Sustainable but inconvenient – Two more folkways slide closer to the edge

by Rhodri C. Williams

Two feature stories in BBC World help to remind us how we are our own worst enemies. In two very different parts of the world, as we all go about our daily business of accumulating exotic and unsustainable consumer goods and producing carbon and toxic garbage, two traditional, sustainable and harmonious ways of life are quietly being snuffed out by the forces of globalization and politics.

First, BBC reports on the fate of the nomadic reindeer herders of the Yamal peninsula in Siberia. Sound like the kind of implausible lifestyle that sensible people would have thrown over long ago for office jobs? Turns out they have been more stubborn than you might think:

The Lisbon Treaty comes home to roost in Western Sahara

by Rhodri C. Williams

What with all the current speculation over the fate of the Euro, little attention has been given to other EU matters that might make headlines under ordinary circumstances. Last week, however, the European Parliament, long derided as an ineffectual talk-shop stuffed with protest vote populists, got its human rights groove on. By a vote of 326 to 296, the Parliament exercised its right under the 2009 Lisbon Treaty to reject the proposed one year extension of a 2006 EU fishing agreement with Morocco. In doing so, it fired off a belated but significant  shot for the Sahrawis, one of the last remaining colonized peoples that has been denied the right to self-determination.

As described in a rather useful backgrounder from BBC, the Sahrawis formed a resistance movement, the Polisario Front, that succeeded in destabilizing Spanish colonial rule by the early 1970s. However, in their rush for the door, the Spaniards allowed the Sahrawi territory of Western Sahara to be partitioned between neighboring Mauretania and Morocco in 1975. While the former withdrew in 1978, Morocco has pressed its claims, fighting the Polisario Front to a standstill in 1991 while allowing settlers to move to the territory from Morocco and exploiting Western Sahara’s large reserves of phosphates. All this makes Western Sahara a distant cognate to West Papua, which also shook off overseas colonial rule only to be invaded by a more populous (and better armed) neighbor. The parallels with the fate of other North African pastoral peoples slighted by the post-independence uti possedetis lottery, such as the Bedouins and Tuareg, is also striking.

In principle, the Sahrawis enjoy the distinct advantage of having been effectively recognized as a people entitled to self-determination by the International Court of Justice (ICJ), which ruled in 1975 that they should be allowed to shape their own political fate through a referendum. However, in practice, the Sahrawis have been marginalized over the course of years of fruitless negotiations over the process of holding a referendum, during which the bulk of their population has lived in wretched refugee camps in neighboring Algeria. All the while, the Moroccan de facto authorities in Western Sahara have consolidated their position and it is now thought that more than half of the population of the territory may consist of settlers from Morocco proper.

In this context, the 2006 fishing agreement has not been a striking economic success for either side but represented something of a political coup for Morocco in its quest for de jure recognition of its authority over Western Sahara.

Forced resettlement of Bedouins

by Rhodri C. Williams

There has been a bit more in the press recently about the Israeli plan to forcibly remove the Bedouin population in the Negev desert and parts of the West Bank to planned ‘new towns’. I initially picked up this story when it was reported in the Guardian and have now seen it in the BBC as well. Perhaps most surprisingly, the Bedouins were given a sympathetic hearing in last week’s Economist. All three articles note the centrality of land issues to the Bedouin’s situation, but the Economist picks up on both the potential for regional mobilization and the fact that the Bedouin have already begun making political claims based on the explicit assertion that they are an indigenous people:

Week in links – week 44/2011 – restitution in Libya, privatization in Cuba, assimilation in Israel

I’m a little behind this week having been in Cyprus, where I participated in the launch of the paper on property issues I co-wrote with Ayla Gürel for PRIO. The local feedback was very helpful as we are planning to expand the scope of inquiry a bit beyond the fallout of the Demopoulos case in the coming months.

Much of interest from the net this week, including one of the first really good reports on the transitional housing, land and property (HLP) issues in post-revolution Libya from the Guardian. This new article goes well beyond the expensive but relatively tractable reconstruction issues described by BBC last week and enters into the far more fraught territory of what to do about the great transfer of assets that resulted from the Ghaddafi regime’s selective nationalization of property.

