Tag Archives: consultation

Look before you legislate? The challenges facing restitution in Libya

by Rhodri C. Williams

It seems that plans are now afoot in Libya for a full-scale program of restitution of properties nationalized and appropriated under the Ghaddafi regime. Bloomberg reported yesterday that a law envisaging a two phase process will be rolled out as soon as next month:

Libya will announce a law that will return land and buildings expropriated by late ruler Muammar Qaddafi to the original landowners “within weeks,” a senior member of the Land Ownership Committee said.

“Phase one will return unused lands, empty shops, buildings and villas taken by Qaddafi’s regime and then by the rebels to the rightful owners,” said Fawzy Sheibany, legal representative for the committee, in an interview in the capital, Tripoli. “This will mean millions of dinars can be invested in construction projects and provide employment.”

Phase two of the new law involves rehousing families residing in buildings on expropriated land and could take several years to implement fully, he said. The Ministry of Justice will deal with individual cases through a civil court.

On the face of it, there is every reason to welcome this development. The Ghaddafi-era expropriations were ostensibly meant to further public purposes but became, by all accounts, an arbitrary means of both punishing enemies and rewarding those the regime favored. Moreover, the resulting legal uncertainty in property relations was cited (in 2004) by a leading Middle Eastern law firm as a key structural obstacle to legal reform efforts during the run-up to the uprising:

As a result of abolishing real property ownership for investment purposes, the commercial real estate market has been completely distorted. There exists now a private land market and a public land market with a price gap that creates considerable uncertainty for both foreign and local investors. Compounding the problem, the [1997] Foreign Investment Law is not clear as to whether real property can be used as collateral or even can be freely transferred without government approvals. The government has announced plans to reform the laws governing property and rentals, but their scope is uncertain.

Finally, perhaps the most convincing ground for pushing for quick legislative measures is the need for the National Transitional Council (NTC) to be seen to lead from the front. In the wake of Amnesty International’s widely publicized allegations of human rights abuses by ‘out of control’ militias in Libya, anything the NTC can do to stamp its legitimate authority on matters of broad public interest appears welcome. In fact, this is a particularly important issue in regard to property. Recent reports such as this one by the Guardian indicate that the militias have become part of a pattern of spontaneous restitution, often carried out by means of violent self-help.

So what, one might ask, is not to like in a bill that serves not only justice but also economic development and political consolidation? The answer is that if it is rushed through without consultation, this bill may actually have the opposite effect, generating new cycles of grievance, reducing legal certainty and even undermining the authority of government in Libya if it proves impossible to effectively and consistently implement. Perhaps the most cogent argument for a deliberative approach to restitution for the prior regime’s confiscations is that this is to some extent a constitutional decision rather than merely a legislative one. Continue reading

Waking from a dream in Bolivia: The TIPNIS victory that never was

by Nicholas A. Fromherz

Caption: Highlands indigenous leaders prepare for a hunger strike in Cochabamba, showing their support for the lowland tribes fighting against the road through TIPNIS. Photo credit: Nicholas A. Fromherz

On October 24, 2011, Bolivians breathed a collective sigh of relief.  After a two-month struggle, culminating in massive protests in front of the Presidential Palace in La Paz, Evo Morales signed a bill declaring the Territorio Indígena y Parque Nacional Isiboro-Secure (TIPNIS) “untouchable.”

The controversial road connecting Villa Tunari with San Ignacio de Moxos would not pass through the national park and protected indigenous territory.  The peoples’ cry to defend TIPNIS had been heard; “Evo Pueblo” had lived up to his moniker, even if only under extreme pressure, and had listened to his constituents.  He even said so himself:  “The TIPNIS issue is resolved,” he declared. “This is governing by obeying the people.”

Or so we thought.  Though many were probably skeptical from the start, many others—myself included—thought the case was closed.  The government would still likely construct a road between Villa Tunari and San Ignacio de Moxos, but the new law dictated that it would skirt the park.  That, not prohibition of a road altogether, had always been the goal.

As the last few weeks have shown, however, the victory dance was premature.  On February 10, 2012, President Morales signed a new law bringing back from the dead the possibility a road through TIPNIS.  Three-and-a-half months after declaring the park “untouchable,” Morales signed a law calling for a “prior consultation” to determine whether the road should go forward as originally planned. How did this happen, and how can we make sense of it?

Continue reading

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.

We are here! post-Thanksgiving musings on minority conflicts and political participation

by Rhodri C. Williams

Just like last year, I spent the previous week celebrating Thanksgiving with relatives in northern Virginia and, just like last year, the curious nature of the holiday got me thinking about all the people that used to live there and may now find themselves west of the Mississippi in the best case. This year I found some inspiration in both the Economist I brought on the plane and the Dr. Seuss book I read my daughter. You, gentle reader, can be the judge of whether it all adds up or I just put a little too much gravy on the stuffing.

The Economist got me thinking with an apparently unconscious pairing of articles on natural resource conflicts in the Americas  (hurry up if you are interested, both are sliding fast toward the paywall). The first focuses on Peru, where newly anointed President Ollanta Humala has found his newly minted ministry of ‘development and social inclusion’ outflanked by a brushfire of protest movements against large-scale gold mining concerns in the highlands.

The article implies that by passing new legislation requiring consultation with local indigenous peoples on extractive projects, Mr. Humala has opened a floodgate of dissent stifled under previous, more business-friendly regimes. However, as in nearby Bolivia, the real political and economic power that flows from meaningful  consultation also appears to have highlighted unresolved tensions between indigenous peoples that may range from identity politics to competing political and economic agendas:

The native-consultation law could … prove perilous for Mr Humala. By January the government must decide which groups should be consulted, and how recommendations will be made. Formally, the process only applies to indigenous groups, prompting squabbling over who can use that label. “The situation in Cajamarca is heating up and could boil over if people feel excluded,” says (Cajamarca president Gregorio) Santos.

The second article focuses on Canada, where the socio-economic status of the  country’s ‘First Nations’ remains far below the national average and natural resources exploitation represent a grave threat to traditional ways of life. Recently, First Nations have apparently responded by resisting the historic pattern of woefully low representation in the national government bodies that are dominated by the majority but take many of the important decisions regarding the fate of minorities:

“Aboriginal peoples realise that decisions regarding their future, their territories, their resources are being made in Quebec City, Montreal, Ottawa, and perhaps in Shanghai and New York,” says (Cree First Nation parliamentarian Romeo) Saganash. “So they understand they have to participate in the democratic institutions of this country.”

Without either minimizing or exaggerating the undoubted historical, socio-economic and cultural differences that complicate any attempt to compare Peru and Canada, I found the second article encouraging. ‘Consult’ and ‘participate’ are both transitive verbs but in the former case (consultation), indigenous peoples are the object, the recipient. Participation, on the other hand, is something that peoples – and people – do as active subjects. As with Mr. Saganash, who aspires to be Canada’s first aboriginal prime minister, you take it to the majority on the ‘best defense is a good offense’ theory.

So where does Theodor Geisel come into the picture? Continue reading