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Individual opinion of Elizabeth Evatt and Cecilia Medina Quiroga (concurring)
It is clear on the facts and from the 1996 decision of the High Court that the ownership of
the communal lands of the community had been acquired by the government of Namibia before
the coming into force of the Covenant and the Optional Protocol and that the authors cannot
substantiate a claim on the basis of any expropriation. However, the significant aspect of the
authors’ claim under article 27 is that they have, since that date, been deprived of the use of
lands and certain offices and halls that had previously been held by their government for the
exclusive use and benefit of members of the community. Privatization of the land and overuse
by other people has, they submit, deprived them of the opportunity to pursue their traditional
pastoral activities. The loss of this economic base to their activities has, they claim, denied
them the right to enjoy their own culture in community with others. This claim raises some
difficult issues as to how the culture of a minority which is protected by the Covenant is to be
defined, and what role economic activities have in that culture. These issues are more readily
resolved in regard to indigenous communities which can very often show that their particular
way of life or culture is, and has for long been, closely bound up with particular lands in regard
to both economic and other cultural and spiritual activities, to the extent that the deprivation of or
denial of access to the land denies them the right to enjoy their own culture in all its aspects.
In the present case, the authors have defined their culture almost solely in terms of the economic
activity of grazing cattle. They cannot show that they enjoy a distinct culture which is
intimately bound up with or dependent on the use of these particular lands, to which they moved
a little over a century ago, or that the diminution of their access to the lands has undermined any
such culture. Their claim is, essentially, an economic rather than a cultural claim and does not
draw the protection of article 27.
(Signed) E. Evatt
(Signed) C. Medina Quiroga
[Done in English, French and Spanish, the English text being the original version. Subsequently
issued also in Arabic, Chinese and Russian as part of the present report.]