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.

New book review on “the Åland example”: Balancing engagement and exclusion in autonomy regimes

by Rhodri C. Williams

I am very pleased to announce that my review of the Åland Island Peace Institute’s book on “the Åland example” was just published in the Nordic Journal of International Law. The editors at NJIL were quite generous in allowing me seventeen pages to discuss the contribution that the book makes to charting the lessons a distant Nordic language conflict that embraced peace may have for the numerous contemporary ethnic conflicts that evade it.

The review can be downloaded in full here so I will not go into detail in this post. However, it is worth noting that one of the consistent strengths throughout this volume is the emphasis on the process by which an autonomy regime is created and sustained, rather than the substance of its rules, as being crucial to its viability. This echoes one of the fundamental lessons of the ‘new constitutionalism’ described in my earlier research on constitution-building for the Folke Bernadotte Academy, namely that founding documents in ethnic conflict settings should emphasize ongoing dialogue rather than finality in order avoid the recurrence of conflict.

The ironic lesson to be drawn here is that the Ålanders ability to maintain a sustained and constructive engagement with the Finnish authorities in Helsinki has been crucial to securing their highly asymmetrical political status within the Finnish state. However, there is a further irony that will come as little surprise in light of my earlier writings on Åland in these pages. This involves the fact that the strong land rights of the Åland Islanders, including a limited right to exclude outsiders from the rest of Finland from acquiring property, may be a crucial part of the Ålanders bargaining power.

Openness resulting from the right to be closed. Hardly an easy sell in conflict-management settings, but far better than most of the alternatives.

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.

A little more on the rule of law and development debate

by Rhodri C. Williams

A few weeks back, I wrote about some good news, namely the evidence that rule of law efforts – instilling accountability and legal certainty through support to formal adjudicatory institutions – is central to equitable development. As well as some bad news, that being that said evidence was difficult to measure and therefore of lesser interest to those development donors fixated on checking the log-frame boxes.

Since then, a few more iterations of this debate have crossed my desk, both of which underscored the significance of rule of law to development – and particularly the post-2015 Sustainable Development Goals (SDGs) – and sought to push back on the measurability issue. First was Mo Ibrahim on Project Syndicate with an appeal to African leaders to push for the explicit inclusion of rule of law in the SDG process. Citing concrete cases of local civil society and expert efforts to resolve disputes, title land and prevent corruption, Mr. Ibrahim concludes that:

This is the rule of law in action at the local level, and it is building, often from scratch, a culture in which disputes are settled peacefully and benefits distributed transparently. The alternative – recourse to violence in the face of unequal access to resources – has led to a cycle of political instability in many countries, with the consequent lack of economic development that has come to characterize much of Africa’s recent history.

As the debate on the post-2015 Sustainable Development Goals unfolds at the United Nations this year, it is my fervent hope that African governments will endorse the inclusion within these goals of measurable targets for access to justice. To be sure, the dominant themes that are emerging in the UN discussions – jobs, economic growth, infrastructure development, and poverty reduction – are all still desperately needed across the continent. But the rule of law is a fundamental principle that does more than promote economic growth, and it would be a serious mistake not to include it in the SDG agenda.

In a very similar vein, Namati has circulated an open letter to the UN General Assembly promoting attention to rule of law and access to justice in the SDGs. Like Mr. Ibrahim, Namati notes that rule of law efforts are crucial to securing a broad variety of rights. These range from more civil and political rights concerns like freedom from structural violence (the focus of the Gary Haugen Op-Ed I blogged on earlier) to more traditionally economic and social concern such as access to and secure tenure in land. To quote Namati:

Approximately three billion people around the world live without secure rights to what are often their greatest assets: their lands, forests, and pastures.  Increasing demand for land is leading to exploitation and conflict.  Giving communities the power to manage their land and natural resources would reduce poverty and promote sustainable development.  Securing property rights for all individuals, including women, is necessary to improve financial stability and personal safety.

Interestingly, Namati not only note that inclusion of rule of law in the SDGs would be perfectly consistent with many previous UN statements and resolutions, but also rebut the measurability issue head on as one of their central advocacy points:

Where legal empowerment efforts take hold, the results are visible and quantifiable.  Women in Bangladesh who challenge the practice of illegal dowries are reporting greater cash savings.  Due to the work of community-based paralegals, grievances in Liberia are being resolved more equitably, resulting in greater food security. Prisoners in Kenya have returned to jobs and families after successfully appealing their sentences.

