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Land Tenure in Development Cooperation Guiding Principles Summary - Working Paper

Foreword In the context of land tenure in developing cooperation, GTZ has developed, in close cooperation with other actors, a set of Guiding Principles for those interested in and working with land tenure issues. Together with the German contribution to development cooperation, the Guiding Principles support more effective ways to improve the economic and social situation of people in partner countries. Further, they encourage increased target group participation and support land tenure security in development processes. Over the past few years, Germany has actively supported and encouraged international agreements concerning land right security and the rights of access to land for disadvantaged groups. The most important agreements are related to: Agenda 21 (Conference in Rio 1992) World Summit on Social Development (Copenhagen 1995) World Women’s conference (Beijing 1995) World Food Summit (FAO 1996) The Guiding Principles are to be viewed as work in progress and are updated continuously. Their main contribution is to generate specific knowledge and to systematize land tenure in the context of the current international discussion in development cooperation. They provide support for decision-making in politics and in development projects. Further, the Guiding Principles serve to encourage discussion about goals, duties and instruments of land policy in different cultural and social contexts. The following pages summarize the basic ideas and concepts of the Guiding Principles. The original version was published in German in 1997 and comprises approximately 220 pages. A CD-ROM containing 20 case studies on land tenure issues is enclosed in the publication. The English version of the Guiding Principles is currently being printed and will be available by the end of March 1998.

Eschborn, 1998

Land Tenure Guiding Principles for Development Cooperation Summary - Working Paper 1.

Land tenure in development cooperation: questions, shortcomings, answers

The land question is currently being reappraised world-wide, and greater importance is being attached to land tenure issues. Land and resource policy are key to future economic and social development in Latin America, Asia, Africa and the transition economies. The outbreak of land conflicts is only an indicator of a more complex process. Functioning land tenure systems are crucial for efficient agricultural production, more diversified land use in rural areas and the dynamics of sectoral change and urbanization. Focusing on economic efficiency should not, however, obscure the crucial role of land tenure and land policy for equity and social balance as well as environmentally sound development. The present Guiding Principles on land tenure in development cooperation are intended as an aid to applying German development cooperation more effectively to improve the economic and social situation of people in partner countries and to facilitate their participation in the development process. These principles are intended to: • give systematic shape to the discussion on land tenure and generate specific technical knowledge; • provide support for decision-making in program and project work; • initiate a critical discussion on goals, tasks and instruments of land policy in different social and cultural environments; • advance the development of a far-sighted land policy.

2.

Readership

The Guiding Principles are aimed at meeting conceptual, operational, informational and advisory needs to cater better for land tenure issues in development cooperation. The target readership is therefore a) all those involved in development cooperation in partner countries and in implementing agencies, either in projects or programs; b) advisers/councilors, decision-makers in partner countries;

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c) politicians and decision-makers in donor countries involved in development cooperation. The Guiding Principles are designed to help decision-makers and assist policymakers in drafting comprehensive land policies in their countries. It should also help politicians in donor countries better understand the connection between functioning land tenure systems and development cooperation objectives.

3.

The land question and land tenure problems reappraised

For a growing number of analysts, politicians or policy planners, the re-appearance of the land question comes as no surprise. They see it as an inevitable consequence of the overall and systematic neglect and ignorance of pressing land conflicts and of (land) market and policy failure over the last decades. Land reform in Latin America have failed to remedy the problems of extremely inequitable land distribution, squatting and the destruction of natural resources by marginalized smallholders in fragile eco-systems. These problems are a ticking bomb in terms of economic efficiency, equity and environmental goals. Illegal settlement of ‘open spaces’ is a safety valve for tardy reform resulting in rainforest conversion, depletion of biodiversity and a threat to global commons. Indigenous peoples, in particular, are affected by land grabbing and land conflicts. Illegal squatting in (sub-)urban areas prompts fresh disputes in urban land tenure systems.

World Food Summit (Rome 1996) Plan of Action Established legal and other mechanisms, as appropriate, that advance land reform, recognise and protect property, water, and user rights, to enhance access to the poor and women to resources. Such mechanisms should also promote conservation and sustainable use of natural resources (such as land, water and forests), lower risks, and encourage investment. (FAO, 1996)

The neo-liberal miracle - defusing the land question by giving the mass of people access to land via market-led land reforms - has not yet come to pass. Now, landless groups are protesting and taking more militant action, including land invasion. If recent trends persist, legal insecurity and resource conflicts will worsen, impeding overall economic and social development, e.g. foreign investment.