Quite a few familiar dilemmas arise, including lurking historical claims (in this case, those of expelled Jews), multiple subsequent purchases by third parties, weak courts, unclear rules, the suspicious 1982 destruction of the land registry, and the fact that the expropriations had (in many cases) a genuinely distributive element, meaning that reversing them would disproportionately worsen the situation of marginalized groups.

In the area of belatedly getting with the times, the New York Times reports that Cuba has now formally adopted a new property law allowing far less restricted transactions in homes than was previously the case (see earlier observations on these developments here). After decades of state control, no one seems to be able to predict where this will go, although some positive economic affects and quick attempts to buy in to the property market by exile Cubans seem like safe bets.

In the area of never getting with the times, the Guardian reports that Israel has proposed a bill to allow the near wholesale resettlement of Bedouin nomads from (what remains of) their traditional territories in the Negev desert to planned new towns. All in the name of modernisation and progress, all undertaken without consulting those affected or paying any heed to the fact that previously forcibly urbanized Bedouins have hardly benefited. Very 1960s. A brief excerpt from the article reads like a compendium of discredited colonial and post-colonial assimilation policies:

Before 1948, the Bedouin tribes lived and grazed their animals on much of the Negev, claiming ancestral rights to the land. In the following decades, the state of Israel took over almost all of the land; the Bedouin lost more than 3,200 land ownership cases in the Israeli courts in the early 1970s, rejected mainly on the grounds there was no proper documentation. Now the Bedouin are claiming ownership of about 5% of the Negev as traditional tribal lands.

Three years ago, the government commissioned a retired judge, Eliezer Goldberg, to make recommendations for dealing with the Bedouin. He advised that many of their villages should be recognised, acknowledging their “general historic ties” to the land.

A committee chaired by the planning policy chief, Ehud Prawer, was tasked with looking at how to implement Goldberg’s recommendations, and proposed the immediate transfer to the state of 50% of the land claimed by the Bedouin, minimal compensation for the remaining land with severe exclusions and the demolition of 35 unrecognised villages. The Bedouin were neither represented on nor consulted by the committee.

As my soapbox is only so big, I’ll leave aside the issue of Israel’s apparently retaliatory expansion of its West Bank settlements this week.

And a last note, the Guardian also reports on the aftermath of the Dale Farm evictions in the UK (see previous WiL)

Web-based education tool aims to mainstream land rights into international development thinking

by Anna Knox and Peter Veit

NB: This guest post was originally posted on Landesa’s Field Focus blog, and is cross-posted on TN with the kind permission of Landesa and the World Resources Institute. TN readers are advised of a number of other interesting recent postings on the Landesa blog, including a critique of the short-term thinking behind large-scale land acquisition in Africa, an analysis of the negative correlation between women’s land rights and domestic violence, and defenses of the virtues of small firms by Robert Mitchell and Bill Gates.

Regardless of what matters to you – access to education, universal food security, strengthening women’s rights, or a healthier environment – land rights plays a key role in achieving these goals.

When people have secure access to land, it can lead to:

• Economic development through increased agricultural productivity,
• Improved childhood nutrition,
• Increased school attendance and investments in basic education,
• Increased environmental stewardship,
• Reduced potential for social instability and conflict,
• Reduce vulnerability to domestic violence.

Focus on Land in Africa, a recently launched web-based tool focused on sub-Saharan Africa, aims to help policymakers and practitioners understand the links between land rights and critical development outcomes. Designed by World Resources Institute and Landesa as an online education tool, the site is interactive and uses slideshows, timelines, maps, videos and more in order to appeal to and engage users. Currently, the tool features lessons drawn from six sub-Saharan African countries: Ghana, Kenya, Mali, Mozambique, Tanzania, and Uganda. These lessons were developed with funding support provided by the Bill & Melinda Gates Foundation. More countries will be featured as the tool grows.

Managing pastureland in Central Asia: the importance of locally legitimate law reform

by Elisa Scalise
This guest post was originally posted on Landesa’s Field Focus blog, which provides expert insight on the issues surrounding land rights and international development. Elisa Scalise is a Landesa attorney & land tenure specialist.

I was recently reminded of the importance, and the potency, of locally legitimate law reform (law reform which is based on what is feasible in practice and which can serve the dual purpose of satisfying a national agenda and reflect local needs).

