18 Nov Fighting over the Spoils of the “Holy Land”: Attachment to Land as a Basis for the Rights of Ethnic Minorities?
[Robin Ramsahye is a Ph.D. Candidate and Research Associate at the Institute for International Law of Peace and Armed Conflict (IFHV), Ruhr-University Bochum.]
This May saw an explosion of armed hostilities between Hamas and Israel. Instead of assessing the military conduct of both parties however, this piece focuses on the underlying issue “that has separated Palestinians and Israeli Jews for more than a hundred years [and continues to do so]: Who does the land belong to? Who was here first? And who has to leave?” (author’s translation). Taking as a starting point the situation of ethno-religiously connoted land attachments and attendant legal claims fuelling tensions in the “Holy Land”, it proposes a fresh look at opportunities delineating land rights for ethnic minorities under human rights law may hold.
Land Rights as an International Law Issue
Over the last years, land rights have been discussed prominently, with researchers and practitioners highlighting the importance of land for the realization of a range of universally recognized human rights, such as the right to an adequate standard of living (Art. 11 ICESCR, including the rights to housing, food and water) and even calling for a general right to land. Their significance is further demonstrated by the current work of the Committee on Economic, Social and Cultural Rights (CESCR) on a General Comment regarding land rights.
So far, the latter have been recognized to accrue to certain marginalised populations, such as indigenous peoples or, more recently, smallholder farmers. Both are subjects of UN General Assembly resolutions: the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the 2018 UN Declaration on the Rights of Peasants and Other People working in Rural Areas (UNDROP). From these instruments, two major aspects of attachment to land that serve as a prerequisite for attendant rights can be discerned: A “distinctive spiritual relationship” (Art. 25 UNDRIP), which ties indigenous peoples to “their” lands and a “special relationship and interaction [with] the land, water and nature to which [peasants and indigenous peoples working the land, Art. 1 (3) UNDROP] are attached and on which they depend for their livelihood” (Preamble UNDROP, p. 2).
A combination of both aspects, tinged with a strong ethnic component, also appears to characterize the Israeli-Palestinian conflict. The Israeli Provisional Government’s 1948 Declaration of Independence terms Israel “a Jewish state in Eretz-Israel […]”. Although multi-ethnic and multi-religious today, the idea of an ancient Jewish homeland remains and has long formed a potent argument for the Israeli government to advance its widely criticized Jewish settlements in the Palestinian Territories of the West Bank. Ethno-cultural and/or religious attachment to the same land appears to form the basis of both Israelis’ and Palestinians’ arguments for territorial sovereignty. As Israel’s Ministry of Foreign Affairs puts it, many Israeli Jewish settlements can be found at “sites which were home to Jewish communities in previous generations, in an expression of the Jewish people’s deep historic and abiding connection with this land” (see here for a critical engagement). It appears evident that the Palestinian quest for statehood equally relies on the ties that bind this ethno-cultural collective to the territory it has long inhabited.
More generally, land rights form an important part of the struggles of ethnic minorities, that is rarely addressed as a question of international law, yet could hold the keys to furthering peaceful inter-group relations in states with heterogeneous population patterns.
Towards Ethnic Minority Rights to Land under International Law
Moving beyond the specific claims of Israelis and Palestinians, one may ask whether international law does and should protect such ethnic attachments to land. Land rights are already recognized for certain, often marginalized populations (albeit mostly through soft law instruments), including indigenous peoples and small-scale agriculturalists. But they have not been considered as a legal tool to enable ethnic or religious minorities to protect their identities.
This is interesting and somewhat surprising, since Article 27 of the International Covenant on Civil and Political Rights (ICCPR) protects precisely the rights of ethnic, religious and linguistic minorities to preserve their distinct cultures and identities. In its General Comment 23, the Human Rights Committee (HRC) explains that “[a]lthough the rights protected […] are individual rights, they depend […] on the ability of the minority group to maintain its culture, language or religion.” The HRC has previously subsumed attachment to land and resources under Article 27 as forming part of enjoying one’s own culture, particularly for indigenous peoples and it has addressed several indigenous land claims under the norm.
Still, as Kymlicka submits, “[c]onflicts involving ethno-national groups such as the Kurds, Kashmiris, and Palestinians pose a much greater threat to regional peace and security than the struggles of pastoralists or forest dwellers, yet […] the UN has no guidelines for addressing the[m]” (p. 390). Given the content of Article 27 ICCPR and the above-mentioned developments regarding (collective) land rights, the interplay of land and ethnicity should be further explored. Certainly, accommodating ethnicity as a basis of legal claims holds risks, given the concept’s complexity and contested nature. Potential dangers include entrenching narrow group thinking that may seek to exclude “others” or furthering secessionist tendencies of ethnic populations aiming to break up state territory.
But it must not be so; group-related attachments to land come in different forms: attachment to a broader space (i.e. territory) is “distinct […] from an attachment to “place”, that is specific locations of historical significance” (p. 325).
There are several ways in which land can constitute a vibrant, contemporary place of significance in the day-to-day life of ethnic minorities. Probably the most visible scenario is where it holds places of worship, such as churches, mosques or temples that often serve as gathering places even beyond their religious functions. Several legal cases in which ethnic minorities have staked claims to the preservation or construction of such edifices on particular lands have made headlines over the last years. For example, Hindu and Muslim groups have engaged in a decade-long dispute regarding the use of the Babri Mosque/Ram Temple compound of Ayodyah that was only concluded by a judgment of the Supreme Court of India in 2019. Muslim minorities in Europe have demanded to be allowed to construct mosques and asked States for support to exercise their freedom of belief and worship, especially in places where such places remain a rare sight and are unable to accommodate the number of adherents of the faith, such as in Athens and Moscow.
Land rights can also influence the way members of ethnic groups cohabitate when it comes to housing regulations, land ownership rights and city planning. Although the issue of Israeli settlements on Palestinian land may be the most well-known, it is far from the only one. Consider for example laws such as the controversial Danish “Ghetto deal” that includes a reduction of public housing in low-income areas declared problematic by the government and that mandates a maximum percentage of immigrants within the overall population of such areas, ostensibly to further integration. Land use and zoning regulations used to segregate cities, towns and counties along ethnic lines have long constituted a difficult problem in the USA and continue to act in this way.
The question is whether international law encompasses any right for members of ethnic minorities to stake claims for land as a significant place vis-à-vis the states they live in. Article 27 ICCPR does not appear to pose any obstacles; on the contrary, according to the HRC “positive measures by States may also be necessary to protect the identity of a minority and the rights of its members“.
The understanding of land as a collective space, as territory to be retained for one’s own ethno-religious group, has over the last decades of the Israeli-Palestinian conflict caused painful consequences on both sides, especially for Palestinians in the occupied territories. Land can also be understood differently though, namely as specific places that provide a significant measure of identity to ethnic populations all over the world without endangering the territorial structure of their home state. Conceptualising (positive) state obligations under Article 27 ICCPR to enable members of ethnic populations to access and use such land may not solve lingering conflicts surrounding demands for autonomy or independence based on self-determination. But it may be a rather simple and accessible way towards furthering an equilibrium in multi-ethnic state societies, rendering them more inclusive and accommodating of diversity.