Land and Post-Conflict Peacebuilding: A new global standard for land administration

by Douglas Batson

Douglas Batson joined the National Geospatial-Intelligence Agency (NGA) as a political geographer in 2004. He previously worked for the U.S. Geological Survey, the U.S. Department of Justice, and is now retired from the U.S. Army Reserve. Batson wrote on “Snow Leopards and Cadastres: Rare Sightings in Post-conflict Afghanistan” in Land and Post-Conflict Peacebuilding, and provides an update in this guest-posting.

My chapter in Part 3 of Land and Post-Conflict Peacebuilding begins with an overview of the challenges faced by U.S. and coalition forces in rebuilding Afghanistan during the 2000s, and specifically the need for a cadastral system that records the array of relationships between people and land. It also discusses the problems of refugee resettlement in the context of the post-war population explosion and the environmental destruction from decades of conflict. The discussion of secure tenure to land describes local initiatives including dispute resolution and management of land resources. It concludes by underscoring the potential of the Land Administration Domain Model (LADM) to record heretofore undocumentable, orally defined forms of customary land tenure.

Shortly after the completion of my chapter, the International Organization for Standardization (ISO) took up the LADM as a draft standard. I had the opportunity to advocate full adoption of the LADM as an ISO standard to the U.S. Federal Geographic Data Committee. This effort included addressing concerns about the cost of conforming 3,100 disparate U.S. county-level Land Administration Systems (LAS) to a new global standard. The LADM’s value, I argued, lies less in its utility for the U.S. homeland, than in its relevance for U.S. security, diplomacy, and development goals, in a context in which 75% of the world’s people-to-land relationships, or 4.5 billion cases worldwide, are not documented. This situation clearly invites land disputes, land grabbing, and violent conflict.

Safeguarding land rights: An opportunity for the World Bank to lead

by David Pred and Natalie Bugalski

Washington, April 13, 2013 - At the start of the Annual World Bank Conference on Land and Poverty this week, World Bank President Dr. Jim Kim made some welcome remarks about the global land rights crisis.   He did not respond directly to the withering criticism of the role the Bank has played in promoting land grabs.   But he did say that the Bank shares the concerns about the risks of large-scale land acquisitions, and importantly he acknowledged that “additional efforts must be made to build capacity and safeguards related to land rights and to empower civil society to hold governments accountable.”

What caught people at the Conference pleasantly off guard was the Bank’s statement that its own social and environmental safeguard policies, now under review, would be informed by the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Forest and Fisheries.

Inclusive Development International and Oxfam put forward a concrete proposal at the Conference for the Bank to do just that.  We presented a proposal for a new World Bank safeguard policy on tenure of land, housing and natural resources that draws extensively from the Voluntary Guidelines.

The proposal addresses major gaps in the Bank’s current policy framework that have left people affected by Bank operations unprotected from harmful impacts on their tenure rights.  If adopted, these policy measures would ensure that the Bank upholds its responsibility to respect human rights by safeguarding against the weakening of tenure rights, the instigation of land conflict and the exacerbation of inequality in access to land and natural resources by Bank operations.

Defining communities in Colombia: the Afro-descendant communities of Curvaradó and Jiguamiandó and communal land rights

by Anouska Perram

Anouska Perram is a Supervising Associate at the London office of Simmons & Simmons LLP, an international law firm. At the request of an international NGO for whom it acts on a pro bono basis, Simmons & Simmons LLP has recently submitted an amicus curiae brief to the Colombian Constitutional Court in relation to international human rights law considerations pertaining to the Curvaradó and Jiguamiandó communities’ case.

Once seen as antipathetic to the individual rights focus of international human rights law, “third generation” and collective rights have – despite lingering controversy – been widely accepted as a fundamental element of the indivisible human rights framework.[1] Driven in particular by the demands of indigenous peoples, national and international law has recognised and protected rights to communal land titles, rights to language, religious practices, specialised education and protection of cultural heritage, and many other rights which are associated with the existence of distinct socio-cultural groups within the boundaries of the wider state.

