Law and Anthropology Network
Meeting
– 18 December 2009 – Facults universitaires Saint Louis, Bruxelles
Present : Giselle Corradi, Ellen
Desmet, Christoph Eberhard, Dominik Kohlhagen, Julien Moriceau, Patricia
Naftali, Emmanuelle Piccoli, Barbara Truffin, Liselotte Viaene
On 18th Decmeber 2009, the
Law and Anthropology Network held its first meeting. The aim of the network is
to propose a space for exchange and mutual enrichment for people interested in
the anthropology of Law. It is open to all who may be interested to join in and
seeks to emphasize innovative explorations that may emerge in the networks
collaborations. It welcomes senior and junior researchers to present their work
in progress as well as the results of completed research projects.
In this first meeting, two doctoral
students presented their work, Giselle Corradi, who is now at the beginning of
her doctoral research and Ellen Desmet who used this forum to test her work
before her doctoral defense. It was a very enriching meeting and we are all
looking forward for the next one.
Giselle Corradi :
Addressing
Traditional Law in Post Conflict Legal and Judicial Development Aid in
Sub-Saharan Africa
Giselle Corradi presented a paper based on a case study on Sierra Leone, which was conducted in the frame of the research project AFTRALAW 'Addressing Traditional Law in Post Conflict Legal and Judicial Development Aid in Sub-Saharan Africa' (Human Rights Centre, Ghent University, 2008-2010).
Summary of
the Presentation
The main question addressed during the presentation was how the development cooperation deals with the tension between customary justice and human rights in the frame of post-conflict justice sector aid in Sierra Leone as it relates to policies and interventions. The presentation was structured in three sections: first, a series of key contextual factors that are relevant for the discussion were identified, second an overview was given of the main strategies that are being envisaged and put in place by the development community, and third a series of reflections were proposed.
1) Key Contextual Factors:
The Roots of the Conflict: In Sierra Leone, the violence that ravaged the country between 1991 and 2002 has been linked to the colonial and post-colonial subversion of traditional authorities, which led to abuses and the politicization of the customary justice system. The latter in turn, contributed to the alienation of the youth, which provided a fertile ground for joining the rebel forces (TRC 2004, Archibald & Richards 2002). Consequently, addressing the customary justice system in the frame of post-conflict interventions is seen by national and international development actors as necessary to avoid a repetition of violence.
Multi-layered Legal Pluralism: Legal Pluralism in Sierra Leone is composed by a multiplicity of layers. Next to an official dual system of common law and customary law embodied by local courts, there operate a number of unofficial justice actors, such as chiefs, religious leaders, women, youth and professional circles, family heads and village elders, paralegals, diviners and secret society heads. While the common law system presents problems of accessibility (scarcity, costs, lack of trust, language and codes), the local courts system is more accessible but presents challenges in terms of independency, predictability and gender bias. The majority of the rural population resorts to unofficial justice actors and tends to solve issues at the closest unit possible by means of mediation rather than adjudication.
The Human Rights Situation: Both the formal and the various customary justice forums present problems from the viewpoint of human rights. Regarding the customary system, the main obstacles are the male dominated and patriarchal character of institutions, resulting the discrimination of women and children. Next to this, the oral character of customary law results often in manipulation, abusive fines and arbitrary trials.
2) Main Strategies and Interventions:
The findings presented in this section are based on fieldwork conducted during April 2009.
At policy level: A consensus seems to exist that customary justice can play a role in improving access to justice for the poor on condition that its negative features are modified, including the tension with human rights.
At the level of interventions four strategies are deployed: (i) the enactment of legislation at national level regulating problematic aspects of customary law; (ii) the restatement of customary law at local courts level to identify rules that contravene human rights and change them; (iii) the sensitization of traditional authorities on human rights issues; (iv) awareness raising campaigns at the grassroots.
3) Some Reflections:
The importance of engaging with plurality in customary justice: most interventions addressing customary justice deal with the most visible traditional actors, i.e. local courts and chiefs, whereas other actors that fulfil a key role in maintaining local order, such as religious and group leaders, elders, family heads, secret society authorities and sorcerers, are at best indirectly targeted by awareness raising activities that are directed to the community in general.
The need to understand different logics: most interventions aim at getting customary rules in line with human rights. However, it is mainly local courts, and to some extent the chiefs, that are inclined to apply a priori defined rules. Elders, family heads and group leaders are more inclined to solve conflicts by means of mediation and consensus building, whereas secret society heads and sorcerers recur to logics that are hardly ever considered. It remains to be explored how each of these logics presents particular challenges and opportunities to the implementation of human rights.
Summary of the Discussion
The first issue that was highlighted is the need to problematize notions such as 'access to justice'. How do donors understand this concept and who is actually being benefited by certain approaches? The gender dimension is particularly relevant in this regard.
Next, there emerged a discussion about the relationship between aid and legitimacy, and the institutionalization of alternative practices. In that sense, from the moment traditional authorities start to cooperate with donors and the government and get resources from them, they can be caught up in a quandary between downwards and upwards accountability.
Related to this topic, the issue of counter power within customary structures was raised and the fact that tradition can evolve leaving behind these mechanisms, which can result in imbalances.
