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8. LAND


I. INTRODUCTION

In most societies, land has played a central role throughout history. It has been the locus of productive activities and a source of political power. It has held special cultural and emotional significance, for families, communities and nations. Its sound management has contributed to environmental stability and economic well-being, while its abuse has helped undermine ecosystems and livelihoods. It has figured prominently in a wide variety of human conflicts, from inheritance disputes to wars.

The decade since Rio has been a period of intense activity in the reform of land laws around the world. Not surprisingly, developments in this area have not been uniform, in part because the contexts for reform have been so diverse. Perhaps more than any other subject in this volume, land law has deep roots in the unique history of each country, reflecting widely varying tenure systems, political regimes, colonial experiences, social institutions and religious practices. As a result, while broad traditions of land law are discernible, local variations within those traditions are often great.

Equally diverse are the issues and problems with which land law must contend. Around the world, there are vast differences in the ways people use and possess land and the ecological, economic and social settings in which they do so. There are huge variations in soil fertility; in the potential of land for different agricultural practices; in the relative importance of agriculture; in population densities and land availability; and in the extent to which landholdings are highly concentrated or more equitably distributed, to name just a few areas.

Despite this diversity, it is possible to identify some common impulses that have driven land law reform over the last decade, resulting in some broadly comparable legal developments in a number of countries around the world:

The attention given to land law reform over the last decade does not mean that such reform has been comprehensively achieved in most countries, or even that there is consensus about what the elements of reform should be. Indeed, there is considerable disagreement over whether the various agendas mentioned above complement one another or push in different directions. Some commentators argue, for example, that measures designed to improve the marketability of land may in fact undermine the ability of the poor to acquire and retain land. Others argue that there is an inevitable tension between a market-oriented approach and the recognition of customary rights or community interests in land. Nevertheless, while the experience of the last decade has been inconclusive and at times contradictory, it provides evidence of some noteworthy trends that are likely to dominate the law reform agenda for some time to come.

In the next Part, this chapter provides a brief overview of the treatment of land issues in international documents and fora over the last decade. This is followed in Part III with a discussion of how recent national legislative reforms have dealt with three important themes: strengthening private land rights; recognizing customary and indigenous rights; and improving access to land.[3]

II. LAND RIGHTS IN INTERNATIONAL INSTRUMENTS

Land tenure, access and administration issues are generally not subjects of international law and hence have not been given detailed treatment in international treaties. The Rio documents and others, however, place considerable emphasis on the importance of these subjects, and alert governments to the need to address them, including through legislative action.

Thus, Chapter 14 of Agenda 21 states that “the main tools of Sustainable Agriculture and Rural Development are policy and agrarian reform, income diversification, land conservation and improved management of inputs”. Governments are exhorted to “review and refocus existing measures to achieve wider access to land” and to “assign clear titles, rights and responsibilities for land and for individuals or communities”. They are further urged “to ensure equitable access of rural people, particularly women, small farmers, landless and indigenous people, to land, water and forest resources” and to “implement policies to influence land tenure and property rights positively with due recognition of the minimum size of landholding required to maintain production and check further fragmentation”.

Chapter 10 of Agenda 21, on the Integrated Approach to the Planning and Management of Land Resources, acknowledges the centrality of “private property rights, the rights of indigenous people and their communities and other local communities” to achieving sustainable management, and highlights conflicts and competition over land as a prime cause of suboptimal land use. Similar broad indications of the importance of land rights may be found in Chapter 12 on combating desertification (urging particular attention to “the property rights of women and pastoral and nomadic groups living in rural areas”); in Chapter 3 on combating poverty; in Chapter 7 on human settlements; and in several of the chapters devoted to strengthening the role of major groups.

These themes were echoed and reinforced at various points in the decade following Rio. In 1996, the Rome Declaration of the World Food Summit highlighted the interrelationship between access to land, environmental sustainability and conquering hunger. The Summit's Plan of Action called upon countries to “[e]stablish legal and other mechanisms, as appropriate, that advance land reform, recognize and protect property, water, and user rights, and enhance access for 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”. The Eighth Session of the Commission on Sustainable Development in New York (April-May 2000) also gave detailed attention to land access and tenure issues, stressing the importance of well-defined and enforceable land rights and equal access to land, in particular for women and indigenous and local communities, and highlighting the need for adequate land administration systems.

The discrimination faced by women with respect to access to land received a significant amount of attention in international fora over the last decade, as several of the examples above indicate. Land was a major focus of the Fourth World Conference on Women in Beijing in 1996. The Plan of Action from that Conference included exhortations to states to “[u]ndertake legislative and administrative reforms to give women full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources and appropriate technologies”. (Strategic Objective A.2)

Land rights of indigenous peoples have also been the focus of attention in international instruments, and in the jurisprudence of various international tribunals. Article 10(c) of the Convention on Biological Diversity (CBD), for example, protects the “customary use of biological resources in accordance with traditional cultural practices”. According to a later interpretation of this article, a necessary condition of such protection is “security of tenure over traditional terrestrial and marine estates; control over and use of traditional natural resources”. (CBD, 1997)

The most extensive international treatment of indigenous peoples' rights, both generally and concerning land, is found in International Labour Convention No. 169, which was adopted in 1989. This treaty has been influential during the last decade in promoting the cause of indigenous rights, particularly in Latin America, as eleven of the fifteen states that have ratified the Convention so far are from that region, and a further four have submitted it to their legislatures. Article 14 of the Convention states that the collective “rights of ownership and possession [of indigenous peoples] over the lands which they traditionally occupy shall be recognized”. Governments are required to “take steps as necessary to identify” these lands and to “guarantee effective protection” of the recognized rights. Land is defined in article 13(2) as including “the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”.

There are other important international instruments, existing or proposed, which deal with indigenous rights over land and resources. Recent jurisprudence under the International Covenant on Civil and Political Rights interprets the Covenant's article 27 - relating to the right of indigenous peoples to enjoy their culture - to include rights to land, resources, subsistence and participation. Relevant regional agreements include the American Convention on Human Rights, under which a recent decision of the Inter-American Court on Human Rights has confirmed that indigenous peoples' territorial rights arise by virtue of traditional occupation and use and indigenous forms of tenure, rather than from grants, recognition or registration by the state. (Colchester, 2001) Finally, a United Nations draft Declaration on the Rights of Indigenous Peoples is currently under development, containing extensive provisions concerning the protection of indigenous rights over lands and requiring governments to title and demarcate such lands.

III. THEMES IN NATIONAL LEGISLATION

This section will examine three recurring themes that played a dominant role in efforts to reform land laws during the last ten years:

The following discussion is not intended to be a comprehensive survey of national developments with respect to these themes; instead, it draws upon selected examples to illustrate important aspects and variations. Moreover, the above list should not be understood as describing universal trends. Some countries have moved significantly along one or more of these trajectories, while others have taken little action. Often reform efforts have been diluted by contradictory tendencies elsewhere within the same legal framework, sometimes even within the same piece of legislation. Finally, there tend to be broad regional variations in the extent to which any of these themes have been prominent. For example, Africa's preoccupation with the treatment of customary rights is not one that is shared in Eastern Europe.

