Tag Archives: titling

A little more on the rule of law and development debate

by Rhodri C. Williams

A few weeks back, I wrote about some good news, namely the evidence that rule of law efforts – instilling accountability and legal certainty through support to formal adjudicatory institutions – is central to equitable development. As well as some bad news, that being that said evidence was difficult to measure and therefore of lesser interest to those development donors fixated on checking the log-frame boxes.

Since then, a few more iterations of this debate have crossed my desk, both of which underscored the significance of rule of law to development – and particularly the post-2015 Sustainable Development Goals (SDGs) – and sought to push back on the measurability issue. First was Mo Ibrahim on Project Syndicate with an appeal to African leaders to push for the explicit inclusion of rule of law in the SDG process. Citing concrete cases of local civil society and expert efforts to resolve disputes, title land and prevent corruption, Mr. Ibrahim concludes that:

This is the rule of law in action at the local level, and it is building, often from scratch, a culture in which disputes are settled peacefully and benefits distributed transparently. The alternative – recourse to violence in the face of unequal access to resources – has led to a cycle of political instability in many countries, with the consequent lack of economic development that has come to characterize much of Africa’s recent history.

As the debate on the post-2015 Sustainable Development Goals unfolds at the United Nations this year, it is my fervent hope that African governments will endorse the inclusion within these goals of measurable targets for access to justice. To be sure, the dominant themes that are emerging in the UN discussions – jobs, economic growth, infrastructure development, and poverty reduction – are all still desperately needed across the continent. But the rule of law is a fundamental principle that does more than promote economic growth, and it would be a serious mistake not to include it in the SDG agenda.

In a very similar vein, Namati has circulated an open letter to the UN General Assembly promoting attention to rule of law and access to justice in the SDGs. Like Mr. Ibrahim, Namati notes that rule of law efforts are crucial to securing a broad variety of rights. These range from more civil and political rights concerns like freedom from structural violence (the focus of the Gary Haugen Op-Ed I blogged on earlier) to more traditionally economic and social concern such as access to and secure tenure in land. To quote Namati:

Approximately three billion people around the world live without secure rights to what are often their greatest assets: their lands, forests, and pastures.  Increasing demand for land is leading to exploitation and conflict.  Giving communities the power to manage their land and natural resources would reduce poverty and promote sustainable development.  Securing property rights for all individuals, including women, is necessary to improve financial stability and personal safety.

Interestingly, Namati not only note that inclusion of rule of law in the SDGs would be perfectly consistent with many previous UN statements and resolutions, but also rebut the measurability issue head on as one of their central advocacy points:

Where legal empowerment efforts take hold, the results are visible and quantifiable.  Women in Bangladesh who challenge the practice of illegal dowries are reporting greater cash savings.  Due to the work of community-based paralegals, grievances in Liberia are being resolved more equitably, resulting in greater food security. Prisoners in Kenya have returned to jobs and families after successfully appealing their sentences.

The emphasis on “visible” as well as “quantifiable” strikes me as astute. One of the unsatisfying aspects of sheer quantification is that it can be blind to context. Measuring the number of judicial decision referring to international human rights standards is fine, for instance, but do the rulings properly apply the standards or misinterpret them to abusive ends? And who is to be the judge of that, and on what criteria? And in either case how many such decisions actually survive appeal?

Sustained engagement with a particular development setting is not a guarantee of good analysis, but provides an opportunity for sensitivity to context and local dynamics that would not otherwise arise. The results can provide visible evidence for those minded to see it, but whether this will always be quantifiable is another question.

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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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Kyrgyzstan property issues update, part 2 – Unen-durable Solutions

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing last year on the aftermath of the 2010 ethnic riots, Kaigyluu yesterday updated TN readers on the local and regional politics of rebuilding Osh, and today addresses the policy choices of international actors involved in humanitarian response and reconstruction.

While housing, land and property (HLP) rights were put on the agenda in the immediate aftermath of the June 2010 inter-ethnic violence in South Kyrgyzstan, the HLP process was complicated (a) by a lack of clear rationale or objective and (b) strategic choices made at the outset.

With respect to the first point, based upon an initial assessment by the Global Protection Cluster (GPC) conducted in the wake of the June events, UNHCR focused first on the construction of shelter and then on legal assistance to restore HLP documents lost or destroyed. The assumption upon which provision of such legal aid was based proved faulty, in that it was soon discovered that over 80% of affected households had never had proper documentation. And so the HLP project concentrated on obtaining documentation for those whose homes were destroyed, as well as registering the newly constructed replacement shelters.

