Ogiek: The African Court of Human and Peoples’ Rights first decision on indigenous rights

This past Friday, 26 May 2017, the African Court of Human and Peoples’ Rights handed down its first judgement on the rights of indigenous peoples in the matter of African Commission of Human and Peoples’ Rights v The Republic of Kenya (the Ogiek case). The case concerns the Ogiek people, an indigenous community of about 20 000 people who live in the Mau Forest in the central Rift Valley in Kenya. In 2009, officials from the Kenyan Forest Service served an eviction notice on the community and other settlers requiring them to leave the forest within 30 days. The notice was issued on the grounds that the forest constitutes a reserve water catchment zone and that the land is state property. The Ogiek people argued that the decision to evict was taken without regard to the importance of the forest to the community and to their survival, and without any consultation with the community, in violation of the State’s obligations under the African Charter of Human and Peoples’ Rights.

Like the Endorois decision handed down by the African Commission of Human and Peoples’ Rights in 2009 (also a case about the eviction of a group by the Kenyan Forestry Service), this case turns on questions about what constitutes an indigenous group and whether Kenya’s alleged environmental concerns justify overriding obligations to these groups under the African Charter.

The Court found that Kenya had violated the Ogiek community’s rights under Article 14 (the right to property), Article 2 (the right to equality), Article 8 (the right to freedom of religion), Article 17(2) and (3) (the right to culture), Article 21 (the right to free disposal of wealth and natural resources), Article 22 (the right to economic, social and cultural development) and Article 1 (the State duty to take all legislative and other measures necessary to give effect to the Charter). The Court found no violation of Article 4 (the right to life). In this post I briefly consider some of these Articles and the Court’s findings.

The Right to Property – Article 14

The Court found that Kenya had violated the rights of the Ogiek under Article 14 of the African Charter. Article 14 secures the right to property but the Court referred to the ‘right to land’ in its reasoning, interpreting the right in light of the UN Declaration on the Rights of Indigenous Peoples. The Court found the Ogiek had occupied the land since time immemorial and that, as an indigenous community, the community was entitled to occupy its ancestral land. (A report on the Ogiek for the Forest Peoples Programme, documents a series of evictions and forced removals of the Ogiek from their land starting in 1911, and continuing after independence.)

Rights to land for indigenous communities, the Court found, did not necessarily mean rights to property (an approach that has been central to the Inter-American Court and Commission’s indigenous rights jurisprudence). Rather, the Court emphasised rights to possession and unhindered use of their territories.  Continue reading

Postgraduate Colloquium on Frontiers of International Environmental Law

The PluriCourts Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order in collaboration with the Faculty of Law welcome 20 young scholars working in the area of International Law and Environment to present and discuss their work in a subject-specific forum.

The 2017 theme

Since the release of the Brundtland Report in 1987, international environmental law has gone through a rapid evolution. Negotiations over global warming and the ongoing negotiations towards the adoption of a convention to protect marine biodiversity show how often states are engaged in international negotiations with the aim to cooperatively prevent environmental degradation.

In spite of an increased number of multilateral environmental agreements, States are still reluctant to establish an International Environmental Court. This significantly impacts the protection of the environment. In case of transnational environmental damages or in case of non-compliance with international obligations, there aren’t any specialized environmental courts which would assess States’ responsibilities for environmental damage. In order to cover this lack of remedies, well-established international courts such as the International Court Justice (the Whaling case) or the International Criminal Court (Ecuador v. Chevron) have been asked to rule in cases involving environmental damages. Recent cases have been contributed to advance the protection of environment at an international level. See for instance the ITLOS Advisory Opinion Activities in the Area where the Tribunal recognizes the States’ obligation of due diligence in case of non-compliance of international environmental agreement.

It is therefore a good moment to evaluate the developments achieved by international courts in the context of environmental protection.

The colloquium seeks to address the following questions: What advances have been made in environmental protection in international courts and quasi-judicial bodies? Are new IEL principles emerging? What is the relation between the traditional corpus of IEL principles and new emerging States‘ obligations of due diligence and duty of prevention in environmental protection? Have the principles of inter and intra generational equity gained the status of legally binding principles? How do the Courts interpret the principles of equitable access to natural resources and how do they balance this with the right to Development?

Applicants

The colloquium welcomes research from postgraduate students (Ph.D and Post-Doc) at all stages of their postgraduate work and LLM students working in the area of International Law and Environment.