3.1. Strengthening Private Individual Rights

3.1.1. Rebalancing the Role of Private Actors and the State

Law reform aimed at strengthening individual private rights in land has been a widespread phenomenon over the last decade. It was most conspicuous in the countries of the former Soviet Union and Central and Eastern Europe. But countries in most other parts of the world, from China to Latin America to Africa, also made significant moves in this direction.

Broadly speaking, these reforms share two complementary features. First, they involve an expansion of the types of rights that private persons can possess with respect to land - or in some countries, the recognition in the first instance that private land rights can exist at all. To varying degrees, the focus has been on defining an expanded “bundle of rights”, in terms of the ability of private people to occupy and use land without unwarranted interference for a defined period or indefinitely, and to deal with their land, through sale, mortgage, inheritance or otherwise.

The necessary corollary to the widening of private rights is a corresponding reduction of the state's powers over privately held land. This includes diminishing the role of the state in decisionmaking about the use and transfer of land, areas in which state discretion has traditionally been dominant in many countries (at least formally). It means imposing greater restraints on the ability of the state to override private rights, and to acquire land compulsorily.

Once again, there are wide divergences between countries in terms of the pace and extent of change, in part reflecting the significantly different starting points from which countries have approached reform. In Central and Eastern Europe and the former Soviet Union, for instance, the dismantling of communism has required the crafting of almost entirely new legal frameworks governing land. As a consequence, the last decade has been a period of unparalleled activity in the drafting of land legislation. Virtually every country in the region, from Albania to Kyrgyzstan to the Russian Federation, has adopted laws that:

As will be discussed below, the results of these activities have been extremely variable. Reforms in some countries have fallen far short of early expectations, due to a continuing or resurgent reluctance on the part of their governments to substantially reduce the state role in monitoring, approving and controlling land relations. Legal constraints on the efficient operation of land markets and the acquisition of secure private rights persist, to a greater or lesser degree, in almost all countries in the region. Nevertheless, when viewed in the aggregate, the changes accomplished in a relatively short period of time are impressive.

Though no other part of the world devoted such concentrated attention to these issues, legislative movements toward stronger private land rights were not confined to Central and Eastern Europe and the former Soviet Union. The decade also witnessed important land law reforms in a number of Asian socialist or post-socialist countries, including China, Lao People's Democratic Republic, Mongolia, Viet Nam and, most recently, Cambodia. Laws from the early 1990s in Honduras, Mexico, Nicaragua and Peru exemplify efforts in a number of Latin American countries to reduce “paternalistic controls which have regulated property use and restricted property rights” and to introduce greater freedoms and efficiencies into land markets. (Hendrix, 1993) Important new land laws in a number of African countries, such as Burkina Faso, Côte d'Ivoire, Mozambique, the Niger, South Africa, the United Republic of Tanzania and Uganda, as well as constitutional provisions in Ghana and South Africa, have helped to clarify the nature of private rights over land and have reduced the discretion of government to interfere with those rights.

The next two sections will examine briefly how new laws have dealt with the closely related questions of: (a) where the ultimate “ownership” of land resides - with the state or with private landholders; and (b) the variety of ways in which private rights have both expanded and continue to be constrained. It should be noted that the focus here is on the substantive content of land rights. Equally if not more important are the legal and institutional mechanisms by which such rights can be exercised and protected in practice, issues which are dealt with below in section 3.1.4. on land administration.

3.1.2. State vs. Private Ownership

Countries in many parts of the world entered the 1990s with the ultimate ownership of all or most land vested in the state. This was particularly true, of course, in the case of socialist or post-socialist countries of Central and Eastern Europe and Asia. It was also true in most African countries, many of which asserted state ownership over land in their first post-colonial constitutions. In a number of other countries, from Guyana to Sri Lanka, the state has been by far the largest owner of agricultural land, and private rights over state land have been limited to leaseholds or use rights rather than full ownership.

For many countries engaged in land law reform, therefore, an initial consideration has been whether to change or leave intact the basic template of state-as-ultimate-titleholder. The outcome of this debate has been mixed, even within regions.

Over the course of the decade, an increasing number of former Soviet Republics have adopted provisions recognizing the possibility of private, individual ownership of agricultural land. For example, Kyrgyzstan, whose constitution originally prohibited private ownership, adopted a constitutional amendment allowing such ownership after a national referendum in 1998. The Constitution of the Russian Federation has recognized the possibility of private ownership since 1993, but it was only with the coming into effect of the new Land Code in 2001 that a mechanism for securing such ownership over agricultural land became available. (Rolfes, 2002) Armenia, Georgia, Ukraine and the Baltic Republics, among others, now allow private ownership of agricultural land. (In many of the countries of Central and Eastern Europe, private ownership was legally recognized even during the communist period, though difficult to exercise in practice.)

By contrast, in a number of former Soviet Republics, land remains legally in the hands of the state, and reforms so far have focused on leaseholds, use rights and the reorganization of collective farms. Belarus, for example, allows ownership of land only for purposes such as housing or gardening. Kazakhstan's 2001 Land Law provides only for leasing of agricultural land.

Law reforms in various parts of Asia also reveal different approaches. Cambodia's Land Law of 2001 allows private ownership of agricultural land, in place of the regime of user rights that was enshrined in earlier legislation. The Government of Sri Lanka has announced its intention to convert much of the state agricultural land - currently held by farmers under state grant and permitting schemes regulated by the Land Development Ordinance and other laws - to freehold title. In the case of China, Lao People's Democratic Republic and Viet Nam, by contrast, the principle of state ownership of land has been reaffirmed. However, within the framework of state ownership, there were significant moves towards stronger and more secure individual or household rights in land.

In Africa, as well, considerable debate has taken place in a number of countries about the desirability of the state retaining “radical title” over land, once again with mixed outcomes. Eritrea's Land Proclamation of 1994 unequivocally asserts state ownership of all land, with private rights over agricultural land limited to life usufructs. Mozambique's Land Law of 1997, which, as will be seen, significantly strengthens the land rights both of private investors and local communities, nevertheless keeps in place the basic principle that all land ultimately belongs to the state.

Tanzania's 1999 Land Act continues to vest land in the President as trustee for the people of Tanzania. Uganda's Land Act of 1998 goes further towards removing from the state a residual ownership interest in land, recognizing both private individuals and communities as potential owners.

