Constitutional recognition of the agrarian collective and their rights to govern mineral resources in South Sudan

ICL Journal ◽  
2012 ◽  
Vol 6 (3-4) ◽  
Author(s):  
Alexandra Carleton
Keyword(s):  
South Sudan ◽  
Mineral Resources ◽  
Political Status ◽  
South Sudanese ◽  
Mineral Wealth ◽  
Agrarian Communities ◽  
Mineral Rights ◽  
African Charter ◽  
The Right ◽  
Economic Considerations

AbstractBoth the ICCPR and the African Charter embody, as a primary principle, the right of a peoples' to freely dispose of their natural wealth and resources (article 1(2) and article 21(1) respectively). Whilst hotly debated as to its legal and political status, operationalising a right could enable agrarian communities to contest the disposal of their mineral wealth. However, such a right ought to be embodied in the constitution, where its alterability is perhaps less subject to political change. Without constitutional standing for collectives to assert claims over land, the State could potentially lease or sell mineral rights (sometimes to multiple extractors at once) irrespective of the environmental, labour and economic considerations.The secession of South Sudan is demonstrative of the South Sudanese peoples' active reclamation of their natural (and substantial mineral) wealth. This article is a critique of whether the new Transitional Constitution of South Sudan (TCRSS) effectively embodies and operationalises article 1(2) of the ICCPR. It concludes that the TCRSS is dedicated to articulating and protecting (competing) agrarian interests in land and natural resources and in so doing demonstrates the reality of multiple and overlapping mineral and land interests.

scholarly journals PAYING THE PIPER (IN PRAESENTIA) Xstrata South Africa (Pty) v SFF Association 2012 (5) SA 60 (SCA)

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
Mining Industry ◽  
Mineral Resources ◽  
The State ◽  
Mining Operations ◽  
South Africans ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
The Right ◽  
Mining Right

This decision is an appeal from the decision of the South Gauteng High Court in SFF Association v Xstrata (2011 JDR 0407 (GSJ)). The court a quo decided incorrectly that the holder of an old-order mining right, which was converted into a (new) mining right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), remains liable upon conversion for the payment of (contractual) royalties in terms of a mineral lease, which was concluded prior to enactment of the Act. The appeal was upheld by the Supreme Court of Appeal (“SCA”) (2012 (5) SA 60 (SCA) par 27). The decision was rendered by Wallis JA with the other judges concurring with his judgment. Prior to the Act mineral-right holders could grant a mining right to a miner against payment of royalties or other forms of consideration. At issue on appeal was whether the obligation to pay royalties in terms of a mineral lease “survives the introduction of the new regime in respect of mining rights brought about by the Act”. As indicated by the SCA, the Act fundamentally changed the legal basis upon which rights to minerals are acquired and exercised. Previously mineral rights were vested in the owner of land or the holder of mineral rights, which rights could be exercised upon acquisition of a statutory authorization to exploit the minerals. In terms of the new regime, common-law mineral rights were destroyed and “all mineral resources vested in the state as the custodian of such resources on behalf of all South Africans”, whereupon the state could confer the right to exploit such resources to applicants. Upon granting a mining right in terms of the Act (statutory) royalties have become payable to the state since 1 March 2010 of the Act and the Mineral and Petroleum Resources Royalty Act 28 of 2008. In order to prevent disruption of the mining industry, provision was made in the Act for the continuation of old-order rights for different transitional periods ranging from one to five years and conversion of such rights during the periods of transition. The transitional arrangements in Schedule II of the Act (“transitional arrangements”) inter alia ensured security of tenure of prospecting rights and mining rights and enabled holders thereof to comply with the Act. In particular, an old-order mining right remained valid for five years “subject to the terms and conditions under which it was granted” (item 7(1) of the transitional arrangements) and could be converted into a new mining right (item 7(2) of the transitional arrangements) if certain requirements were met. The applicant had to have: (a) met the requirements for lodgement of application for conversion; (b) conducted mining operations in respect of the mining right; (c) indicated that he would continue to conduct such mining operations upon conversion of the mining right; (d) had an approved environmental management programme; and (e) paid the prescribed conversion fee (item 7(3) of the transitional arrangements). To recap, the Xstrata decision dealt with an old-order mining right that had been converted into a (new) mining right and the effect of these statutory changes on rights to royalties which accrued to a former holder of mineral rights by virtue of a mineral lease. 

