Minority Rights, International Law and Economic Development

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by Josephine Gillingwater, LLB International Law and Globalisation

During the summer following the second year of my undergraduate law degree, I worked as a research assistant for Dr. Mohammad (Shahab) Shahabuddin – an academic specialising in international law and human rights at Birmingham Law School. His project is titled ‘Minorities and the Post-Colonial ‘Development’ State: The Case of the Rohingya in Myanmar’, which is to culminate in a book published under the series ‘Cambridge Studies in International and Comparative Law’. My role was to explore possible avenues of protection via international law for minority groups in the face of development-related atrocities. From the outset, the project offered an opportunity to dive into an unexplored area of international law.

The issue the project is concerned with (aforementioned ‘development-related atrocities’) highlights the assumption underlying the research: that economic development is not all it is made out to be. Development activities, for example mining, logging, agriculture or the construction of a large dam, require vast amounts of land. Minority groups are more susceptible to displacement and forced evictions from their communities and land because of their politically weaker position. The forced evictions, that result, are often accompanied by severe levels of violence – including sexual violence, torture and murder. In Myanmar (previously Burma), the communities of the Rohingya people have been burnt down in violent expulsions by the military, for the benefit of private investors, arguably amounting to ethnic cleansing. Additionally, the goods that are produced from such development projects (energy, wood, food etc.) are inaccessible to displaced groups because of price and the fact that the majority of products are exported. This is not a rare event. Development-induced displacement is the experience of approximately 15 million people annually.

The question I was faced with was: ‘what does international law have to say about this?’ It did not take me long to find the answer – essentially, nothing. International law was practically ambivalent to this recurring event in the case of minority groups. Whilst the investor-state dispute settlement (ISDS) system in international law offers significant protection for foreign investors/transnational corporations when their land or property is expropriated by the state, it leaves minority groups forcibly displaced defenceless.

After discussing this with Dr. Shahab he suggested a new strategy. The international legal regime for indigenous rights offers explicit protection in the context of economic development. I proceeded to explore international human rights litigation in cases of indigenous groups as an alternative avenue for minority rights. That is to say, I read through numerous judgements of regional human rights courts and commissions concerning indigenous peoples and economic development activities to investigate whether the legal reasoning had the capacity to be expanded to incorporate minority groups who do not qualify as indigenous. The final project I presented outlined a number of different arguments that could be made including: the right to recognition of customary systems of tenure, the right to property, the right to culture and participation rights (the right to consultation or consent). However, ultimately, even if my arguments could succeed in an international human rights court (imagine!) there is still the issue of enforcement. Even when indigenous groups win a case, land is rarely returned, and reparations remain unpaid.

Despite the less than hopeful conclusion, it was fulfilling to contribute to a project that was concerned with such undeniably important issues which are not receiving due attention. Personally, I was left with a confirmed sense that pursuing a career in public international law as a practicing lawyers was the right path along with highly relevant experience contributing towards this goal.



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