The emphasis on “visible” as well as “quantifiable” strikes me as astute. One of the unsatisfying aspects of sheer quantification is that it can be blind to context. Measuring the number of judicial decision referring to international human rights standards is fine, for instance, but do the rulings properly apply the standards or misinterpret them to abusive ends? And who is to be the judge of that, and on what criteria? And in either case how many such decisions actually survive appeal?

Sustained engagement with a particular development setting is not a guarantee of good analysis, but provides an opportunity for sensitivity to context and local dynamics that would not otherwise arise. The results can provide visible evidence for those minded to see it, but whether this will always be quantifiable is another question.

Global knowledge platform for environmental peacebuilding

Last week, the organizations behind a series of books on post-conflict natural resource management featured previously on this blog announced the launch of a new “Global Platform for Environmental Peacebuilding“. The aim of the platform is to provide a tool for practioners, policy-makers and researchers and builds on the ambitious research project that is still being rolled out by the organizations involved:

The contents of the site were produced as part of a broad collaboration led by ELI, UNEP, McGill University, and the University of Tokyo, together with 225 researchers and practitioners around the world. Six books including 150 case studies and other analyses examining experiences from 60 conflict-affected countries and territories are being released to the platform, with 76 case studies already available online.

As of now, three of the six planned books have been in print for six months or longer, meaning that their contents can be downloaded for free on the platform. The most recent to come online is a volume on “Land and Post-Conflict Peacebuilding” that I edited together with Jon Unruh. For links to updates on these chapters kindly provided by some of the authors, please see my earlier TN post introducing the volume. Next in line for publication (in the next weeks) is a volume on water resources and peacebuilding edited by Erika Weinthal, Jessica Troell and Mikiyasu Nakayama. Happy reading!

The World Bank adopts sound principles on land, but HRW points out gaps in practice

by Rhodri C. Williams

Two very interesting reports linked land, development and the World Bank’s role last week. Released on precisely the same day, the reports reflected a good deal of consensus on what should be done and rather less agreement regarding what is actually being done.

First, on 22 June, Human Rights Watch released a report criticizing the World Bank for failing to take human rights issues sufficiently into account in its development calculus – with one of the primary examples being the confiscation of land and villageization of its occupants in the Gambella region of Ethiopia. Then, almost as if in response, the Bank released a new study the same day asserting that pro-poor land reform in Africa could provide tremendous benefits at minimal costs by securing the rights of local communities and protecting them against encroachment by large investment projects.

What can indigenous peoples learn from the Åland Islands land acquisition regime?

by Rhodri C. Williams

This comment is cross-posted from the Åland Islands Peace Institute’s blog with the generous permission of my colleagues there. The Peace Institute is an independent foundation that examines peace and conflict issues from the perspective of the Åland Islands’ special legal status, as recently described in an edited volume on the utility of “the Åland example” in contemporary peace negotiations and peace-building. My below comment gives an overview of the issues I am currently researching with funding from the Åland Islands Cultural Foundation. For an earlier take on these issues, see a chapter I wrote for a 2009 study on “the foundations of the Åland autonomy” while still a guest researcher at the Peace Institute.

The autonomy regime enjoyed by the Åland Islands within Finland is an extraordinary political experiment that has withstood the test of time better than most of its kind. It has the authority of age, dating back to agreements brokered by the League of Nations during the interwar period. At the same time, the autonomy has not merely survived but thrived, having been progressively expanded in scope both during and after the Cold War. Perhaps most tellingly, Åland negotiated a path into the EU alongside Finland in 1994 that not only allowed it to retain the key features of its regime, but also endowed it with the confidence to negotiate hard for further arrangements seen as necessary to prevent its sub-national powers from being rolled over by the supra-national juggernaut in Brussels.

