Tag Archives: rule of law

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 ProgramNaomi 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. Continue reading

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

by Massimo Moratti

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

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

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

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

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

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

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.

Immeasurably important? The development discourse eyes the rule of law

by Rhodri C. Williams

Its been a busy 18 months in my new rule of law gig, and an eye-opening time to boot. While the range of issues falling under the rule of law umbrella is impressive in principle, I have found myself inevitably stove-piped in practice, with my housing, land and property (HLP) interests finding expression mainly in sporadic consultancies, and justice sector reform issues suddenly front and center in my professional life. Not that I am complaining, mind you.

Judicial reform is just another lens on the whole muddle of good intentions and mixed results I was approaching earlier mainly from a humanitarian perspective, and a change of perspective can be refreshing. I also expect that as I proceed down the rule of law road, I will have opportunities to unpack more and more of my HLP baggage along the way. But for now, it is very interesting to have at least a back row seat on the evolving definition of rule of law and how it relates to broader development assistance efforts.

Recently, a colleague (who I will hat-tip if she likes this post) sent me links to a pair of pieces that helped to crystallize some of the recent debates in this area in my own mind. The first was to a recent Washington Post op-ed by Gary A. Haugen of the International Justice Mission. Haugen describes the explosion of private security companies in the developing world and the extent to which this has resulted in a monopoly on protection from violence for the rich:

As elites abandon the public security system, their impoverished neighbors, especially women and girls, are left relying on underpaid, under-trained, undisciplined and frequently corrupt police forces for protection and all-but-paralyzed courts for justice. ….

When a justice system descends into utter dysfunction, those who exploit and abuse vulnerable people may do so without fear of apprehension or prosecution. As a result, violence is an everyday threat, as much a part of what it means to be poor as being hungry, sick, homeless or jobless.

Interestingly, this piece also exposes the great home truth about the ‘civil and political’ rights traditionally protected by judiciaries. Exclusive proponents of such rights (in countries ranging from the US to Sweden) have often lauded them for being ‘negative’ (in the sense that they involve government duties to refrain from taking actions), and therefore ostensibly cost-free to taxpayers.

This in contrast to social and economic rights, which are ‘positive’, entailing affirmative government actions (and expenditures), and therefore often decried as an unwarranted intrusion in the inherent right of governments to roll the pork barrels toward whichever constituency they choose. In the present case, the lurch toward private security has at least laid bare the extent to which courts actually represent a highly expensive ‘positive’ guarantee necessary for the equitable protection of any kind of rights.

Continue reading

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.

New report on rule of law assistance in constitution building processes

by Rhodri C. Williams

FBA CA coverI am very happy to announce the publication of a report I wrote last year on constitutional assistance for the Folke Bernadotte Academy in Sweden. The aim of the report is to discuss the trend toward greater international assistance to the ‘constitution-building’ processes that tend to accompany contemporary political transitions and post-conflict state-building efforts. It begins with an analysis of some of the debates that have characterized the emerging rule of law field of ‘constitutional assistance’ and goes on to describe the role of various actors at the international and regional levels.

The writing of the report was satisfying at a number of levels. One one hand, constitutional assistance is emerging as a very interesting field of activity, with more attention (if not always resources) from the UN Rule of Law machinery (not least in the form of a Secretary General Guidance Note), and a very active effort to digest and disseminate lessons learned, most recently in the form of extensive handbooks on constitution building by both Interpeace and International IDEA. The work also allowed me to re-engage with debates I had lost track of since my prolonged bath in post-conflict constitutionalism in Bosnia a decade ago. And not incidentally, it put me back in contact with Gianni La Ferrara, an old friend and constitutional guru from Bosnian days of yore.

The subject matter is inherently interesting, sitting as it does at the juncture of transnational dissemination of norms, international human rights and rule of law practice, power-sharing in divided societies and peace building. It is not without controversies as a result. Without going into detail on all of them (the report and its executive summary are available here), I will expand briefly on one which I think is perhaps most interesting, namely the question of whether the aim of ‘democratising’ constitutional processes comes into conflict with the tendency of international rule of law actors to interpose human rights norms into them.

Continue reading