Landesa recently concluded a project in Kyrgyzstan, which sought to develop and then test a community-driven model for managing conflict over pastureland resources. The pilot ayil okmotus, or municipalities, are located along the Kyrgyzstan-Tajikistan border of southern Kyrgyzstan, and contain two Tajik enclaves of Chorkhu and Vorukh.

A bit of background: Relations between ethnic groups in the Kyrgyzstan (and Central Asia) area can be tense, and have erupted into violence on more than one occasion (you might recall the events of June, 2010, in the nearby Jalalabad oblast).

Pastureland is the nexus of interdependence and (sometimes violent) tension between Tajiks and Kyrgyz.  Every Kyrgyz and Tajik household owns livestock, yet there are no pastures in the Tajik enclaves of Vorukh and Chorkhu.  Tajiks rely on Kyrgyz pastures to feed their livestock during the grazing season, and Kyrgyz must cross the Tajik enclaves to access their pastureland.

To address pasture use needs, the Tajiks and Kyrgyz in the pilot area make arrangements for Tajik animals to be grazed on Kyrgyz land.  Yet those arrangements are informal, lack transparency, are not enforceable when breached, and are conducted without the knowledge of national policy-makers and without support of a legal framework at the national level.

Overlapping land uses and indigenous groups – two’s a crowd?

by Rhodri C. Williams

A bit more evidence came this week that even as regional human rights bodies build up indigenous land rights in theory, global warming, population pressure and competing land uses are breaking them down in practice. In a law and society vein, the current situation raises the concern that decisions like that in the recent Endorois case (by the African Commission on Human and People’s Rights) risk serving only to raise expectations on the part of threatened indigenous groups in all corners of the world that cannot possibly be met given the resources, attitudes and capacity in many of the states involved.

The most alarming reports are currently coming out of a cluster of Sahel states in Africa where indigenous pastoralist groups are facing severe recurring drought conditions. The FAO reported recently that 9.8 million people are  vulnerable to severe hunger in Niger and Chad, with “thousands more under threat in the north of Burkina Faso and northeast Mali.” Further east, WFP notes that 23 million people remain subject to food insecurity in Ethiopia, and the Famine Early Warning System Network has warned that half the rural population of Djibouti will require humanitarian aid through the remainder of this year.

The news for pastoralists in Africa is not entirely bleak, however. Most of the above reports highlight new or existing aid programs meant to provide for both short-term food distribution and longer-term resumption of food security through measures such as seed improvement for animal feed, cash for work programs to improve pastureland, and stocking or de-stocking, as need be. In some countries, such as Mali, there is evidence of both improved government response and local resilience. Other hopeful signs come in the way of innovations such as the development of rain calendars meant to both serve the narrow purpose of helping communities understand changing precipitation patterns and the broader purpose of supporting more informed local risk management strategies.

However, as if it was not enough that Sahel pastoralists must contend with recurrent drought and food insecurity, other factors such as population pressure and competing land uses appear to compound these threats in many regions. In its above-cited press release, the FAO notes that food security for both farmers and herders in Chad is impacted by the “influx of refugees from Sudan’s Darfur region and the Central African Republic, estimated at over 300 000 people”.

At least in the case of Darfur, it is already well known that displacement, both internal and across the border to Chad, has been fueled by competition between agricultural villagers and pastoral nomads for land. In light of the fraught conditions for agrarian livelihoods throughout the Sahel, displacement from open land conflict in any one part of the region risks intensifying land competition elsewhere and creating a cascade effect. Well away from all the publicity around Darfur, for instance, IRIN reports that land disputes in Burkina Faso between pastoralists and farmers have been aggravated by development projects and “threaten to spill into neighbouring countries as herders seek grazing pastures”:

Communities – mostly in the south – with no formal land rights have been pushed out by hydro-agricultural irrigation projects and migrants from other parts of the country that have formed sedentary farming communities, [Livestock Ministry director] Guissou told IRIN. “Indigenous groups are often left to their own resources in this [development] process and there has been no systematic effort to involve them, which frustrates them and leads to conflicts.”

Pastoralists pushed off the land are forced to travel farther across borders to find suitable pastures, Guissou added. “What were yesterday’s pastures have become hydro-agriculture projects in the south, which are not taking into consideration pastoralists,” the Ministry of Livestock director told IRIN.