The relative merits of vesting ultimate ownership or radical title in the state or in private persons are difficult to evaluate in the abstract. The mere fact of state ownership in itself provides little information about the nature and strength of the rights that private persons may acquire in land. Depending on whether state ownership is nominal or symbolic on the one hand, or active and interventionist on the other, private landholders may acquire rights that for all intents and purposes are equivalent in practice to full ownership. As the example of Hong Kong (amongst others) demonstrates, the fact that all land is held under long-term leases does not preclude the emergence of a vigorous real estate market.

Nevertheless, the issue often provokes strong passions in different ideological camps. Many socialist or post-socialist governments, for example, have been reluctant to abandon long-standing convictions that land properly belongs to the state, even while they have come to recognize the need for greater security, flexibility and marketability of private rights. Some observers, including some Western donors, tend towards the view that true reform requires the elimination of a state ownership interest from privately held land. And in countries where government intervention in land relations has traditionally been pronounced, some critics see the retention of the concept of underlying state ownership as a pretext for governments continuing “business as usual”, however much new laws may constrain state action in theory.

3.1.3. Variations in the “Bundle” of Private Rights

Whether private rights are categorized as ownership, leasehold, user rights, permits or otherwise, the critical question is what the holders of those rights can do with them, and to what extent they are vulnerable to being taken away.

Here again law reforms during the last decade fall across a wide spectrum of approaches, with some countries recognizing expansive rights to use, sell, mortgage and modify landholdings, and others opting for more restricted rights packages.

Lithuania's Land Law of 1994 falls at the liberal end of this spectrum. It specifies that land owners shall have the right:

Even in countries where the underlying ownership by the state is retained, there have been some notable expansions in private rights. In China, the 1998 Land Administration Law leaves in place the basic rule that agricultural land is to be held in collective ownership. At the same time, however, the law lays the groundwork for greater recognition of the rights of the individual cultivators who make up a collective. It provides for peasant contracts of 30 years, thus giving the individual cultivator formal rights over a specific parcel which can only be altered by the collective management through a specified procedure. “The new law”, observes one recent commentary, “rests on the principle that by strengthening the security of tenure and the stature of the individual vis-à-vis the collective, the peasant will become a more careful protector of the quality of the land and a more efficient land user”. (Valletta and Venable, 1999)

Viet Nam's Land Law of 1993 also did not change the principle of state ownership, but provided for the de-collectivization of agriculture by allowing farmers to obtain Land Use Certificates. These land use rights can be inherited, mortgaged, transferred, exchanged or leased. By 1999, about ten million households had been issued Land Use Certificates.

While private land rights have expanded in numerous ways over the decade, this expansion has frequently been diluted simultaneously by quite significant legislative constraints. Such constraints can take the form of prohibitions or controls on certain activities, or of underdeveloped legal frameworks that leave the rules concerning certain transactions unclear. (Giovarelli and Bledsoe, 2001) Thus, in many laws from Central and Eastern Europe and the former Soviet Republics, it was not uncommon during the past decade to find:

These constraints may reflect a number of motivations working in tandem. The selling of agricultural land, for example, may provoke fears that inexperienced smallholders will be victimized by speculators, that food security will be undermined by agricultural land falling into the hands of non-cultivators, that the fabric of rural society will be destroyed and that migration to the cities will accelerate. Lingering attitudes from central planning days may account for the reluctance of governments to give up the power to insist that land be used for a specific purpose and to make tenure rights contingent upon the performance of land use obligations.

Laws in Kyrgyzstan and Ukraine, both of which allow ownership of land, provide interesting examples of the persistence of state intrusion that resemble (in spirit if not in detail) a number of countries in the region and elsewhere in the world. The Kyrgyzstan Land Code imposes significant restrictions on how land can be used. More importantly, it gives the state power to withdraw private land rights if land is used in contradiction to its use classification, or if there is failure to use agricultural land within three years of allocation. In practice these provisions are rarely used, but they contribute to a weakening of tenure security.

Similar uncertainty characterizes recent reforms in Ukraine, where state and municipal officials retain significant powers “to withdraw, curtail and redefine” land rights even after they have been assigned and granted to owners, users and lessees. “Taken together, these limitations and uncertainties make it impossible to say, with assurance, that the person holding land rights today will continue to hold the same rights tomorrow or into the medium and long term future”. (Valletta, 2002)

Some hurdles also continue to obstruct the free transferability of land. A number of countries have placed moratoria on the selling of privatized land for a certain period; in Ukraine, for example, agricultural land cannot be sold before 2005, reflecting a fear of speculation, and a concern that new landholders will easily be tricked into relinquishing their land. The Ukraine Land Code also requires that agricultural land only be sold to persons certified by the government as having agricultural education or experience. In this and other ways, the government retains a strong presence in private land transactions in Ukraine, posing potentially significant constraints on the emergence of a vigorous and efficient market. (Valletta, 2002, and Rolfes, 2002)

A number of the restrictions described above may in fact be rooted in exaggerated fears, ideological ambivalence, a lack of legal sophistication or the vested interests of government agencies. From a broader perspective, however, they can also be seen as expressions (albeit frequently ill-considered ones) of the perennial attempt to balance the economic and social functions of land in a way that is appropriate for a particular society at particular point in history. (McAuslan, 2000a) There are sporadic indications that countries within the region are continuing to examine and chip away at such constraints. Most recently, for example, the lower house of the Parliament of the Russian Federation passed a bill on 24 June 2002, allowing the sale of agricultural land, after an extensive and often bitter debate. In one form or another, however, concerns over the potential social effects of the commoditization of land have played a role in the design of land law in all parts of the world throughout history, and will continue to influence efforts for the foreseeable future.

3.1.4. Improving Land Administration

Earlier sections have focused on the substantive content of land rights in national laws. By contrast, land administration, as that term is used here, refers to the institutions and processes that are required in order for a system of land rights to operate in practice. As such, land administration covers a broad range of subjects, including:

There are a wide variety of approaches to these various land administration functions in different parts of the world. With respect to recording land rights, for example, some countries may use highly sophisticated, computerized registration systems, with each parcel professionally surveyed. In some customary settings, on the other hand, information about who has what rights to what land may not be documented at all or documented only very simply, with the community's collective memory serving effectively as the repository of information. In between these two extremes, there are countless variations.

Whatever the context, it is increasingly recognized that poorly designed or malfunctioning land administration systems can undermine the value of land, reduce security of tenure and exacerbate conflicts. However strong a land right may be in terms of substantive law, it is severely weakened in practice if there is not a functioning institutional and legal apparatus that allows it to be exercised and enforced. In this respect, many of the land administration systems around the world are seriously flawed, in one or more of the following ways:

The shift towards enhanced private land rights described earlier has necessarily been accompanied by attention to its administrative implications, and to a number of the above problems. Conspicuous evidence of this attention can be found in the large number of land titling programmes that governments have initiated (or in some cases continued) over the last decade, almost always with donor assistance. Large-scale or pilot titling programmes are under way in most of the former Soviet Republics and in a number of former communist countries of Central and Eastern Europe; throughout Southeast Asia; in Sri Lanka and Bangladesh; in a number of Latin American countries; and in projects at various stages of design and implementation in Ghana and elsewhere in Africa.