Nevertheless, the justification for securing documentation only for those whose homes were destroyed, whereas the majority of the affected population – and, indeed, the population at large – also lacked such documentation, was undermined. The project might have been realigned – and was, ad hoc, to provide documents to those whose homes were threatened with expropriation – but the follow-up scoping mission recommended by the GPC to conduct a full situational assessment was never carried out.

This leads into point (b) on strategic choices, namely that the international community chose to channel their support through the State Directorate for Reconstruction and Development for Osh and Jalal-Abad Cities (‘SDRD’ – previously, the State Directorate for Rehabilitation and Reconstruction or ‘SDRR’) set up by the central government, and headed by current Prime Minister Jantoro Satybaldiev. The international community decided to bypass the Osh mayor, Melis Myrzakmatov – understandable, given his nationalist (and often erratic) rhetoric.

Myrzakmatov was opposed to anything directed by Bishkek: an opposition entrenched when he successfully resisted the attempt of the interim government to remove him. Unfortunately, in the case of reconstructed (and, indeed, all) housing, the issuance of building permits was controlled at the municipal level. Therefore, in Osh, construction permission was never granted. And so, the majority of the shelters constructed there remain unregistered; whereas, in Jalal-Abad, where the mayor was successfully replaced (twice) by Bishkek, authorities were more cooperative, building permission was issued, and registration proved relatively simple.

More broadly, apart from reliance on the SDRD, there a choice by the international community – perhaps by default – to opt for a ‘rule of law’ approach, as opposed to one driven by the need for a recognition of rights. That is, the reconstruction and HLP process was channelled through the existing domestic land and housing regime. As such, it became vulnerable to the inefficiencies or gaps in the system, as well as any political or personal manipulation of it.

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Kyrgyzstan property issues update, part 1 – Who’s afraid of the big bad master plan? Rebuilding Osh’s mahallahs in brick

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing on the politics of property in southern Kyrgyzstan after the 2010 ethnic riots, he, she or it now follows up with an update in two parts. Part one focuses on the local and regional politics of rebuilding Osh, while part two, tomorrow, addresses the policy choices of international actors involved in humanitarian response and reconstruction.

International attention on Kyrgyzstan, limited as it was during the Tulip Revolution (Redux) of April 2010 and inter-ethnic riots that followed two months later in the south of the country’s geologically and politically unstable Ferghana Valley, has long since waned and turned elsewhere. Indeed, with the Western military drawdown in Afghanistan, the importance of Central Asia – exemplified by the bidding-war between the US and Russia over the Manas airbase outside of Bishkek – has diminished correspondingly, while the problems in the region continue to fester and grow.

At least in terms of rebuilding and reconciliation (including international reconstruction assistance) in the aftermath of the June 2010 clashes between ethnic Kyrgyz and Uzbeks in the ‘southern capital’ of Osh, as well as the nearby city of Jalal-Abad, progress would seem to be consolidating. The latest government shuffle, following the collapse of the yet another parliamentary coalition, saw the appointment of Jantoro Satybaldiev as Prime Minister. Satybaldiev, a former Head of the Osh Administration, led the central government’s reconstruction effort following the June 2010 clashes. He was a key partner of UNHCR, the Asian Development Bank (ADB), and other international actors in this, and seen as a counterweight to perceived hard-line nationalists in the south, such as Osh’s current mayor, Melis Myrzakmatov.

Not only can Satybaldiev’s ‘promotion’ be construed as a reward for his work in the South, it is also hoped that his elevation will give him the authority to overcome the last hurdles to secure the housing, land, and property (HLP) rights of those displaced by the June 2010 events.

A ‘friend’ of the post-2010 reconstruction effort is sorely needed in high office. This past summer, the City of Osh began long-threatened expropriation of land and the demolition of at least two dozen houses, as well as several business premises, in order to widen roads: this, despite ‘iron-clad’ assurances to donors that reconstructed houses would be not be touched. It is feared that this is but the precursor for implementation of a new urban plan: one that is rumoured to include the replacement of the traditional Uzbek enclaves with ‘modern’ apartment blocks and, amongst the conspiracy-minded, one that is said to mirror – or even predate and predict – the patterns of supposedly spontaneous destruction that occurred from 11 to 14 June 2010.

The international community funded the reconstruction of almost 2,000 homes damaged or destroyed during clashes. UNHCR and ICRC led the emergency response, providing two-room (28 m2) shelters for affected households before the onset of winter in 2010. The ADB provided an additional $24 million to expand (up to 100 m2) and complete 1,500 of those shelters in a second phase of reconstruction in 2011-12.