As they have developed, collective rights have increasingly been applied to groups beyond indigenous peoples. ILO Convention 169 (the Indigenous and Tribal Peoples Convention) extends protections not only to indigenous peoples (described as peoples descended from a pre-colonial society) but also – the clue is in the name – to “tribal peoples”. Unlike the description of indigenous peoples in the Convention, tribal peoples need not be linked by common descent, but rather are characterised by “social, cultural and economic conditions” which “distinguish them from other sections of the national community”.[2]

Taking a similarly expansive approach, the Inter-American Court of Human Rights (IACtHR) has applied collective rights principles to Afro-descendant groups. The Court applies its jurisprudence on indigenous land rights equally to Afro-descendant groups where they have “an ‘all-encompassing relationship’ to their traditional lands, and [where] their concept of ownership regarding that territory is not centered on the individual, but rather on the community as whole”.[3]

The expanding scope of collective rights entails a shift in emphasis in the way these rights are justified. Indigenous rights advocacy has often focused on a claim to right derived from chronological precedence – ancestral descent since time immemorial – perhaps paralleling an orthodox property rights analysis which takes an earlier claim as a better claim. The expansion of rights to other groups such as Afro-descendants – who do not have the same claims to ancestral ownership – moves the focus towards the uniqueness of social and cultural characteristics of the group. In this way, as collective rights have developed juridically, the principle of a distinct social organisation, intrinsically worthy of and requiring protection as a collective has become central to the analysis.

This question brings to the forefront the issue of how to define membership of the “collective” entitled to “collective rights”. Logically the entitlement to protection should follow the contours of the social organisation being protected; how to determine those boundaries in each situation is, however, not necessarily straightforward. This is not actually of course a new question – it arises equally for indigenous peoples – but has perhaps been more readily glossed over in relation to indigenous peoples, in reliance upon the (mythically) objective element of “descent” to determine the boundaries of the group.[4] No such “objective” identifier applies to non-indigenous groups and so the question of how to define the group cannot be avoided.

Lawmakers will remain tempted to adopt an “objective” criterion of descent, which gives an appearance of certainty and also places finite limits on a group. Such an approach, however, has the potential to decouple collective rights from parts of the collectivity being protected. This is the very issue currently before the Colombian Constitutional Court in relation to the Afro-descendant communities of Curvaradó and Jiguamiandó.

The World Bank must stop underwriting human rights abuses in Ethiopia

by David Pred and Natalie Bugalski

A leaked World Bank report calls for an investigation into allegations that a multi-billion dollar aid program in Ethiopia is underwriting the forced relocation of hundreds of thousands of ethnic minorities to free up fertile land to lease to investors. A meeting of the Bank’s board of directors to discuss the Panel’s preliminary findings was postponed on Tuesday due to objections from the Ethiopian government. Rights groups are watching closely to see how the new Bank president, Jim Yong Kim, will deal with sensitive questions about World Bank accountability and human rights in one of its most important client states.

Anuak indigenous refugees from Gambella region who fled human rights abuses in Ethiopia submitted a complaint to the Bank’s Inspection Panel in September claiming that they had been severely harmed by the flagship international aid program for the provision of basic services in Ethiopia, which is administered and partially financed by the World Bank.

Landlocked in the Horn of Africa and beset by periodic droughts and famine, Ethiopia remains one of the poorest countries in the world.  International relief and food assistance is still needed to feed between 10 and 20 percent of its roughly 85 million people.[1] Many Ethiopians, particularly rural dwellers, lack access to basic services, including water, sanitation and basic health facilities.

Since the ousting of the Soviet-backed “Derg” military regime in 1991, the Government of Ethiopia, led by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), has implemented a vast program of economic recovery and reform meant to address the dire poverty and enormous social and economic needs of the population.