Will the Time of Growth and Development of the Young Republic of South Sudan Come?

2018 ◽  
pp. 91-110
Author(s):  
Tatiana Kochanova
Keyword(s):  
Growth And Development ◽  
South Sudan ◽  
Political Conflict ◽  
Cultural Tradition ◽  
The South ◽  
Sovereign State ◽  
Independent State ◽  
South Sudanese ◽  
The World ◽  
National Resource

Тhe subject of this study is the young Republic of South Sudan (RSS), the “young” – both in terms of the age of an independent state, and in terms of its demographic potential. RSS, as a member of the United Nations and as a sovereign state, appeared on the world map in 2011, but, possessing super-rich natural resources, has not yet gained sustainable development, moreover, it fell into a deep military-political crisis. Like most countries of the African continent, South Sudan had real demographic capacity, but the authorities were unable to extract any “demographic dividends” from the truly main national resource for the development of the country’s economy, moreover, the number of refugees of young working age is constantly growing. Through the example of South Sudan, which so hard achieved separation of the South from the North and failed to take advantage of the conquered democratic values, the article explores the understudied problem of modification of the consciousness of the younger generation, dictated both by the specifics of the deep historical and cultural tradition of the South Sudanese nationalities and by new trends in global evolutionary processes. Studying the stories from the lives of multi-member families affected during the military-political conflict in the RSS, the author, based on the facts, strongly criticizes the ineffective, even often vicious, youth policy of the South Sudanese government. On the other hand, analyzing the origins, nature, basic traditional moral and sociocultural aspects of child employment in the region, the researcher finds a reasoned explanation of the cause for such a policy of universal child mobilization and tries to define this phenomenon that has not been studied in the scientific literature before. Summarizing the study of the causes of a humanitarian catastrophe in the RSS, the author, in addition to generally accepted factors that influenced the current situation (such as: the intervention of major world financial players in the affairs of a sovereign state, national discord, the struggle for power and resources), also highlights the subjective and not always correct work of the world information agencies and other mass media and, of course, the incompetent state policy of the leadership of the RSS in the Youth Field. Relying on the positive events of the past few months to resolve the conflict in the RSS, the author is still trying to predict in the foreseeable future the time for growth and development of the Republic of South Sudan, with the proviso that it can happen only in case of the inclusion of restraining leverage and expansion of the range of priorities of the main national resource – the youth.

scholarly journals A Commentary on the African Commission's General Comment on the Right to Freedom of Movement and Residence under Article 12(1) of the African Charter on Human and Peoples’ Rights

2021 ◽  
pp. 1-21
Author(s):  
Romola Adeola ◽  
Frans Viljoen ◽  
Trésor Makunya Muhindo
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Freedom Of Movement ◽  
Number Of Factors ◽  
African Charter ◽  
The Right ◽  
Domestic Level ◽  
African Commission

Abstract In 2019, the African Commission on Human and Peoples’ Rights adopted General Comment No 5 on the African Charter on Human and Peoples’ Rights: The Right to Freedom of Movement and Residence (Article 12(1)). In this general comment, the commission elaborated on the right to freedom of movement and residence within state borders. This issue, while explicit in international human rights law, is a challenge within various jurisdictions, including in Africa. This article provides a background to and commentary on General Comment No 5, leveraging on the insight of the authors, who participated in its drafting. Unlike the UN Human Rights Committee's earlier general comment, General Comment No 5 provides detailed guidance on the internal dimension of the right to free movement and residence. As “soft law”, its persuasive force depends on a number of factors, including its use at the domestic level, its visibility and its integration into regional human rights jurisprudence.

