Thursday, September 30, 2010
Joe Gonzales, University College London M.A. Human Rights '10, is a current intern with Survival International. He writes on the Bushmen of the Central Kalahari Game Reserve's struggle to secure water rights from the Botswanan government...
In Botswana, Survival International provides administrative, research, and legal assistance to the Bushmen and their lawyers. Internationally, Survival acts as an advocacy organization for the Bushmen that keeps the international community and media informed of the situation's present state both in the CKGR and in the High Courtroom. As a master's student in the field of human rights, I assist Survival in keeping the international community updated on the legal battles of the Bushmen of the CKGR.
The July 21st decision is the most recent manifestation of a legal problem that has been plaguing the Bushmen for years. The Bushmen's legal trouble began when Botswana's government first capped the borehole (the Bushmen's only reliable source of drinking water) in 2002 and simultaneously forcibly evicted the Bushmen from their ancestral homeland within the CKGR. The High Court eventually ruled in 2006 that these evictions were illegal and that the Bushmen had a right to return to their traditional lands.
While the court did deem the evictions illegal, the government has yet to remove the borehole cap that had initially been implemented concurrent to forcible eviction. The government continues to disallow the Bushmen from uncapping the borehole and the purpose of this refusal appears to be to deter as many Bushmen as possible from exercising their constitutional right to return to the homes from which they were illegally evicted. As such, hundreds of Bushmen remain stranded outside of the CKGR in government relocation camps that often foster high levels of alcoholism, HIV/AIDS, abuse, and other problems previously unknown to the Bushmen. For those that have managed to return to their lands, the journey to transport water into the reserve via donkey is over 250 miles roundtrip.
The Bushmen and Survival are currently in the process of taking this case to the Botswana Court of Appeal, and Survivor is currently working with the Bushmen and their attorneys to structure the argument for this appeal. The judgement of the High Court in July dismissed the case based on a perceived discrepancy between Sections 6 and 9 of the Botswana Water Act. [PDF] The court ruled that the provisions of Section 6, defining which peoples possess an inherent right to water, must yield to those of Section 9, specifying the requirements for obtaining water rights and permits for those without an "inherent right." The appeal will likely argue that the High Court was wrong to hold that sections 6 and 9 are mutually inconsistent, and that section 9 takes precedence over section 6. The result of the High Court's decision was to deprive section 6 of any effect at all, which cannot have been the intention of the Botswana National Assembly in enacting the Botswana Water Act. The more specific details of the Bushmen's new argument, however, are still being formulated, and at this time it is premature to predict the appeal's potential for success.
If this appeal fails, all domestic remedies will have been exhausted, and it will become necessary to then proceed to the use of international legal instruments. The plight of the Bushmen of the CKGR exists at the intersection of two increasingly accepted rights under international law: indigenous rights and the right to water. Both indigenous rights and the right to water make available a variety of human rights instruments and principles of potential utility to the Bushmen of Botswana in the forms of treaty law and customary law, respectively.
A substantial body of evidence has emerged supporting the notion of indigenous rights as jus cogens norms of customary international law. The two foundations necessary for the formation of a norm of customary international law, state practice and opinio juris, are both present. Numerous prior cases such as Calder et al v. the Attorney General of British Columbia in Canada, Mabo v. Queensland (No. 2) in Australia, and Awas Tingni v. Nicaragua and Sagong bin Tasi & Ors v State of Selangor in Malaysia recognize indigenous land rights. As such, all are testament to state practice in a variety of cultural and legal traditions. Richtersveld Community and Ors v. Alexkor Ltd and Anorin in South Africa and Comunidad Indigena Aymara Chusmiza v. Usmagama [Spanish] in Chile are particularly relevant given that they are evidence of indigenous rights in an African setting and of indigenous peoples' right to water, respectively. And, perhaps most significantly, the aforementioned 2006 High Court ruling in Botswana is itself evidence of state practice of recognizing indigenous peoples' rights.
Tellingly, in all but the Chile case, the courts deemed that the indigenous rights claims in dispute were legally valid, despite the fact that the states themselves were not actually legally bound to recognize such rights (the Chilean Supreme Court ruled unanimously that Region I Aymara communities had a right to water owing to Chile's commitments under ILO Indigenous and Tribal Peoples Convention 169). The fact that these states recognized indigenous rights absent legal obligations to do so is indicative of opinio juris. The notion of opinio juris concerning indigenous rights is further supported by the near-universal acceptance (Botswana included) of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). While not legally binding, UNDRIP plainly represents the written confirmation of state support for the principle of indigenous rights. Only the United States and Canada remain opposed to UNDRIP, and both are currently reviewing their stances regarding the document. Thus, a significant number of states have confirmed indigenous rights through voluntary treaty obligations and domestic court decisions, and equally important to the recognition of customary international law, very few states have rejected these rights.
