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0618 Lostlands Zipsmairitsch.Pdf Images can be deceiving. The San portrayed on the cover Manuela Zips-Mairitsch seem to be a remnant from a time when “hunters and gatherers” still roamed vast areas of land in southern Af- IWGIA rica. In reality they are actors paid to re-enact the way they once lived. In the Kalahari town of Ghanzi, Botswana, tourists can book so-called “authentic Bushman Walks”. More than anything, however, such performances of a for- aging lifestyle offer “authentic” accounts of current legal and political living conditions for Botswana’s indigenous population: displaced from their land and left without any Manuela Zips-Mairitsch Lost economic assets, they have to depend on the rampant commodifi cation of their culture. Lands? Now that San communities have joined forces in the international arena of indigenous rights struggles, their voices are getting louder and call for at least some de- gree of self-determination on the lands they once owned. In many ways, the legal dispute over (land) rights in the Kalahari epitomizes this global justice movement. Lost Lands? (Land)Rights of the San in Botswana and 978-3-643-90244-3 978-87-92786-35-7 the Legal Concept of Indigeneity in Africa LIT 9 *ukdzfe#.-xvvc* www.lit-verlag.at IWGIA LIT LIT IWGIA Angola Zambia Zimbabwe Botswana CKGR Gaborone South Africa The Central Kalahari Game Reserve within Botswana Rakops /Xere Molapo New !Xade Kaka Metsiamanong !Xade Bape Gope CENTRAL Mothomelo KALAHARI GAME Kikao Kukama RESERVE Khutse Kaudwane Game Reserve We wait for the sun to turn back for us, that we may return to our place, that we may hunt and dance again, that we may eat flesh that is good, that we may go where we like. (From: Capture and Captivity. Markowitz, Arthur 1956) Legal Anthropology Volume 1 LIT Manuela Zips-Mairitsch LOST LANDS? (Land) Rights of the San in Botswana and the Legal Concept of Indigeneity in Africa LIT Cover Images: G|wi, !Xõó and Ju|’hoansi (-San) on a so-called “authentic Bushman Walk” near Ghanzi in Botswana, © by Manuela Zips-Mairitsch All pictures inside the book: © by Manuela Zips-Mairitsch Published with the support of the Austrian Science Fund (FWF) Translated into English by: Daniel Stevens Typesetting: Patric Kment German Edition: “Verlorenes Land. Indigene (Land)Rechte der San in Botswana.”, © Dietrich Reimer Verlag GmbH, Berlin 2009, www.reimer-verlag.de Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de. ISBN 978-3-643-90244-3 (LIT) ISBN 978-87-92786-35-7 (IWGIA) A catalogue record for this book is available from the British Library ©LIT VERLAG GmbH & Co. KG Wien, LIT VERLAG Dr. W.Hopf Zweigniederlassung Zürich 2013 Berlin 2013 Klosbachstr. 107 Fresnostr. 2 CH-8032 Zürich D-48159 Münster Tel. +41 (0) 44-251 75 05 Tel. +49 (0) 2 51-62 03 20 Fax +41 (0) 44-251 75 06 Fax +49 (0) 2 51-23 19 72 E-Mail: [email protected] E-Mail: [email protected] http://www.lit-verlag.ch http://www.lit-verlag.de ©International Work Group for Indigenous Affairs Classensgade 11 E DK-2100 Copenhagen, Denmark Distribution: In Germany: LIT Verlag Fresnostr. 2, D-48159 Münster Tel. +49 (0) 2 51-620 32 22, Fax +49 (0) 2 51-922 60 99, E-mail: [email protected] In Austria: Medienlogistik Pichler-ÖBZ, e-mail: [email protected] In Switzerland: B + M Buch- und Medienvertrieb, e-mail: [email protected] In the UK: Global Book Marketing, e-mail: [email protected] In North America: International Specialized Book Services, e-mail: [email protected] e-books are available at www.litwebshop.de Contents Acknowledgements ........................................................................................ 9 Preface by René Kuppe .................................................................................. 13 Introduction ................................................................................................. 21 Part 1: Indigenous Peoples in International Law I. Historical Overview ............................................................................... 29 II. “Indigenous Peoples”: Term, Concepts, and Definitions ....................... 34 Differentiation from the Term “Minority” ............................................. 40 III. Special Indigenous Rights or Special Circumstances? Indigenous Protection Standards, Rights of Freedom, and Self-Determination ...... 42 1. Sources of Law ............................................................................ 42 1.1 Binding Norms ............................................................................ 43 1.1.1 ILO Convention 169 .................................................................... 43 1.1.2 UN Convention on Biological Diversity ...................................... 