Land rights and peacebuilding: challenges and responses for the international community.

Author:Unruh, Jon
 
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Introduction

Secure rights to land is important to the development of economic activities, capital accumulation, food security, and a wide variety of other socioeconomic benefits. It is generally thought that secure land rights lead to increased investments in land and as a result, greater agricultural production and subsequent wealth generation and development. However, most civil institutions cannot endure the stresses of large-scale unresolved land conflicts in society. Countries affected by or threatened by such problems usually lack the political and institutional capacity to resolve such a magnitude of land rights problems. This is especially the case where rural land rights issues are a fundamental unresolved problem in society. If not dealt with, such problems can lead to an accumulation of aggressively confrontational ways of dealing with land rights problems which then emerge from an increasingly divided society. The result is a buildup of competition, inequity, confrontation, grievance, resentment and animosity; with no legitimate, fair way to manage all of these through a country's legal system. While there are a variety of factors that can be a part of a land rights contribution to periods of crisis (such as resource scarcity, poor land access, governance and political problems, identity, geography, history, ethnicity, grievance, religion), many countries are able to establish legitimate and fair institutions (1) to manage these; while those countries that are affected by very large numbers of unresolved conflicts are not able to do this. For such conflict-affected countries the problem is more complicated and difficult because alternative informal institutions and approaches (such as warlord or mafia forms of land tenure, or extremist religious approaches to land rights) can emerge from the absence of effective, legal institutions. These alternatives are able to operate within the fluidity, confrontation, and grievances of land conflict-ridden situations. Such crisis-based alternative informal institutions, which often belong to specific segments within a population, usually do not function in a fair manner in the context of broader society, and so ideally should be replaced or reworked. But because such crisis situations (2) are very different than land tenure situations in stable, well functioning peaceful settings, land tenure solutions in such situations are also different. What may work well in stable, peaceful settings have proven extremely difficult to implement and operate in societies affected by or threatened by pervasive unresolved land conflicts. In such difficult contexts, different interventions are needed in order to be able to: 1) work within a conflict-prone setting; 2) meet short-term land rights security needs; 3) use land rights as a tool in recovery or improvement (3); and 4) transition to more stable and conventional land rights arrangements. This article considers the role of large-scale conflictive land rights situations and how these are both problems and opportunities for conflict affected countries. The paper focuses on the most commonly encountered problems associated with societies prone to conflict over land. The article provides an indication of what interventions are most appropriate for certain types of problems, and provides examples of these.

Framework of Challenges and Approaches to Land Rights in Conflict Settings

This section provides an overview of the primary challenges and associated approaches to land tenure in conflict scenarios, which are then elaborated in more detail in the subsequent sections of the paper. The overview takes the form of a general outline framework so as to be able to consider the challenges together with the approaches to resolving them. For each of the primary challenges, the crucial elements are briefly listed, followed by a similar listing of relevant approaches.

Formal statutory rights

Challenges

* Poor statutory arrangements can contribute to the cause of conflict;

* Can be crippled, dysfunctional, corrupt, low capacity, of questionable legitimacy;

* Land disputes not resolved;

* Out of date laws;

* Grievances, discrimination.

Approaches

* National land policy reform;

* Legal actions (decrees, rulings) targeting specific problems;

* Institutional reform.

Customary rights Challenges

* Can exist in a state of considerable tension with statutory and other customary forms of tenure;

* Lack of institutional approaches to resolving tenure problems leads to a search for alternatives, including violence, and insurgent, warlord, and radicalized politics;

* Undergoes profound change due to armed conflict: disarray, inability to provide services, segmentation and internal distrust.

Approaches

* The need to avoid re-imposing pre-war problematic statutory land laws where customary tenure is re-emerging and working effectively;

* The need to avoid downgrading customary law so as to promote statutory approaches in their stead;

* Avoidance of overt support for warlord forms of tenure and their authorities;

* Avoidance of spatially explicit forms of support--favouring one or a few villages or communities in disputing.

