human rights

Date of publication
January 2013
Geographical focus

by Aparna Polavarapu (University of South Carolina - School of Law)


Abstract:     

In sub-Saharan Africa and globally, battles for rights relating to customary law are common. Indigenous groups throughout the African continent are fighting to maintain access to lands they hold in customary tenure as competition for land increases, while women fight against application of customary laws that deny them rights to attain or control property. Elsewhere around the globe, indigenous groups, particularly those in resource-rich areas, are vulnerable to land grabs from investors and governments. In the in the Americas, Europe, and Asia, indigenous groups face threats to their lands and natural resources. While indigenous rights activists call for government recognition of indigenous land rights and livelihoods, the “women question,” or, how to ensure the protection of indigenous women’s rights, remains an open question. This Article considers how African state governments can legally recognize customary land tenure in a manner that protects indigenous groups while still affording property and other rights to women, and argues that women’s rights and customary law conflict enough such that any legal system that both protects customary tenure and aims to protect women’s rights to land ownership must, at some level, fundamentally alter aspects of customary systems of land ownership. Because of the global nature of these problems, any resolution in sub-Saharan Africa is certain to have implications worldwide.

Date of publication
January 2013
Geographical focus

The International Centre for Settlement of Investment Disputes (ICSID) between investors and states was established in 1965 with the adoption of the Washington Convention, establishing a specific arbitration mechanism under the auspices of World Bank to resolve a very peculiar kind of disputes: the disputes between a state and a foreign investor. The decolonization process that took place in the 50s and 60s and the nationalization of many foreign companies by the new states (as well as the suspension of permits of exploration, mining an oil concessions, adoption of discriminatory legislation, among others unilateral decisions) provoked many tensions around the world, and domestic tribunals seemed at this time unable to resolve adequately the compensation claims presented by the investor. The Convention of 1965 stipulated that ICSID arbitration tribunals are constituted by three arbitrators: one designed by the claimant (the foreign investor), one by the state and that the third one (the President) by the World Bank. The Convention establishes alos the procedural rulings and other formal aspects. We must note that in 1965, there are no general universal human rights instruments in force (the UN Declaration of Human Rights of 1948 is the only general text at the UN), and a few treaties on specific categories of victims or crimes; and we must recall that topics like the protection of indigenous people´s right, the protection of environment and the status of water resources are absent of discussions of the international community.

[...]

CRITICS TO ICSID

ICSID mechanism have been criticised by many developing states and authors, as well as NGO and civil society leaders. The following quote gives a complete panorama of the critical aspects pointed out since many years: “Developing countries and some scholars began to look at ICSID critically, formulating a list of complaints such as: ICSID’s lack of financial and management structure to face its increasing workload; ICSID’s umbilical cord with the World Bank; concerns by some Latin American states that hostility toward ICSID may hamper access to World Bank credit; the pressure on developing countries to resort to assistance from extremely expensive foreign law firms; non-commercial interests, such as health or environmental protection have not received adequate attention; a lack of transparency by arbitration panels; a shadow of arbitrator bias in favor of the investor, with different ad hoc tribunals analyzing similar cases reaching disparate results; the absence of an appeals process, but only a limited annulment procedure; failure to take into account situations of massive economic downturns; cracks in its system of voluntary enforcement and compliance with the award, with some foreign investors losing their faith in Argentina’s willingness to honor ICSID awards”.

Concerning civil society and NGO, the lack of effective participation of civil society during the arbitration mechanism remain unresolved. For instance, the possibility to present amicus curiae by third parties to ICSID arbitrators is a very recent one [16]: even if 2007 ICSID decision was announced as setting “a landmark precedent by recognizing the public interest involved in this water-related investment arbitration, which will influence water concessions around the world”, recent articles indicate the lack of consistency of ICSID jurisprudence after 2007.

The lack of sensitivity shown by the members of the ICSID tribunals in their decisions on issues relating to defense of collective interests (human rights, environment, indigenous peoples, right and access to water) has also been denounced.

[...]

Click here to read the full article.

Date of publication
January 2013
Geographical focus

Please find here the report of the online discussion facilitated by Ekta Parishad on the land portal in December 2012 : Is the right to land for shelter a human right? Many thanks to all of the participants for their very interesting inputs, which will contribute to the ongoing negociations with the indian government.

Special thanks to Dominik Pauli for his great support and commitment.