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Will land legislation and land tenure systems cope with the rapid socio-economic change sweeping through Asian countries? Redistributive land reforms have proved to be effective in the ‘East Asian miracle’, but there is now an urgent need for instruments of land administration and land development to cope, for example, with the environmental problems of high-growth economies in Southeast Asia. Unfinished land and tenancy reforms on the other hand still jeopardize agricultural productivity and political stability (e.g. the Indian subcontinent). Farm size in Asia is diminishing due to population pressure and inheritance regulations, with about three-quarters of all farming households now lacking enough land to make a living. How can we secure long-term investment and soil protection if interest in agriculture is waning and if access to income instead of access to land is the demand of the future? How can the registration of individually owned land nation-wide ensure production incentives and sustainable land management, if proper account is not taken of existing customary rights, local capabilities of collective action or the need for decentralization? Is there a land policy that can cope with the dramatic conversion of land, land grabbing and new competing functions of land (inflatio-proof investment for old age, leisure, environmental good)? The global land tenure crisis has reached Africa, with increasing landlessness, insecure tenancy and eviction. In part at least, disputes over land and related resources also ignite alarming, violent local land conflicts, sometimes escalating to civil war. The real tragedy has been a ‘tragedy of the state’ which has often completely failed to establish functioning land tenure systems for all citizens including women, mobile livestock keepers, forest users, etc. Most governments still ignore the interconnection between customary and statutory law, vacillate between semi-feudal, socialist and capitalist experiments with imported legislative blueprints, misjudge the meaning and miscalculate the costs of a minimum legal and regulatory framework and allow rent-seeking, corruption and land grabbing by new and old elites. In transition economies the rural population fears the many different risks involved in individual land cultivation on family farms and forfeiting the relative security within the former state-owned collective farms; some decision-making bodies are anxious about land accumulation and speculation by new urban-based elites. Those directly affected by state divestiture question more than external advisers whether private ownership is really the catalyst for access to credit, investment and environmentally sound production. An incomplete and incoherent legal and regulatory framework as a consequence of rigid, blueprint-type external advice is creating an institutional vacuum and uncertainty which deters investment in land. How much restitution and compensation for expropriation is possible amidst fiscal constraints and the danger of social conflicts? How can we substitute the economic and social functions of the collectives for their members? Neo-classical theory calls for a policy of correct prices for distorted land markets as a benchmark to provide incentives for long-term investment, increased food production and efficient land use. Where property rights are ill-defined and millions of peasants, tenants, landless people, squatters or refugees lack access to credit, advice based on this policy has its limits.

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The new economic institutionalism rightly demands the establishment of land/resource tenure regimes based on clearly defined individual (and communal!) property rights and legal and regulatory framework, but it is not easy to implement, either in landlord village in India, or in Laotian shifting cultivation systems, in the ‘favelas’ of Sao Paolo, on Sahelian pastures, or in former socialist production cooperatives in Russia or East Germany.

4.

Land tenure models and concepts

Land is more than just another factor of production or an economic good: it embodies other values such as homeland, place of ancestry, basis for survival, a prerequisite for individual freedom. It is also an object which is taxed and desired by government or interest groups; it is an instrument of power and dependency, a cause of conflict and war. This social construction of land is currently being reappraised in the context of market reforms and globalization of national economies and in the light of social responsibility of landed property amidst far-reaching structural changes in (post-)industrial and industrializing economies. Land tenure systems are based world-wide on values and norms, they cannot be divorced from their social and cultural context. Thus, the study is based on four principles which also serve as yardsticks for evaluating existing land tenure systems and reforms: 1) certainty in the law, 2) the rule of law and human rights, 3) political participation of the population in land issues and the 4) definition of property in market economies. Certainty in law is the crucial precondition for calculable risk in private decisions. It entails legislation which is unambiguous, clear and reliable, predictability in land transfer and use, the institutional enforcement of legal claims to land in disputes and the limitation and predictability of government actions. The rule of law means respect for the constitution and human rights and the division of powers based on an independent parliamentary system, judiciary and courts bound by law and, of course, respect for autochthonous legal systems. As historical experience in Europe clearly demonstrates, public discussion of legislation is crucial to the general acceptance of a new land tenure system. A new law will only achieve the necessary authority if it is more discriminate than the old one(s). Without the participation of all those affected by changes in systems of land tenure, indigenous institutions and local knowledge cannot be integrated into the process and these changes will never be accepted. Greater participation has to go hand in hand with decentralization and greater application of the principle of subsidiarity. Only participation can ensure that legal reforms reflect complexity of the existing economic and social fabric. In the past, the definition of property was considered the fundamental difference between market and centrally-planned economies. From a legal standpoint, property must be defined universally, not according to different subjects (individual, state, community, foundations). Property must be available to all market players, which, of 4