Finally, the influence of the institutional logic of development organizations was discussed, which may at times hinder a useful engagement with grassroots realities and needs, not so much out of wrong policies or ideas, but due to operating modes. For example, the time and resources required for understanding local realities is seldom available in the development world.
Ellen Desmet
:
The Twin of Green. The Rights of
Indigenous Peoples and Local Communities Entwined with Nature Conservation.
Ellen Desmet of the University of
Leuven presented the results of her doctoral research, entitled The Twin of
Green. The Rights of Indigenous Peoples and Local Communities Entwined with
Nature Conservation. The study investigates the relationship between nature
conservation and the rights of indigenous peoples and local communities from a
human rights and legal anthropological perspective.
To protect nature while respecting
the rights and interests of the people living in these areas is one of the main
challenges of our times. The classic exclusionary model of nature conservation,
based on the prototype of the American national park, has gone hand in hand
with human rights violations. In recent years, a new model of conservation based
on respect for the rights of indigenous peoples and local communities has
gained currency. The study addresses two questions: (i) what does this paradigm
shift mean in terms of international human rights law? And (ii) how, if at all,
has this new paradigm been translated at the national level (of Peru) and the
local level (of a specific protected area in Peru, the Gepp Reserved Zone)?
At the international level, the
obligations arising under the United Nations, the European, the Inter-American
and the African human rights systems in relation to nature conservation are
clarified. Relatively little express attention has been paid to the impact of
nature conservation on human rights, so the drafting of guidelines on human
rights and nature conservation is recommended. At the national and local level,
the classic legal method was combined with social science methods, principally
semi-structured interviews and an ethnographic case-study. At the national
level of Peru, the protected areas legislation increasingly recognizes the
rights of indigenous peoples and local communities, but this recognition is
often half-hearted, subsequently mitigated, or subordinated to conservation
objectives. There is also an urgent need to include a gender perspective in
conservation legislation. The fieldwork at the local level on the interaction
between the Gepp Reserved Zone and the Airo Pai people reveals a lack
of legal guidance on categorization processes and the status of reserved zones.
The protected areas legislation is often not tailored to reality, and there is
a fundamental problem of superimposition of rights. The new conservation
paradigm has only been partly implemented at the national and local level.
Four general conclusions were drawn.
First, the recognition of and respect for the
rights of indigenous peoples and local communities do not depend
on their (supposedly) conservationist behaviour or ethic. Second, similar to the increased
recognition of legal pluralism, there should be more room for conservation pluralism,
thus engaging in nature conservation in plural (western and non-western) ways. Third, the relationship between the rights of
indigenous peoples and the rights of local communities is complex and
multi-layered. Indigenous peoples have specific rights which must be respected,
but this should not lead to a neglect of the general human rights of local
non-indigenous communities. It may even be considered to extend some of the
specific rights of indigenous peoples toward local non-indigenous communities.
Finally, a two‐fold intensification was identified in the
assessment of the European Court of Human Rights of whether a fair balance is
achieved between the general interest of society in nature conservation and the
requirements of protection of the fundamental rights of the persons affected.
The Court is not only attaching increasing importance to the public interest
goal of nature conservation, but is also raising the standard for the state,
which needs to ensure that the conservation‐related measure does not interfere in a
disproportionate manner with the enjoyment of the rights guaranteed by the
European Convention. This double intensification is proposed as the appropriate
way to address the conservation‐people dilemma.
As a final reflection, the study
adopts and promotes a bottom-up perspective. As to methodology, the benefits of
including social science methods in legal research are demonstrated. As to
content, the interaction between the international, the national and the local
level appears to be unidirectional and top-down. Two-way traffic in legal
change should be enhanced.
Reflections
and suggestions arising from the discussion
- The proposal of
conservation pluralism was linked to the work of Philippe Descola on
environment.
- Suggestions for further
reading were made:
o
Foncier
et environnement en Afrique - Des acteurs au(x) droit(s), of
Olivier Barrire and Alain Rochegude, Cahiers dAnthropologie du Droit
2007-2008
In droit foncier, attention shifted from a
focus on legal security for the actors towards an environmental perspective.
The publication addresses how to think about land law and natural resources
management.
o
Ethnodveloppment,
Dveloppement Durable et Droit en Amazonie, of Geoffroy Filoche,
Bruylant (2007), on the ambiguity of the image of the ecologically noble
savage
-
The presentation was a trial out for the
presentation of the public defense. To that end, the following suggestions were
made:
o
Clarify and justify more explicitly in the
presentation the strategy of the three-level analysis as well as the choice for
Latin America, Peru and the Gepp Reserved Zone
o
Reduce the part on the parameters identified in the
assessment of proportionality by the European Court of Human Rights
o
Elaborate more on the cases involving the impact of
protected areas that were declared admissible by the Inter-American Commission
on Human Rights in 2007, namely the cases of the Garifuna Community of Cayos
Cochinos and its Members (Honduras) and of the Kaliňa and Lokono Peoples
(Suriname)
o
In general shorten the presentation to the required
time limit of 20 minutes
o
Add concise information to the pictures of the
PowerPoint presentation