Prizes

Prizes will be awarded to the best oral and poster presentations during the drink reception at the end of the day.

Marks will be awarded for the following:

  • Introduction
  • Aims/Hypothesis
  • Appropriateness of methodology
  • Conclusions
  • Legibility of poster
  • Audibility of talk
  • Clarity of expression
  • Ability to answer questions, engage in scientific discussion
  • The impact of the work on future studies and the field

Submission and deadline

Those interested in presenting in any area of International Law and Environment are invited to submit an abstract, indicating whether it is intended for oral or poster presentation, of no more than 200 words by Sunday 4 June 2017. The authors of abstracts selected for presentation will not be expected to submit completed papers but they may do so if they wish.

Financial aid

The colloquium is made possible by generous funding from Lovsamlingsfondet and the PluriCourts Centre of Excellence. During the day of colloquium lunch and dinner will be served. Presenters in need of financial support are invited to make contact with the organisers to discuss coverage of travel expenses.

Time and place: First Postgraduate Colloquium on Frontiers of International Environmental Law Sep. 21, 2017 9:00 AM5:00 PM

Announcements

  1. Call for Papers

Get your article published in an internationally indexed journal with a high  impact factor of  1. 73.  International Journal of Socio-Legal Analysis and Rural Development (IJSARD) is an online quarterly peer reviewed international journal on ‘Law’ and ‘Rural Development’. As the name suggests the journal will focus on the analysis of different laws for better understanding and research. The society needs the laws for proper functioning and thus the journal focuses to draw a special emphasis on various disciplines of social sciences, rural development and analysis of various aspects of law to improve the quality of research and explore the more realistic aspects of civilization’s sustainable developments. Establishing equilibrium between the society and law it will find the present and futuristic scope of growth and prosperity. Rural development is an essential part of a sustainable society.

Word limit:
Articles: 5,000-10,000 words.
Short Articles: 2,500-5,000 words.
Case study : 2,500-6,000 words

Theme
The articles must be related to Law and social sciences or rural development. They may relate Law or social sciences and rural development with other disciplines like Health, Agriculture, Law, Technology, Sustainable development, Environment and Climate change etc. The authors may take in account national and international perspectives.

SUBMISSION GUIDELINES: Each submission must be accompanied with…

  • An abstract of not more than 200-250 words.
  • Main article.
  • List of References.
  • Short description about the author.
  • Formatting and Other Essentials:
  • Main text: Times New Roman, Font Size 12, 1.5 spaced.
  • Footnotes: Times New Roman, Font Size 10, single spaced.
  • Citation Method:  Any uniform citation.
  • The articles must be original and must not have been published earlier.

The articles must be sent to ijsard.editor@gmail.com by  20th January, 2017.

The submission must accompanied by a declaration that the contribution submitted is a piece of original research work of author and has not been published or submitted for publication elsewhere.

  • All submissions will be subject to a plagiarism check. Professionals, Academicians, Scholars and Students of all disciplines are eligible to contribute.
  • Co-authorship will be allowed to a maximum of three authors and three separate certificates shall be issued for the publication of article in the journal.
  • The hard copy of certificate of publication.
  • The copy of the journal will be sent to them along with a certificate of publication and CD.
  • A sample paper for their reference.
  • The journal in form of a CD.
  • All the selected articles will be on the website.

Website: www.ijsard.org
Email: ijsard.editor@gmail.com
Facebook: https://www.facebook.com/ijsard
For any query, contact or visit website here.

2. Academic Networking Opportunity – A Message from the Law & Society Association:

This is an invitation to become a member of the newly-to-be-established “Queer Theory & Law in Global Society” Collaborative Research Network under the umbrella of the Law & Society Association. Because our work touches on the topic of the research network, we would love for you to join the conversation. At the moment we are looking simply for expressions of interest.

Continue reading

Standing Rock goes to the Inter-American Commission on Human Rights

image001The Indian tribes protesting the Dakota Access Pipeline (DAPL) took the Standing Rock movement to the Inter-American Commission on Human Rights (IACHR) on Friday, 2 December 2016. The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe, with Earthjustice and the American Indian Law Clinic – UC Boulder, submitted a Request for Precautionary Measures Pursuant to Article 25 of the IACHR Rules of Procedure Concerning Serious and Urgent Risks of Irreparable Harm Arising Out of Construction of the Dakota Access Pipeline to the IACHR. (Petition links at Stand with Standing Rock website)

The Commission has the authority to,

on its own initiative or at the request of a party, request that a State adopt precautionary measures. Such measures, whether related to a petition or not, shall concern serious and urgent situations presenting a risk of irreparable harm to persons …

The United States is a member of the Inter-American Commission on Human Rights.

