limited and eclectic international reception to date.

Given my own ongoing research interest in autonomy and minority rights in the Nordic countries, I have been working my way through the White Book and will be writing two posts on it here in TN. The first one, will address the general approach to truth-seeking set out in the White Book, and how it has been received and debated in Sweden. The second will focus more narrowly on the fifth chapter of the White Book, and, in keeping with the concerns of this blog, discuss the historical obstacles to property ownership and secure tenure to housing for Roma in Sweden.

As an outset observation, the White Book is a remarkable document, stating clearly and with an unassuming Swedish sobriety how far the country has come in the integration of its Roma national minority and how far it has yet to go. Its goals are two-fold, namely to provide recognition to the victims of a century of systematic discrimination, and raise awareness among the majority population regarding the severity of these abuses and their enduring effects (12). While the White Book represents a major step toward meeting both goals, some questions remain about both their sufficiency and their relationship with the prospectively oriented Swedish strategy for Roma inclusion.

In fact, the current relevance of the White Book was underscored with near-Hollywood timing by a set of recent scandals involving Roma in Sweden. Continue reading

More cold comfort from Åland in advance of the Crimea referendum

by Rhodri C. Williams

Well the ironies are just flying in thick and fast, as the Russian-speaking local majority on Crimea prepare a referendum to pave the way for the mother of all minority rights protections – secession to the kin state.

There is more and more reporting on how nervous this is making Crimea’s real national minority, the Crimean Tatars – see here in the Washington Post or this Globe and Mail comment by Victor Ostapchuk. And for an eloquent appeal by a forlorn Russian-speaking Crimean who thinks he may have seen the forest for the trees, see this New Yorker piece by Natalia Antelava.

But back to the more obvious ironies. How about this, for starters – Russia, having used arbitrary gas price hikes and occasional winter shutoffs as a disciplinary measure against Ukraine for years, now finds itself sponsoring secession by a Crimean peninsula entirely dependent on the Ukrainian mainland for water, electricity and most of its communications and transportation infrastructure.

Or this one – the Russian sponsors of a Crimean referendum transparently without substantive justification and flagrantly in violation of all accepted procedures for negotiating such processes have now set out an implicit casus belli against the rest of Ukraine by finding fault with the technicalities of its 1991 split from the Soviet Union.

Or simply the fact that Russia’s “support” of Crimea has apparently been justified based on an assertion that the right to external self-determination apparently now applies in situations of contested transfers of power. On this basis, one wonders how much of Russia’s current territory might be interested in a review of their sovereignty arrangements after Putin’s controversial reelection in 2012?

But none of that changes the fact that Crimea is racing toward its referendum, blood has been drawn again in street fighting in Donetsk, and Russian troops are once again massed near the border to Eastern Ukraine. A last minute diplomatic scramble is underway, but Moscow is looking intransigent. So, where does that leave things?

First, a caveat. While I think that the Russian handling of the Ukraine crisis has been dishonest, cynical, inflammatory, illegal, foolish and predictable, I do not deny that Russia has a legitimate stake, and must inherently be as much part of any future solution as it is part of the current problem. I also fear that NATO’s ambitions in the region have a significant and insufficiently examined role in stoking the current conflict, and find arguments for “Finlandization” persuasive.

Second, an omission. In my recent Opinio Juris piece, I forgot to mention that one of the most important similarities between the Åland Islands crisis and that in Crimea may be yet to emerge. Specifically, the Åland crisis began with a controversial referendum in which the local population voted overwhelmingly for union with Sweden. Helsinki condemned it as illegal, but all parties refrained from violence, and the conflict eventually found its way to the League of Nations and was resolved there. 

In all likelihood, the Crimeans will have their say on Sunday. Whether it will be free, fair, representative or meaningful is another matter. But if the ICJ said nothing else in their Kosovo Advisory Opinion, they did uphold some kind of freedom of speech in relation to self-determination movements. The real question is whether the referendum will represent the final word. It should not, and if everyone keeps a cool head, it may not.

Guest-posting at Opinio Juris – Åland and Crimea as distant cousins

by Rhodri C. Williams

I am grateful to the editors at Opinio Juris for facilitating my debut there as a late addition in their Insta-Symposium on the Ukraine crisis. My guest-post (accessible here) focuses on the question of whether the settled autonomy and demilitarization regime in the Åland Islands of Finland hold any lessons for the Crimea crisis. As such, it builds both on my ongoing research on the Åland autonomy and on my more recent commentaries on self-determination issues in the Ukraine crisis.