Whether collective indigenous rights have become customary international law is currently the topic of much debate, but state practice and opinio juris on the matter do seem to indicate the emergence of such a norm. It is a notion that has received the support of James Anaya, the current UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. Anaya even claims that opinio juris is evident in the behaviour of the four states that initially voted against the Declaration: the United States, Canada, Australia, and New Zealand (the latter two later have since reversed their opposition to the Declaration). If it were decided that indigenous rights are a part of customary international law, the legal position of the CKGR Bushmen would be greatly strengthened.
If the case for the customary nature of indigenous rights proves unsuccessful, or an inefficient allocation of legal resources, it would be most prudent to then seek legal remedy for the Bushmen through Botswana's international human rights treaty obligations. The right to water is explicitly mentioned in both the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of Discrimination Against Women (CEDAW). Botswana is party to both treaties. In this instance, it is most likely CEDAW that has the greatest potential utility, owing to the individual complaint mechanism present in its optional protocol, which Botswana has also ratified. While the CRC is the most widely accepted human rights treaty in existence, and thus a very significant piece of human rights legislation, it lacks such a mechanism.
The individual complaint procedure guaranteed in CEDAW's optional protocol permits individuals within ratifying states to personally submit complaints to the convention's monitoring body. Article 14(2)(h) of CEDAW explicitly states that rural women have a right to a water supply. The Bushmen of the CKGR therefore have the option of submitting an individual complaint to the Committee on the Elimination of Discrimination Against Women. The Committee could then pass judgment on the legality of Botswana's continued refusal to allow Bushmen women to uncap the borehole and access their water source.
There are several other possible legal arguments in international human rights law that are potentially applicable to the Bushmen's case, but less useful upon further inspection. A strong case can be made that the government of Botswana is violating the Bushmen's right to self-determination. This right, as guaranteed in Article 1 of the International Covenant on Civil and Political Rights (ICCPR), by definition includes the ability of peoples to "freely pursue their economic, social and cultural development." The article further states that peoples may "freely dispose of their natural wealth and resources," and "in no case may a people be deprived of its own means of subsistence." The relationship of these clauses to the denial of access to water is self-evident. Botswana, however, has not ratified the treaty's optional protocol providing for an individual complaint mechanism. As such, while Botswana is legally bound to uphold its obligations under the ICCPR, the only manner in which it can be held accountable for violating ICCPR-protected rights is if the Human Rights Committee were to investigate the plight of the Bushmen on its own volition. Needless to say, despite the validity of the CKGR Bushmen's legal claims, an attempt to rectify the situation via the right to self-determination may prove ineffective to the point of uselessness.
Regardless, discussion of the relationship between indigenous rights, the right to water, Botswana, and the Bushmen of the CKGR is only worthwhile if it can be practically applied. Thus, we return to the future of the Bushmen and their possible courses of legal action.
The aforementioned appeal at the national level in Botswana is certainly the most potentially effective method for the Bushmen to regain access to water. It goes without saying that working within the domestic court system avoids the delays, hazards, and obstacles to enforceability that often accompany even the most landmark of international human rights mandates. If the appeal fails, however, the next step would be to attempt to utilize whichever international human rights legal instrument would prove most efficient, as the Bushmen's inability to access water is a problem in need of the most prompt solution available.
Attempting to prove the customary nature of indigenous rights, as helpful as it would be, is a process that will likely take years or even decades to complete. Furthermore, successful use of such a principle in a legal argument is likely even further down the road. As such, in the immediate future it will prove more advantageous to the Bushmen to work within the framework of Botswana's obligations under international human rights law than to attempt to prove the customary nature of indigenous rights.
CEDAW may be the most effective and rapid means for realizing the rights of the Bushmen in an international context, as the Bushmen's argument falls within CEDAW's purview and Botswana is a party to the optional individual complaint mechanism. The power of the CEDAW's treaty monitoring body is limited in the same manner as all quasi-judicial bodies, but its judgements have proven successful in implementing change in the past. Additionally, the Committee would be able to operate independently of Botswanan laws, like the Water Act, that have been used to prevent the Bushmen from accessing water in the CKGR. The ability of treaty law to supersede domestic legislation is guaranteed by the Vienna Convention on the Law of Treaties [PDF], which is itself a part of customary international law. Article 27 of the Convention states that parties to the treaty may not invoke internal law as a justification for failure to perform the duties specified in a treaty.
Regardless of which method is chosen, be it domestic law, international law, or some combination of the two, it is paramount that the Bushmen of the Central Kalahari Game Reserve are allowed to access their water if there is any chance for them to fully realize the rights to which they are entitled.
