Tag Archives: Vietnam

Someday, none of this will be yours: the predatory state eyes ‘public’ land

by Rhodri C. Williams

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a  particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent TN guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, the Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

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Surveyors of the world unite – around a rights-based approach

by Rhodri C. Williams

Many thanks to Erik Petersson at Swede Survey for pointing out some new publications by the International Federation of Surveyors (FIG) that can be downloaded on their reports page. The page itself makes for an interesting browse.

Some of the listed texts are somewhat introspective documents that one imagines would fire the imagination of only a few select initiates outside the circle of licensed surveyors (“Hydrography in Ports and Harbours” anyone?). However, FIG began engaging with sustainable development issues as early as 1991 and has gone on to cover topics as various and broadly relevant as women’s access to land (2001), disaster risk ‘management’ (2006), informal settlement upgrading (2008), and land governance in support of the MDGs (2009).

This year has already seen a raft of new reports including ones on mega-cities, the history of surveying (sounds tame until one considers the motivations people might have to go off and measure other people’s land), the ‘Social Tenure Domain Model’ (a pro-poor land tool), and, perhaps most notably, the ‘Hanoi Declaration’ on land acquisition in developing countries.

The Hanoi Declaration is a very interesting document that sprang from the seventh FIG regional conference last October in the Vietnamese capital. At this meeting, it was noted that states in the region “require urgent action especially in terms of reinforcing methods for land acquisition in fast growing urban areas in developing economies.” As previously indicated in this blog, Cambodia represents one such case, with urban forced evictions now so endemic and politicized that when the World Bank pushed to extend its Land Management and Administration Project (LMAP) to urban areas, the Cambodian government withdrew its support. As the Bank rather diplomatically put it in a September 2009 press release:

[A previously undertaken] review found that LMAP’s successes in land titling in rural areas have not been matched in urban areas where land disputes are on the rise. This was due in part to delays or lack of implementation of some project activities. While originally designed as a multi-pronged approach to addressing a range of land issues, LMAP focused on areas where it could be most successful: titling rural land and building the capacity of the land administration to register and title land and implement policy.

We have shared the findings of the review with the Government but could not come to agreement on whether LMAP’s social and environmental safeguards should apply in some of the disputed urban areas. For the World Bank, the implementation of these safeguard policies is critical. However, we are encouraged by the Government’s statement of its commitment to continuing reforms in the land sector and working towards an improved policy and legal framework for resettlement that reflects their commitment to international treaties.

The result was the termination of an otherwise well-seen and well-established program that had provided title to over a million rural properties. I am hoping to encourage colleagues who have worked recently in Cambodia to guest blog on this incident and the ensuing World Bank Inspection Panel proceedings related to the LMAP in the coming weeks. However, one of the lessons that appears most obvious is the need to promote urban land acquisition policies and practices that are not only in need with the Bank’s own resettlement guidelines but also applicable human rights standards. As indicated in a recent report by COHRE and a number of partner organizations, both Cambodian practice and the World Bank response had fallen short in a number of regards.

It is therefore reassuring to see that the FIG’s Hanoi Declaration breaks with the tendency in South-East Asia (and beyond) to perpetuate a questionable dichotomy between pro-poor development standards and human rights. Both the text and the report are in refreshingly straightforward contrast to the World Bank statement cited above, which makes labored indirect reference to human rights standards (surely the reference to “commitment to international treaties” are not meant to invoke widget standardization or postal union), but cannot bring itself to utter the words. By contrast, the FIG gives human rights their due:

The publication should be seen as an a tool to support politicians, executive managers, decision makers and professional organisations in their efforts to deal with land acquisition in a fair way, based on legal standards, full compensation, and acknowledgement of human rights. Land acquisition should secure that adequate development opportunities are available while land rights and social sustainability are fully protected throughout the process.

The Declaration itself is sufficiently concise to be reprinted in full and not only incorporates many safeguards supported in both human rights and development standards (e.g. related to process and compensation) but also directly invokes human rights and highlights the problem of informality and the needs of vulnerable groups. Specifically the FIG asks that states:

– Provide consistent, transparent and efficient legislation and procedures for acquisition through both voluntary and compulsory means and at low transaction costs.
– Provide clear and transparent rules for inclusion of the parties involved and for determination of adequate compensation which ensures that those displaced are able to re-establish their lives and livelihoods in a proper manner.
– Ensure that good governance principles are applied for conducting the processes of land acquisition whether they are based on compulsory means or voluntary agreements. Processes must be efficient, fair and legitimate.
– Ensure that all rights are addressed including informal rights and human rights especially the rights of the poor and vulnerable.

The report on the Declaration goes on to separately discuss human rights standards in the area of compulsory land acquisition, noting that they are “still under construction” but setting out some key principles (pages 8-9). This section is a bit thin and some of the principles disputable. For instance, while the report asserts that human rights standards tend to require compensation at ‘full replacement cost’, this would not always be borne out, for instance in the jurisprudence of the European Court of Human Rights which tends to only require a reasonable relationship between compensation levels and market value. The section does not refer to specific rules or standards and although the Kothari principles on development-based evictions are referenced later in the text, one is left with the impression that reference to human rights in the report – while significant in principle – remained something of an afterthought in practice.

This said, I should not cavil. The Hanoi Declaration itself adds to the growing list of sensible, pro-poor and, crucially, rights-based standards meant to protect those with high dependence on and low recognized tenure to their homes. The surveyors of FIG have broken new ground (and arguably both some regional and professional taboos) by introducing human rights in a development meeting in South-East Asia. If meaningful change is to be achieved, it is now incumbent on human rights advocates to meet their efforts halfway.