Legal precedents for fighting dispossession of land – the Community Land Rights CaseBase

by Rachael Knight, Naomi Roht-Arriaza and Melissa Riess-James

Rachael Knight is the Director of Namati’s Community Land Protection Program. Naomi Roht-Arriaza is a Distinguished Professor of Law at University of California, Hastings College of Law. Melissa Riess-James is the Project Coordinator for the Community Land Rights CaseBase.

As global demand for land and resources rises, dispossession of community land is increasing. Lawyers and front line legal advocates are stepping forward to defend communities’ rights, yet often struggle to find supportive legal precedent. There have been many powerful legal victories in national, regional and international courts, but advocates need to know about these cases to be able to harness that power.

To address this need, Namati has created the Community Land Rights CaseBase: the first free, online, searchable database of case law from around the world relevant to community land and natural resource rights. In this post, we describe the inspiration and creation of CaseBase and invite you to join us in building this tool.

The Power of Effective Legal Strategies

For billions of people, land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, and community. Yet more than ever, rural land is up for grabs. Local communities are being displaced, either directly or through the despoliation of the water, wildlife and other resources on which they depend. As dispossession grows, so does the resistance to it, leading to conflict, the criminalization of social protest, and the violation of a wide range of human rights.

Increasingly, communities seeking to defend and protect their land and natural resource claims are finding allies in the legal community and fighting back through local and national courts. Lawyers are basing challenges on a wide variety of legal sources, including national or international environmental laws, the rights of indigenous or tribal communities under international law, property rights, constitutional and human rights law, and common law principles.

In some cases they are finding support in the courts. For example:

• National courts are holding governments accountable for violations of their obligations under international law:, in SATIIM v Attorney General of Belize (2014), the Supreme Court of Belize found that the Belize government had violated the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) by issuing construction permits on the land of the Maya people without obtaining the Mayas’ free, prior and informed consent.
• Lawyers are crafting creative legal strategies and waging their campaigns across a variety of legal forums: in Loserian Minis v. Thomson (2014) lawyers used US discovery procedure (28 U.S.C. § 1782) to obtain information vital to litigation in Tanzanian courts.
• Courts are increasingly receptive to evidence necessary to support traditional land claims, but which historically has not been considered admissible: in Roy Sesana v. Attorney General of Botswana (2006), the High Court of Botswana conducted extensive testimony gathering and site-visits in order to include customary evidence in its considerations.

The Need to Share Lessons

Yet accessing relevant case law can be difficult, especially when records are not digitized or available online. Too often advocates work in isolation, unaware of successful arguments or strategies from other nations that they could leverage. The variety of legal contexts underlying land dispossession also complicate advocates’ efforts to draw cross-national comparisons. Advocates working within an area of specialized law, like environmental law or constitutional law, may not be aware of relevant precedent in other fields.

Some existing efforts already point in this direction.

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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.

Chilean court orders compensation for tsunami damages

by Rhodri C. Williams

Having apologized for their failure to protect victims of the Pinochet regime three decades ago, Chilean courts have now staked out a progressive position in responding to charges of government negligence that exacerbated the effects of the tsunami three years ago. According to the BBC, Chile’s Supreme Court awarded $100,000 to the survivors of Mr. Mario Ovando, who died as a result of a fatal blunder.

The court heard that following the earthquake, Mr Ovando had heard an announcement on the radio that there was no danger of a tsunami. On the basis of that he decided to stay in his home.

However, 20 minutes later his house was engulfed by huge waves. Although his relatives managed to free him and take him to hospital, Mr Ovando died three days later.

The Chilean Navy – which runs the Hydrographic and Oceanographic Service – admitted after the tsunami that it had made errors in its diagnosis and had given unclear information to government officials.

The government issued an alert, then deactivated it, then revived it only after the deadly waves had struck.

As described here in response to a UN report on reparations for victims of terrorism, the Chilean Supreme Court ruling fits into a recent pattern of establishing higher duties of care for state authorities in the face of events once written off as ‘acts of God’. And as noted by the BBC, the current case is likely to herald many more suits by other victims of the Navy’s faulty diagnosis. As such ‘pounds of cure’ accumulate in national and regional practice, one can only hope they will highlight the relative attractiveness of ounces of prevention.

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.