course, includes the state. Property should never be confused with privatization, which is one form of transfer amongst others (i.e. from government to private actors). Property can only be transferred in conjunction with other bodies of law, such as contract law, family and inheritance law, tax law, and water law. Private property should not lead to the end of state activities: ownership of land especially is subject to general social obligations and restrictions (social responsibility of property in the German Basic Law, § 14,2). Although a wide variety of land tenure systems can be found in partner countries, they can all be reduced to the four ideal types of property regime: private property, state property, common or communal property and (theoretically) systems of open access. The study discusses key ideas and principles, but also guiding institutions, economic and social benefits and inherent problems of policymaking. Land tenure must always be seen in the broader context of all natural resources with economic utility. The study therefore always considers the interdependencies between land tenure and other natural resources, such as water, pasture or forests. It is thus appropriate to employ the broader term resource tenure, not just land tenure. Women’s legal status in land tenure institutions is generally inferior to men’s; they are often entitled to exercise only secondary rights; landlessness amongst single women is increasing. In registration they are at a disadvantage compared to men as heads of households. In disputes, their claims are not easy to enforce in court. In transformation or after structural adjustments, women are the first to lose their jobs often without recourse to land for a livelihood. However, women are no longer willing to accept the role of passive victims of discrimination and are starting to form alliances to purchase land. Controversy persists on the issue of the economic, social and environmental effectiveness or limitations of autochthonous land tenure systems and regulations. One of the greatest challenges for each country’s land policy and for development cooperation is to cater properly for indigenous land principles amidst rapid change.

5.

Land tenure systems in focus - lessons from the past, challenges for the future

Land tenure systems and natural production basis: interactions and conflicts: Mounting environmental and social problems are the main cause of accelerating, mostly unplanned changes in the systems of land tenure that incur high economic and social costs. Marginalized, impoverished peasants desperate for land cannot practice sustainable land use, which, in turn, results in progressive erosion, loss in land value and heavier land pressure. Uncertain, questionable land rights prevent effective, long-term, resource conservation measures, such as tree planting in African countries.

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The rapid expansion of cropping into pastoralists’ areas is often the final stage in a complete breakdown of autochthonous pastoral land tenure systems, of social disruption and emigration. Commercial logging or new infrastructure deplete tropical forests and force local users to exploit their standing timber in a semi-anarchic manner, often in open conflict with the state’s forest administration. The demarcation of national parks often displaces local resource users. Pressing problems in irrigation sites are higher water demand and contested water rights, resulting in excessive water use, salination and lower yield. Increasing land shortage, land conversion and long-term structural change: A growing world population must be fed; higher demands on the quantity and quality of food products must be satisfied. As a consequence, more land is being cultivated that is less appropriate for cropping (marginal pastures) or livestock production (steep slopes) or incurs high opportunity costs (rainforests). In addition, cropland the size of the Netherlands has to be removed from agricultural production due to overuse and misuse. With sectoral change, more land is required for settlements, roads, industrial plants or recreational areas. With off-farm activities and a waning interest in agricultural land use, working markets for tenancy arrangements are essential for the future. Migration and squatting in sub-urban areas: Millions of people leave the rural regions and migrate into the cities in order to find a job and an income. Most of them have to stay in marginal settlements without adequate housing and a safe occupation in the formal sector. Although there is no juridical security, the people’s self-help partly succeed in creating basic infrastructure and settlements. Particularly in Latin America concepts for regularization and legalization of informal settlements in sub-urban regions are being realized in order to gain juridical security and to improve the living conditions of the inhabitants. Systems of land tenure, agricultural and rural development: The system of land tenure is a major determinant of farm size, production structure, productivity, labor use, capital accumulation and the economic development of other rural sectors, such as service industries. Smallholders must use their land better to secure a living, but they are often restricted by lack of technical innovation and support institutions. Thus, their output drops after agrarian reforms, as can be seen in the transition countries in Eastern Europe. In agrarian societies, income distribution is still largely determined by the amount of land owned and as a result the poor depend on the rich, who may also exploit them. Thus in Asia, combined labor, credit and tenancy arrangements cannot be analyzed in terms of efficiency alone but also in terms of equity as illustrated by cases of bonded labor and multiple dependency. Land tenure and social security: In agrarian societies, social security stems primarily from clearly defined and reliable land ownership. In many regions, traditional systems are quickly disintegrating due to inheritance rules (Asia), illegal sale of land by old elites (Africa)