The government and its development partners claim impressive strides towards meeting the United Nations Millennium Development Goals (MDGs) and significant progress in key human development indicators over the past two decades, including a quadrupling in primary school enrollments, halving of child mortality, and a doubling of the number of people with access to clean water.[2]

Yet, in parallel to its economic reform agenda the government has become increasingly oppressive and intolerant of criticism and dissent.  As Human Rights Watch has reported, the government has “severely restricted the rights of expression and association, arbitrarily detained political opponents, intimidated journalists, shuttered media outlets, and made independent human rights and election monitoring practically impossible.”[3]

These human rights abuses are rarely openly acknowledged by the bilateral and multilateral donors to Ethiopia.  Ethiopia is one of the world’s largest recipients of foreign aid, receiving approximately US$3 billion in funds annually from external donors, including the World Bank, the United States, Canada, the United Kingdom, the European Commission, Germany and the Netherlands.[4]

Largely turning a blind eye to the increasingly repressive political climate, donors justify their support by both the enormity of the need and the reported inroads achieved in reducing poverty since the EPRDF came to power.[5] Ethiopia’s late Prime Minister Meles Zenawi forged close alliances with Western nations based on a common interest in combatting Islamic extremism and establishing greater stability in the volatile region.[6]

Throughout the 1990s and the early 2000s, the World Bank and other donors supported the Ethiopian Government by providing direct budget support through a series of Structural Adjustment Credits and Poverty Reduction Support Operations, in addition to several specific purpose projects. In 2004/05 direct budget support from all donors constituted approximately one third of total aid to Ethiopia,[7] placing significant aid amounts directly in government hands with minimal control and oversight, despite evidence of egregious human rights abuses being perpetrated by the government and military.[8]

Upcoming guest posting on the World Bank and ‘villageization’ in Ethiopia

by Rhodri C. Williams

Since early last year, Human Rights Watch has kept a weather eye on Ethiopia, where land concessions in the Gambella region and agricultural development plans in the Omo valley are giving rise to allegations of violent mass-displacement of local villagers and pastoralists. HRW also reported on the role of international development assistance actors in actively or passively facilitating such patterns of displacement.

The violent and systematic nature of the displacement alleged to have taken place in Ethiopia – and the government’s invocation of development priorities as a justification for them – place the country firmly within a broader global trend. Just as the 2004 tsunami forced humanitarian advocates for the global population of internally displaced persons (IDPs) to turn their attention from conflict to natural disasters, I have argued that the effects of new trends involving large scale investment in land – the global land rush – should prompt new humanitarian and human rights scrutiny of development-induced displacement.

In Ethiopia, such scrutiny has been quick to follow HRW’s reports. In September 2012, the NGO Inclusive Development International (IDI) alleged a link between World Bank projects in Ethiopia and the Gambella ‘villageization’ program and assisted affected indigenous persons in submitting a complaint to the Bank’s Inspection Panel. Now, as reported by Helen Epstein in the NYR Blog, the Panel has forced the Bank to decide whether to act on a finding that a full investigation is warranted:

Politics as land disputes by other means? Kenya braces itself for elections (updated)

by Rhodri C. Williams

Kenyans go to the polls next Monday in the culmination of an entire political season spent building institutional guarantees against a repeat of the appalling ethnic violence and mass-displacement that followed the country’s last elections in 2007. Prevention measures ranging from a new 2010 Constitution to a 2012 law criminalizing internal displacement have been earnestly discussed and adopted in the intervening years.

However, the breathtaking fact remains that some of the leading candidates in the current election may be responsible for the violence of the last round – and that their eventual election may be used as a pretext to effectively shield them from accountability for these crimes before the International Criminal Court (ICC).

The resulting ‘bizarre’ nature of the first debate between Kenya’s presidential candidates was captured by Mark Kersten at Justice in Conflict, who also reflected recently on the underlying question the ICC-Kenya brouhaha raises – namely whether transformative political change has supplanted individual criminal responsibility as at least the implicit primary aim of international justice.

There is certainly a case for such an approach, which arguably only transposes the consequences of the individual criminal behaviour of political leaders into the novel but expanding terrain of the state responsibility to protect (see Mark Kersten again, here). If the results of an individual leader’s acts are now recognized as giving rise to a threat to international peace and security, in other words, why should the rest of the international community sit around and twiddle its thumbs?

