The poor struggle for bargaining power in land disputes - world leaders aren't turning blind eye

San Francisco Examiner | June 27, 2009

Maria Lewytzkyj

One of the common reasons for violent conflicts is the forcible eviction of people from land with little explanation. This has been a major contributing factor in conflicts on several continents for hundreds of years. The bargaining power that the poor have in these situations is minimal, unless civil society and legal representatives step up their efforts in getting involved on behalf of the poor. Research has shown that collective actions have shifted the negotiations and have, in the past, preserved the livelihood of those who live in regions where communal land rights exist. Oftentimes, after the conflict, there are displaced people who find themselves in the situation of either trying to reclaim those lands and once again regain access to the land’s resources, or find that they have little bargaining power. This occurs in regions where land is communally owned. Local land tenure situations in conflict areas, however, are some of the least understood by international groups working in the area and local leaders.  Land issues affect squatters, displaced persons, governments and foreign investors and world leaders are seeking ways to address them in order to address the concerns of the poorest.

Squatters who have been living illegally in Brazil have recently become landowners. Yesterday, according to the Washington Post, Brazil’s President Luiz Inacio Lula da Silva approved a law that would allow squatters occupying up to 250 acres (100 hectares) of federally owned land to be given title to the land free of cost. According to the Brazilian government, more than 50% of the area is made up of small farms of this size. The Brazilian government hopes that legalizing Amazon landholdings will allow it to improve efforts in monitoring land ownership.

The Brazilian government says that more than 1 million people will benefit from the law and that the law will reduce violent conflicts by giving people private ownership of the land they live on. According to the Guardian, critics in particular environmentalists, have said that it offers a carte blanche to those who want to make money by destroying the Amazon.  They also see it is an amnesty to those who have been devastating the Amazon over the last four decades.

In an effort to restore a peaceful community where violence has gripped the people who have been ensnared in land disputes, the government implemented this new law, whereby small landowners who can prove they occupied lands before December 2004 will receive their free land titles. According to the new law, new landowners will also have the right to resell their properties after three years. Large lots of up to 6,250 acres (2,500 hectares) will be auctioned to the highest bidder, while larger lots will be sold with congressional approval.

Solutions for land issues as they pertain to displaced persons in war-torn regions of the world have been discussed over the years.  According to Reuters, in countries where there are large numbers of displaced persons who live in refugee camps, some experts like Alex de Waal have suggested that aid agencies could help people register land in order to gain collateral as credit.  Critics have said that this might be risky since the land might already be claimed by someone else and could cause more land disputes. Of course, the land issue is a very political issue around the world.

A case in point is Juba in Southern Sudan. Most of Southern Sudan is still owned communally and rights have been administered by traditional leaders, according to the Overseas Development Institute (ODI). In Juba, the 2008 ODI report indicates that the centrality of the land question for returnees can not be overemphasized. The government and the local communities are experiencing a lot of tension “over the allocation of new land to expand the boundaries of the town and demarcate new parcels for services, investment, government offices and infrastructure, and residential plots for returnees. Land disputes are also rife over plots already gazetted (mostly pre-war or during the war) where ownership is contested as a result of prolonged displacement and ambiguous or absent land documentation.” The report continues to say that the lack of access to land is affecting investment and the introduction of new services that returnees will need.

Of course, there has always been a concern that when people are using lands under customary tenure arrangements, there is an inequality in bargaining power where no formal titles to the land exist if a foreign investor is interested in purchasing the land. The international Food Policy Research Institute (IFPRI), in its policy brief "'Land Grabbing' by Foreign Investors in Developing Countries – Risks and Opportunities” by Joachim von Braun and Ruth Meinzen-Dick, recommends that there should be a win-win policy in place when foreign investors seek to purchase lands from host governments. Often, these foreign investors do not meet with the local populations.

Some of the recommendations that IFPRI makes are: transparency in negotiations; respect for existing land rights, including customary and common property rights; sharing of benefits with local communities so that they don’t lose in the negotiations that foreign investors make in their communities; environmental impact assessments and agricultural production practices that guard against degradation of the land and excessive diversion of resources; and an adherence to national trade policies that does not allow foreign investors to export during any acute national food crisis.

According to the IFPRI, many times the lack of transparency in these negotiations limits the ability of local stakeholders to respond to the new challenges and opportunities. In their report, countries like China, South Korea and India are seeking opportunities to produce food overseas. Since production costs are lower in developing countries and land and water are more abundant, many governments secure land deals in collective farm areas or areas where the government owns land.

Investment in foreign farms is not new, according to the Economist. The article cites the example of foreign investors rushing in to buy state-owned and collective farms after the collapse of the Soviet Union in 1991. It also cites the example of “banana republics” where servile dictatorships run countries whose economies are dominated by foreign-owned fruit plantations.