Date of publication
January 2012
Geographical focus

Papers and presentations from the OHCHR - UN Women expert group meeting on "Good practices in realizing women's rights to productive resources, with a focus on land" are now available. The event was held in Geneva from 25 to 27 June 2012 and focused on "legislative and policy reforms and other initiatives to realize women’s rights to productive resources, in particular land, as well as on going challenges and ways to address those challenges". Contributions include case studies from Brazil (Ponte do Maduro), Kyrgyzstan and Tajikistan, Ecuador, Kenya, Sri Lanka, Jordan, Namibia, Canada, Colombia, Bangladesh, Vanuatu, Rwanda, India, Uganda, the Philippines, China, and a number of thematic papers including "Respect, protect and fulfill: legislating for women’s marital property rights in the context of HIV" by Sandra Ka Hon Chu; "Women’s land rights in the context of land tenure reform: legal considerations" by Elisa Scalise, and "Women’s Human Rights related to access, use and control over land and other productive resources" by OHCHR - UN Women.


Papers and resources are available on the UN Women website.

Date of publication
January 2012
Geographical focus

Global Witness just published an important briefing note on the sharp rise in killings over land and forests over the last years. The briefing note is worth-reading. Few years ago, the Special Rapporteur of the UN Secretary General on the Situation of Human Rights Defenders, Hina Jilani, affirmed that defenders working on land rights and natural resources are "the second most vulnerable group when it comes to danger of being killed because of their acvities in the defence of human rights" (A/HRC/4/37). Few months ago, the current SR, Margaret Sekaggya, devoted almost an entire report to these defenders (A/HRC/19/55), affirming that States should protect them and combat impunity and violations they suffer from. Finally, the recently approved Voluntary Guidelines contain a strong provision (4.8) affirming that States should respect and protect the civil and political rights of defenders of human rights, including individuals and associations acting in defence of land, fisheries and forests. Still, situation on the ground is drammatically different.     

[From Global Witness] New figures collected by Global Witness on the killings of activists, journalists and community members who were defending rights to land and forests show the true, shocking extent of  competition for access to natural resources. The briefing, A Hidden Crisis?, finds that over 711 people appear to have been killed in the last decade – more than one a week. In 2011 the toll was 106 people, almost doubling over the past three years.



On the eve of the Rio +20 UN Conference on Sustainable Development, the briefing warns of a hidden crisis in environmental protection, highlighting a pervasive culture of impunity around such violence, a lack of information, reporting or monitoring of the problem at national and international levels, and the involvement of governments and the domestic and foreign private sector in many killings.



Billy Kyte, campaigner at Global Witness said, “This trend points to the increasingly fierce global battle for resources, and represents the sharpest of wake-up calls for delegates in Rio. Over one person a week is being murdered for defending rights to forests and land.” The research, drawn from consultations with communities, organisations and academics, and collation of online databases, reveals:



  • An alarming lack of information on killings in many countries, and no monitoring at all at the international level. These figures are likely to be a gross underestimate of the extent of the problem;

  • Killings have increased over the past decade, more than doubling over the past three years;

  • A culture of impunity pervades in this area, with few convictions brought against perpetrators;

  • The highest numbers of killings were found in Brazil, Colombia, the Philippines and Peru. In these and other countries (Cambodia, DRC, Indonesia), there are sustained concerns about domestic and foreign private sector involvement in the killings of defenders.






As global consumption increases, the battle for access to land, forests and other natural resources is intensifying with deadly results. Contributory factors include;




  • Increasing agribusiness, logging, mining, hydropower initiatives on contested land and forests;

  • Land ownership concentrated in the hands of elites with strong business and government connections;

  • Large populations of relatively poor and disenfranchised citizens, who are dependent on land or forests for their livelihoods.




Governments must ensure that citizens with concerns over how land and forest are managed can speak out without fear of persecution and that investment projects and land and forest deals are open and fair. This means seeking free, prior and informed consent from affected communities before deals are approved.



Justice and redress must also be delivered for those killed. “The international community must stop perpetuating this vicious contest for forests and land. It has never been more important to protect the environment and it has never been more deadly”, said Kyte.




You can access the brief on the Global Witness' website.