On the other hand, principled arguments against such an expansive view of the aims of international justice include the risk of politicization of the ICC through selective support of regime change by gatekeeper institutions such as the UN Security Council. However, beyond this concern about the tail wagging the dog, Kenya may now have usefully exposed a major practical limitation on politically transformative international justice. For example, in an otherwise highly cogent piece on the upcoming elections in Kenya on OpenDemocracy, Clare Castillejo argues for what some may view as closing the barn doors after the horses have bolted:

So what can the international community do in these final days before the polls? Firstly it must send strong signals that politicians who incite violence will face international sanctions such as asset freezing, travel bans and – where possible – prosecution. Kenya’s international partners (particularly the US, UK and the EU) and its East African Community neighbours must be prepared to speak out forcefully at the first signs of electoral fraud or organised political violence.

Got that? Politicians now hoping to elude international accountability for past electoral violence by running for elected office are to be prevented from resorting to further violence by threatening them with accountability for such acts. Is that entirely convincing? I do not mean to be facetious, and I am very concerned for Kenya, but is doubling down on a concept of accountability that has proven elusive in practice likely to be effective as a means of protection? Perhaps it will, if applied as part of a unified campaign of international condemnation. But if it does not, the result may further undermine the effectiveness of accountability as a check on such crimes.

Humanitarians are also talking prevention, but in a slightly more nuanced (some might say ambiguous) way.

Corporate social responsibility in a changing world: Targeting conflict resource exploitation

by Rhodri C. Williams

The march of the voluntary guidelines continues, it seems, with new approaches geared to address gaps in earlier efforts to urge corporate self-control. As Peter Spiro noted some time back in Opinio Juris (and Chris Huggins pointed out in these pages), the promotion of “soft” voluntary standards as a means of getting at some very hard human rights violations is still seen with skepticism in many quarters.

Nevertheless, Mark Taylor makes an engaging case for such standards in a recent Open Democracy piece on the role of natural resource extraction in fueling conflict. The article highlights the Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High Risk Areas, a standard adopted by the Organization for Economic Cooperation and Development (OECD) in May 2011 and subsequently regulated in the US through new regulations issued by the Securities and Exchange Commission (SEC)  under the Dodd-Frank Wall Street Reform Act.

Taylor notes several key insights that have emerged in the wake of older certification schemes such as the Kimberly Process for conflict diamonds. These include the manner in which both illicit inflows into conflict areas (such as small arms) and outflows (such as natural resources) have become incorporated into global market flows, as well as the extent to which vulnerable local populations may be just as dependent on extraction activities for their survival as warlords are for their arms budget. In light of such factors, Taylor argues that considerable advantages may be derived from focusing on business actors rather than states:

Like the Kimberly Process, or even UN sanctions, the Guidance seeks to exclude certain commodities from global trade flows. But there the similarity ends. Instead of obligating states, the Guidance places the responsibility on business to manage their supply chains. Instead of relying on a certification regime hobbled by a lack of state capacity, the Guidance deploys the concept of business due diligence, the practice of self-investigation and risk management in a business activity. And instead of targeting a commodity based on its association with rebel groups – a definition that has plagued the Kimberly Process, for example preventing it from taking action where abuses are committed by state armed forces, as in the case of Zimbabwe – the Guidance in effect focuses on the problems of conflict financing and human rights abuse associated with mineral extraction, regardless of whether the perpetrator is a state or non-state armed group.

In effect, the Guidance places the onus on businesses to show they are not financing conflict or contributing to human rights abuse through their sourcing of minerals. And nothing in the Guidance prevents states from regulating this responsibility to conduct due diligence, which is precisely what the US has done with the conflict minerals provision of Dodd-Frank, a measure the EU is now considering.

The combined reliance on traditional state regulation and more novel forms of corporate self-regulation is promising though not, as Taylor points out, unproblematic. However, even at this early stage, there may be timely lessons that could be drawn by the UN Food and Agricultural Organization (FAO) in its current efforts to develop a set of ‘demand side’ standards regulating the conduct of actors participating in large-scale land investments in developing countries. This process should be facilitated by the fact that the FAO has already launched a set of ‘supply side’ guidelines for countries that are the object of such investment. While the latter clearly addressed state authorities disposing over targeted land, the former will need to take into account the role of both state and powerful non-state actors whose investments are driving the global land-rush.

