Tag Archives: customary tenure

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.

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Empowering communities to document and protect their land claims: A solution to the global land grab?

by Rachael Knight

Rachael Knight is the Program Director of the Community Land Protection Program at Namati, a new global legal empowerment organization, and author of its recent report on community land titling. She previously served as Director of the International Development Law Organization’s (IDLO) Community Land Titling Initiative, working to document and protect the customary land rights of indigenous groups in Uganda, Liberia and Mozambique.

Community meeting in Uganda (photo credit Namati)

For billions of rural people, land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, and community. Yet more than ever, rural land is in demand. In recent years, governments in Africa have been granting vast land concessions to foreign investors for agro-industrial enterprises and forestry and mineral exploitation. According to recent data, transactions covering at least 57,393,083 hectares of land have been granted or are under negotiation.  Often, governments grant concessions with the goal of stimulating development and strengthening the national economy. Yet such concessions are further exacerbating trends of growing land scarcity and weakening the land tenure security of rural communities.

Even when communities welcome private investment, they may not be consulted about the terms of the investment, properly compensated for their losses, or given a say in land management after the investment is launched. Alternatively, such investments may be undertaken in ways that lead to environmental degradation, human rights violations, loss of livelihoods, and inequity. In this context, protections for rural communities and their lands are urgently needed.

In some countries, national laws allow communities to register or title their lands as a whole and then manage their land according to local needs and interests. Such community land documentation processes – which document the perimeter of the community according to customary boundaries – are a low-cost, efficient and equitable way of protecting communities’ customary land claims. Community land documentation efforts not only protect large numbers of families’ lands at once, but also the the forests, water bodies, and grazing areas that rural communities depend on to survive and are often the first to be allocated to investors, claimed by elites, and appropriated for state development projects. Importantly, formal recognition of their customary land claims gives communities critical leverage in negotiations with potential investors.

However, because these laws transfer control over valuable lands and resources away from the state and into the hands of the community members themselves, governments have so far dragged their heels in implementing them. For example, in the 14 years since the passage of Uganda’s Land Act (1998), not one Ugandan community has yet gained title to its customary lands.

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New RRI report (and upcoming guest post) on community land rights in tropical forests

by Rhodri C. Williams

The Rights and Resources Initiative (RRI) just released a new report indicating that forest peoples have “quietly gained unprecedented legal rights to the land and resources owned under customary law” over the last twenty years. However, the authors also express concerns about legal obstacles to the exercise of such rights and the risk of their rollback by elite groups seeking to facilitate international land and natural resource deals. According to RRI’s press release:

“Forest peoples are caught between the forces of a drive for environmental sustainability and the intense pressure of economic development”, said Jeffrey Hatcher, Director of Global Programs for RRI, and one of the authors of the new report. “Despite tremendous progress in establishing legal tenure regimes, a lack of political will and bureaucratic obstacles make it a struggle to implement any real action in most forest-rich developing nations. ….”

The report is described as providing “the most comprehensive global legal analysis to date of the status of forest tenure rights held by Indigenous Peoples and other local communities in more than two-dozen developing countries”, which together account for “approximately 75 percent of the forests of the developing world, home to some 2.2 billion people.” It was released together with a separate study on the positive development effects of recognizing customary forest tenure. Both reports taken together constitute the results of an analysis undertaken by RRI on the twentieth anniversary of the 1992 Earth Summit in Rio de Janeiro, in order to inform the upcoming Rio+20 Conference on June 20-22.

I am very pleased to announce that Fernanda Almeida, the lead author of the report, will be guest-writing on TN next week in order to provide further analysis of the results of RRI’s research and insights on how these findings may be of practical assistance in efforts to secure the tenure rights of forest peoples.

Fernanda’s guest-posting can now be read at the following link:

– What Rights? Comparing developing countries’ national legislation on community forest tenure rights (11 June 2012)

 

 

FAO Voluntary Guidelines on land, fisheries and forestry governance near approval

by Rhodri C. Williams

The Food and Agricultural Organization (FAO) has announced the recent conclusion of a lengthy negotiation process to shape a set of Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. The resulting final draft will soon be published and is meant to be adopted at a special session of the body’s Committee on World Food Security (CFS) in mid-May. Afterwards, it is expected that the document will provide authoritative guidance to governments in drafting laws and policies in this area, with its legitimacy derived from the inclusiveness and extensiveness of the three year drafting process.

The scope of the voluntary guidelines is broad, and includes “promoting equal rights for women in securing title to land, creating transparent record-keeping systems that are accessible to the rural poor, and how to recognize and protect informal, traditional rights to land, forests and fisheries.” While numerous recent cases of abuse of state prerogatives over customarily held land demonstrate the needs for such guidelines, the experience of actors such as the International Development Law Organization (IDLO) counsels a degree of caution. As noted by the IDLO’s Erica Harper in these pages, prescriptive approaches to customary systems have tended to be counterproductive in the absence of an intimate understanding of local context:

…what works in a given country context is situation-specific and contingent upon a variety of factors, including inter alia, social norms, the presence and strength of a rule of law culture, socio-economic realities, and national and regional geopolitics. In order to make strategic decisions on what is likely to yield sustainable and positive impact, development practitioners need to possess in-depth knowledge of the target country, its people and its customary legal systems, as well as the theories and practicalities pertaining to legal development and customary justice programming.