There are eight million cows and 19 million other smaller cattle nationwide. Following the droughts of the 1970s, the government designated 185 pastoral zones covering two million hectares – which is more than one million hectares short of what is needed now, Guissou told IRIN.

He added: “Our herding and farming methods are still traditional and take up a lot of land. Since the 1970s drought, and [ongoing] climate change, there has been an increase of humans and animals on limited space with limited resources.”

To minimize the risk of conflicts between farmers and herders, the Ministry of Livestock has outlined a land clearing plan that takes into account herders’ migration patterns and animals’ water needs, but only a fraction of the millions of dollars needed to finance the plan has been raised by the government, said Guissou.

Meanwhile, in the other hemisphere, the New York Times reports on a brewing conflict between the Pemón indigenous group in Venezuela, which practices a form of ‘prairie swidden’, periodically burning patches of savanna for hunting and agricultural purposes, and an increasingly assertive non-indigenous population that has followed roads and economic opportunities into their territory. The article describes a scientific debate over whether traditional burning practices reduce or increase the risk of larger fires spreading to nearby cloud forests crucial to Venezuela’s important hydro-electric energy sector. While arguments against burning raise shades of similar assertions that have severely impacted on indigenous groups in Southeast Asia (see the final section of a report on Cambodia I wrote for COHRE a few years back, for instance), the scientific debate appears at risk of being overtaken by facts on the ground:

The Pemón face a backlash over the fires beyond the realm of scientific debate. Nonindigenous Venezuelans here often call them “quemones,” a play on the Spanish word for someone who burns a lot. “The Pemón are pyromaniacs by nature, and this year we’ve seen some of the worst fires in memory,” said Raúl Arias, 54, who operates a helicopter service in the area.

Some Pemón chafe at such statements. “Outsiders come here and leave their excrement and trash on the tepuis [local rock formations], then complain to us about fires that spoil their view,” said Miguel Lezama, 46, a leader near Mount Roraima.

New motivations for some Pemón to light fires complicate matters further. Scholars have seen an increase in fires to protest the installation of electrical towers and the opening of the satellite-monitoring base. Other Pemón sometimes start fires to harass the government into meeting demands for services.

Few experts know how these fires will affect the Gran Sabana, aside from sowing dissent.

“The government is wrong if it thinks the Pemón are its docile sheep in the savannas,” said Demetrio Gómez, 36, a Pemón leader who took part in a violent protest near Santa Elena de Uairén this year to dislodge squatters from Pemón land. “We burned these lands long before anyone else arrived,” he said, “and we’ll keep burning them into eternity.”

The article notes that the increasingly violent confrontation over traditional savanna burning in Venezuela “is part of a broader debate over the sovereignty and proper management of indigenous lands” and that much of the area in question has not been recognized as belonging to the Pemón but is rather “cordoned off as either national park or military territory”.

In fact, the failure of the Venezuelan authorities to recognize the land rights of the Pemón flies directly in the face of rulings by the Inter-American Court of Human Rights that were, in turn, heavily relied upon by the African Commission of Human and People’s Rights in their recent ruling in favor of the Endorois pastoralists in Kenya. However, the truly disconcerting question human and indigenous rights advocates must ask themselves is whether these hopeful but infrequent episodes of jurisprudential progress fly in the face of current reality – and if so, what can be done.

Pastoral peoples’ rights and livelihoods

This week’s earlier posts have focused fairly extensively on the recent “Endorois communication”, by the African Commission on Human and People’s Rights, in a case that involved the land rights of of pastoral indigenous group in central Kenya. Among other sources, the decision relies on the findings of the African Commission’s Working Group on Indigenous Communities/Populations. This body drafted a report that was adopted by the Commission in 2003 as its official policy on indigenous peoples’ rights in Africa. One interesting detail in the report (also cited in para. 150 of the Endorois case) is its identification of pastoralism as one of the specific characteristics of African indigenous groups.

… those groups of peoples or communities throughout Africa who are identifying themselves as indigenous
peoples or communities and who are linking up with the global indigenous rights movement are first and foremost (but not exclusively) different groups of hunter-gatherers or former hunter-gatherers and certain groups of pastoralists. (page 89)

There has been a good deal of attention to pastoralism in Africa recently, including the OCHA-led Pastoral Voices project which released a report yesterday focusing on mobility in the Horn of Africa in light of drought conditions and security issues:

An on-going collaboration between UN-OCHA, United Nations Environmental Programme (UNEP), the Institute for Security Studies (ISS) and the International Organization for Migration (IOM) is taking this concern forward through the Security in Mobility project. The inter-agency project promotes pastoralists’ internal and cross-border mobility needs as a climate change adaptation. And it also advocates for regional cross-border security needs to be reconciled with pastoralists livelihood needs.