There are a wide variety of approaches, outcomes and controversies associated with these different titling efforts. Reduced to their most basic elements, they share the premise that some sort of formal recognition and systematic clarification of land rights is essential for making those rights secure and operational. In some cases, however, critics have questioned whether the benefits of titling programmes justify the costs, and whether the systems being put in place will be sustainable in the future. Others have also questioned whether the formalization of land rights is necessarily desirable in all contexts, particularly where the approach used may strengthen the position of more privileged land users vis-à-vis those with weaker interests. Nevertheless, without denying the shortcomings that exist, these programmes are proving to be useful arenas in which to design and test new techniques for lowering costs, for streamlining procedures and for enhancing institutional coherence. There is also a more nuanced view emerging about how to design formalization strategies that better meet the specific needs of particular groups (a topic discussed in more detail in section 3.2., below).

In terms of legal reforms in support of improved land administration, much of the activity in the European and Asian transition economies has centred on the issue of land registration. The 1997 registration law of the Russian Federation is a particularly impressive example. Among other things, this law:

A number of other transition countries have been less successful in drafting coherent registration laws. Frequent shortcomings, found in different combinations in recent laws, include: failure to provide clear institutional mandates, and to reduce the number of institutions involved in various parts of the process; unsound provisions for the registration of land and buildings in separate systems; failure to define procedures clearly; failure to put in place a parcel-based system; uncertainty about the treatment of easements and pre-existing rights; and ambiguity as to the legal effect of registering or failure to register. (RDI, 1999)

In other parts of the world, there has been scattered legislative attention to registration issues, mostly at the level of modification to details within existing registration legal frameworks (see, for example, Trackman, et al., 1999, concerning Central American experiences). There are several examples of more comprehensive legislative reforms. Sri Lanka's Registration of Titles Act in 1998, for example, lays the foundation for the replacement of Sri Lanka's current deeds registration system with a registration of title system.[4] It provides for the systematic adjudication of parcels in declared districts, the compilation and maintenance of a register that is conclusive evidence as to the interests affecting each registered parcel and indemnification by the state in the event of certain types of fraud or mistake. The act is, in its basic form and substance, well within a tradition of title registration laws that can be found in a number of former British colonies, and hence does not in itself represent an innovation in terms of legal technique. Its implementation, however, could provide important lessons about the practicality, costs and benefits of replacing long-established (if malfunctioning) documentation and conveyancing systems with a significantly new system in a developing country context.

Land administration in all its facets is undergoing rapid change in many countries. Consequently, this will be an area requiring sustained attention from lawmakers in order to consolidate institutional reform, to update procedures and standards and to reflect the introduction of new technology. Experience over the last decade has also reinforced the need to tailor administrative tools better to specific cultural and economic contexts. Some of the more interesting experiments to emerge along these lines are discussed in the next section.

3.2. Accommodating Customary and Indigenous Rights Within National Legal Frameworks

The past decade, while notable for the liberalization and increased market orientation of land laws in a number of countries, also witnessed significant advances in the legal recognition of indigenous land rights and customary land tenure arrangements. These developments have taken different forms, reflecting the widely varying contexts in which they have occurred. In Latin America, Australia, Cambodia, Canada, the Philippines, the Russian Federation and several other countries, important new laws recognize, or provide mechanisms for the recognition of, long-standing land claims by ethnically distinct indigenous groups. In Africa, the main focus has not been on the rights of indigenous peoples per se, in part because of the difficulty of applying that term in the African context; instead, the debate has revolved around how to strengthen the rights of people holding land within the customary sector, which in many African countries is a substantial majority of the population.

A review of some of the more noteworthy legal innovations that have emerged will help illustrate some common themes that arise, as well as some shortcomings and dilemmas that will continue to require attention in the coming years. At the outset, it is important to note that these efforts have many points in common with those described in the previous section. In both instances, the focus has largely been on securing and strengthening private rights over land, and on limiting the ability of the state or other outsiders to interfere with those rights. Where differences lie is in how and by whom rights are held, and in the origin of the rules that govern those rights. In contrast to section 3.1., the emphasis in this section is on private rights that are held by community-based groups or by individuals within such groups, and that are regulated in large part by rules that emerge locally.

3.2.1.Legal Recognition of Customary Rights, with Special Reference to Africa

Until relatively recently, the dominant policy approach to customary land issues in Africa presumed that any meaningful strengthening of land rights for customary landholders would entail the progressive replacement of customary systems with systems of individual private ownership, under titling and registration programmes initiated by the state and governed by uniform national property laws. Advocates of private, individual title typically assert that customary land systems depress agricultural productivity and efficiency. In the absence of individual, tradeable interests in land, they argue, cultivators lack the incentive or the security to make necessary capital improvements or to obtain credit.

Criticism of this approach was well under way by the end of the 1980s; the criticism has deepened and entered the policy and legal “mainstream” during the decade since Rio. Customary tenure, the criticism goes, often provides a high sense of security to individual cultivators. Despite the absence of written titles, individuals operating within customary systems frequently have well-defined rights to land and a realistic expectation that those rights will be secure over time. Moreover, the argument runs, customary systems can be adaptable, and where conditions have warranted, markets for land rights within such systems have emerged. These critics also point out that there is as yet little empirical evidence that individual titling results either in increased productivity or better access to credit. Titling might itself contribute to insecurity of tenure, by raising the spectre of land being lost to outsiders and creditors, and by disrupting locally recognized systems without replacing them with other institutions that can or will effectively protect the newly delineated rights. Indeed, typically the main sense of insecurity experienced within strong customary systems is caused by the behaviour of the state and external market forces (Bouderbala, et al., 1996), in part because the legal status of customary areas is so poorly or weakly defined by state law that some governments have tended to treat such areas as reserves of “empty” land, open to discretionary allocation and re-allocation.

Such concerns have led to the emergence of a pragmatic approach to the issue of tenure reform. Bruce and Migot-Adholla (1994) identify a move away from a “replacement paradigm” - in which customary tenures are to be replaced by tenure provided by the state - toward an “adaptation paradigm”, focused on creating the appropriate legal and administrative environment to permit evolutionary change within community-based systems. This approach calls for a more incremental programme of change. It advocates titling activities that are more narrowly focused on particular localities with particular needs, where, for example, conflicts are endemic and customary institutions are failing to cope with them, where land is increasingly subject to competition and where the commercialization of agriculture is relatively advanced. And it calls for creating “space” within national land law systems for local tenure arrangements to function.