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or the breakdown of the former socialist cooperatives in transition economies without alternative social security systems to replace them. Land conflicts: Besides the spectacular, violent conflicts, there are the forgotten daily disputes over land (about 40% of households in Nicaragua are involved in acute or ongoing land conflicts). These conflicts impede efficient, sustainable land use, undermine existing social and economic relationships and aggravate people’s aversion towards the state. Power groups re-emerge as a result of policy reforms; any redistribution of power prompts considerable opposition and new conflicts. In some Asian or African countries, the military is acquiring greater power over forestland, in others Mafialike interest groups are behind the registration of urban land (‘land laundry’). In transition economies the old top management of the collectives is safeguarded in the new system. To be successful, development cooperation has be much more aware of these processes. Agrarian reforms: an unanswered challenge: Land reforms with strong redistributional effects in East Asia (Korea, Taiwan, but also Japan) were successful. They triggered high production and income growth. On the other hand the long history of the many failed and the few successful reforms of land ownership (land reforms) and reforms of land management is now well documented. Some of the reasons for the failure of land reforms are the massive implementation problems and the power of groups that impede or oppose any reform. Major problems in implementation are unsatisfactory finance of reform, incomplete legislation with conflicting land rights, insufficient competence of implementing agencies, corruption of civil servants and political reversals in parliament. To understand the political economy of reform, an in-depth analysis of interest groups is necessary. Settlement and resettlement: Development cooperation still has to look at organized (re-)settlement programs to reduce population pressure (Indonesia), to cope with landlessness (Brazil, Kenya), to gain land through irrigation or forest clearance or to settle nomads. Huge dam projects also entail resettlement (India, China). These programs are expensive, their opportunity costs are often only estimated in part. State divestiture and transition economies: Structural adjustment and transformation has been attended by state divestiture world-wide. The privatization of land or its return to the community, working land markets and a new role for government are key elements in this process. It can for example entail the dissolution of state farms and production cooperatives in Eastern Europe and the former Soviet Union, the re-privatization of Ejido land in Mexico, markets for land use rights in Vietnam or the recognition of indigenous communal rights in Tanzania.

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The dissolution of state farms with wage labor and of production co-operatives calls for an alternative organization of farming. The economic success and social functions of family farms, of autonomous co-operatives or of agribusiness firms depend on secured rights to land, either as private property or as long-term leasehold. This in turn requires a complex legal framework including contractual, community, tax, family and inheritance law. This newly established legal framework is often incoherent and overburdened with details from the old control-and-command system. Heavy restrictions on land markets mostly engender gray-markets with additional risk premiums. Of the different interest groups involved, the ‘winners’ are often the old elites or urbanbased groups, the ‘losers’ are mostly women uninformed about their legal rights, smallholders who cannot afford the costly registration process or members of former collectives. Land markets: origin, functions and trends: The recent trends in land tenure highlight the crucial role of land markets for property transfer and use rights. A functioning market, in which land can be purchased, sold, leased and mortgaged, facilitates optimum farm size, change in agrarian structures and innovation. Population growth, new technologies, expanding product markets, extending infrastructure and communication, urbanization and waning interest in agriculture all give impetus to the development of these factor markets.

