Long Road to Recognition for Egypt’s Nubians
May 6, 2014 By Maja Janmyr in Africa, Domestic Implementation of International Law, International Human Rights Law, IntLawGrrls, Middle East and North Africa Tags: Arab Spring, constitutions, Egypt, indigenous communities, minorities, Nubia, right to returnLeave a comment
Egypt has long denied the existence of any minorities, despite being home to both ethnic and religious minorities. Nubians and other groups, such as Amazigh, have long been marginalized and suffered from exclusion and oppression. The 2011 Egyptian Revolution and the fall of President Mubarak ignited demands for the Egyptian government to recognize minority rights, and provided a unique opportunity for Egypt’s Nubian community to mobilize. While the 2012 Constitution proved to be a setback, the 2014 Constitution is the first legal instrument in Egypt to explicitly acknowledge minority rights. For Egypt’s Nubian community, it represents an important milestone.
Nubians have inhabited villages along the banks of the Nile for thousands of years. Here, they retained their own distinct language, customs and culture. Following the Condominium Agreement of 1899, which solidified the boundary between Egypt and Sudan, this group was arbitrarily divided between the two countries. Approximately half of the Nubians were forced under direct Egyptian rule. The industrialization of Egypt during the early 20th century, when a series of dams were built by the British colonial powers along the Nile, effectively uprooted the Nubian population. In the 1950s, President Nasser initiated the Aswan High Dam project, which virtually flooded all of Old Nubia, today found under Lake Nasser. In 1963, Egyptian authorities began a program of forced resettlement of approximately 50,000 Nubians from some 45 villages to new, purpose-built communities in southern Egypt. Little care was taken to safeguard the culture and traditions of the Nubian people, housing soon proved inadequate, and schools taught exclusively in Arabic. Dissatisfied with their new living conditions, a large proportion migrated to other parts of Egypt.
Even though Egypt has long been a party to the most prominent international instruments relevant to minority rights, no domestic legislation has recognized their existence. When responding to the persistent criticism from UN human rights bodies to acknowledge the country’s minorities and safeguard their rights in accordance with international instruments, Egyptian representatives have continuously emphasized that the country has “no particular minority whose rights might be denied,” sometimes even claiming that minorities “do not exist in Egyptian territory.” In line with a Pan-Arab nationalist approach, Egyptian representatives have rather claimed that the Egyptian legal system has been based on national unity – “Egypt is a homogeneous society and . . . its people only speak one language.” As “[a]ll elements of the population coexisted in tolerance, harmony and understanding,” Egypt claimed, “all legislation [is] applied equally to all citizens without discrimination.”
The lack of particular legal recognition has nevertheless triggered notable mobilization among groups such as the Nubians. This mobilization has almost exclusively focused on the group as a minority, rather than recognition of Nubians as a distinct indigenous community. Considering that the primary demand of Egypt’s Nubian community is the right of return – a right that is recognized for indigenous communities but not explicitly for minority groups – this is indeed noteworthy. In 2009, for example, the Nubian Lawyer’s Association reportedly filed a lawsuit against the government to be allowed to return to their lands, i.e., to be granted the right to develop and reside in the land around Lake Nasser. Since the 2011 Egyptian Revolution, Nubian activists have increasingly pressured Egyptian authorities for greater recognition and to loosen restrictions on their community. After long having been denied official approval, Nubians could now begin registering civil society groups, through which they more firmly presented their demands, including return to the shores of Lake Nasser, full recognition of Nubian culture and language, and guaranteed electoral representation in a new, democratic Egypt. Many young Nubians also participated in anti-government protests and demonstrations.
Despite this increasing mobilization, Nubians were excluded from the 2012 constitutional process which followed the election of now deposed President Mursi. The 2012 Constitution did not represent minority groups; Article 1, for example, emphasizes Egypt’s Arab and Islamic identity, delegating its African aspects, while Article 10 affirms the State’s duty to protect Arab culture. While Article 30 protects citizens against different forms of discrimination, calls to include ethnic and racial discrimination in the article were disregarded. In January 2013, Nubians once again protested outside the Egyptian Parliament, demanding an end to marginalization and to be allowed to return to their lands.
The highly divisive 2012 Constitution was suspended in July 2013 when Mursi was removed from office. A 50-member committee was then tasked with drafting a new constitution, which was passed in a controversial referendum in January 2014. Approximately 98 % of the voters voted for the Constitution, in what has been described as an “unprecedented” turnout, where 20 million people, representing 38,6 % of those eligible to vote, participated. This time around, there was a manifested Nubian presence in the drafting process, demanding, in addition to the right of return, that the Constitution preserve the Nubian culture, language and civilization. Nubians also called for having a separate constituency in Nasr al-Nuba district during elections so as to guarantee a fair representation for all Nubians in future parliaments, as well as the teaching of Nubian history in schools as an integrated part of Egypt’s history.