Photos: Copyright Survival International
Sunday, September 26, 2010
Saleh Al Amer, Pitt Law '11, recently interned with the American-Arab Anti-Discrimination Committee (ADC) in Washington, DC. Saleh is the President of the Muslim Law Students Association at the University of Pittsburgh and writes on discrimination against Muslims in Europe and the United States...
Three major justifications were provided for this legislation. First, legislators claimed that the veil violates the French values of dignity and equality between the sexes and reaffirms womens inferiority. Second, the veil challenges the French model of integration and hinders the assimilation of certain groups within the society, namely the Muslim community. Finally, the measure was taken in order to ensure democracy and maintain the public order.
A close assessment of the legislations consequences would show that it is best described as paternalistic and counterproductive. First, news reports after the passage of the legislation indicate that French women who wear the burqa, or niqab, might choose to stay at home and avoid going to hospitals and government offices in order not to violate their strong religious convictions. Therefore, the negative impact on women who wear the niqab in France will be immediate. Second, one of the main justifications for the legislation is to promote the assimilation of certain groups into French society. The legislation is doing quite the opposite. Muslims in France and the rest of the world consider this act as hostile legislation targeting Muslims. The fact that a woman who wears the niqab is either fined or forced to take a citizenship class gives clear indication that wearing the niqab is seen as un-French. This can only deepen the isolation of the Muslim community within France. Finally, the one positive aspect of the legislation is that it penalizes any person who forces a woman to cover her face. This indicates that womens freedom of choice is considered to be one of the major pillars of this legislation. However, the legislation instead assumes a paternal role by forcing women not to cover their faces even if they choose to do so, stripping them of their freedom of choice.
Muslim practices have been the subject of many European legislators focus lately. The attempts to ban the Islamic face veil have been spreading throughout Europe and were preceded by the infamous Minarets ban in Switzerland in November of 2009. The West's official policy after the terrorist attacks of September 11th, and the subsequent terrorist attacks in Europe, was to try to build bridges between the West and Muslim communities all over the world. In the United States, this was clearly established by President Obama's so-called Cairo Speech and the different outreach programs adopted by his administration right after his inauguration. However, measures like the niqab ban in France or others being considered around Europe are achieving the opposite result.
In the United States, the current hateful and Islamophobic rhetoric regarding the proposed Islamic center in lower Manhattan is creating an even bigger gap between Muslims and the West in general. During the course of the debate, the entire Islamic faith came under attack instead of just the proposed Islamic center. As the face veil is being called un-French, over time, Muslims in the United States are being called un-American.
I was in Saudi Arabia when the issue of the proposed Islamic center was starting to become a major news item in the US. The issue received very close coverage by the local Saudi media and was the subject of public attention. The re-established relationship between the Obama administration and the Muslim public in Saudi Arabia was undergoing a tough test, and the Saudi public was paying close attention to the outcome of the debate. Unfortunately, the debate degraded towards Islamophobic rhetoric, causing the positive effects of the Cairo Speech to erode over a very short period of time. This was only compounded by the plans to burn the Quran on the anniversary of 9/11 by a pastor in Florida.
Before visiting Saudi Arabia, I worked with the legal department at the American-Arab Anti-Discrimination Committee (ADC) over the summer. The main task of the legal department is to deal with discrimination cases based on national origin and religion, as well as hate crimes. Over the period of two moths, I dealt with numerous cases related to employment discrimination where the religious practices of the employee were at issue. Recently, the office of the Equal Employment Opportunity Commission (EEOC) stated that the number of claims of bias against Muslims in the workplace in 2009 was even higher than the in the year after the 9/11 attacks. The claims of bias against Muslims this year will very likely increase as a result of the American publics attitude towards the proposed Islamic Center and the attempt to burn the Quran by the Florida pastor. Indeed, the EEOC has reported a sharp spike in the number of claims since the two incidents occurred. In the same fashion, there has been an alarming increase in the number of hate crimes targeting the Arab and Muslim communities. Within a period of few days, "a taxicab driver in New York City (NYC) [was] viciously slashed with a knife after being asked if he was a Muslim; a drunken man [walked] into a mosque in NYC and [urinated] on the prayer rugs after screaming at worshippers gathered for evening prayers; and a mosque in California [was] vandalized twice." The atmosphere now is quite similar to that felt by Muslims in the United States right after the 9/11 attacks.
Groups like the ADC and the Council on American-Islamic Relations (CAIR) have issued Special Advisories to the Arab and Muslim communities in the United States to be cautious and report any incidents or hate crimes. However, the situation now is different as opposed to that which immediately followed the 9/11 attacks. Hostility towards Islam in the US, as well as the legislation in France, is backed by public opinion. There is an alarming increase in the number of political candidates in the United States who echo Islamphobic rhetoric in order to acquire more votes and enhance their political visibility. If these politicians are successful, legislation similar to the French niqab ban might be proposed in the US after the mid-term elections. This would lead to greater alienation of the Muslim community in the United States, particularly where they become the target of hate crimes. This type of legislation would further affirm the Muslim worlds recent conviction that the differences between the West and the Islamic world is irreconcilable.
