Tag Archives: IDLO

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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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!

Understanding the outcomes of customary justice: implications for land practitioners

by Erica Harper

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”. Continue reading

Guest-posting by Erica Harper on new IDLO customary justice books

I am very pleased to announce that Erica Harper, Senior Rule of Law Advisor at the International Development Law Organization (IDLO), will shortly be guest-posting at TN. The topic will be a set of three books recently released by the IDLO on customary justice (all of which are available for free download as .pdfs at the above link). In her posting, Ms. Harper will address both the general issues explored by the volumes and their specific implications for land practitioners.  A little further ahead, we are looking forward to guest-postings by Rachael Knight, a contributor to the customary justice books and manager of an IDLO project on Community Land Titling that just released reports related to Liberia, Mozambique and Uganda.

Work with customary norms and community-level institutions reflect both the potential and the complications inherent in housing, land and property (HLP) work in a world where development expertise has destabilized some of the late 1990s certainties reflected in documents such as the Pinheiro Principles – but without necessarily replacing them with new ones. They are also burningly relevant as the agrarian communities most dependent on land find themselves increasingly threatened by large-scale investment and natural resource concession trends.