Date of publication
January 2011
Geographical focus

I am sharing this extremely important report from Margaret Sekaggya, the Special Rapporteur of the situation of human rights defenders (2011). In 2007 the former Special Rapporteur, Hina Jilani, affirmed that “the second most vulnerable group when it comes to danger of being killed because of their activities in the defence of human rights, are defenders working on land rights and natural resources” (Hina Jilani, 2007, Report submitted to the Human Rights Council, A/HRC/4/37).

This new report, based on communications sent between 2007 and 2011 by the mandate holder, provides additional evidence and sheds further light on the widespread human rights violations suffered by those who peacefully and non-violently promote  land and natural resource rights. This is particularly true for those who are organised in grassroots organisations or social movements, which face specific difficulties vis-à-vis state authorities and powerful non-state actors. 

The report includes the following paragraphs related to defenders working on land and environmental issues:

- International human rights framework and approach of the mandate holder
- Activities, risks and challenges faced by defenders working on land and environmental issues
- Defending land and environmental issues in connection with extractive industries and construction and development projects
- Defenders working for the rights of indigenous peoples and minorities
- Women defenders working on land and environmental issues
- Journalists working on land and environmental issues

Margaret Sekaggya lists an impressive number of violations, including killings, attempted killings, attacks, assault and ill-treatment, excessive use of force (during demonstrations), threats, different forms of intimidation, harrasment, raids to houses, arrest, arbitrary detention, stigmatisation (through campaigns against land/human rights defenders), discreting campaigns/defamation, criminalisation.

With regard to the types of activities triggering violations, the Special Rapporteur mentions: i) representation of affected groups at national level; ii) participation in negotiations w/ authorities on matters such as land disputes (representing affecting communities); iii) investigations of cases of land deals / land grabbing; iv) defence of rights of affected communities, IPs, etc; v) campaigns against forced evictions; vi) campaigns for raising awareness on HR violations, on the rights of affected groups / farmers / land users and owners; vii)submission of information to national, regional or international human right organisations; viii) making and dissemination video documentary; ix) writing articles and reports on cases of land-related human rights violations.

The conclusions of the Special Rapporteur follow:

123. Defenders working on land and environmental issues are also highly exposed to attacks to their physical integrity, often by non-State actors, and many are killed because of their work on the environmental impact of extractive industries and development projects, or the right to land of indigenous peoples and minorities. The Americas seems to be the region where these defenders are most at risk.

124. States should give full recognition to the important work carried out by defenders working on land and environmental issues in trying to find a balance between economic development and respect of the environment, including the right to use land, natural wealth and resources, and the rights of certain groups, including indigenous peoples and minorities.

125. States should not tolerate the stigmatization of the work of these defenders by public officials or the media, particularly in context of social polarization, as this can foster a climate of intimidation and harassment which might encourage rejection and even violence against defenders.

126. States should combat impunity for attacks and violations against these defenders, particularly by non-State actors and those acting in collusion with them, by ensuring prompt and impartial investigations into allegations and appropriate redress and reparation to victims.

Date of publication
January 2011
Geographical focus


[From the Foro Internacional de Mujeres Indígenas] Today, December 10 — International Human Rights Day, we want to acknowledge the hard work of millions of indigenous women who in adverse conditions, hit with multiple forms of violence contribute with their resilience capabilities to the lives of their people’s. To them we dedicate this day, to the defenders of the rights of indigenous women who run enormous risks to do their job.

Indigenous peoples have fought for centuries against genocide, displacement, colonization, and forced assimilation, preserving their cultures and identities as distinct peoples. The ongoing attack has left Indigenous communities among the poorest and most marginalized in the world, alienated from State politics and disenfranchised by national governments.

Human rights and the very survival of indigenous peoples around the world are threatened by policies predicated on racism, exclusion, and worldviews that are inimical to indigenous life. In many parts of the world, a centuries-long attack on indigenous peoples has escalated in recent years, as States and corporations scramble for control of the Earth’s dwindling supply of natural resources—many of which are located on Indigenous territories.

In order change this reality; on September 13, 2007 the United Nations Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly. It set a standard for the treatment of indigenous peoples around world and functioned as a significant tool towards eliminating human rights violations.

At the moment, indigenous women face human rights violation of near-universal scope, which are mediated in each case by aspects of identity beyond gender, including race, class, caste, religion, sexual orientation, geography, and ethnicity. For indigenous women, gender-based violence is shaped not only by gender discrimination within Indigenous and non-Indigenous arenas, but by a context of ongoing colonization and militarism; racism, social exclusion and poverty-inducing economic and “development” policies.