The Ukraine crisis is really only the latest in a series of post-Cold War crises that have unraveled all the constructive ambiguity built into the UN Charter, slinging concepts like territorial integrity, self-determination and non-aggression into one unhealthy mix and shaking vigorously. As pointed out by Thomas de Waal in the Wall Street Journal, the crisis also invokes many of the baroque debates surrounding sovereignty, regional integration, secession and devolution floating around the EU as Scotland and Catalonia contemplate their futures.

It can all seem dispiriting, but in the midst of the gloom it can be helpful to be reminded that there have been ostensibly intractable and potentially catastrophic geopolitical conflicts that have been successfully resolved, such as the Åland Islands question in the 1920s. And curiously enough, the deeper I dug, the more resonances I seemed to find between the Åland case and that of Crimea in Ukraine. But you, dear reader, should be the judge

Happy International Women’s Day!

by Rhodri C. Williams

I didn’t really come across International Women’s Day until I started work in Bosnia and I never quite knew what to make of it. It had a distinctly east of the Oder-Neisse and non-aligned feeling to it, and the idea of cabining all one’s gender analysis into a single day of the year – and manifesting it through mechanical male-to-female flower transfers – didn’t seem entirely satisfying.

That said, there seems to be a healthy tendency for IWD to be taken as an opportunity for serious reflection on the state of gender equality. And that doesn’t just apply to places with notorious issues like Colombia but also to countries like Sweden, where decades of impressive progress only serve to highlight the unsatisfying fact that equality remains elusive. While a persistent salary-gap is the most obvious symptom, complaints roll in around this time of year ranging from the virtual absence of women from corporate boards to some of the highest rates of harassment in the EU.

For those of you interested in an updated global take on equality, the BBC has a good interactive map broken down both by region and broad themes (health, education, economic empowerment, political participation). However, my absolute favorite graphic on equality for this year is this amazing compilation by the Guardian that breaks down by region and categories of legal rights, including property ownership. While it is not entirely comprehensive (some issues like women’s right to retain their last name after marriage are left out) it still presents an extraordinary tool.

As a final point, expect more on the link between post-conflict humanitarian response, women’s property rights and access to justice on TN soon. This in reflection of the fact that securing equal access and tenure rights for women is increasingly recognized as one of the most meaningful areas linking the work of humanitarian actors concerned with the land claims of the displaced – such as the Norwegian Refugee Council (NRC) – and those of rule of law and development actors concerned with access to justice.

Women tend to suffer both from disproportionate vulnerability in humanitarian settings and disenfranchisement in development settings. Societies suffer as a result, both in humanitarian cases where disproportionately female-headed households are unable to reintegrate into society, and in development cases where the human and economic potential of women is wasted. As discussed by Dr. Donny Meertens of Colombia here on the Reinventing the Rules blog, securing women’s land rights is now seen as a key to turning these dynamics around, facilitating durable solutions to displacement, social justice and more equitable development.

Responsibility to provoke? Aggression, self-determination and the Ukraine crisis

by Rhodri C. Williams

With four posts in a row on the tumult in Ukraine, it is starting to feel like this blog has joined Crimea in being overrun by Berkut riot police and Night Wolves biker gangs. But it is impossible not to be distracted by the parade of tragicomedy that almost hourly seems to turn all of our sanctimonious post-Cold War certainties on their head. And the point is that after three posts of, essentially, just trying to keep up with events, this is the one where I finally get to engage with the scrimmage of international law and self-determination discourses being hurled around.

First things first. There is little doubt that the Russian takeover of the Crimean peninsula is illegal under international law, and more specifically the rule against aggression that constitutes one of the central planks of the UN Charter. US Secretary of State John Kerry splashed out early on, decrying an “incredible act of aggression”, with Russia behaving in a “19th century fashion by invading another country on a completely trumped-up pretext.” More soberly, EU Foreign Ministers have condemned “acts of aggression by the Russian armed forces.”

Legally, the charges seem to stick. In a cautious, preliminary analysis in EJILTalk, Daniel Wisehart argues that neither of the relevant conventional exceptions to the non-aggression rule – self-defence or intervention by invitation – can credibly be invoked in this case. A recent appeal by the Ukrainian Association of International Law goes further to claim “not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia…” So, what is Russia saying?

Continue reading