While the 2014 Constitution is an issue of contention in today’s Egypt, one of the biggest victories is for Egypt’s Nubians, whose right to return is finally recognized. According to Article 236, “[t]he state ensures drawing and implementing a plan for a comprehensive economic and structural development for the border and deprived areas, including the South, Sinai, Matrouh and Nubia.” It further provides for the “participation of residents in development projects . . . in accordance with the local community’s cultural and environmental patterns,” which should be carried out within 10 years of the Constitution’s passing. However, the Constitution fails to specify the manner of resettlement and it remains to be seen whether the Egyptian government will manage to establish a new string of Nubian villages along Lake Nasser within the next ten years. Additionally, a number of other demands were sidelined in the final Constitution; for example, while it provides for the preservation of cultural diversity and criminalizes discrimination of all kinds, including racial discrimination, it inter alia fails to recognize that Nubian (and Amazigh) languages are local languages. Also affecting the whole Egyptian population, freedom of belief has not been fully realized, civilians can still be subject to military trials, and freedom of information is still highly restricted. The true impact of the new Egyptian Constitution on the rights of Nubians, and the Egyptian population at large, is thus very much in question.
Source: International law office
Arbitration and amparo in Ecuador
Contributed by Coronel & Pérez
May 08 2014
In a recent ruling the Constitutional Court of Ecuador revoked a decision of a first-instance judge who had issued a precautionary constitutional measure ordering an arbitration institution to halt an ongoing arbitration. The court found no merit in the judge’s anti-injunction decision and ruled for the continuation of the arbitration. While the court’s opinion is a welcome development, it has left open some critical questions about the use of the writ of amparo against arbitration.
The writ of amparo is a unique and extraordinary action widely known in Spain and Latin America. Its purpose is to protect an individual’s constitutional rights when there is clear evidence that those rights will be or have been breached. In contrast to ordinary complaints and motions, the writ of amparo is typically handled in an informal and expeditious fashion. Judges must issue their decisions within a few days, if not hours. While the most common denomination for this type of writ is amparo, some countries in the region have adopted it under different names.
As arbitration has gained acceptance in Latin America, concerns over the risks of using the writ of amparo to affect the regular course of arbitration proceedings has grown.
The 2008 Ecuador Constitution not only established the writ of amparo among its constitutional guarantees (just as the 1998 Constitution did), but also allowed for the use of the writ of amparo to attack judicial sentences once they become final – a clear departure from the 1998 Constitution, which expressly barred such use. The novel action was named an ‘extraordinary action of protection’. By allowing the writ of amparo against judicial decisions, the 2008 Constitution also opened the door for extending its use against arbitral decisions. Moreover, it went further when it established the possibility to file precautionary measures in order to protect any constitutional rights in anticipation of the filing of a writ of amparo, even if the petitioner has no intention of filing a writ. In other words, it created a constitutional precautionary measure of autonomous nature. This case is an example of the risks associated with the use of this type of action in arbitration.
In 2007 Pinturas Wesco SA filed an action for damages against an Ecuadorean bank with a Quito civil judge. The bank resisted the judge’s jurisdiction, arguing that the dispute was connected with a contract which contained an arbitration clause. In May 2010, after several procedural incidents that extended the proceeding for several months, the judge accepted the bank’s position that he lacked jurisdiction to hear the case and ruled that the complaint must be filed with the Arbitration Centre of the Quito Chamber of Commerce. In October 2010 the centre issued its first ruling accepting to hear the controversy under its regulations and the Arbitration and Mediation Law. It convened the parties to hold the first hearing to substantiate the case.
However, the defendant lodged a petition for a constitutional precautionary measure before a first-instance judge sitting in the city of Guayaquil. In its petition, the bank requested the judge issue an injunction to prevent the Quito arbitration centre continuing to hear the case. The bank alleged, among other things, that its constitutional right to a due process had been violated because the centre had no jurisdiction to arbitrate the dispute as the bank was domiciled in Guayaquil. The bank also alleged that the arbitration would cause serious damage to its reputation.
In December 2010 the Guayaquil judge accepted the bank’s petition and thus the arbitration proceeding was discontinued. In 2012 the judge’s decision was confirmed by the Second Chamber of the Guayaquil Provincial Court. Then the plaintiff filed a writ of amparo against the provincial court decision to the Constitutional Court.
The Constitutional Court annulled the rulings of both the Guayaquil judge and the provincial court.(1) The court began by recalling the extraordinary conditions under which judges may grant a constitutional precautionary measure. According to the court, both the Constitution and the Organic Law for Jurisdictional Guarantees require the presence of a clear and grave threat to the petitioner’s constitutional rights in order to grant such an extraordinary order. In the case at bar, the court found that the mere fact that the arbitration centre had served the bank with the plaintiff’s request for arbitration did not endanger any of the latter’s constitutional rights.
The Constitutional Court stated that the Guayaquil court had overlooked the fact that it was the Quito civil judge who had ordered that the damage action must commence before the Quito arbitration centre. The court noted that the Guayaquil judge’s injunction was a blow to the expectations of individuals and constituted a serious breach of the constitutional right to legal certainty.