For indigenous peoples and indigenous women exercising our rights depend on securing legal recognition of our collective ancestral territories. Our territories are the basis of our identities, our cultures, our economies, and our traditions. Indigenous rights include the right to full recognition as peoples with our own worldview and traditions, with our own territories, our own modes of organization within nation-states; the right to self-determination through our own systems of autonomy or self-government based on a communal property framework; and the right to control, develop, and utilize our own natural resources.

Indigenous peoples have found in the human rights paradigm a cohesive global language, a moral framework, and a legal structure through which to pursue our claims.

Today, December 10, 2011 we celebrate the International Human Rights Day. A day where millions of people claim their inalienable fundamental rights; rights that belong to each of us equally and bind us together as a global community with the same ideals and values.

Date of publication
January 2011
Geographical focus

Few days after an important report from the Center on Housing Rights and Evicitions (COHRE) on women's land and housing rights in Phnom Penh, another report on forced evictions in Cambodia, this time from Amnesty International and focused on rural areas. This publication tells the stories of five cambodian women who have faced or resist forced eviction from their homes and land. Forced evictions in the name of economic development have become common in Cambodia, and are increasingly linked to a renewed competition over natural resources. The report has been launched together with a video, which can be found here.  

[From Amnesty International] Cambodian women are increasingly at the forefront of the battle against a wave of forced evictions sweeping the country, Amnesty International said today in a new report that urges the government to halt the practice.

Eviction and resistance in Cambodia: Five women tell their stories
details, through first-hand testimony, the stories of Hong, Mai, Sophal, Heap and Vanny, women who have faced or continue to resist forced eviction from their homes and land.

“In Cambodia, women are at the forefront of the fight against forced evictions. Many have taken the lead in their communities’ struggle for justice, putting themselves at risk to defend their communities,” said Donna Guest, Amnesty International’s Asia-Pacific Deputy Director. “The Cambodian authorities must bring about an end to the practice of forced evictions, which contravene international human rights treaties and tear families apart.”

“They must ensure that genuine consultations are held with the people affected, and that residents receive sufficient notice and compensation or adequate housing where there is no alternative to eviction. The government should listen to the women who are trying to protect their homes and families,” she said.

Tens of thousands of people have been forcibly evicted across Cambodia, in both rural and urban areas while Indigenous people face expulsion from their traditional land, including Hong, who tells her story in the report. Mai, 48, a mother from the province of Oddar Meanchey, in north-west Cambodia, was pregnant in 2009 when she watched her home go up in flames. “My house, possessions, clothes, all went up in smoke. Nothing was left,” she said.

Her house and 118 others in her village, Bos, were bulldozed and burned to the ground by 150 police, military, and others believed to be workers employed by a company that was granted a concession over a large swath of land, including Bos village, for a sugar plantation.

In October 2009, Mai was imprisoned for eight months for violating forestry laws when she travelled to the capital Phnom Penh to complain to the prime minister about the eviction. She was released in June 2010, but only after signing an agreement to relinquish the rights to her land. She now has little to provide for herself and her eight children. “Women not only face impoverishment from forced eviction but threats and imprisonment when they try to resist, with no protection from the law,” said Donna Guest. In the Boeung Kak Lake area of central Phnom Penh, nearly 20,000 people have either been evicted from their homes or are at risk of losing them since a commercial development company was granted a 99-year lease in the area in 2007. Thirty-one year old Vanny helps lead community resistance to the Boeung Kak Lake eviction. 

On 11 August 2011, the community achieved a partial victory when the prime minister ordered a portion of land to be handed over to the remaining 800 families for onsite housing in plots with legal ownership.

Vanny said: “A lot of people think that this is the first success of people’s demonstration… it’s a great example for other communities all over the country,” she said. Yet Vanny still feels insecure. “When I leave my house, I don't know whether I can expect to come home or not.” Vanny has good reason to be concerned, as she now faces a defamation charge brought by the Municipality of Phnom Penh.  In addition, eight more homes on the edge of Boeung Kak Lake were destroyed by bulldozers on 16 September, the families left homeless.

Rapid economic development within a newly privatized land market has seen an increase in forced eviction across Cambodia. “Tens of thousands of people across Cambodia are unlawfully losing their homes because of the demands of big business,” said Donna Guest.