It is premature to say that this approach has substantially reshaped the legal treatment of customary tenure in Africa. Some laws have continued to move in the direction of unitary, individualized tenure regimes, based on the argument that existing customary tenure practices are inherently insecure (see, for example, the Eritrea Land Proclamation, 1994). However, the move toward greater accommodation of local diversity and decisionmaking is a powerful force within ongoing land policy debates in many African countries. It has inspired a large number of project-based experiments throughout the continent and, in a few very important instances, it has found expression in new national land laws. Amongst the latter are laws from Mozambique, the United Republic of Tanzania and Uganda, and from several countries in West Africa.

The Mozambique Land Law of 1997, as noted in section 3.1.2. above, retains the principle that land itself is owned by the state, but recognizes within that context a “right of use and benefit” over land, which is a private property right that is not subject to the discretionary will of the state as owner. (Garvey, 1998) Such a right may be acquired in a number of ways, most notably: (a) by occupation in accordance with customary norms and practices, or (b) through good faith occupation for more than ten years. While provision is made for issuing title documents, the issuance of a title is not a prerequisite for claiming protection under the law: in other words, the right exists; it is not created by state action.

One of the most interesting innovations under the Mozambique law is its recognition of “Local Communities” as entities potentially capable of holding rights over land, and of obtaining title to land in their name. Thus legal recognition may in effect be given to existing local systems of land-holding and resource access within which individual holdings are nested. Within a community area demarcated under the law, customary rules (or, perhaps more accurately, rules generated by and deemed legitimate by the community, whether based on long-standing custom or not) would govern the allocation of land. Thus, effectively the law provides legal recognition to local customary rules, without “freezing” those rules in place by attempting to codify them. This approach leaves flexibility for such rules to evolve over time.

At the same time, this device allows communities for the first time to gain legally recognized rights over areas used in common that are integral parts of their livelihood strategies and farming systems. Where land rights have been limited to the individual farming and homestead plots of individual households, it is precisely these common areas - grazing land, wood lots, bodies of water, etc. - that are most vulnerable to exploitation and encroachment from outside, based on the legal fiction that such areas are “empty”. Under the 1997 Land Law, communities will now have a formal say in how such areas are used, developed and allocated.

Implementing the new Mozambique law necessarily requires coming to grips with questions such as how a community is to be defined, both in terms of its social makeup and the area over which it may legitimately assert control. The definition of “community” provided in the law is worth quoting, in part because it demonstrates the difficulties of capturing this complex and elusive concept in legal terms:

“A grouping of families and individuals, living in a circumscribed territorial area at the level of a locality [the lowest official unit of local government in Mozambique] or below, which has as its objective the safeguarding of common interests through the protection of areas of habitation, agricultural areas, whether cultivated or in fallow, forests, sites of socio-cultural importance, grazing lands, water sources and areas for expansion”. (art. 1, unofficial translation)

There is, in essence, no predefined social or physical unit that automatically comprises a community for purposes of the Land Law. Regulations issued under the Law, in particular a so-called Technical Annex, make it clear that the definition is intended to provide only the broadest guidance for what is in fact a case-by-case process of community self-identification. This process includes participatory delimitation and mapping of community boundaries, and negotiations regarding the management of shared resources with neighbouring communities. (Tanner, FAO, 2002)

The United Republic of Tanzania's Village Land Act of 1999 is broadly similar in many of its main features to the Mozambique Land Law, though it differs at the level of detail. Again within a context where the state still holds radical title, the Act recognizes so-called “rights of occupancy” which can be of two types: granted (i.e., rights of occupancy allocated formally by the government), or customary (i.e., rights of occupancy arising by operation of custom). The Act makes clear its intention to provide recognition for “existing rights in and recognised long-standing occupation or use of land”. Customary rights are, as in the case of Mozambique, to be protected whether registered or not. However, the Act contemplates a process for the adjudication, recording, registering and issuing of titles for customary rights. On village land, land allocation is to be governed by rules drawn up by the community itself. Unlike Mozambique, however, the “community” is an already defined entity in the form of a village which is recognized under Tanzanian law as being the lowest level of local government. Hence, while there will be in many cases a need to define the land over which a particular village has jurisdiction, the governing entity is already in place. The Village Council is, under the Act, the Village Land Manager, responsible for making decisions concerning the allocation of village land, the issuance of Certificates of Customary Rights of Occupancy and the maintenance of a Village Land Register. (Wily and Mbaya, 2001)

Ugandan land legislation offers yet more variations on these themes. The Constitution of 1995 and the 1998 Land Act recognize customary rights over land, and customary occupants of land are endowed with secure tenure even in the absence of registration. Within customary land areas, tenure relations are to be governed by local customary laws as administered by local Land Committees. Certificates of Customary Ownership are available, and may be issued by the Land Committees after adjudication, boundary demarcation and other decisionmaking processes are carried out in accordance with customary law. The certificate shall be considered conclusive evidence of title over the land, and provided conditions in the certificate allow, the land covered by the certificate may be sold, leased, mortgaged or otherwise disposed of. There is also a mechanism for the conversion of customary ownership into freehold. Finally, the Act also provides for the possibility that land may be held in communal ownership, a device that enables group ownership of farm and homestead land if desired, and allows for community assertions of ownership over resources used in common.

Mozambique, Tanzania and Uganda were not alone in pursuing legal reform designed to provide space within national land laws for the operation of diverse local arrangements. A number of other important African legislative examples from the past decade warrant mention:

There are ongoing processes of land policy formulation in a number of African countries, such as Botswana, Kenya, Lesotho, Malawi and Swaziland, as well as an intense debate about the appropriate legal framework for land rights in the former South African homelands. These suggest that further law reforms addressing similar issues are likely to be proposed in the near future.

3.2.2. Strengthening the Land Rights of Indigenous Peoples

Laws recognizing the land rights of indigenous people in other parts of the world have emerged from a somewhat different policy context than legal reforms seeking to accommodate customary rights in Africa. They represent a response to efforts by distinct ethnic groups to maintain their cultural identities in the face of threats by majority populations or colonists. However, in substance, the laws that have emerged are concerned with many of the same issues as those in the recent African laws summarized above.

The region with the longest history of widespread, if wavering, attention to indigenous land issues is Latin America. The estimated indigenous population in the region was 40 million as of 1995, and is characterized by high concentrations of poverty and land insecurity. Throughout recent history, indigenous lands have been especially vulnerable to colonial and non-indigenous expansion, a trend exacerbated by a widespread failure of state legal regimes effectively to recognize indigenous forms of landholding. Throughout the twentieth century in a number of countries, there were periods of reform during which protectionist measures were put in place. In some countries, serious legislative attention has been paid over a number of decades to securing indigenous lands rights, even if implementation has been problematic. In general, however, the prevailing pattern has been one of “dispossession, displacement, marginalisation and assimilation”. (Colchester, FAO, 2001)

The last decade and a half has witnessed renewed and heightened attention to the problem of indigenous peoples and lands. Rejecting previous policies that tended to favour the integration of indigenous groups, the new generation of Latin American constitutions adopted since 1985 have for the most part embraced a multicultural approach. In the case of land, this has resulted in a number of significant constitutional and legislative reforms that recognize the collective rights of indigenous peoples to own, use and manage their lands.