The petition makes three central claims:

  • the U.S. Army Corps of Engineers should not grant an easement across federal lands;
  • the United States failed to adequately consult and to prepare an adequate assessment of environmental and social impacts of the pipeline, required under both U.S. and international law; and
  • the United States has failed to protect peaceful protestors.

Continue reading

On the Paris Agreement’s imminent entry into force

The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!

Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.

The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.

It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.

How was it possible? Part of the answer lies in the very architecture and content of the agreement. It basically has been purpose-built to make it easy for states to come on board. By letting Parties come forward with their nationally determined contributions, the agreement managed to “pick up” every state where it is at this point of time, preserving the sovereign space. Without being overly prescriptive or intrusive, it brings states together under the same goals and principles, such as progression and highest possible ambition. Importantly, it aims at increasing collective ambition over time and through iterative, quinquennial processes to where ambition needs to be in order to achieve those goals – thereby creating a place for learning, experience, reflection and permanent political attention to climate change. Unsurprisingly, the legally binding obligations in the agreement are few and of purely procedural character. The effect of this is that most Parties – if not all – do not need to change their national laws in order to implement the agreement. Such “weightless burden” eases and accelerates domestic ratification procedures.

But the Agreement is no paper tiger. It is deferential to sovereign interests, yes. It had to. At the same time, it gives a sense of direction and of collective purpose. It combines international normative “pull” with meaningful international cooperation and coordination, with horizontal peer “pressure”, and with repetitive national processes which will demand the continuous work on effective and ambitious climate policies, despite changing governments or economic circumstances.

Another reason for this “rush to ratification”, is the unwavering support of the UN Secretary General, Ban Ki-moon. In what might become his administration’s greatest legacy, he brought significant climate momentum to the UN system in organising high level events on climate change; the latest being the “special ratification event” on 21 September 2016 at which 31 states alone deposited their instruments of ratification or acceptance, crossing the first threshold for entry into force and jumping close to the bar on the second.

And, of course, there is the unprecedented alignment of political will of the world’s super powers; the US and China. In terms of political leadership, the Paris Agreement is one of the legacy projects for US President Barack Obama. His administration—along with China—has worked hard in recent months to ensure that the agreement takes effect. No doubt, the fact the US and China moved together created momentum, hope, expectation on others and a powerful surge to do the same. Importantly, the joining by the US and China also gave the necessary comfort to smaller emitters that the “big ones” are on board.

Yet, it is no G2-deal. 195 Parties to the UNFCCC adopted the agreement in Paris, 191 have signed it since, 74 have ratified or accepted so far. This means that the consensual scope is much broader than only between major powers. It is a truly multilateral deal. The obligations and entitlements are allocated fairly, in accordance with responsibilities and capacities. The agreement left the bifurcated approach of the Convention behind, which divided the world in Annex and non-Annex countries. It appeals to the vulnerable as well as the powerful, the economically advanced as well as to those that are least developed. Yet, across the large spectre of countries, it spans the normative canvas on which each and every Party can find its place in the common quest of avoiding dangerous anthropogenic climate change.

Moreover, the agreement itself has created a center of gravity. It draws in its force field the scientific community, a large and diverse array of stakeholders, civil society, private actors, companies, banks, insurances, all economic sectors, education, constituencies, voters. Science has never been as conclusive as now. Technology has seen rapid advances. Climate change has started to move from a burden to an opportunity – putting more emphasis on “change” and transformation of societies along low-greenhouse gas emission pathways. This, also, creates pressure and expectations; expectations which seem to compel states to ratifying the agreement. Pressure axes run vertically as well as horizontally (i.e. among states).