At the same time, the scope of the new guidelines is limited in certain interesting respects. For instance, the FAO PR notes that they “come within the context of intensifying competition for land and other natural resources resulting from a variety of factors, including population growth, urbanization and large-scale purchases of farmland in the developing world by both overseas interests and domestic investors.” However, unlike the FAO, IFAD, UNCTAD and World Bank Principles for Agricultural Investment, the new guidelines provide only indirect guidance on addressing the ‘global land-rush‘.

In fact, the FAO has a separate drafting process underway to address large-scale land investment. As reported in TN last January, the FAO commissioned a project team to examine the issue of land tenure in the context of international investments in agriculture, developing recommendations for the High Level Panel of Experts on Food Security and Nutrition (HLPE) of the CFS. The issue had been discussed at a policy roundtable at the CFS’ 2010 session (contrast the erudite overview provided by ILC with the Quatar National Food Security Program’s impenetrable defense of responsible investment). With the issuance of a July 2011 report and further side-event discussion at the October 2011 CFS session, the process seems to be underway.

However, the foreword to the July 2011 report clarifies that the issue is to be handled in a separate standard-setting process, resulting in “the elaboration of principles for responsible investments in agriculture with due consideration to the framework of the Voluntary guidelines on the tenure of land, fisheries and forests.” Muddying the waters slightly, the FAO also cooperated with Transparency International to develop a December 2011 working paper on how corruption in the context of weak governance undermines both land access and development. As reported here in TN, pervasive corruption in transnational land investment may be the crucial damning factor that has swung development opinion against the practice in recent months. In its press release, however, FAO referenced the forthcoming voluntary guidelines as its response to bad governance practices without mentioning the expert group on international investments.

More broadly, the new FAO guidelines will provide new material for the ongoing debate over corporate social responsibility approaches to land and natural resource exploitation, as well as non-state actor abuses more broadly. Two years ago, Chris Huggins posed the basic question of whether the lengthy and uncertain route of punitive enforcement measures should be chosen over the more forthcoming but less tested route of voluntary compliance. This question arguably remains as debated today as it was then. However, it is worth noting that Peter Spiro recently waxed optimistic in Opinio Juris, raising the possibility that Apple’s recent accession to the Fair Labor Association standards and auditing process could be “the biggest thing ever to happen in the world of private, rights-related codes of conduct” and “a major test case for the efficacy and legitimacy of non-governmental rights regimes.” So, onward FAO, and let a thousand voluntary standards bloom!

New report on the ‘global land grab’ – and guest-posting by David Deng

by Rhodri C. Williams

In a post late last month, I delved into the problem of ‘public/state land’ and the opportunity that this overwhelmingly post-colonial tenure form presents for state predation in a context of spiraling commodity prices. In taking on such a broad and complicated topic, I am afraid I may have oversimplified things. Toward the end of the piece, I noted Shaun Williams’ suggestion (in an earlier TN post) that focusing on effective management of urban public land was likely to be both more feasible and more rewarding than dealing with customary tenure issues for low capacity governments interested in reforming their land systems. Shaun’s insight on the relative tractability of public land issues was reinforced by Erica Harper’s previous description of the difficulties inherent in implementing – or even generalizing about – reform of customary law systems.

All that said, having pushed the ‘publish’ button, I reflected on the fact that this dichotomy between state and customary tenure regimes might be a bit too pat, at least as a global generalization. After all, Shaun’s comments were focused on urban land and the particular context of the Solomon Islands. Was it not actually the case that in rural contexts, in particular, the problem was precisely that the two categories overlapped, with both the state and customary communities essentially ignoring each other’s mutually exclusive claims to the same land until they came into direct conflict? By and large, this seems to be the issue, with the maintenance of public land regimes allowing inchoate colonial era mass-expropriations to be projected into the twenty-first century with a veneer of legality.

This sense of things got a significant boost with the launch last week of a new report – Turning Point: What future for forest peoples and resources in the emerging world order? – by the Rights and Resources Initiative (RRI). As indicated in the launch webpage, RRI has traditionally been concerned primarily with forest tenure. However, this report, as well as an accompanying set of issue briefs by Liz Alden Wily, reflect the fact that forest land now faces many of the same pressures as other rural land, and that the tenure rights of forest dwellers are no more secure than those of smallholders anywhere. The basic issues at stake are set out starkly in the RRI’s press release on the report:

In presenting the results of an analysis of tenure rights in 35 African countries, by international land rights specialist Liz Alden Wily, [RRI Global Programs Head Jeffrey] Hatcher noted that despite the clear potential for bloodshed, “local land rights are being repeatedly and tragically ignored during an astonishing buying spree across Africa.” Alden Wily’s review found that the majority of 1.4 billion hectares of rural land, including forests, rangelands or marshlands, are claimed by states, but held in common by communities, affecting “a minimum” of 428 million of the rural poor in sub-Saharan Africa. “Every corner of every state has a customary owner,” Alden Wily concluded.

The launch of the RRI report was accompanied by a panel discussion describing the effect of large-scale land investments and concessions in a number of settings. One of these was South Sudan, and it is a pleasure to announce that the corresponding observations, by David Deng, will be reproduced in the form of a guest posting on TN tomorrow.

Those familiar with the increasingly urgent debates surrounding the ‘global land rush’ will be aware that Mr. Deng authored a report published last March by Norwegian People’s Aid (NPA) indicating that as much as nine percent of South Sudan’s territory – an area larger than Rwanda – may have been ‘spoken for’ before the country came into formal existence. Mr. Deng was also one of the contributors to a massive study on transnational land deals and human rights undertaken by the NYU Center for Human Rights and Global Justice (CHRGJ) in support of the UN Special Rapporteur on the Right to Food. He is now Research Director for the South Sudan Law Society.