Jus Tempus in the Magna Carta: The Sovereignty of Time in Modern Politics and Citizenship

2010 ◽  
Vol 43 (03) ◽  
pp. 463-466 ◽  
Author(s):  
Elizabeth F. Cohen
Keyword(s):  
Early Modern ◽  
The Political ◽  
Place Of Birth ◽  
Political Status ◽  
Modern Politics ◽  
American Tradition ◽  
History Of ◽  
Anglo American ◽  
The Right ◽  
Constitutional Tradition

In the English constitutional tradition, subjecthood has been primarily derived from two circumstances: place of birth and time of birth. People not born in the right place and at the right time are not considered subjects. What political status they hold varies and depends largely on the political history of the territory in which they reside at the exact time of their birth. A genealogy of early modern British subjecthood reveals that law based on dates and temporal durations—what I will call collectivelyjus tempus—creates sovereign boundaries as powerful as territorial borders or bloodlines. This concept has myriad implications for how citizenship comes to be institutionalized in modern politics. In this article, I briefly outline one route through whichjus tempusbecame a constitutive principle within the Anglo-American tradition of citizenship and how this concept works with other principles of membership to create subtle gradations of semi-citizenship beyond the binary of subject and alien. I illustrate two main points aboutjus tempus: first, how specific dates create sovereign boundaries among people and second, how durational time takes on an abstract value in politics that allows certain kinds of attributes, actions, and relationships to be translated into rights-bearing political statuses. I conclude with some remarks about how, once established, the principle ofjus tempusis applied in a diverse array of political contexts.

Abstract P366: Examining the Impact of Captivity in Men and Women on the Slaves Returning to South Sudan

Circulation ◽  
2014 ◽  
Vol 129 (suppl_1) ◽  
Author(s):  
Joseph Feldman ◽  
Cholene Espinoza ◽  
Brian J Beckord ◽  
Niketa Kumar ◽  
William Chaplin ◽  
...  
Keyword(s):  
Blood Pressure ◽  
Cardiovascular Health ◽  
South Sudan ◽  
Independent State ◽  
Men And Women ◽  
South Sudanese ◽  
Normal Ranges ◽  
Health Assessments ◽  
In Captivity ◽  
The Impact

Background: South Sudan became an independent state on July 9 2011, after having endured two civil wars with Republic of the Sudan lasting 51 years. Over the 51 years approximately 300,000 South Sudanese were abducted and in held in captivity in the Republic of the Sudan. The South Sudanese abductees suffered abuse and deprivation. Presently it is estimated that 35,000 are still in captivity. Assessing the health status of returning South Sudanese citizens immediately after their return is imperative. The aim of this report is to examine the effect of captivity on heart rate, (HR), systolic blood pressure (SBP), diastolic blood pressure (DBP), and basic chemistry panel between men and women. Methods: In March of 2013, an American medical team performed health assessments for 48 hours in the state of Bahr el Gazal located in the northwest region of South Sudan. All returnees received health assessments within four days of their return. Health assessments defined as returnees’ demographics, along with their full history and physical examination. During physical exam height, weight, SBP, DBP, and HR, electrolytes and blood urea nitrogen (BUN) were recorded and analyzed. Results: Analysis was run on 186 participants, 50.5% (94) male, and 49.5% (92) female. Females were significantly younger at age of abduction, whereas men spent a significantly longer time in captivity (Table). SBP and DBP were significantly higher in males compared to females, even after adjusting for Age (p = 0.002, p = 0.036). HR was significantly less in males compared with females, even when adjusting for age (p < 0.001). BUN was significantly lower in females compared to males adjusting for age (p < 0.001) Conclusion: Although a majority of measurements in both men and women slaves returning to South Sudan fell within normal ranges, it is crucial to continue to monitor this group’s cardiovascular health because their deprivation while in captivity may have significantly impacted their health and risk for long term cardiovascular disease.

Concluding Reflections

2020 ◽  
pp. 320-344
Author(s):  
Alex De Waal
Keyword(s):  
Agenda Setting ◽  
South Sudan ◽  
Peace Agreement ◽  
Strategic Ambiguity ◽  
Peace Processes ◽  
South Sudanese ◽  
Theories Of Change ◽  
Core Issues

This chapter draws upon the contributions to this volume and adds additional reflections on peacemaking in Sudan and South Sudan, to draw out some patterns and general conclusions. It frames the analysis within the theories of change implicit in international and domestic Sudanese approaches to peacemaking. The principal argument is that peace processes should be seen as an extension of politics, characterized by strategic ambiguity, pursuing parallel tracks, and positioning for future opportunities that cannot be identified in advance. By contrast, international peacemakers’ theories of change are structured to achieve a singular unified settlement, or to pursue external interests. Sudanese/South Sudanese civic actors’ strategies go beyond ‘inclusion’ to agenda setting and generating coalitions for change. These differences are illustrated with reference to how the Comprehensive Peace Agreement managed its core issues (economy and security) and its marginal or excluded issues (Abyei, the ‘two areas’ and Darfur).