“The Cambodian government must not sacrifice human rights in the name of economic development.” Forced eviction often leads to loss of possessions and livelihood, the break up of communities, and a deterioration of a family’s mental and physical wellbeing. Access to education and health services can be disrupted. Many victims of forced eviction receive inadequate compensation and are resettled in remote areas. Husbands may need to spend long periods of time away from home seeking work, leaving their wives to cope alone.

“The loss of one’s home and community is a traumatic experience for anyone, but women in their role as primary caregivers for their family face a particular burden. Forced evictions also threaten the gains made in reducing poverty in Cambodia over the last 20 years,” said Donna Guest.

Amnesty International exposed the Cambodian authorities’ systematic failure to protect people from forced evictions in a 2008 report.  Forced evictions violate a person’s right to adequate housing, and are banned under international human rights treaties to which Cambodia is a state party.

Centre on Housing Rights and Evictions
Date of publication
January 2011
Geographical focus

You can find below, attached, a new report from the Centre On Housing Rights & Evictions (COHRE) - Asia on women's land and housing rights in Phnom Penh. Authors identify 11 recommendations for the Royal Government of Cambodia and 7 for NGOs. The report is based on a survey of 742 women interviewed, representing approxitemely 10 percent of the affected families in 74 communities threatened with forced evictions in Phnom Penh.

As affirmed by the authors, "random selection and interviews were conducted with the assistance of some community leaders or village chiefs. Information from local NGOs, including the Housing Rights Task Force (HRTF) network members working on housing and land rights issues, was used in randomly selecting the communities. The communities selected are spread across 11 different types of location. [...] Subsequently, COHRE employed six Khmer field interviewers, who underwent a two-week orientation and survey preparation prior to field deployment. [...] The six field interviewers were organized into two teams to conduct interviews of 10 women for each community for a period of 2½ months" (P. 7).

Below, an excerpt of the Preface:

"Forced evictions in Phnom Penh are emblematic of the housing and land rights issues in Cambodia as a whole, although the negative impacts have disproportionate consequences on women. This Report is a contribution by the Center on Housing Rights and Evictions (COHRE) which examines the specific impact on urban poor women at the different stages of forced eviction. The Report also examines the compounding impact of domestic violence inflicted on women respondents who either face the risk of being evicted or have already been evicted from their land.

On this premise, specific recommendations have been formulated to address the concerns identified by the women respondents and are addressed to the Royal Government of Cambodia (the RGC) and the non-governmental organizations (NGOs) lending support to women’s rights and housing rights advocacy. The recommendations are in effect directed at addressing the de jure (in law) and de facto (in practice) rights of women to adequate housing as enshrined under domestic law as well as international human rights laws and covenants. The national laws of Cambodia guarantee the right to security of tenure for all, including affected women and their families, and yet the practice of forced evictions undermines all these guarantees and violates the fundamental rights of women to live in dignity.

It is hoped that through this Report, the RGC and NGOs will find our recommendations to be worthy and complimentary of their efforts and resources in ensuring the rights of women to security of tenure and in combating violence against women."

Date of publication
January 2003
Geographical focus


This report describes the pervasive property rights violations which women are subject in Kenya. It describes women's rights in the country more generally and focuses on how widows, daughters, divorced women and married women are discriminated against and deprived of secure access to land and other resources. The report also makes recommendations to the government of Kenya as well as to donors and international organisations.


[From the HRW website] Women throughout Kenya lose their homes, land, and other property due to discriminatory laws and customs, Human Rights Watch said in a new report released today. Human Rights Watch said property rights abuses in sub-Saharan Africa perpetuate women's inequality, doom development efforts, and undermine the fight against HIV/AIDS. This 51-page report examines the devastating impact of women's property rights violations in Kenya, where the constitution condones discrimination in property matters. These violations and their impact are magnified by Kenya's high HIV/AIDS prevalence.


HIV-positive women, already harmed by stigma and discrimination, are gravely threatened by property rights violations. Women's insecure property rights also hinder development by contributing to low agricultural production, food shortages, underemployment, and rural poverty. Human Rights Watch said that with a new government in office, movement toward a new constitution, and an upsurge in donor support, now is a pivotal time to improve women's property rights.


You can download this report from the website of Human Rights Watch.

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