A few examples will illustrate some of the approaches that have been tried and the problems that persist. The 1999 Constitution of Venezuela, for instance, guarantees indigenous peoples the right to their lands and habitats as their “inalienable, un-leasable, un-mortgageable, untransferable collective property”. A Demarcation Law passed in 2000 establishes a process by which indigenous peoples can demarcate their own lands and have those boundaries recognized. Although some ambiguity remains, the recent reforms and several others under consideration appear to consolidate a move towards a conception of indigenous landholdings as including wider areas used for hunting, fishing, gathering and rotational farming. (Colchester, FAO, 2001)

Ecuador's 1998 Constitution provides for the recognition of territorial rights of ethnic groups through the device of “Indigenous Territorial Circumscriptions”. In addition to retaining preexisting restrictions on the sale or division of ancestral lands, it also provides that any decisions concerning resource exploitation or conservation in such territories must be undertaken with the full participation of indigenous peoples. Colombia's 1991 Constitution similarly vests rights in indigenous populations to participate in natural resource management decisions, and recognizes the authority of Indigenous Councils established and governed by traditional custom. (Plant and Hvalkof, 1999)

The 1996 Agrarian Reform Law in Bolivia gives legal recognition to Tierras comunitarias de origen (TCOs), and through this device vests in indigenous communities a collective, inalienable right over land and the resources located thereon. The law has run into considerable difficulty in terms of implementation, however. The procedures for demarcation of TCOs have triggered complaints about their complexity and the resulting slowness with which they can be applied. Moreover, preexisting concessions for timber, oil and minerals cover substantial areas within prospective TCOs, and the law is unclear about how, if at all, these earlier concessions are to be treated.

Not all Latin American laws on indigenous land rights from the past decade have similarly sought to protect identified territories from the incursions of the market. Peru's Land Law of 1995 provides mechanisms for the sale by the state of various types of land within indigenous territories to private investors. This law and a subsequent law on Coastal Peasant Communities have eased the conditions for the privatization of communal land tenure regimes, sparking criticism among many indigenous groups that such laws have the potential to accelerate the unravelling of indigenous tenure regimes. (Plant and Hvalkof, 1999) Similarly, Mexico's Constitution and Agrarian Law of 1992 allow for the first time the alienation of ejido (communal) land.

Outside of Latin America, important laws on indigenous land rights were adopted in a number of countries over the last decade, including Australia, Cambodia, Canada, the Philippines and the Russian Federation. The adoption of a new Native Title Act in Australia in 1993 was prompted by an Australian High Court decision the year before. In Mabo and others v. Queensland (No. 2), 170 CLR 1 (1992), the court held for the first time that native title of aboriginal communities had survived the assertion of radical title by the Crown over the territories that now comprise Australia. The Native Title Act gives legislative backing to the Mabo decision, and provides a framework for recognizing and settling native title claims. Although most of the Australian states already had various forms of aboriginal land rights legislation in place, Mabo and the Native Title Act were revolutionary in recognizing that native title arises from the continued validity of preexisting customary law, not from legislative grants from state governments to native groups. (Fingleton, FAO, 1998)

In the Philippines, passage of the Indigenous Peoples Rights Act (IPRA) in 1997 represented an important milestone in the efforts by advocates for the country's more than six million indigenous peoples to gain recognition of their ownership of ancestral lands. Indigenous people had long been subject to dispossession by government and outsiders. Despite the existence of case law supporting indigenous rights on the basis of “immemorial possession”, in practice these rights were substantially disregarded. The 1992 Constitution affirmed the right of indigenous peoples to ancestral domains, a right that was given some operational substance in subsequent years, first in a series of important administrative orders and ultimately in the IPRA. The IPRA establishes procedures for the recognition of individual and communal ownership of “ancestral domains” and “ancestral lands”. The Act:

In 2000, the IPRA survived an important challenge to its constitutionality in the Philippine Supreme Court, eliminating one of the obstacles to its implementation.

3.2.3. Common Threads and Common Concerns

The above examples of legal innovations relating to customary and indigenous rights come from a wide variety of different contexts. Nevertheless, it is possible to extract from these developments some common threads and to identify some common problems that will need attention in the years ahead. Broadly speaking, these laws share some of the following characteristics and reflect some of the following aspirations:

At the same time, the drafting of laws that recognize community-based rights and that can coherently accommodate a number of tenure regimes within a national legal framework is a complex task. While experience with the operation of many of these laws is slender so far, it is possible to identify a number of problems and challenges that are likely to require attention from law drafters, administrators and advocates of local rights:

Weak, ambiguous or inconsistent laws. In many cases, relevant laws define local rights vaguely or weakly, leaving those rights difficult to enforce and vulnerable to the interpretive discretion of officials. Overly broad definitions of “national interest” and unclear descriptions of community powers can serve as a pretext for governments overriding local rights when it serves their needs or the needs of their allies. Vague statements in land laws regarding local control over common resources may be inconsistent with more specific powers given to officials or concessionaires under forestry, mining or wildlife laws and may thus be ignored in practice.

Complexities in defining the communities, rules and institutions being recognized. State recognition of customary or community-based tenure regimes does not usually require the codification of customary law; indeed, it is widely argued that codification could have the undesirable effect of undermining the flexibility and adaptability of local systems. But formal recognition does require identifying, with some degree of precision, the community whose rights are being recognized, the area over which it has legitimate claims and the local institutions or decision-making processes that are entitled to respect by formal legal institutions. If carelessly done, formal recognition may unduly privilege one of several competing local visions of what constitutes the community, and what rules or authorities are legitimate. This is exacerbated where outsiders automatically make a connection between a community and certain conspicuous symbols of the community - for example, by attributing greater power to chiefs than would be considered legitimate by the community itself.

Balancing respect for local decisionmaking with the promotion of human rights, democracy and accountability. In some contexts, custom may run counter to a vision of human rights enshrined in a national constitution or other national laws, particularly where it comes to the treatment of women and minorities. Laws such as the Mozambique Land Law therefore require courts to apply customary law only to the extent it is consistent with the constitution. While unexceptional as a principle of constitutional law, in practice its implementation may prove difficult. A similar dilemma arises when it comes to ensuring minimum levels of accountability and transparency within local structures. In many rural communities, traditional checks and balances on the exercise of power may be eroding and rules may be undergoing reinterpretation in ways that favour the elite. In such instances, calls for some degree of formalization of individual holdings and for a clearer legal definition of the powers and responsibilities of traditional leaders may come from within communities themselves. Again, the challenge lies in identifying the right level of intervention to address such concerns while still promoting local processes. How far should government law intervene in this respect? How far can it intervene without fundamentally altering the very institutions it purports to empower?