Breaking news – Gotovina and Markač convictions overturned (UPDATED)

Update 19 November 2012: I am very grateful to Mark Kersten at the Justice in Conflict blog for inviting me to expand upon the below piece and guest post it there. For a fuller treatment of the issues arising from last Friday’s Gotovina judgment, readers are therefore referred to my post at Justice in Conflict, entitled “The aftermath of the ICTY’s Gotovina Trial: Due process and Historical truth“.

by Rhodri C. Williams

In April 2011, Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted two Croatian Generals, Ante Gotovina and Mladen Markač to lengthy jail terms for their parts in planning and carrying out ‘Operation Storm’, a 1995 offensive that resulted in the flight of 250,000 Croatian Serbs. Today, in what has been described as “one of the most comprehensive reversals of the tribunal’s 19-year history”, the Appeals Chamber eviscerated the Trial Chamber’s findings and ordered the immediate release of both defendants.

This shock reversal is likely to generate intense legal and political debate, with Serbian Prime Minister Ivica Dačić having immediately claimed that it confirms that the ICTY is “not a court” but rather “fulfills pre-determined political tasks.” According to the summary read out in court this morning, the Appeals Chamber accepted the defense’s key arguments, first that the shelling of four Serb-held towns at the outset of the offensive had not been unlawful, and second, that absent unlawful shelling, the Trial Chamber’s finding of a ‘joint criminal enterprise’ (JCE) to permanently remove the Serb population of the region could not stand.

As described in TerraNullius at the time of the Trial Chamber decision, the finding of the existence of a JCE by the Trial Chamber allowed the defendants to be imputed guilt for a range of discriminatory actions and policies that accompanied the offensive including the ex lege cancellation of urban-dwelling Croatian Serb refugees’ rights to their ‘socially owned’ apartments. As set out in the summary of today’s decision (page 4), the rejection of a JCE removed this link:

With respect to liability via JCE, the Appeals Chamber observes that the Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings, but the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the Trial Chamber’s findings on the JCE’s core common purpose of forcibly removing Serb civilians from the Krajina rested primarily on the existence of unlawful artillery attacks against civilians and civilian objects in the Four Towns. While the Trial Chamber also considered evidence concerning the planning and aftermath of the artillery attacks to support its finding that a JCE existed, it explicitly considered this evidence in light of its conclusion that the attacks on the Four Towns were unlawful. Furthermore, the Trial Chamber did not find that either of the Appellants was directly implicated in Croatia’s adoption of discriminatory policies.

When the dust settles, it may well turn out that the Trial Chamber went too far with its JCE finding and that the Appeals Chamber was right to tighten the scope of the inquiry to focus on what criminal acts could be directly and unambiguously attributed to the defendants in this case. On the other hand, few serious observers doubt that the highest political and military leadership in Croatia at the time would not have lost much sleep if not one Serb had ever returned to the region. However, as one might fear, the Court’s narrow ruling on General Gotovina and Markač has quickly been read as a blanket vindication of Croatia’s conduct and aims during its 1991-95 war. As reported in the Guardian:

Gotovina’s defence lawyer, Greg Kehoe, said the appeal verdict demonstrated that Croatia’s Operation Storm in 1995 to regain control over the last Serb-run enclaves on its territory had been entirely legitimate under international law.

“This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia. More importantly, it vindicates what kind of soldier General Gotovina was,” Kehoe said.

At a broad level, the Gotovina case may hold the same lessons on the limitations of international criminal law that the European Court of Human Rights’ Cyprus cases have demonstrated with regard to human rights law. Litigation inevitably and necessarily disappoints by applying a zero-sum approach to complex historical problems in which all parties have almost always been cast both in the role of victims and victimizers. To treat Gotovina 2 as an absolution of Croatia’s well-documented sins is patently absurd and will only complicate the way to a long overdue regional reckoning with the past. Ultimately, Croatia can only legitimise its own narrative of victimhood by recognising the validity of those of its victims.

The twentieth anniversary of Mabo (and the reason I need to change the name of this blog)

by Rhodri C. Williams

It is twenty years this week since the High Court of Australia overturned an odious legal doctrine that happens to share the name of this blog. Although the name of the blog has always been meant to reflect the abstract meaning of this term (‘no mans land’, reflecting the contested nature of land and territorial issues in both in international law and national practice), I have remained uncomfortable with it throughout due to the concrete meaning lurking down under. As a tribute to the unpretentious man who brought this doctrine crashing down, I hereby pledge to rename this blog in a manner both un-confusing and inoffensive within the next few weeks (readers are free to submit suggestions).

Somebody pinch me

Is this a conditional endorsement of the justiciability of social and economic rights by the Economist that I see before me?