Meanwhile, at a more global level, the FAO yesterday released its State of Food and Agriculture report, which focuses on the need for greater investment, research and governance “to ensure that the world’s livestock sector responds to a growing demand for animal products and at the same time contributes to poverty reduction, food security, environmental sustainability and human health”. Here, again, land issues and climate change adaption measures figure in strongly:

There is a need to enhance the efficiency of natural-resource use in the sector and to reduce the environmental footprint of livestock production, the report says. The goal is to ensure that continued growth in livestock production does not create undue pressure on ecosystems, biodiversity, land and forest resources and water quality and does not contribute to global warming.

Not to be left out, the pastoralists of the world themselves appear to be uniting and have started not one but (at least) two websites, namely those of the League for Pastoral Peoples and the Pastoralist Communication Initiative.

The African Commission “Endorois Case” – Toward a Global Doctrine of Customary Tenure?

by Rhodri C. Williams

Every now and then, a judicial decision comes along that seems to snap a fuzzy area of law into crisp focus. One such decision is the communication released this month by the African Commission on Human and Peoples’ Rights in what will probably come to be known as the “Endorois Case” (full title: “Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya”). The Endorois people were evicted from their traditional lands near Lake Bogoria in central Kenya in the 1970s, relocated to an area unsuitable for their pastoral way of life and granted only sporadic access to sites central to their spiritual beliefs. In the wake of the eviction, promises to provide compensation and a share of the proceeds from the nature reserve established on the Endorois’ traditional lands were broken.

In its decision, the African Commission finds violations of the rights to freedom of religion, property, health, culture, religion and natural resources under the African Convention on Human and Peoples’ Rights (ACHPR). The Commission accordingly “recommends” restitution of the Endorois’ traditional lands, recognition of their ownership rights, compensation for harm suffered during the community’s displacement and other measures. There are many noteworthy features of this decision; not least, as Human Rights Watch notes, it is the first time that any international tribunal has found a violation of the right to development. However, it is likely to be most interesting for the current readership in light of the approach the Commission takes to the right of property under Article 14 of the ACHPR – particularly in cases where it is alleged to be held collectively by an entire community. As such, it is worth summarizing the relevant portions of the decision in some detail.

The communication begins with a summary of facts and relatively short discussion of the admissibility of the complaint. After an extended treatment of the allegations and legal arguments made by the complainants, the Commission unfolds its decision on the merits in a cascade of holdings that would seem like self-evident restatements of Kenya’s commitments under international and regional law – except that no tribunal has ever laid them out with such precision and grounded in such a concrete scenario before. First, the Commission rejects the assertion by Kenya that the conditions of modern life and the existence of segments of the Endorois community who do not live according to customary precepts means that the Endorois can no longer be meaningfully distinguished from broader tribal categories and are not a “people” in the sense of the ACHPR. In doing so, they clearly anchor the collective enjoyment of indigenous rights in the protection of ancestral lands:

The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands (para. 162).

After finding a violation of the right to freedom of religion under Article 8 of the Convention – again, based in large part on the failure of the Kenyan authorities to provide access as of right to religious sites located on the Endorois’ traditional lands (para. 173), the Commission goes on to consider the property issue under Article 14 directly. The Commission first confirms that the lands in question are the traditional territory of the Endorois, based on centuries of uncontested pre-1973 occupation and use as well as the failure of the respondent Government to dispute this point:

The Complainants argue that apart from a confrontation with the Masai over the Lake Bogoria region three hundred years ago, the Endorois have been accepted by all neighbouring tribes, including the British Crown, as bona fide owners of their land. The Respondent State does not challenge those statements of the Complainants. The only conclusion that could be reached is that the Endorois community has a right to property with regard to its ancestral land, the possessions attached to it, and their animals (para 184).