Finally, in a timely reminder that such policies and safeguards are often only as effective as the advocates that monitor their application, Inclusive Development International issued a press release announcing a complaint before the Asian Development Bank’s Compliance Review Panel. The complaint alleges a violation of the Bank’s involuntary settlement policies with regard to communities affected by an ADB-funded railway rehabilitation project in Cambodia (on which, see Natalie Bugalski’s guest postings here and here). As such, it recalls the ongoing controversy in Cambodia over the World Bank’s attempts to act on a finding by its own Inspection Panel of a violation of its Resettlement Policy.

Is the European Commission sweet on land grabbing? Trade benefits, sugarcane concessions and dispossession in Cambodia – UPDATED

by David Pred

David Pred is co-founder and managing associate of Inclusive Development International (IDI), an association working to make the international development paradigm more just and inclusive.

Before you reach for that Tate and Lyle sugar packet to sweeten your coffee, you might want to think twice.  While most Tate and Lyle sugar packets carry the Fair Trade label, Cambodian farmers who were displaced and dispossessed by their suppliers say that if you are buying this product, you are buying their blood. Earlier this month, representatives of affected communities called for a consumer boycott of companies selling sugar grown on stolen land, including Tate and Lyle Sugars.

Over the past several years, hundreds of thousands of Cambodians have been uprooted from their homes, farmlands, and forests by companies that have been granted concessions for the development of agro-industrial plantations.

The sugarcane industry has been one of the worst offenders in this land-grabbing crisis. In the last five years, land concessions totaling tens of thousands of hectares have been granted to private companies for industrial sugarcane production.  These concessions have led to the destruction of protected forests and the pollution of water sources. Local farmers’ crops have been razed and their animals shot. Homes have been burned to the ground. Thousands of women and children have been left destitute.  Some have been thrown in jail for daring to protest.

Despite the abundant evidence of these crimes, none of the responsible individuals and companies have been held to account. As if that wasn’t scandalous enough, this ‘blood sugar’ is being exported to Europe, where it receives special trade benefits under the EU’s Everything But Arms (EBA) initiative.  Through this preferential trading scheme, the world’s least developed countries are able to export goods to the EU with zero tariffs or quotas, and in the case of sugar, at a guaranteed minimum price.

It should be a crime to peddle goods produced on stolen land, but instead the land-grabbers are awarded special trade privileges.

FAO global guidelines on tenure of land, forests and fisheries adopted

by Rhodri C. Williams

I’m not sure who comes out looking worse on this one, BBC or me. On BBC’s ledger sheet, I was intrigued to see a headline to the effect that the “UN adopts historic ‘land grab’ guidelines” – and even more intrigued to click on it and find no links, nor the barest reference to the sponsoring UN agency, the name of the guidelines or any other clear hints as to how I might set about reverse engineering my way to the actual text the article was about.

Lets stop for a second and consider what this says about how the UN is perceived. Would the BBC note the passage of an important policy in the US without once naming the responsible government ministry, the actual name of the policy or the URL where you could find the text? It must be distressing for UN employees to find their sprawling, diverse, and often bitterly divided institution still so easily written off as a monolith.

For my own part, I eventually managed to use the one direct quote in the BBC piece to find my way to a much more journalistically impressive effort by the Miami Herald. Which helped me to the realization that I had lost track of the process of adoption of the FAO’s new ‘Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security’, despite having blogged on them only a month ago.

In my own defense, I had reasonable grounds for confusion. Most of the buzz generated by the guidelines so far seems to come from their association with addressing the current phenomenon of large scale investments in land (more colloquially referred to as large scale land-grabbing). For instance, the BBC describes them flat out as “guidelines for rich countries buying land in developing nations”.