The Politics of Free, Prior and Informed Consent: Indigenous Rights and Resource Governance in Ecuador and Yukon, Canada

2020 ◽  
Vol 27 (2) ◽  
pp. 336-356
Author(s):  
Roberta Rice
Keyword(s):  
Informed Consent ◽  
Oil And Gas ◽  
Indigenous Rights ◽  
Indigenous Communities ◽  
Resource Governance ◽  
Mineral Rights ◽  
Natural Resource Development ◽  
The Right ◽  
Surface Mineral ◽  
Hybrid Regime

What are the institutional arrangements required to implement a genuine process of free, prior and informed consent (fpic)? This article provides a comparative perspective on the politics of consent in the context of relations between Indigenous peoples, states and extractive industries in Canada and Latin America. The case of Ecuador is presented as an emblematic example of a hybrid regime in which Indigenous communities have the right to free, prior and informed consultation, not consent, concerning planned measures affecting them, such as mineral, oil and gas exploitation. In the case of Yukon, Canada, the settlement of a comprehensive land claim with sub-surface mineral rights has provided the institutional basis for the implementation of a genuine fpic process, one that includes participatory decision-making power over natural resource development projects. The article concludes with a discussion on the necessary conditions for moving governments from a consultation to a consent regime.

The problem of the missing dead

2020 ◽  
pp. 002234332096215
Author(s):  
Sophia Dawkins
Keyword(s):  
Human Rights ◽  
South Sudan ◽  
Generation Process ◽  
Data Generation ◽  
Social Scientists ◽  
Data Generation Process ◽  
South Sudanese ◽  
Point Estimates ◽  
Source Data ◽  
Cross National

This article examines what scholars can learn about civilian killings from newswire data in situations of non-random missingness. It contributes to this understanding by offering a unique view of the data-generation process in the South Sudanese civil war. Drawing on 40 hours of interviews with 32 human rights advocates, humanitarian workers, and journalists who produce ACLED and UCDP-GED’s source data, the article illustrates how non-random missingness leads to biases of inconsistent magnitude and direction. The article finds that newswire data for contexts like South Sudan suffer from a self-fulfilling narrative bias, where journalists select stories and human rights investigators target incidents that conform to international views of what a conflict is about. This is compounded by the way agencies allocate resources to monitor specific locations and types of violence to fit strategic priorities. These biases have two implications: first, in the most volatile conflicts, point estimates about violence using newswire data may be impossible, and most claims of precision may be false; secondly, body counts reveal little if divorced from circumstance. The article presents a challenge to political methodologists by asking whether social scientists can build better cross-national fatality measures given the biases inherent in the data-generation process.

Refugees: The politically oppressed

2020 ◽  
pp. 019145372093192
Author(s):  
Felix Bender
Keyword(s):  
Human Rights ◽  
Specific Situation ◽  
Political Rights ◽  
Classical Approach ◽  
Refugee Status ◽  
The Core ◽  
Political Status ◽  
Normative Foundation ◽  
The Right ◽  
What Matters

Who should be recognized as a refugee? This article seeks to uncover the normative arguments at the core of legal and philosophical conceptions of refugeehood. It identifies three analytically distinct approaches grounding the right to refugee status and argues that all three are normatively inadequate. Refugee status should neither be grounded in individual persecution for specific reasons (classical approach) nor in individual persecution for any discriminatory reasons (human rights approach). It should also not be based solely on harm (humanitarian approach). Rather, this article argues, it should be based on political oppression – on persons lacking public autonomy, formally expressed as a lack of legal–political status. The normative foundation for a claim to refugee status lies in the inability of a person to control, amend and seek recourse to the specific situation she faces. It lies in the lack of public autonomy expressed as a lack of legal–political rights. What matters for a claim to refugee status is thus the legal–political disenfranchisement of a person, ultimately leaving her with no recourse to the particular situation she faces other than flight. Refugees, then, are not only those who fear harm or persecution, but those who are politically oppressed.

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