6.

Land policy: models and objectives

As has been shown, land tenure problems are complex and interlinked. To solve them, a coherent land policy is needed which is transparent to the population. It must be based on fundamental guidelines and principles and must follow clearly defined, in part universal and in part valid, national, regional or group objectives. A set of far-sighted, coherent policy instruments should be designed based on them. Land policymaking usually figures as part of a broader political and economic reform as a consequence of the transition from a centrally-planned to a market economy, of democratization and decentralization or new growth-cum-equity strategies. Any land policy designed for the 21st century has to account for the resolutions of international conventions and summits on land and resource issues (e.g. Agenda 21, World Food Summit, Habitat II, World Women Conference, etc.). The three pillars of any land policy must be 1) efficiency and promotion of economic development, 2) equity and social justice and 3) protection of the environment and sustainable land use. Some examples may illustrate this: To achieve economic efficiency a uniform and comprehensive legal and regulatory framework is needed to ensure equal access to and use of land for private and legal persons, for collectives and for the state but also efficient land markets which in turn depend on a functioning but costly land

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management. To ensure equity, a clear policy line on the social responsibility of (landed) property is needed [...] or on autochthonous and secondary rights and the legalization of informal settlements. A land policy founded on environmental objectives has to define the degree of state intervention in land markets to safeguard future interests and to develop models for a comprehensive code of land use. Land policy among at the above objectives has to strengthen the role of groups which have been neglected or marginalized so far: It has to be geared to poverty and gender and improve the legal status of indigenous peoples.

Programme of action of the World Summit for Social Development (Copenhagen, 1995) Improved access to productive resources and infrastructure: Expanding and improving land ownership through such measures as land reform and improving the security of land tenure, and ensuring the equal rights of women and men in this respect, developing new agricultural land, promoting fair land rents, making land transfers more efficient and fair, and adjudicating land disputes. (UN, 1995)

Once basic policy on land has been articulated and, ideally, clarified, development cooperation can assist in identifying necessary instruments to achieve policy objectives. The key challenge is to further develop existing instruments in partner countries, adapt them to local conditions and identify the best adaptable mix of instruments which are affordable, efficient and effective.

7.

Instruments for land policy implementation

Instruments for certainty in law: Inconsistent and even contradictory pieces of legislation on land tenure need harmonizing as in some countries up to 2,000 laws, decrees, regulations and orders obtain. Loopholes have been closed. This includes easier access to information on land and transparency especially in land transfer procedure and contractual provisions. Instruments for land administration: A growing component of development cooperation in countries with dynamic economic development such as in Southeast Asia, Latin America, Southern Africa and transition economies is the establishment of an efficient and comprehensive structure for land administration at central and lower levels.

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Land registration and cadastre systems are urgently needed in densely populated areas, in active land markets and diverse social structures. These instruments are, however, by no means enough to ensure sustainable rural and urban development. Their benefits are well known; the risks and problems attached are often ignored: voluntary registration reaches only a small part of the population; it is biased toward men; the maintenance costs of the system are high; registration will not result in higher output if the technology or support institutions are not available. The question here is how to combine formal with informal, less expensive registration systems in future. As land fulfills several other important functions besides its economic value, land markets in all countries are to some degree subject to government control. The same is true for tenancy markets and lease regulations. Regulations, such as a land transaction act or pre-emptive rights may be helpful to ensure that agricultural land remains in the hands of farmers and is not purchased by absentee landlords for speculation. Activities to enhance the efficiency, transparency and social functions of land markets include: clarifying the private and public sector’s roles, evaluating and auditing existing land market institutions, capacity building and training of personnel dealing with reformed land markets, lowering taxation on land transfers. The role of land banking for steering land markets and for protected areas has been neglected so far. Its objective is to make land available for specific target groups and purposes, such as land development in communities or the indicative control of land prices. It can be developed as an instrument to facilitate the future provision of land for specific agricultural purposes, for transportation, recreational or environmental purposes and for exchange. As with other instruments, a detailed cost-benefit analysis including possible alternative mechanisms is necessary. Transparent land markets, compensation for expropriation, land taxation or mortgaging require land valuation to determine the actual economic value of landed property. It accounts for the existing property regime, location, development prospects, encumbrances and specific risks. Fiscal instruments: These include land taxation, taxes on land value, levies, taxes and fees on land transactions. Land tax can be an important source of income for municipal and local authorities. In development cooperation land tax can be important for decentralization, community development and tax reforms. Besides its direct (but: limited) fiscal impact, it can be used as an (dis-)incentive, to provide land for different purposes (construction, industry) or to curb land speculation. Institution-building instruments: Both in urban and rural areas, at national, regional and local level and in traditional and modern land tenure, existing institutions and regulations are often an obstacle to finding more efficient and equitable alternatives. The reform of centralized land agencies and the clear cut assignment of responsibilities among institutions are crucial for the successful implementation of any new land policy. This reform must incorporate models to integrate local governments and stakeholders, to institute a multi-strand publicprivate partnership and improve quality assurance and performance control,