45 1.2 “Soft law” Instruments .................................................................. 46 1.2.1 Agenda 21, Chapter 26 (1992) ..................................................... 47 1.2.2 UN Declaration on the Rights of Indigenous Peoples ................. 47 1.2.3 Declarations and Policies of various International Bodies ........... 52 1.3 Indigenous Rights as Part of Customary International Law ........ 56 2. “Sources of Life”: Lands and Natural Resources ......................... 57 2.1 Material Standards of Protection ................................................. 57 2.1.1 Cause of Action ........................................................................... 58 2.1.2 The Relationship between Indigenous Peoples and their Territories ..................................................................... 59 2.1.3 Collective Land Rights ................................................................ 61 2.1.4 Scope of Indigenous Territories ................................................... 63 2.1.5 Restriction of Alienation and Disposal ........................................ 64 2.2 Universal Human Rights Treaties ................................................ 64 2.2.1 Right of Ownership ..................................................................... 65 2.2.2 Right to Culture .......................................................................... 66 2.2.3 Right to Private and Family Life ................................................. 66 2.3 Jurisdiction of International Monitoring Bodies ......................... 67 2.3.1 Human Rights Committee .......................................................... 67 2.3.2 Committee on the Elimination of Racial Discrimination ........... 68 3. Sources of Freedom and Equality: Self-Determination ............... 70 Part 2: “Being Indigenous in Africa”: Legal Developments of Indigenous Peoples Law in Africa I. Historical Overview .............................................................................. 79 1. Nature Conservation v. Human Rights Protection ....................... 81 2. African Initiatives for the Protection of Indigenous Rights ......... 83 II. “Indigenous Peoples in Africa”: Applying the Concept ......................... 88 III. Indigenous Rights in the African Context ............................................ 93 1. Regional Indigenous Rights ......................................................... 94 1.1 The African Charter on Human and Peoples’ Rights .................. 94 1.2 The African Commission on Human and Peoples’ Rights ........... 101 1.3 The African Court on Human and Peoples’ Rights ...................... 104 2. National Indigenous Rights ......................................................... 110 2.1 Selected Constitutional Guarantees ............................................ 110 2.2 Jurisdiction using the example of South Africa ........................... 116 2.2.1 The Case of the ‡Khomani San ................................................... 117 2.2.2 Richtersveld Case ........................................................................ 120 Excursus: “Aboriginal Title” .................................................................. 122 2.2.2.1 “Aboriginal Title” before the South African Constitutional Court ........................................................................................ 128 2.2.3 “Hoodia Gordonii” Case .............................................................. 132 Part 3: Legal Perspectives of San Communities I. Terminology: San, “Bushmen”, Basarwa, Khoesan, N/oakwe or Kwe? .. 155 II. Historical Overview until the End of Colonial Times .......................... 161 1. Regional Historical Differences .................................................... 169 1.1 Botswana ...................................................................................... 169 1.2 Namibia ....................................................................................... 172 1.3 South Africa ................................................................................ 173 1.4 The “Northern San” ...................................................................... 174 III. Reflections on Indigenous Legal Perspectives and World Views .......... 177 Part 4: Botswana: State and Society I. Sociopolitical History ........................................................................... 187 1. Pre-colonial Phase ....................................................................... 187 2. Protectorate Bechuanaland .......................................................... 189 3. Republic of Botswana .................................................................. 199 II. Sources of Law and Legal Pluralism
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