Peer pressure might, indeed, be the strongest reason for states to join the agreement. It has become politically correct, even “cool”, almost a competition, to ratify (quickly). Once a critical mass of countries had come forward, there seemed to be a gravitational pull on others. Not to miss the train, both in national and in international politics, created important momentum. Of course, there are also certain privileges to be had: Once the agreement enters into force, its decision-making body – the Conference of the Parties serving as the Meeting of the Parties (or short CMA) – will assume its competences. Only the Parties to the Paris Agreement would – and should – be eligible to participate in decision-making under this body. Now, while the “rule-book” of the Agreement remains largely to be written, a certain fear of missing out started to spread around the world. This in turn caused some side-eying on who else is joining the agreement – and a collective rush to parliamentary ratification procedures, or, for some, submitting an executive letter to the UN Secretary General.

A final, and perhaps not insignificant, reason lies in political “anti-leadership”. A country may only be as strong as its political leader. Because political leaders are a renewable resource, they come and go – with different takes on climate change. Some dedicated and constructive; others the complete opposite. Once the agreement enters into force, a Party can only get out by withdrawing from the Agreement. Withdrawal comes at a political cost – which may or may not prevent some Parties from taking this step – unless they have a leader who does not care or does not know or both. Now, withdrawal from the agreement is only possible after three years from entry into force – and even then will the withdrawal take effect only after one more year has passed. Which means that for four years after entry into force, no Party can leave the agreement. Four years is the duration of most elective periods for presidents and other heads of state. A Trump card, so to say, if it were needed.

With the imminent entry into force, the prophecy of the agreement – at least when it comes to taking effect – becomes self-fulfilling. The gravitational pull created the incentive necessary for others to join the agreement. It is evoking new behaviour, sufficiently influencing states so that their reactions (and actions) fulfil the conditions for entry into force, against all odds.

The hope is that this also extends to the effectiveness of the agreement itself, causing behavioural changes that matter. The first CMA in Marrakesh this November will show whether there is a positive feedback between belief and behaviour – or whether the agreement just enters into “farce”.

Interview with Georges Abi-Saab

In the latest edition of our series titled “Conversations with Leading Judges”, it was my great pleasure to interview Georges Abi-Saab, Honorary Professor of International Law at the Graduate Institute of International and Development Studies in Geneva.  He was Member (and former Chairman) of the Appellate Body of the World Trade Organization (since 2000). He was also Member of the Administrative Tribunal of the International Monetary Fund and of various international arbitral tribunals (ICSID, ICC, etc.)  Abi-Saab served as Judge ad hoc of the International Court of Justice and Sometime Judge on the Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda and Commissioner on the United Nations Compensation Commission (UNCC). He has published widely on international law in both English and French, including his General Course on Public International Law at the Hague Academy.

The interview touches upon a wide array of topics including pluralism within International Law, the New International Economic Order, politicization of the WTO Appellate Body, diversity within international adjudication, and other topics.  The  video interview is available at:http://www.jus.uio.no/english/services/knowledge/podcast/guest-lectures/2016/interview-with-his-honour-judge-georges-abi-saab.html

The full set of interviews is available at:  http://www.jus.uio.no/english/research/areas/intrel/interviews/

Accountability Counsel Internships

One of the premier human rights law firms in the country – Accountability Counsel – is looking for students and recent graduates interested in international law, human rights, accountability, dispute resolution, complex negotiations, environmental justice, corporate accountability, women’s rights, and/or international development.

Accountability Council:

assists communities around the world to defend their environmental and human rights. …

and seeks to

hold corporate and institutional violators accountable through our dual approaches: direct support to communities and policy advocacy.

The organization in particular works on behalf of people and communities harmed by internationally-financed projects through community driven and policy level strategies to access justice.

The following opportunities are now open for our Fall 2016 unpaid Fellow and Intern Programs:

  • Law Fellow – San Francisco – 2L and 3L law students or recent law school graduates (within one year of graduation).
  • South Asia Law Fellow – Washington, D.C – 2L and 3L law students or recent law school graduates (within one year of graduation).
  • Policy Fellow – Washington, D.C. – law students, graduate students currently studying policy and/or another related field, or recent graduates (within one year of graduation).
  • Data Analyst Fellow – San Francisco – graduate students and recent graduates (within one year of graduation) in a related field of data or statistics.
  • Communications & Operations Intern – San Francisco – undergraduate students or recent graduates (within one year of graduation).
  • Data Intern – San Francisco – undergraduate students or recent graduates (within one year of graduation).

Any interested students/recent graduates should consult the website for more information.  To apply, students must complete an online application form.