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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:
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
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.
• 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.
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c) politicians and decision-makers in donor countries involved in development
cooperation.
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.
(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).
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.
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
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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.
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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.
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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.
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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.
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.
(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.
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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.
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.
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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 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.
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Community Land Trust (CLT), Kenya
a tenure model
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existing tenancy contracts and avoiding disruptions on the market in the transition
period.
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.
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.
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
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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, market-
assisted agrarian reforms, gender-related land issues, decentralization, performance
of transfer institutions.
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.
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:
GTZ supports a diversity of projects in 135 countries with technical and management
expertise. GTZ services include:
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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:
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