CommentaryJoe 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…
On July 21 the High Court of Botswana (the High Court) dismissed [PDF] a case concerning the Bushmen of the Central Kalahari Game Reserve’s (CKGR) legal entitlement to access their local waterhole. More specifically, the High Court ruled that the government was not obliged to allow the Bushmen to reopen an existing borehole that the government had itself sealed eight years previously. The court likewise ruled that Botswana’s Water Act did not confer rights on the Bushmen to sink new boreholes within the reserve.
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