However, the Economist points out that there are a few things that are new about the investments. First among these, is the scale of the investments. In comparison to the size of land deals that used to be 100,000 hectares (240,000 acres), look at the land deal between South Korea and Sudan. This deal was for 690,000 hectares. Apparently, an official in Sudan has said that the country is willing to set aside a fifth of the cultivated land for Arab governments.

China has secured the right to grown palm oil for biofuel on 2.8 million hectares of the Congo. This would make it the world’s largest palm-oil plantation.

In Sudan, the United Arab Emirates (UAE) has bought 400,000 hectares and Egypt will be growing wheat in Sudan in a similar deal.

According to the Economist, although the host governments are usually claiming that the land they are offering for sale is vacant or owned by the state, that isn’t always necessarily true. These lands often support herders who graze animals or have been farmed by local people for generations. Under the customary laws, their right to herd or farm has been recognized locally, but laws have not been written to secure their interests. This is the case, in particular when there are foreign investments. Suddenly, customary owners who have been pursuing their livelihoods for years are thrown off their lands. Often they lose the right to use the land for what amounts to be very little. Such minimal bargaining power has led to deals in which the poor local farmers are left voicing their opposition to no avail.

According to Jacquie Kiggundu, Junior Professional Consultant and Research Assistant, Foreign Policy, Brookings-Bern Project on Internal Displacement, in “Why Land Tenure Matters for IDPS: Lessons from Sub-Saharan Africa,” many analysts have recognized that addressing restitution, compensation and land reform issues are crucial to developing long terms solutions to displacement. In Africa, since more than 90% of land is administered outside of the formal legal system and since the continent hosts almost half of the world’s IDPs, it is important to understand that the customary system has a very real impact on many displaced persons. According to this report,

“The absence of written records means that the longer that an IDP community is displaced; the more likely it is for information on individual demarcations of land and the nature of customary rules to be lost. This can prolong displacement as land disputes languish and efforts are undertaken to restore or redevelop adjudicative mechanisms.”

The report continues to say,

“There are many reasons why the particular situation of IDP women must be considered where customary land tenure is used. Even when fully functioning, customary systems often fail to recognize women’s inheritance rights and cultural traditions may limit women’s ability to use the land. For example, though customary systems are widespread in Southern Sudan, few allow women to hold exclusive rights to land, creating difficulties for IDP women attempting to obtain land following the death or absence of their male relatives.”

Finally, as they relate to peace processes, the report says that given the scale and complexity of the issues, humanitarians and peace-brokers have been reluctant to incorporate land issues. Resembling Alex de Waal, Ms. Kiggundi recommends that early commitments to redress inequitable land distribution policies and the loss or destruction of land and property could facilitate durable solutions for the IDPs, while alleviating hostilities and encourage post-conflict economic growth.

Sudan’s Comprehensive Peace Agreement (CPA) has recognized customary land tenure and mandated that it should be embedded into national law. Still, as Ms. Kiggundu points out, practitioners need to answer some very important questions in implementation. For one, how will women’s human rights be secured? Secondly, how can customary law be incorporated into the formal legal system?

World leaders are recognizing the critical need to secure the interests of those who have been displaced or local farmers or herders in order to increase their bargaining power. On June 3rd, reporting for Reuters Africa, Bate Felix, stated that the European Union is concerned with the trend of foreign investors and countries acquiring such large tracts of farmland in developing countries to guarantee their own food security. Stefano Manservisi, Director-General for aid and development at the European Commission, said that although the EU had not reached a common position on the issue, there were fears the trend might pose a risk to developing countries if it were not done properly.

His concern lies with the non-transparent negotiations. “We are very concerned because this is another way to exploit developing countries…doing it thirty years ago, this would have been a perfect example of neo-colonialism.”

Additionally, on June 11th, Reuters reported that UN experts want guidelines on farmland buying. A UN independent expert said that foreign investors risk a backlash from local populations feeling marginalized by farmland deals that do not take their needs into account. The African Union is discussing the possibility of adopting guidelines on the issue. Japan is also going to propose a set of principles for agricultural investments in developing countries at the G8 summit in Italy.

"There is the risk that the arrival of foreign investors will lead to evictions; this risk needs to be taken seriously," Oliver De Schutter, the UN special rapporteur on food security, told Reuters. He has also said that local communities should give prior consent to any shifts in land use. "We must not forget that the land which is often referred to as idle is very useful to local communities. They depend on it for their livelihood even though they may not have land tenure," he said.

Looking at the example of the April deal where the Congo offered South African farmers 10 million hectares of farmland to grow maize, soya bean and conduct farming, De Schutter said that there is a better option. Instead of selling millions of hectares to foreign investors by sale or long-term leases, De Schutter suggests contract farming should be explored.
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