Thursday, September 09, 2010
Brett Stark, Harvard Law School '12, interned with the Association for Civil Rights in Israel (ACRI). He writes about the virtues of organizations that promote the rights of all rather than the interests of any particular group...
This summer, I performed comparative legal research at the Association for Civil Rights in Israel (ACRI), Israel's oldest and largest human rights organization. Unlike virtually every other non-governmental organization (NGO) in Israel and the Palestinian territories, ACRI does not advocate on behalf of a particular party. Instead, ACRI is committed to Israeli democracy per se, and thus strives to uphold the democratic rights of all people under Israel's jurisdiction. ACRI's mandate makes it a sorely needed, and unfortunately rare, institution within Israeli civil society.
I experienced the need for a balanced approach to civil liberties during a trip to Hebron, in the West Bank. Hebron encapsulates many of the most intractable issues fueling the Arab-Israeli conflict, a place where religious Jews live behind Israeli-army guarded fences in an area otherwise entirely inhabited by Palestinians. As an American Jew, I was permitted into the Jewish area and soon found myself eating tea biscuits in the kitchen of an elderly British-Jewish man who spoke of the international community's fundamental misunderstanding of Israel. Only a few minutes later, on what was literally the "other side of the fence," I sat in the living room of a Palestinian man, drinking coffee and listening to him tell me about the time his son was hit by a Molotov cocktail.
On each side of the fence, murals painted on the walls told drastically different stories about the history of Hebron and the condition of those who live there. On the Jewish side, paintings of Talmudic-era Jews describe a Jewish return to Hebron and modern Arab attacks on Jews. On the Palestinian side, the graffiti on the buildings accuses Jews of stealing Palestinian land. In the middle, separating those on one side of the fence from those on the other, are the Israeli soldiers, mostly young men in their twenties.
In talking with both Jewish and Arab residents of Hebron, I became more convinced than ever of the importance of an organization that brings all three of these disparate factions of Israeli society - Palestinians, Jews, and soldiers - under one democratic umbrella. In fact, in 2010 alone, ACRI spoke out on behalf of all three: religious Jews, Palestinian Arabs and the Israeli army.
ACRI's defense of the right to counsel, essential to any democracy, is illustrative. In May of this year, ACRI appealed to Israel's Attorney-General in the case of Amir Makhoul, an Arab activist in Israel accused of meeting with Hezbollah, the Lebanese militant group. Makhoul, the director of an Arab charity, was detained for over ten days without being permitted to meet with his lawyer. ACRI's response was unequivocal, writing in its appeal to the Attorney-General that "A suspect's right to meet with a lawyer is a basic constitutional right, serving as a critical guarantee that his or her investigation is fair and that due process rights are protected."
Compare Makhoul's case with that of Chaim Pearlman, a Jewish activist. In July, Mr. Pearlman was arrested on suspicion of murdering four Palestinians. Like Makhoul, Mr. Pearlman was arrested and denied the right to meet with his lawyer. ACRI, again appealing to the Attorney-General, did not waver in its commitment to constitutional principles. Advocating on Pearlman's behalf, ACRI asserted, "The right of a suspect to meet with a lawyer is a basic constitutional right, one that guarantees a fair investigation and that [promotes] the safeguarding of the detainees' rights...Furthermore, preventing a meeting with a lawyer...creates a substantial risk for eliciting false confessions and as a result, distorted justice."
Finally, in June ACRI came to the defense of a film supporting the Israeli army, at a time when the army was perhaps at the nadir of its popularity. In the aftermath of the "Freedom Flotilla" incident, an American-Israeli commentator made a parody entitled "We Con the World," insinuating that the motivations of the members of the flotilla were dishonest and therefore that the Israeli army's actions were justified. YouTube quickly pulled the video on alleged copyright grounds, to which ACRI responded that the video was within the legal parameters of "fair use," and that "freedom of expression also applies to satire and parody, and these formats must be protected both online and offline."
It is the presence of fundamental differences that make a balanced position on basic civil rights issues a prerequisite to both a functioning Israeli democracy and a resolution of the Arab-Israeli conflict. The Makhoul and Pearlman cases, as well as the YouTube controversy, reflect ACRI's much-needed insistence on democratic equality within a complex environment of extreme conflict and difficult political choices. ACRI's equality-centric approach is modeled directly from the American Civil Liberties Union, which has in turn called ACRI "our sister organization." Those truly interested in forging a viable, democratic Israel should recognize that democratic principles are fundamentally impartial. The same rights must protect both Arabs and Jews. It is the only option for the Middle East's strongest yet most beleaguered democracy.
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