However, the FAO itself announces the guidelines in a much more nuanced manner that conforms to my own earlier understanding: although much of the “public debate has focused on the so-called ‘land-grabbing’ phenomenon,” this is only “one of the issues that are dealt with in these guidelines.” The press release notes that the new text “address a wide range of other issues” as well, many of them far more “entrenched” than land-grabbing.

In fact, the current guidelines appear to focus on the ‘supply side’ – what states experiencing outside investment can do to mitigate the conditions that leave their own populations exposed to its worst effects. Recommended measures such as recognition of customary rights, dispute resolution measures and managing urbanization are clearly directed toward the local authorities, and meant to confront destructive state practices such as the ongoing tendency to exploit post-colonial legacies in the form of ‘state land‘.

Meanwhile, behind all the noise (land grabbing sells, it seems), the FAO affirms that the separate and parallel process of developing guidelines for the ‘demand-side’ actors actually doing the investing in land remains on course:

For its part, the [FAO Committee on World Food Security] will next take a focused look at the issue of responsible agricultural investments in general. The body is currently planning a yearlong consultative process, to start in October, that could culminate in set of recommended principles for responsible investment in agriculture later in 2013.

In implementing the new guidelines, the FAO is banking on buy-in achieved in what was, by all accounts, an exemplary consultative process. It has also planned to engage in technical assistance and develop a series of technical handbooks designed to help countries adapt the guidelines to their local contexts. So more information – presumably along with a dose of confusion – to come.

The Economist on land and natural resources in Southeast Asia

by Rhodri C. Williams

The Economist has run a number of interesting pieces on housing, land and property (HLP) issues as well as natural resource disputes, in southeast Asia (readers be warned: the paywall arrangement now allows non-subscribers to view five articles for free every week, but I think the below pick just squeak in).

Beginning with Burma/Myanmar, a pair of articles from last week’s issue highlight the dark economic underbelly of the country’s current political reform process. A comment on the standoff over the opposition’s refusal to swear an oath to “safeguard” the current, military junta-installed constitution notes the risk that the political debate about the constitution may be a sideshow. Given that the reforms made so far have been enough to ease economic sanctions on Burma, and that the generals that have symbolically conceded political power continue to retain their economic interests, the Economist concludes that “all the boasts of political reform look less like a blueprint for democracy, and more like the generals’ pension plan.”

These concerns serve to reinforce earlier inferences (discussed here and here in TN) that a wave of dubious privatization that preceded the current round of political liberalization may have been intended to allow the military leaders of the country to cash in on their land and natural resource grabs. The extent of this rapaciousness is documented in a separate Economist article, which describes how the nearly feudal style of military occupation of the rebellious ethnic states in Myanmar has opened the door to both wholesale natural resource theft and drug trafficking:

On the back of its formal military role, the army has also built up a suffocating economic grip on the region. Across Myanmar, the national army has for years pursued a policy of “living off the land”. Battalions are obliged to become their own farmers and businessmen in order to feed themselves and pay their wages.

In my earlier comments on Burma (linked above), I raised the risk that liberalization could follow the same path as in Cambodia, where a neo-patrimonial regime has dangled the barest of fig leaves over its essentially predatory governance mode. The continuity of this tradition has been confirmed in this week’s Economist, which reports on the apparent killing by the Cambodian military of Chhut Vuthy, an activist against illegal logging who founded the Natural Resources Protection Group.

Remaining with Cambodia, it seems that what one does within one’s own borders is one thing, but that cross-border rapaciousness will not be tolerated. The Economist also reports this week that Cambodia has led fierce protests against a unilateral decision by Laos (cheered on by Thai construction interests) to begin construction of a massive dam on the Mekong River, despite a recommendation by a regional commission that further study on the downstream effects be undertaken.

Finally, HLP rights expert Daniel Fitzpatrick is quoted in an interesting report on East Timor. There, it seems the post-independence government succeeded to the ‘state land’ previously taken from smallholders by successive Portuguese and Indonesian occupiers, and is now facing a familiar dilemma. On one hand, justice requires some form of recognition of the claims of those previously dispossessed in the countryside. On the other hand, the lure of badly needed revenues from international concessions beckons.