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including enhanced accountability, systems for improved information exchange and networking. Instruments for rural land development and land tenure: A set of instruments, used either alone or in combination, have been tried and tested to support the development of land tenure in rural areas and agrarian structures: Agrarian Structure Development Planning (ASDP) is a planning and decision-making instrument in combination with rural regional development, land consolidation or village development projects in areas undergoing rapid structural change. Is it effective when agrarian structural deficiencies need to be remedied. Land consolidation and land readjustment is the most comprehensive of all instruments and is used to eliminate structural deficiencies in existing land ownership relations and match land use patterns with land tenure systems. It is also important for irrigation and settlement programs, establishing smallholders plantations or nature conservation projects. Some Asian countries have already gained experience with it. Land use planning is based on the idea that development is a ‘bottom-up’ process involving self-help and responsibility. It is an interdisciplinary task and should improve competence in planning and action. Land use plans are implemented primarily by local target groups supported by development cooperation as lead agencies. Any implementation of land use planning affects the tenure rights of individuals or communities. Often, differing interests can only be reconciled by consensus and the acceptance of local rules or by applying legal measures like land readjustment. Urban land administration instruments: There is often a lack of clear information on land tenure in urban areas. Land information systems are a precondition for efficient urban planning and urban development. One concept for urban and suburban development is Guided Land Development (GLD), where state departments responsible for infrastructure such as roads, utilities and sewage make these available before private urban development begins. Concepts for regulation and legalization of spontanuous settlements in sub-urban ares can be comprised of the following steps: Initiation of a formal or informal structure for the communication and cooperation between the institutions and the affected parties, integration of the squatter settlement into urban planning and development, linking of rehabilitation and legalization programs, and support for organizing the affected parties and their permanent involvement in the process of planning, decision making and implementation.

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Community Land Trust (CLT), Kenya a tenure model The CLT is a result of various efforts of exploring adequate tenure systems. A combination of traditional African and Islamic land tenure systems were modified and adjusted to the local situation of the Bondeni squatter settlement. The tenure model is based on communal ownership. The community owns the land and the members of the community act as Trustees with no right of ownership to the land but usufructary rights. Officially, the rights to the land are secured by registering it in the name of the community. Each individual owner of structures is owner of the developments and improvements undertaken on the land plots. These developments and improvements but not the land itself can be inherited and bequeathed. The land cannot be sold but the developments made on it. Land and development have been split up. The basic principle of this model is to secure tenure sustainable for the whole community which in effect will allow individuals to benefit. Speculation and forces of a land market are reduced. (Lüthi, C., 1995)

Instruments for implementing agrarian reforms and transformation: Agrarian reforms are usually part of larger political and economic reforms and call for a set of complementary land policy instruments. In the case of land ownership reforms, the existing ownership structure of large landholdings has to be identified to prepare expropriation procedures under the law; in land management reforms, support is given to inexperienced new farmers (extensions, training, credit or marketing). State-monitored and state-controlled market-oriented negotiation models are expected to give fresh impetus to the sensitive land reform process: access to land is mediated directly through land markets, guidelines for adequate prices are drafted, local authorities supervise negotiations, while finance is provided by the beneficiary target group itself. The highly underestimated but crucial importance of unambiguous interim regulations for rapid transformation has become apparent in German unification. Clear regulations at least are needed to divide up and convert socialist production co-operatives, to guarantee ongoing production or to give access to legal appeals and arbitration boards. Privatization, for example, can be phased into three: starting with long-term lease contracts based on convincing business plans and personal qualification, purchase at preferential prices for those lessors providing evidence of economic success and planned but cautious sale of land on land markets respecting

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existing tenancy contracts and avoiding disruptions on the market in the transition period.

