Land Rights and the Forest Peoples of Africa
Land Rights and the Forest Peoples of Africa
Land Rights and the Forest Peoples of Africa
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<strong>L<strong>and</strong></strong> rights <strong>and</strong> <strong>the</strong> forest peoples <strong>of</strong> <strong>Africa</strong> – Part II<br />
Part II<br />
<strong>L<strong>and</strong></strong> <strong>Rights</strong> under international law:<br />
historical <strong>and</strong> contemporary Issues<br />
Jérémie Gilbert & Valérie Couillard<br />
International law, <strong>and</strong> more particularly international human rights law, has for some time<br />
been seen as a positive tool to support indigenous peoples’ rights; when it comes to l<strong>and</strong><br />
rights, however, such positivity is new. September 2007 marked <strong>the</strong> start <strong>of</strong> a new era for<br />
indigenous peoples, with <strong>the</strong> adoption <strong>of</strong> <strong>the</strong> United Nations Declaration on <strong>the</strong> <strong>Rights</strong> <strong>of</strong><br />
Indigenous <strong>Peoples</strong>. Despite this recent development, international law has historically<br />
played a negative role regarding indigenous peoples’ rights, <strong>and</strong> more especially <strong>the</strong>ir rights<br />
to l<strong>and</strong>. An important tool in <strong>the</strong> h<strong>and</strong>s <strong>of</strong> <strong>the</strong> colonial powers, international law has been a<br />
central vehicle in <strong>the</strong> dispossession <strong>of</strong> indigenous peoples. Most <strong>of</strong> <strong>the</strong> rules regarding title to<br />
territory under international law were aimed at justifying <strong>the</strong> dispossession <strong>of</strong> indigenous<br />
peoples <strong>of</strong> <strong>the</strong>ir l<strong>and</strong>s. While various legal systems applied, during colonisation, to l<strong>and</strong> rights<br />
for indigenous peoples – depending on which state was <strong>the</strong> coloniser – international law<br />
played <strong>the</strong> role <strong>of</strong> common denominator, ensuring that all powers adhered to <strong>the</strong> same legal<br />
doctrine. The rules governing title to territory under international law became <strong>the</strong> basis <strong>of</strong> <strong>the</strong><br />
‘rules <strong>of</strong> <strong>the</strong> game’ between <strong>the</strong> colonial powers, <strong>and</strong> as such had a direct impact on<br />
indigenous peoples’ l<strong>and</strong> rights. Because <strong>of</strong> this legacy, international law still plays a huge<br />
part in <strong>the</strong> contemporary situations faced by indigenous communities throughout <strong>the</strong><br />
continent today. But this legacy is seriously challenged by recent development stemming from<br />
international human rights law. The first part <strong>of</strong> this chapter provides <strong>the</strong> historical<br />
background, setting out <strong>the</strong> complexity <strong>of</strong> contemporary indigenous l<strong>and</strong> claims. Based on<br />
this analysis, <strong>the</strong> second part <strong>of</strong> <strong>the</strong> chapter examines <strong>the</strong> content <strong>of</strong> states’ obligations<br />
regarding l<strong>and</strong> rights for indigenous peoples under international human rights law.<br />
1 International law <strong>and</strong> colonisation<br />
Ironically, <strong>the</strong> universalisation <strong>of</strong> international law was principally a consequence <strong>of</strong> <strong>the</strong><br />
imperial expansion that took place in past centuries, as <strong>the</strong> development <strong>of</strong> international law<br />
was primarily guided by <strong>the</strong> establishment <strong>of</strong> rules governing title to territory over newly<br />
colonised countries. For <strong>the</strong> <strong>Africa</strong>n continent, <strong>the</strong>se rules were crucial in defining l<strong>and</strong> titles<br />
both for <strong>the</strong> colonial powers <strong>and</strong> for <strong>the</strong> native populations. In what is now referred to as <strong>the</strong><br />
‘scramble for <strong>Africa</strong>’, 1 colonial powers needed rules to divide <strong>the</strong> continent between<br />
<strong>the</strong>mselves, but also to justify <strong>the</strong> colonial enterprise <strong>of</strong> taking l<strong>and</strong>s from <strong>the</strong> ‘natives’ to<br />
transfer it to <strong>the</strong> colonial powers. Most <strong>of</strong> <strong>the</strong> rules regarding title to territory under<br />
international law were based on <strong>the</strong>se two premises. As <strong>the</strong> following analysis shows,<br />
international law was used first as a set <strong>of</strong> rules to organise <strong>the</strong> partition between <strong>the</strong> colonial<br />
powers, <strong>and</strong> secondly as a way to justify morally, politically <strong>and</strong> legally <strong>the</strong> dispossession <strong>of</strong><br />
<strong>the</strong> local peoples <strong>of</strong> <strong>the</strong>ir l<strong>and</strong>s <strong>and</strong> natural resources.<br />
1<br />
Thomas Pakenham (1991), The Scramble for <strong>Africa</strong>, Weidenfeld <strong>and</strong> Nicolson, London.<br />
Couillard & Gilbert 28<br />
March 2009