Protecting community-based rights while enhancing economic opportunities. There is no inherent contradiction between giving increased legal recognition to customary or indigenous tenure systems and promoting economic growth - indeed, in some contexts it is argued that the former is a prerequisite for the latter. But the choice of legal techniques may have the effect of skewing the balance between protection on the one hand and the ability to adapt to new opportunities or challenges on the other. Protecting the integrity of local systems against the incursions of richer and more sophisticated outsiders may, as a starting point, justify restrictions on the alienability of land, which are found in many of the laws referred to above. The question is whether an emphasis on protection reflects the needs and aspirations of local people, particularly in rapidly changing economic environments. Some of the laws above provide avenues by which communities or individuals may seek to attract outside investment on their land, subject to an internal process of approval. There are in some cases opportunities for individuals or groups to “opt out” of local tenure systems in favour of acquiring individualized titles under a state-sponsored scheme (e.g., Uganda's Land Act of 1998). To a great extent, these techniques are still untested, and it remains an open question how they will function over time.

The challenge of capacity. The trend towards devolving greater authority to local institutions - whether traditional bodies or local governments - has many strong justifications. These approaches are not, however, necessarily cheap, either in financial or human terms. The process of delimiting ancestral domains in the Philippines, for example, has suffered from insufficient allocation of financial and human resources. It is estimated that the ambitious and innovative decentralization of land administration set forth in Uganda's Land Act would, if fully implemented, exceed considerably the financial capacity of the responsible ministry. The impressive example of some traditional chieftaincy areas (stools) in Ghana that have established land secretariats is not one that is necessarily replicable on a wide scale within the country, due to widely differing capacities, circumstances and interests of traditional authorities. These are obviously not reasons for abandoning devolution strategies. They do suggest, however, a need for more systematic reflection on the part of institutional reformers and lawmakers about the demands that new innovations will put on capacity, both within government and local communities, and how those capacity demands can be met.

3.3. Facilitating Access to Land

Over the last decade, a great deal of research and analysis has reinforced the importance of enabling the landless or the land-poor to acquire land. As a general aspiration, this has been widely embraced by policymakers at both national and international levels. Similarly, significant policy attention has focused on the special disadvantages faced by women with respect to land access. However, compared to the issues discussed in the preceding sections, efforts to address access problems through legislative reform have been modest at best.

3.3.1. Privatization, Restitution and Other Redistributive

Mechanisms

Most of the more famous land reforms undertaken in the decades after World War II (in jurisdictions such as Japan, Korea, Taiwan, Brazil and elsewhere in Latin America, India, etc.) focused primarily on redistributive issues. They were directly concerned with reducing land concentration and transferring land rights to existing tenants, sharecroppers or labourers on large estates or to the landless. Today, in many parts of the world, the problem of inequitable distribution of land ownership remains acute, exacerbating the problems of landlessness, social tension and unsustainable use of marginal or environmentally sensitive lands.

In the past decade, new policies and legal initiatives directly focusing on redistribution of land are conspicuous for their relative absence. There are several major exceptions, but these largely emerged in particular parts of the world in response to unique historical moments - the end of communism, the demise of apartheid, the cessation of hostilities that had resulted in massive long-term displacement. They cannot therefore be classified as legislative efforts to deal systematically with the chronic inequality of land distribution that exists in many countries.

The most intensive redistribution of land that occurred during this period involved the redistribution of state land to private persons in the form of land privatization in Central and Eastern Europe and the former Soviet Union. The new types of private land rights that have emerged in these countries have been discussed already in section 3.1. To get lands into private hands in the first place, however, required a separate legislative step. Several privatization mechanisms were legislated across the region, ranging from the auctioning of land owned by state enterprises to the restructuring of collective farms. One frequent type of privatization in the case of agricultural land has been the “land share” approach, found in the Russian Federation, Ukraine and elsewhere. Under this approach, members of collective or state farms have been issued shares representing ownership of a portion of the farm. These shares may be transferred through sale or otherwise, and may in theory be converted into a specific parcel of land for individual farming purposes (though in practice this conversion may be difficult to accomplish). (Valletta, FAO, 2002)

Another type of privatization involves the restitution of land to persons or the descendants of persons who owned the land prior to its nationalization under communist regimes. This process has been the centrepiece of reforms in much of Central and Eastern Europe, and has been the subject of numerous constitutional provisions and laws. Lithuania's Law on Restitution, for example, provides for the return of land to individuals (or their children or grandchildren) who had ownership rights in 1940, if the land has remained substantially unchanged in character during the intervening years. If the land has been altered, the claimant is entitled to choose another available parcel or compensation in the form of vouchers or money.

Restitution has also played important roles, unrelated to privatization, in a number of other countries. In South Africa, for example, restitution was one of three pillars in the country's post-apartheid land reform programme. In post-conflict societies such as Cambodia, Burundi and Rwanda, recent laws have had to accommodate the return of large numbers of internally displaced persons or exiles to land that is frequently occupied by new families or communities.

Outside the context of privatization and restitution programmes, only a few countries have adopted new legislation during the past decade in support of redistribution. Namibia adopted in 1995 an Agricultural (Commercial) Land Reform Act, which provides for the imposition of size limits on commercial farms based on agro-ecological zoning and other criteria. Land made surplus through the application of these limits is to be used for resettlement. (McAuslan, et al., 1995) More famous has been Zimbabwe's policy of acquiring primarily white-owned commercial farms for resettlement purposes. A legislative framework for this acquisition was provided by the Land Acquisition Act, 1992, which has been amended a number of times with the effect of dramatically increasing the powers of the President to acquire land, by reducing various procedural safeguards and compensation requirements.

More generally, measures aimed directly at redistributing land or preventing the accumulation of large landholdings have not been high on the political agenda in most parts of the world during the last decade. In large part this is because there simply has not been sufficient political will to push such measures given their highly sensitive and potentially explosive nature and their financial costs. Many countries continue to have on the books various methods of imposing size limitations on landholdings (and in several cases these have been enacted or re-enacted in laws passed during the 1990s, in Africa, Central and Eastern Europe, the former Soviet Republics and elsewhere), but these are seldom invoked and often easily circumvented. India's experience over the last few decades with laws that place ceilings on the allowable size of land-holdings has led some observers to conclude that they primarily create distortions and impose regulatory costs on the operation of land markets.