The Commission goes on to cover a number of preliminary issues, including the appropriate scope and nature of ‘property rights’ in indigenous settings. Here, the Commission takes explicit notice of the informal, unwritten nature of such rights and the vulnerability this gives rise to in cases where they are not given some degree of formal recognition (para. 187). It then rejects Kenyan government objections on the basis of positive discrimination, noting that special measures (in this case, recognition of collectively held indigenous land rights) are not discriminatory where they serve to redress imbalances:

The African Commission shares the Respondent State’s concern over the difficulty involved; nevertheless, the State still has a duty to recognise the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law (para. 196).

The Commission then observes, almost drolly, that the fact of the Endorois’ eviction without process or compensation tends to undermine the Kenyan Government claim that the existing Land Trust system constitutes an adequate measure to protect the Endorois’ rights (para. 199) and goes on to make a pointed argument on the necessity of domestic guarantees of ownership rights for indigenous communities, rather than mere access rights:

The African Commission notes that if international law were to grant access only, indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. Ownership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries (para. 204, citation omitted).

From here, the Commission asserts that mere settled possession of ancestral lands by indigenous groups (rather than any showing of formal title) is sufficient to trigger the state obligation to provide legal recognition. However, the Commission also explicitly draws the consequence of the above reasoning in cases, such as the present one, where recognition has been withheld: namely , that where the concerned groups have subsequently faced wrongful eviction from their lands, their loss of possession cannot then be invoked to deny their rights, including restitution and compensation. In a nutshell, traditional possession must be recognized as title and wrongful dispossession cannot extinguish it (para. 209).

Having set up this impressive legal architecture, the Commission goes on to make fairly short work of the actual proportionality analysis. The interference (“encroachment”) is crystal clear  in the form of evictions, denied access, and subsequent construction, concession and extraction activities on the affected land (para. 210). The public need for a game reserve is given heightened scrutiny in light of the significance of the land to the affected community (para. 212). Accordingly, the means used by the Kenyan government – forced evictions without consultation onto land that denied dignity and livelihood to those affected – were found disproportionate to “any public need served by the Game Reserve” (para. 214). And, for good measure, the Commission finds numerous violations related to the separate requirement of legality, both in relation to the failure to consult the affected community and the paltriness of the compensation proffered. All this, and then the Commission goes on to find violations to the Endorois rights to enjoyment of their culture and development under Article 17. The resulting prescription is sweeping:

The African Commission recommends that the Respondent State:
(a) Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land.
(b) Ensure that the Endorois community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle.
(c) Pay adequate compensation to the community for all the loss suffered.
(d) Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve.
(e)  Grant registration to the Endorois Welfare Committee.
(f) Engage in dialogue with the Complainants for the effective implementation of these recommendations.
(g) Report on the implementation of these recommendations within three months from the date of notification.

Much of the “padding” between the key observations and holdings summarized above consist of extensive reference to international and regional human rights standards and jurisprudence, and particularly that of the Inter-American Court and Commission. It might be surmised that the Commission sensed the extent to which it was breaking new ground and took pains to ground its decision as thoroughly as possible in emerging understandings of indigenous rights. One might hope that this will also increase the likelihood of the Commission’s decision  influencing other regional human rights interpretations in turn, though this would perhaps be less relevant to Inter-American system, where recognition of indigenous community rights are relatively advanced.

However, it could be of interest in the European system, particularly if the logic behind the decision survives the leap from indigenous communities (few of which are recognized in Europe, the main exception being the Nordic Sami people) to national minority communities; the latter are both common and recognized in Europe and share many of the key criteria discussed in the Endorois case as markers both of indigenous identity and vulnerability, such as attachment to specific traditional lands, self-identification, and historical persecution. Indeed the key question more broadly speaking may revolve around whether international law will ultimately make the leap of faith reflected in the formulation of Principle 9 of the Guiding Principles on Internal Displacement:

States are under a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands.

In other words, notwithstanding the achievement the Commission’s decision represents, there is an arguable case that international law should move from protecting land rights based on a formal finding that a community is “indigenous”, as in the Endorois Case, to protecting land rights based on the underlying dynamic of dependence on and attachment to informally held land seen among many of the world’s poorest and most vulnerable citizens, “indigenous” or not. But that said, the most interesting thing for the time being will be to watch what happens as governments throughout Africa begin to come to terms with their new acquaintance, the “P” in ACHPR.