8.

The crucial role of conflict resolution

All formal and informal forms of land conflict resolution should be strengthened in order to achieve equity and equality under the law in line with traditional rules. Many disputes are directly attributable to the exclusion of local users and communities and ignorance of autochthonous institutions. The economic benefits of averted or resolved resource conflicts are difficult to estimate but the benefits are enormous for investment incentives, planning security, social peace and political stability. Existing models and norms for solving land tenure conflicts are a mirror image of the prevalent tenure problems. They are also subject to rapid change. In Buddhist countries, the ideal of harmony and balance are deeply rooted; there is a renewal of values such as cooperation, reputation and trust in research on collective action in the use of communal pastures, social forestry or water user associations. Are the new (or rediscovered) findings already adequately catered for development cooperation? In these cases, committees for conflict resolution and an ombudsman can act as recognized arbitrators for settling disputes primarily at the important local level. To acknowledge autochthonous instruments for conflict arbitration in state law and bridge the gap between the two legal spheres is a challenge for the future. Attempts, often supported by development agencies and NGOs, to codify customary law are well-meant, but they can culminate in rigid conventions at the expense of the adaptability typical of autochthonous law. Government initiative, development cooperation and local self-help are continuously creating new corporations for conflict resolution or reactivating existing ones. To enhance their authority and credibility, land disputes should be kept separate from the executive level, traditional authorities (like ombudsman or boards of elders) should be acknowledged and actively incorporated and more out-of-court forms of reconciliation should be supported. The working tenet of these out-of-court solutions is ‘setting before judging’. They include round-table conferences with different actors and interest groups, like pastoral boards, and other processes of facilitation, mediation, conciliation or negotiation.

9.

Training, applied research and knowledge systems

One of the basic objectives of land tenure programs and projects is to exchange experience and disseminate knowledge: The profile for long-term and short-term experts dealing with land tenure issues is already under discussion: a purely technical viewpoint leads to deadlock; there is a need to understand the extremely complex institutional learning process, the 13

various standpoints and interests of actors and interdisciplinary aspects. Awareness-creating seminars will be developed for experts of technical and financial cooperation in development agencies and partner countries as well as for decision-makers in partner countries. Education measures and training courses should not be restricted to the highest academic level (M.Sc. programs and Ph.D. studies, such as at Cambridge, Goettingen, Madison or Marburg University); courses have to be developed as well for middle-level land administrators. Training measures will be offered in land administration (land valuation, property taxes and fees, registration procedures, planning techniques), structural change (improving agrarian structures, interim regulations), conflict resolution and mediation, certainty in law and twinning in education and training, etc. Applied land tenure research: In many partner countries, capabilities for applied research are still in need of improvement in various fields. These countries should be supported in strengthening their research capabilities, e.g. through new forms of partnership. Although much of land tenure problems and issues are specific to the country concerned, partners have major fields in common: further development of concepts for land policies, state divestiture, privatization, land use conflicts and innovative approaches to conflict resolution, effects of structural change, marketassisted agrarian reforms, gender-related land issues, decentralization, performance of transfer institutions. Bridging the gap between indigenous and scientific knowledge: Up to now scientific knowledge alone has not contributed enough to sustainable development, in particular at the local level, as indigenous knowledge has been undervalued. Combining these means incorporating traditional information on primary and secondary rights and land use experience. Methods developed must take into account information sensitivity and confidentiality, such as tribal landmarks, ancestral sites, indigenous site and place names.