Having lived on Åland full time from 2004 to 2010 and made regular summer pilgrimages from Stockholm ever since, the place has made a deep impression on me and shaped my thinking about the rights and wrongs of minority protection. This is saying something as well, given that I was a skeptic on arrival. As an American raised on melting pot mythology and Brown vs. Board, my instinct was to believe that separate could neither be equal nor desirable. Moreover, having spent the previous five years as part of the international effort to stitch post-war Bosnia back together, I was painfully aware of the extent to which strategies based on entrenching group difference could feed conflict as easily as they could resolve it. But I was impressed from the start by two things about Åland.

First, Åland really did do a good job governing itself. Sure, there were things to complain about, but people got on with it and government delivered. Given that Åland was both tiny compared with other administrative units in the Nordic countries and relatively rich, the archipelago seemed like a textbook case for the subsidiarity-based efficiency arguments for decentralizing power. Second, Ålanders were incredibly interested in their own autonomy. Most outsiders I talk to have a hard time believing 27,000 people manage to support two daily newspapers that between them hardly have time for stories from beyond Kobba Klintar. The identity-based arguments for autonomy clearly applied as well – in other words, Åland has autonomy because Ålanders wouldn’t settle for less.

For reasons not entirely clear to myself, I have long been drawn to questions about land and property. I wrote a masters thesis in Geography long ago on the effect of East German housing policies after unification, and went on to work in Bosnia on the restitution of homes for families that had been forced to flee during the war. As a consultant, I also focused on property issues in post-conflict countries such as Cambodia, Colombia, Cyprus, Liberia and Turkey. Some of my most recent work included an analysis of property conflicts in contemporary Libya. However, even if my early consultancy career was focused on post-conflict countries, my life was being lived in one of Europe’s flagship autonomies. When I had the good fortune to be offered a guest-researcher position at the Åland Islands Peace Institute, I quickly began to realize how important land and property issues could also be in terms of protection and conflict prevention for minorities and indigenous peoples.

Land and Post-Conflict Peacebuilding: Customary governance, property rights, and state building in Afghanistan

by Jennifer Brick Murtazashvili

Jennifer Brick Murtazashvili is assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She recently completed The Political Economy of Customary Governance: Informal Order and State Building in Rural Afghanistan (under review), and is finalizing Land, the State, and War (with Ilia Murtazashvili), on how conflict over property rights has shaped the trajectory of the Afghan state. She also co-authored “Community Documentation of Land Tenure and its Contribution to State-building in Afghanistan” in Land and Post-Conflict Peacebuilding with J.D. Stansfield, M. Y. Safar and Akram Salam, and provides an update in this guest posting.

Conflict over land is one of the most important, yet poorly understood, drivers of instability in rural Afghanistan. The Taliban, for example, has been active in trying to establish its credibility and authority as reliable mediators of land conflict as it competes with the Karzai government for legitimacy.

The solution offered by the international community to the problem of tenure insecurity is the promotion of formal, state-backed legal titles. The chapter I authored with J.David Stanfield, Yasin Safar, and Akram Salam, “Community Documentation of Land Tenure and Its Contribution to State-Building in Afghanistan,” suggests that customary forms of land titles may be more effective in promoting the legitimacy of the state than by simply issuing formal government deeds.

The state has very little credibility with most Afghans as it is largely viewed as a source of corruption rather than governance.  This is not to say that Afghans do not want government. On the contrary, many Afghans are in demand of government but want to have little to do with formal state authority as it is currently exercised.

Thus, current efforts to promote property rights by promoting an extension of state authority in Afghanistan are not viewed by many Afghans as a viable solution. Instead, by making them more dependent upon a corrupt state, property rights based on state-issued legal titles may threaten, rather than enhance, tenure security in Afghanistan. This is largely due to the fact that many Afghans, especially those in rural areas, rely primarily upon customary mechanisms for the mediation of land disputes.  Furthermore, as Doug Batson suggests in his chapter in the volume, formal land titles often fail to adequately account for forms of customary land tenure.

One of the reasons efforts to extend state authority in rural Afghanistan have struggled, is because state-builders (both in the international community and some in the Afghan government) view the relationship between customary authority and the state in zero-sum terms.

While some analysts of Afghanistan have argued that that customary governance has withered away, my own fieldwork has shown that such structures remain quite strong but have changed over time to adapt to new circumstances in the country. Due to war and displacement, customary structures are actually more representative and democratic than they had been in the past.

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.

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

I’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)