However, optimism over Mr. Satybaldiev’s elevation may be misplaced. It is debatable whether the new Prime Minister will wish to expend precious political capital to protect those affected persons, the overwhelmingly majority of whom are from the minority (but substantial) Uzbek community. He seems still to accept, if not actively encourage, the inevitable replacement of the mahallahs – the traditional neighbourhoods composed of walled family compounds favoured by the Uzbeks in the centre of Osh – with high-rise apartment blocks. Off the record, even Mr Satybaldiev’s patron, President Almazbek Atambayev is said to have expressed puzzlement and mild exasperation at the international community’s obsession with preserving and reconstructing the mahallahs, in the face of the inexorable march of modernisation and progress.

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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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The World Bank struggles with its resettlement policy in Cambodia

by Natalie Bugalski

NB: For background on this piece, please see a previous post on this site here.

In October the World Bank Inspection Panel will submit its report to the Bank’s Board of Directors on the Cambodia Land Management and Administration Project (LMAP). The Panel is investigating whether the design and implementation of LMAP constituted non-compliance with World Bank operational policies on involuntary resettlement and project supervision, and whether harm was suffered as a result of non-compliance.

The Request for Inspection submitted to the Panel in September last year claims that households living around a large lake in central Phnom Penh, known as Boeung Kak, were denied their right to proper adjudication of their land tenure status when the entire area was demarcated as being of “unknown” ownership, a de facto classification used when an area is claimed by the State. At around the same time that the flawed adjudication process was being completed in early 2007, the Cambodian Government leased the area to a private company with links to top echelons of power. The company has since filled in most of the lake and about a third of the residents living on and around the lake have been evicted, without ever having their rights to the land assessed. The approximately 12,000 remaining residents live under threat of eviction and report regular acts of intimidation and threats by local authorities in cahoots with the company.

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Supreme Court of Brazil to rule over Quilombo communities’ rights to land – arguments for a protective approach

by Leticia Marques Osorio and César Augusto Baldi

The Supreme Court of Brazil will start soon the judgement of the constitutionality of Presidential Decree 4887 of 2003 which regulates the procedure for granting property titles to Quilombo communities over the lands they occupy. The Decree establishes the modus operandi of the procedure for granting the Quilombo communities the right to property enshrined in article 68 of the Temporary Constitutional Provisions Act of the Brazilian Federal Constitution of 1988, which must be implemented by the National Institute of Colonisation and Agrarian Reform. If the Supreme Court quashes the Decree, this will paralyze a national land titling programme being implemented to benefit more than 1,400 Quilombo communities throughout Brazil (by the count of the Palmares Cultural Foundation.

Even worse, if the Decree is considered unconstitutional, the previous one – Decree 3912 of 1991 – will prevail and thus reinstate unattainable requirements for granting land titles to the Quilombo communities. For instance, these communities were required to prove that they were actual descendants of the original Quilombo fortresses right back to 1888, when slavery was legally abolished in Brazil. The Decree issued in 2003, by contrast, was elaborated by a multidisciplinary expert group in consultation with a range of civil and Quilombola organisations, and it complies with the Federal Constitution and the relevant international human rights treaties to which Brazil is a State Party, such as the American Convention on Human Rights, Convention 169 of the International Labour Organisation (ILO) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

In 2004 the Democrat Party (former Liberal Party) argued the unconstitutionality of the Decree before the Supreme Court (ADI n. 3239), with the support of the National Confederation of the Industry, the National Confederation of Livestock Producers and the Brazilian Rural Society. The arguments used to challenge the constitutionality and the applicability of the Decree threaten to undermine the rights to property and to access to natural resources of the Quilombo communities, which are recognised by international human rights law and by the Constitution. Article 216 of the Constitution recognises these communities as part of the national cultural heritage as their identity, action and memory form the Brazilian society. As such, they are entitled to be granted special protection by the State as necessary to guarantee respect for their distinct cultural identity, social structure, economic system, customs, beliefs and traditions and the preservation of their traditional way of life.

Although legally recognised, the property rights of Quilombo communities have been adjudicated at a slow pace, leaving them extremely vulnerable to forced evictions and threats by land owners, mining companies and development projects seeking to take possession of their lands and natural resources. Until December 2009, only 177 communities had been assigned ownership titles, comprising only 13% of the estimated 1,408 communities that traditionally occupy 87 territories with a total area of 1,171.579 hectares (according to the Comissão Pró-Indio São Paulo ). Out of this total only eight property titles have been issued by the current Government. The level of protection assigned to these communities will determine the extent of the preservation of their cultural legacy and its transmission to future generations.

The main arguments used by the detractors of Decree 4887 in the Direct Action of Unconstitutionality before the Court refer to (i) the inappropriateness of Decree 4887 to ‘regulate’ the Constitution; (ii) the concept of Quilombo communities; and (iii) the concept of occupied lands.

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