Discouragement with standard approaches to redistributive reform led during the past decade to several important attempts to design and test alternative approaches. One is an approach referred to as “negotiated land reform”, which focuses on facilitating voluntary transfers from buyers to sellers, with the government providing monetary grants to qualified beneficiaries. Variations of this basic approach have been tried in Brazil, Colombia, South Africa and several other countries. In some cases, these approaches found expression in new laws, such as the 1994 Land Reform Law in Colombia which provides a framework for the allocation of land purchase grants. Early implementation of the Colombian grant scheme ran into trouble because of restrictions in the law that limited the use of funds to the acquisition of land alone, and disallowed their use for complementary investments. This contributed, among other things, to collusion between buyers and sellers with respect to the sales price, a problem which subsequent adjustments attempted to address. (Deininger, 1999) Variations and refinements on these themes have more recently been grouped under the rubric “community managed agrarian reform”, and described as “models of demand-driven reform with strong involvement by local communities and beneficiaries that aims to link the land reform process more closely to development at the local levels”. (Deininger, 2002)

The effectiveness of these approaches in terms of what they can achieve on the ground remains to be seen, and their implications for the further evolution of land law are similarly unclear. What is clear, however, is that the profound economic and social costs of inequitable land distribution are increasingly well understood by donors, researchers and governments, and pressure to address those costs more aggressively is likely to grow in the future.

3.3.2. Rethinking Restrictions on Leasing

Particularly given the difficulties associated with redistributive land reforms, new attention has focused in recent years on the potential of other regulatory reforms to enhance the ability of the rural poor to gain access to land. One subject receiving particular scrutiny is the tendency of governments to discourage the leasing of private agricultural land.

Traditionally, governments have considered leasing an obstacle to land reform. Inspired by a desire to eliminate absentee landlordism and exploitative landlord-tenant relations, a number of governments have imposed significant restrictions on the private leasing of agricultural land. In some cases, leasing has essentially been prohibited, as in a number of Indian states. In other cases, laws may provide for the ripening of a leasehold into ownership after a short time, and/or may impose strict controls on the amount of rent that can be charged.

There has been a serious rethinking of these approaches in recent years. This has been prompted in part by a growing appreciation of the importance of tenancy to the livelihood strategies of the rural poor in many countries notwithstanding attempts to curtail it, particularly in contexts where access through purchase or government redistribution is difficult or unlikely. Where attempts have been made to severely restrict leasing of agricultural land, one of the effects has been to drive the practice underground, where it continues to flourish outside the pale of the law. Studies in India, for example, show that far from eliminating leasing and sharecropping, legal restrictions have arguably increased the lack of security experienced by tenants and significantly reduced the amount of land to which poor farmers could otherwise have access. Eager to avoid the operation of the law, landlords may shift tenants frequently from area to area. Tenants are subjected to threats of eviction or physical intimidation to ensure that tenancies go unreported (Lindsay, et al., 2001), and the state is in a weak position to mediate a relationship it no longer recognizes as existing (FAO, 2001).

As of yet, there are few examples from developing countries of laws designed to strike a new, more appropriate balance between liberalization and tenant protection, an objective that is likely to require different techniques in different contexts. Nevertheless, a number of policy proposals have been put forth, in regions as diverse as South Asia and the Caribbean, and it is likely that this will be an area to which increasing legislative attention is devoted in the coming years.

3.3.3. Improving Women's Access to Land

Not all segments of a rural society confront similar obstacles in gaining access to land. As is well known, women often face especially profound constraints in acquiring secure rights to land and other natural resources, in retaining land over time and in accessing credit markets and other inputs. In many instances, laws and local practices effectively preclude women from obtaining title to land in their own names, and inheritance laws frequently discriminate against female offspring. Married women frequently find that, with divorce or widowhood, they retain few rights over household land. “In many countries ... cultural if not legal norms dictate that men are the owners of land and that women have access to land only through their relationship with a male relative, be it father, husband, brother, or even brother-in-law”. (Lastarria, FAO, 2002) Many of these factors are examined in more detail in the next chapter.

These problems have increasing significance in rapidly changing rural societies. Women play a major role - in some cases the predominant role - in the provision of agricultural labour, and current trends suggest that this role is growing. In many areas of the world, there has been a steep rise in the number of female-headed households, due to a range of factors, including increasing migration of males to urban areas in search of off-farm employment, and changing male-female population ratios because of chronic armed conflict and HIV/AIDS. Changing social structures and norms mean that some of the social safety nets that women might have been able to rely upon in the past have weakened or disappeared.

As already noted, women's land issues have gained high visibility in international fora, and have been the focus of intense advocacy work both locally and worldwide. One of the outcomes has been increasing reference to women's land rights in national constitutions and legislation. Frequently such references are in the form of general statements establishing the principle of gender equity in land rights. In a few cases, laws have gone further towards putting in place mechanisms for implementing the principle. These and other issues relating to enhancing women's rights to land are explored in greater detail in Chapter 9.

IV. CONCLUSION

The record of the last decade with respect to land law reform is a mixed one. In some parts of the world, there has been substantial legislative progress towards strengthening the rights and clarifying the responsibilities of individuals and communities, and rationalizing the role of government. New legal space for local initiatives and local institutions has been created, and important conceptual advances have been made in terms of designing laws that attempt to accommodate and coordinate diverse tenure regimes, rather than standardize them.

At the same time, in many countries much remains unfinished or even not yet begun. Some important laws that have been passed are riddled with ambiguities, apparent contradictions and excessive complexities. In other cases, promising reform initiatives have stalled altogether. In part, these outcomes simply reflect the fact that the process of land law reform is usually a slow one, subject to fits and starts and diversions. More significantly, it is also often a highly contentious process, in which “'objective' considerations of what is best for economic or social or sustainable development” are frequently sidetracked by politics. (McAuslan, 2000b) Even when it comes to such “objective” considerations, land laws often reflect the interplay of a number of agendas which are prone to push in different directions.

Finally, as in many areas of law, some of the more promising innovations in land law from this decade lie largely un-implemented - victims, in some cases, of over-ambition on the part of their drafters; in many cases, of governmental failure to muster the resources or sustained commitment needed for implementation and of constraints on civil society's ability to mobilize and demand action.

In short, the developments reported on here are perhaps less significant as a measure of what has been accomplished, then they are as harbingers of things to come: they provide rough road maps to the issues and complexities that are likely to consume the attention of policymakers, lawyers and advocates for land rights in the years ahead.

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[3] This chapter primarily covers land law developments affecting access to and tenure over land. Issues concerning land management and planning more broadly are not dealt with in detail, given the treatment of these issues in other chapters of this book on forestry, mountains, fisheries (aquaculture) and wildlife. It should also be noted that this chapter focuses mainly on emerging land law trends in developing countries and countries in transition, rather than in developed economies, and on rural land rather than urban land.
[4] A deeds system records only transactions, without purporting to guarantee that the person transferring the land actually holds the interest in question. A title system, by contrast, registers title to an interest in land. The official title register keeps a conclusive record of all interests affecting a particular parcel, with the goal of making transactions easier and more secure.

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