Legal Pluralism Challenges

* The breakdown of institutions, and formation of multiple alternative ways to do land tenure;

* Forms of legal pluralism that are opposed, incompatible, confrontational, competing, or add confusion, can detract from peacebuilding;

* How are forms of legal pluralism which emerge and change quickly

during and after war to be connected with the slower moving statutory tenure reform;

* The large roles of grievance and legitimacy in the emergence of legal pluralism.

Approaches

* The opportunities in 'forum shopping';

* Utilizing natural change in legal pluralism--from forum shopping to forms of appeal.

Land Disputes

Challenges

* The evidence problem;

* Statutory vs. customary disputes;

* Private property disputes;

* Disputes involving public lands;

* Historical injustice.

Approaches

* Relaxing formal evidence rules for claims and disputes;

* Incorporate customary forms of evidence into statutory approaches;

* Deriving workable forms of evidence for claims and disputes;

* Avoidance of third party intervention in land disputes--taking sides;

* Addressing capacity imbalance;

* The role of mediation. Peace Agreements

Challenges

* The importance of third party mediators being well versed in the country-specific land issues;

* Reintegration of lands into a national tenure system;

* 'Parking' certain land issues until after a peace agreement;

Approaches

* The role of valuable lands in peace negotiations;

* Including mechanisms and timeframes for reintegration of areas held by insurgent forces;

* Parking issues in land commissions: third party support, 'unpacking' land issues into those to be dealt with in an accord and those to be parked until later.

Primary Land Rights Challenges in a Conflict Context

This section describes the most prevalent challenges facing war-torn countries attempting to reconstitute land and property rights systems. Prior to the examination of these however it is worthwhile to list some of the factors which are influential in determining the nature of these challenges. While a discussion of the factors which determine the nature of tenure systems in war-related settings is beyond the scope of this paper, having been previously extensively covered (Leckie, 2008; Unruh, 2002; Unruh, 2006; Unruh, 2008), the listing here is intended to provide an indication of the type of factors important in determining the post-war land tenure situation generally. In brief these determinants include: the large-scale dislocation and then return of refugees and internally dislocated persons; the destruction of properties and the boundaries, documents and other features important to claim recognition; the partial or complete collapse of both customary and formal tenure systems and the services they provide due to the inability of most civil institutions to endure the stresses of armed conflict; identity- related attachments to specific land areas which may be connected to the current conflict or not, with the fluidity of armed conflict often offering 'open moments' or opportunities for groups who desire to redress historical injustices involving land; large changes in the existence, value and workability of forms of evidence and proof for claims; and disappointment or distrust in the way a post-war state handles land issues. Finally, the spatial aspect of both armed conflict and land tenure and the reality that both are about spatial-social relations, often results in profound change in forms of tenure and its constituent parts: claim, allocation, inheritance, transfer, demarcation, restitution, and adjudication.

Formal (statutory) Land Rights in Conflict Contexts

The variety of poorly functioning state (otherwise known as 'formal') land tenure institutions and processes that cause land conflicts is significant. These range from legalized forms of eviction, discriminatory policies, land confiscations, land speculation, crowding, acute tenure insecurity, and corruption in court procedures and court access. Often the accumulation of land-related grievances, the lack of legitimate and workable alternatives, and the presence of weapons combine to provide for violence as an alternative way to resolve land disputes. Such a situation can also lead to a land tenure contribution to armed conflict. The reduction of state power, legitimacy and institutional ability can lead to a search for order. Such was the case with the eventual emergence of Shari'a courts in Somalia, and, arguably, the emergence of the Taliban in Afghanistan. Both were able to field their own mechanisms of enforcement for a variety of institutions, including land tenure (Unruh, 2002).

Such dysfunctional statutory land tenure systems in developing countries can be rife with micro-level generic disputes that do not get resolved, and are...

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