Israel’s other refugee question

This past August, visiting Israel for the first time and staying with a friend in south Tel Aviv, I was immediately struck by the number of African faces I saw in her neighbourhood. These Africans, I was informed, were migrants mostly from Eritrea, Darfur, and Southern Sudan (now the Republic of South Sudan) who were seeking protection in Israel under the 1951 Refugee Convention. You see, until that point, my knowledge of Israel’s refugee issues extended only to the question of the right of return of the Palestinians expelled in 1948 and their descendants. As a “final status” issue in Palestinian-Israeli negotiations and one that cuts to the core of the national identities of both factions, it is easy to understand how this new class of African refugees can escape the attention of human rights lawyers and advocates abroad.

I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows,…

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African Countries and the WTO Dispute Settlement System: strangers in an alien land?

In 1995, the World Trade Organization (WTO) came into existence, introducing some key reforms to the long-standing General Agreement on Tariffs and Trade (GATT) system. The most important reform was the setup of the Dispute Settlement System (DSS). There was now a greater clarity of rules and regulations, binding decisions and an Appellant Body. One would imagine that the highly juridical and legalized system based on equality and strict rules would be somewhat advantageous to African countries (the largest group in the WTO). This has not been the case. In fact, African countries’ involvement in the WTO dispute settlement system in the first decade has been minimal at best. In the first decade (1995-2005) of the DSS, no African country was ever a complainant in a dispute and in only six cases was an African country a respondent. In addition, Egypt is the only African country to have shown initiative and request the establishment of a panel, in the Egypt-Definitive Anti-dumping Measures on Steel Rebar from Turkey case. The one comparatively active area for African states in the DSS is their participation in disputes as third parties. Zimbabwe, Nigeria, Senegal, Cameroon and Cote-d’Ivoire have all participated in this capacity.

The most common reasons propagated for this trend include the low volume of global trade emanating from and to Africa, African countries’ inability to navigate the complicated and expensive DSS, and a lack of expert…

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Winds of Change or Hot Air? Decolonization and the Salt Water Test

Nineteen Sixty is considered a watershed moment for the anti-colonization movement: in this single year, seventeen African States were created or ‘decolonized’, obtaining independence from European colonial regimes. In a public address at the time, British Prime Minister Harold MacMillan noted that ‘winds of change’ were sweeping the African continent. The norms of international law followed suit: Resolutions 1514 (XV) and 1541 (XV) of the United Nations General Assembly were adopted in December 1960. Together, they form a fundamental part of the customary law underpinning the right to self-determination. At this anniversary of fifty years, it is useful to critically reflect upon this episode in the history of international law.

The Declaration on the Granting of Independence to Colonial Countries and Peoples, passed on December 14, 1960, recognized that “the peoples of the world ardently desire the end of colonialism in all its manifestations” and consequently affirmed that, “All peoples have the right to self-determination.” The United Nations resolved to assist Trust and Non-Self-Governing Territories (UN Charter, art. 73, i.e. subjugated colonial States) in their movements for independence by supporting the immediate transfer of all powers to the peoples of those territories. Indeed, the United Nations categorically condemned colonization. But this still begged the question – what exactly was colonialism?

One day after Resolution 1514, Resolution 1541 (XV) was passed – a more substantive document specifically…

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China in Africa: Can Africa’s legal institutions cope?

The classic story is that there was once a large, poor, but resource-rich country emerging from a period of conflict, whose government decided to focus on development and modernization. They began a dialogue with a rich Asian country which had already become a major importer of their oil. This rich Asian country proposed a bargain with the poor nation: in exchange for its natural resources it would receive a line of credit and the ability to import technology, and have companies from the rich nation build infrastructure. Readers may or may not be aware that the poor country with oil is actually China and the rich country is Japan.  It is also very much the mutually beneficial dynamic that has come to characterize China’s engagement with many African countries.  However, serious questions have been raised regarding China’s role in Africa, and in particular whether African countries have strong enough legal and regulatory institutions to deal with the increased Sino-investment.

Economists project that China will soon become Africa’s largest trading partner with trade figures set to hit a record high of more than $100 billion in 2010. The International Monetary Fund recently predicted that growth for Sub-Saharan Africa, which typically includes 47 countries (excluding North Africa), should reach 5% this year, up from an earlier prediction of 4.5%.[1] In 2011, it said, growth could rise to 5.5%.[2] Increased trade…

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Toward a Right to Development? : Reflecting on the Endorois Decision

Last month, the African Commission on Human and Peoples’ Rights (“ACHPR”) handed down a decision on the Endorois peoples’ situation in Kenya. The decision not only marks the end of a nearly 40 year struggle by the Endorois people against the Kenyan government but it also heralds the increasing importance of the third generation human right to development.

Background

The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.

After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain…

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South Africa’s ‘Zimbabwe Problem’ – International Law vs. Soccer

Driving around the Cape Peninsula in South Africa, tourists are bound to run into street side hawkers trying to unload cheaply made pieces of “African” art – at least some of which are apparently made in China. Entering into a conversation with these traders, one quickly finds they are often not South African, but from Zimbabwe. The Republic of South Africa is awash with these economic migrants, many of whom have entered the nation illegally. The rash of xenophobic attacks here in 2008 makes it obvious that the local population does not appreciate the presence of so many illegal aliens in South Africa. After all, this is a nation with a lot of race issue to begin with, and unemployment rates hovering around fifty percent.

Ideally, South Africa’s partnership in the Southern African Development Community (SADC) means that such migrants may have a right to be here – at least on a limited basis. Article 5 of the SADC Treaty calls for the “the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally….” Article 2 of the SADC Draft Protocol on Facilitation of the Movement of Persons aims to allow citizens free movement within the group of member states. With that in mind, the interpretation of South African…

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A Primer to Economic Regional Integration in Africa

“Africa could rightly be described as the major theatre of contemporary cases of shared sovereignty.”[1]

It is the hope of many African leaders that greater cohesion in African trade will lead to more firm patterns of national development. Formalizing the international trade sector within Africa could lead to greater national tax revenues, a freer exchange of ideas, labour and technology across borders, the stabilization of regional agricultural and natural resource markets, and greater cooperation over shared infrastructure projects such as the creation of highways, waterways development, and even the deployment of green technology such as wind energy projects.[2]

While more flamboyant African leaders such as Muammar Gaddafi stress the need for pan-African unity (Gaddafi even calling for a United States of Africa), smaller regional unification bodies are already active. Most Westerners might be surprised that much of West Africa, the nations of the Economic Community of West African States (ECOWAS), already has a unified currency between fifteen nations. Since its creation by treaty in 1993, ECOWAS trade commissioners from a diverse array of fields attempt to integrate trans-national policies on social affairs, water resources, energy, and security matters. Just as NATO intervenes in foreign conflicts, when civil unrest unfolds in member states, such as recently in Guinea, ECOWAS applies strong diplomatic and military pressure to uphold the rule of law.

The East African Community…

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