10. New fields for cooperation and outlook Multilateral and bilateral institutions in close cooperation with national stakeholders in land issues can play a very active role by joining forces to implement a new land policy if they adhere to the following principles: accepting the ownership of the partner country, establishing donor consensus on the principles of a national land policy, sharing information and networking amongst all stakeholders, agreements on commitments and on complementary co-finance models, full incorporation of local expertise and promotion of twinning models (expertise, training and research capabilities). New forms and areas for cooperation should start with improved donor coordination. This is directly linked with the ownership principle in development processes. Sustainable reforms are only possible when they are conducted in partnership with the country. A country can only afford one comprehensive and

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accepted land policy and not an assortment of policies sponsored by different donors. Within the donor community a more fine-tuned coordination between technical and financial cooperation is needed, an openness to private-public partnership, especially with a view to the costs of a functioning land administration system, improved integration of own experts for development cooperation among partner countries, a new qualify of networking between development cooperation, NGOs, the UN system as well as education and research institutions, which may culminate in specific international initiatives. The best land policy is no panacea for all the major problems in a rapidly changing natural and socio-economic environment with strong impacts on land tenure systems. What are the prospects and, in particular, the challenges for the future? • New and different land use patterns will continue to emerge. Therefore, land tenure should be considered as part of a comprehensive system of resource management and resource policy. • The issue of water rights, often connected to land tenure, requires more attention. • Multiple employment will rapidly gain in importance which calls for an active policy of regional development far beyond land tenure problems. • Transparency in all land matters and improved access to information. • Non-agricultural jobs will not sufficiently defuse land conflicts, which will increase demand for innovative mechanisms to resolve conflicts. • Though essential, decentralization is not an end in itself. The focus should not be limited to the grassroots level because land tenure problems are not conveniently regionalized. The principle of subsidiarity should apply to the establishment of institutions and organizations. • As the World Development Report 1997 stresses, the role of the state has to be redefined. [...] Government needs to play a more conscious, active role, on land markets as well. • Nations are increasingly subject to international policies and guidelines following the UNCED process. • The search for an adequate framework of state intervention for a specific country is a learning process where development cooperation, in the best cases, can short-cut trial and error. • A final evaluation of market-led land reform still needs to be made. This will address the question of the appropriate policy mix for reforms, including redistribution, employment and/or social policy. • For the future of autochthonous rights, much more innovative and creative capabilities need to be mobilized. • A more far-reaching and sustainable harmonization of different donor approaches is an objective in its own right bearing in mind the principles laid down in the UN conferences of the last decade. Thus, any Guiding Principles must remain work in progress. Their results and suggestions will have to be critically analyzed, revised and updated continuously.

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Further information Further detailed and updated information for discussion can be obtained from the following sources: • The publication, Land Tenure - Guiding Principles for Development Cooperation - (247 pages and CD-ROM attached) is available in German (GTZ 1997). The English version will be available in March 1998. • 20 background studies by the GTZ as a basis for these Guiding Principles are available on CD-ROM. • Important aspects of the ongoing discussion on land tenure issues are documented in the proceedings of the following international conferences supported by GTZ: • OSS/ECA/GTZ (ed.) Land Tenure Issues in Natural Resource Management (Sub-regional workshop in Addis Ababa 11 to 15 March 1996), Paris. • BPN/GTZ International workshop on the implementation of rural land consolidation, Indonesia 3 to 5 October 1995. • UCT/GTZ/FILSA International conference on land tenure development in Southern Africa, Capetown 27 to 29 January 1998. • The latest information on activities in land tenure development are available on the following homepage: http://www.gtz.de/lamin/ • For further information please contact: GTZ Willi Zimmermann fax: +49 6196 79 7153 phone: +49 6196 79 1311 e-mail: [email protected]

Deutsche Gesellschaft für technische Zusammenarbeit (GTZ) GmbH As a federally-owned enterprise, GTZ’s development-policy mandate is to help increase human opportunity and stabilize the natural resources that sustain all life. GTZ supports a diversity of projects in 135 countries with technical and management expertise. GTZ services include: • advisory services for planning, implementing and assessing partner country projects • recruitment, briefing and backstopping of experts • training and upgrading of partner experts • technical planning and procurement of materials and equipment • awarding and handling of financial contributions

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GTZ co-operative with other development cooperation organizations to tap the resources of both German and international private sector know-how and public sector technical institutions, thus obtaining the best possible results from project contributions. Address: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH Postfach 5180, 65726 Eschborn Further information about GTZ can be found at our Internet homepage: http://www.gtz.de

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