26-06-2013

Land Tenure Conflict Management– Opportunities and Risks of the FAO Voluntary Guidelines

Das Interesse an der Ressource Land ist in den letzten Jahren erheblich gestiegen. Konflikte um Land nehmen durch Agrarinvestitionen und gesteigerte Nutzungskonkurrenzen immer mehr zu. Sicherer und gerechter Zugang zu Land ist für viele Menschen damit zu einer Überlebensfrage geworden. Den Zugang sicherstellen sollen die „Freiwilligen Leitlinien zur verantwortungsvollen Verwaltung von Land, Fischgründen und Wäldern“ (Voluntary Guidelines on Governance and Tenure/VGGT). Bei einem FriEnt-Workshop auf der zehnten internationalen Konferenz „Politik gegen Hunger“ des BMELV berichtete Maria Guglielma da Passano, wie die Leitlinien bei der Prävention und Bearbeitung von Landkonflikten helfen können. In diesem Impuls-Artikel wirft sie außerdem einen Blick auf Chancen und Risiken bei der nationalen Umsetzung der Leitlinien.

A conceptual framework to discuss tenure conflict

Natural resources such as land, fisheries and forestry are, in many contexts, people’s main source of livelihoods. People’s relations to these assets cast a net of overlapping and coexisting rights and claims, which will evolve and change over time. The rules that determine who has the right to use, control and manage natural resources are the result of a social agreement subscribed by all members of a given society from the local to the national level. Claims, tenure governance systems and disputes resolution mechanisms will exist any time where there is a community and natural resources to be shared, independently of the fact that they are recognized by the legal system and recorded or not.

Due to the dynamic nature of the relationship between the people and land, forestry and fisheries, disputes among individuals or groups over tenure are endemic to society. Disputes generated by shifts in the use, management and control of a specific resource are defined as tenure disputes.

To manage tenure disputes each society will create mechanisms that respond to its needs, beliefs and costumes. These disputes resolution systems may be: formal, if they are managed and implemented by the State and part of the legal system; customary, if they are managed and implemented by traditional authorities; and informal if they are an adaptation and mixture of existing formal and customary rules created by a diverse and newly formed society as for example in urban and periurban informal settlements in times of peace, or refugee camps in times of crisis.

When dispute resolution systems break down or are hindered, delegitimized, corrupted or blocked, they are no longer able to peacefully manage disputes that will erupt in a given society over land, forestry and fisheries. These disputes can easily escalate into violent conflicts due to their linkages to livelihoods strategies. Even if violent escalation does not take place on short-term, remaining tensions about unresolved disputes may form long-term underlying conflict dimensions and always bear the risk of escalation into violence at a later stage.

In times of peace the mere existence of plural systems for tenure disputes resolution (formal, informal and customary) running in parallel without coordination can undermine their efficiency and eventually lead to their collapse. Factors such as the lack of a shared understanding of tenure rights and responsibilities, or the endless opportunities to move the dispute from one system to the other in order to achieve a more favorable resolution (forum shopping) always lead to tenure insecurity and undermine the quality of tenure governance.

In post-crisis contexts the formal, informal and customary systems are even more fragile. One of the immediate effects of a conflict or a natural disaster will often be the weakening and breakdown of state structures and the formal system. At the same time the sudden change in demography due to the influxes of population who do not share the same values and culture may cause customary systems to rapidly loose legitimacy.

The VGGT and tenure conflicts

The purpose of the VGGT is to serve as a reference and provide guidance to improve the governance of the tenure of land, fisheries and forests with the overarching goal of achieving food security for all.

The VGGT recognize that disputes are endemic to land, forestry and fisheries tenure and highlight some principles that should guide states’ and other stakeholders’ actions in the management, de-escalation and prevention of tenure conflicts. Particular attention is given by the VGGT to the State’s role, identifying responsibilities ranging from the recognition, to the recording, to the promotion and the enjoyment of all legitimate tenure rights and claims, to the provision of mechanisms for resolving tenure disputes and enforcing decisions.

