A rights-based approach to commons management for the Great Limpopo TFCA

A rights-based approach to commons management for the Great Limpopo TFCA

A presentation to the 14th Global IASC Biennial Conference

Mt. Fuji, 4 – 7 June 2013

Questions

What is the nexus between commons management and conservation?

Are rural areas commons by default?

What is the added complexity brought about by transboundary conservation?

The Great Limpopo TFCA• Established by multi-

lateral treaty in 2002, it follows the creation of the Limpopo National Park in Mozambique, a former hunting concession

• The Park is 37,572 Km2 across 3 countries (Mozambique, RSA, Zimbabwe) with total planned size of 100,000 Km2;

• In Mozambique, most of the area is rural land with small peripheral centres (Chiqualaquala)

• In Zimbabwe, the Sengwe corridor is posing conservation and socio-economic problems

• In South Africa, the western boundary of KNP is a conservation issue but it is not considered in the TFCA, nor is KNP in district and provincial planning.

Human rightsDating back to the end of WWII, there are now 3 sets of acknowledged human rights.1) Civil and political rights – the basics

i. Physical and civil security,ii.Civil-political liberties and empowerments;

2) Socio-economic rights – the progressivesi. Provision of goods/services meeting social

needs,ii.Provision of goods/services meeting economic

needs;3) Collective and developmental – the future

i. Self-determination of peoplesii.Special rights for ethnic and religious

minorities

Comparing the three GLTFCA countries…

Different legal systems:

Mozambique: Portuguese Civil Law, Islamic Law and Customary LawSouth Africa: Roman Dutch with Common Law elements, and customary law is accepted if not in conflict with the ConstitutionZimbabwe: Roman Dutch and English (Common) Law with customary law

The 3 ConstitutionsRole of the constitution

Human rights

Mozambique 4. Constitutional rules shall prevail over all other rules of the legal order.

11. The fundamental objectives of the Republic of Mozambique shall be:c)  the building of a society of social justice and the achievement of material and spiritual well being and quality of life for its citizens; d)  the promotion of balanced economic, social and regional development in the country; e)  the defence and promotion of human rights and of the equality of citizens before the law; f)  the strengthening of democracy, freedom, social stability and social and individual harmony; g)  the promotion of a society of pluralism, tolerance and a culture of peace; i)  the affirmation of the Mozambican identity, of its traditions and other social and cultural values;

South Africa

2. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

7. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

Zimbabwe 3. This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void

11. Whereas persons in Zimbabwe are entitled, subject to the provisions of this Constitution, to the fundamental rights and freedoms of the individual specified in this Chapter, and whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations on that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the public interest or the rights and freedoms of other persons.

Civil and political rights

Mozambique has most HR in the Constitution (40) South Africa is more comprehensive.Zimbabwe mixes issues, rights and duties: for every freedom there is a list of limitations.

Socio-economic rightsWhereas South Africa includes all of them, Zimbabwe and Mozambique supply few of them. None of the two includes access to information.

Other rights…

Mozambique has a proviso for Acts against National Unity.

Why a rights-based approach?1.In the establishment of TFCAs, states

recognise transboundary cooperation for ecosystem management only.

2.There is no sign of devolution of management to an international institution,

3.Less so to local institutions for natural resources management

4.Previous CBNRM experiences are only working in Namibia, where the ‘commons’ are recognised by law

Why a rights-based approach?1.The Constitutions of the three countries

of the GLTFCA do not recognise the commons or common property,

2.But they acknowledge relevant socio-economic rights, such as customs and customary practices, rights to development and environmental rights (though not in Zimbabwe).

3.The commons are part of the rights to self-determination and this should be use to make governments accountable towards people’s rights in rural communities

Challenges of a right-based approach

• We are dealing with progressive rights, hence the difficulty in seeking accountability and action,

• Supporting international law instruments are not directly enforceable, even when a country is party to a convention

• Require a joint action of civil society and legal organisations

Potential outcomes

• Shift the role of people in rural areas from recipients to actors: right = duty

• Force a multi-scale approach to TFCAs which involves people and local institutions

• Break the institutional barriers to conservation areas management

• Drive the acknowledgement of the commons in national legislation and regional protocols

Dr. Clara Bocchino

AHEAD-GLTFCA Programme and Network CoordinatorCentre for Veterinary Wildlife StudiesFaculty of Veterinary ScienceUniversity of Pretoria, Onderstepoort Campus (RSA)