The VGGT do not give a straightjacket definition of legitimate tenure right, they leave it to each state to identify what it is in order to provide consistence among existing tenure systems and improve natural resources governance. It should be based on local needs and beliefs, build on existing tenure governance systems, and it should be the result of an inclusive consultation process. This definition of legitimate right will help establish what a legitimate claim is, identify what rights should be protected, and setting the foundations for the disputes prevention, management and resolution system.

Disputes resolution systems, processes and actors

When discussing tenure disputes systems, the VGGT identify conditions that, if met, will increase the state's chances to peacefully manage disputes that arise. Firstly, there is a need to ensure that people understand their tenure related rights and responsibilities through their active participation since the phase of policy formulation. Secondly, the fora need to be legitimate, inclusive and transparent. Thirdly, the judicial and administrative bodies in charge of managing tenure disputes need to be recognized as impartial and competent. And lastly, the process has to be timely, affordable, accessible to all and effective, leading to remedies that are promptly enforced.

In terms of who should have the responsibility to deal with tenure disputes, the VGGT present a range of different solutions which have been piloted throughout the world, from dedicated tribunals, to local level alternative disputes resolution mechanisms (traditional or informal), to implementing specialized agencies. States are advised to always seek the most appropriate option based on their needs and existing tenure governance systems and, in cases where plural systems exist, they may opt for hybrid solutions. Coordination, capacity building and a shared set of ground rules will be the key to success.

States are identified as the lead actors in the process of managing these processes and systems, but the VGGT can and should be used as well by non-state actors to demand tenure governance reforms and hold states accountable, measure progress and, in cases where the process has not yet started, encouraging state authorities to open up the debate.

Moving to national implementation: risks and opportunities 

Some of the main risks that States will face when undertaking the VGGT implementation will include: the fact that the newly established systems lack legitimacy and people may still turn to parallel they understand better (forum shopping); or their insufficient capacity to implement or enforce decisions.

Using the VGGT as a tool to reform national tenure governance provides as well great opportunities, because of the innovative recommendations that reflect some of the lessons learned in both developing and post-crisis contexts on tenure governance and disputes resolution. The recommendation to find a context appropriate definition of legitimate tenure right through a participatory process allows each state to legitimate its own traditions and costumes.  The recommendation to give the same dignity to existing formal, informal and customary rights and claims, and to build on existing dispute resolution systems and capacity instead of trying to formalize and overrule them will allow states to find solutions that are easier to implement and better respond to their people’s needs. And lastly, having the option to adopt incorporate customary and informal tenure disputes resolution mechanisms into hybrid systems (alternative when dealing with local level symmetric disputes, and more formal such as special tribunals or dedicated administrative bodies when dealing with asymmetric disputes) will drastically increase systems’ accessibility and outreach capacity.

Conclusions

Should a state be successful in building a consensus around what legitimate rights are – the tenure disputes resolution system would be perceived as fair making its implementation much easier. A successful integration of existing systems achieved through consultations, establishment of relationships and hierarchies between systems, capacity building and strong coordination mechanisms, would finally allow to overcome contradictions between formal, informal and customary systems having a direct impact on tenure security.

The immediate effect of taking away the uncertainty on tenure related rights and responsibilities through the establishment and/or strengthening of a fair and legitimate dispute resolution system would be increased tenure security and a lower number of new tenure disputes. A system that builds on what exists and is understood and supported by the people would be more efficient and affordable for the State that has to manage it in terms of costs, time, capacity, and need for enforcement.

Maria Guglielma da Passano is independent consultant on land and conflict.

Links & Literature

Voluntary Guidelines on Responsible Governance of Tenure of land, forestry and fisheries
FAO | 2012

Policies against Hunger – Conference Website

Multilengual land tenure Thesaurus
FAO | 2013

Land Tenure Alternative Conflict Management Manual
FAO | 2006

Land and Natural Disasters: Guidance for Practitioners
UN-HABITAT | 2010

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