Régularisation des terres et résolution des conflits: le cas du Mexique
Au Mexique, la réforme agraire a une histoire longue et complexe en raison des luttes paysannes survenues durant la Révolution de 1910. De nombreux conflits sont apparus du fait de la mise en œuvre de la réforme elle-même, mais aussi en raison des conflits hérités du passé. En 1992, l'Article 27 de la Constitution a été modifié, de même que la loi agraire. A la suite de la réforme de l'Article 27, un programme (PROCEDE) a été lancé en vue de réglementer le régime foncier en définissant, en 1993, des droits de propriété clairs pour les millions de paysans des ejidos et des communautés agraires, et en leur délivrant des titres conformément à ces droits.
L'article met l'accent sur la façon dont PROCEDE a traité le problème dans le but de trouver des solutions aux conflits à l'échelon local. Bien que le programme de régularisation de l'occupation des terres comporte des modes de résolution des conflits fondés sur des concepts démocratiques et sur la participation, les procédures sont fortement conditionnées par le cadre juridique et les pratiques des institutions officielles qui définissent et appliquent les droits en matière de propriété dans les régions rurales du Mexique. L'article contient peu d'informations sur la façon dont les conflits sont négociés et résolus à l'échelon local. Il convient donc de mieux comprendre comment les personnes font face aux conflits liés à la revendication et au respect des droits. Il existe encore des possibilités de renforcer la participation des personnes aux processus de négociation et les instruments dont disposent les représentants de l'administration et des organisations non gouvernementales pour intensifier la coopération entre les individus et les communautés, en vue de résoudre les conflits existants et d'éviter qu'il en éclate de nouveaux.
Regularización de la tierra y solución de conflictos: el caso de México
La reforma agraria en México tiene una larga y compleja historia, como resultado de la lucha que los campesinos iniciaron con la Revolución Mexicana de 1910. La aplicación de la reforma dio origen a muchos conflictos, que se sumaron a los heredados del pasado. En 1992 se modificaron el artículo 27 de la Constitución y la Ley agraria. A la reforma del artículo 27 en 1993, siguió la formulación de un programa (PROCEDE) encaminado a regularizar la tenencia de la tierra mediante la definición de derechos de propiedad claros para los millones de campesinos de los ejidos y comunidades agrarias y la concesión de títulos de propiedad adecuados a esos derechos.
Este artículo se centra en la manera en que se ha abordado en el marco de PROCEDE la cuestión de la solución de conflictos para resolver las disputas originadas en el plano local. A pesar que el programa de regularización de la tierra permite que se empleen enfoques democráticos y participativos para la solución de conflictos, los procedimientos siguen anclados en las prácticas y en el marco jurídico de las instituciones oficiales que rigen y aplican los derechos de propiedad en el México rural. Se presta poca atención a la forma en que se negocian o resuelven verdaderamente los conflictos en el plano local. Por ello, es necesario conocer mejor la manera como se enfrentan los conflictos que surgen en relación con las reclamaciones de derechos y su aplicación. Cabe la posibilidad de fortalecer tanto la participación popular en el proceso de negociación como los instrumentos gubernamentales y no con el objeto de promover la cooperación entre personas y comunidades para solucionar los conflictos y evitar que aparezcan nuevos en el futuro.
K. Appendini1
Colegio de México, Mexico
Mexico has a long and complex history of land reform as a result of the peasant struggle during the Mexican Revolution of 1910. Many conflicts arose as a result of the implementation itself, together with conflicts that had been inherited from the past. In 1992, Article 27 of the Constitution was amended, as was the Agrarian law. The reform of Article 27 was followed in 1993 by PROCEDE, a programme aimed at regulating the tenure of land by defining clear property rights for the millions of peasants in ejidos and agrarian communities and by providing them with proper titles to these rights.
This article focuses on the way in which PROCEDE has dealt with conflict resolution with the aim of reaching solutions to disputes at the local level. It is argued that even though the land regularization programme allows for democratic and participatory approaches to conflict resolution, procedures are entrenched in the legalistic framework and practices of formal institutions that rule and enforce property rights in rural Mexico. Little attention is given to how disputes or conflicts are actually negotiated or solved at the local level. Hence, there is a need for better understanding of how people deal with the conflicts that emerge regarding claims to rights and their enforcement. There is space for strengthening the participation of people in the bargaining process and also the tools of government and non-government actors in enhancing cooperation between individuals and communities for resolving conflicts and avoiding the creation of new ones.
Mexico has a long and complex history of land reform as a result of the peasant struggle during the Mexican Revolution of 1910. Peasants' right to land became a constitutional right in Article 27 of the Mexican Constitution (1917), thus initiating land reform. The distribution of land over the next 75 years was a long and complex process. In its wake, a web of institutions were created that were responsible for the implementation of the reform legislation, including a vast number of laws, regulations and codes pertaining to land distribution, titling and enforcement of the agrarian law, as well as for overseeing the proper functioning of agrarian communities. Over time, different aspects of the reform laws and rules were emphasized or modified, as were the different bureaucratic agencies, policies and programmes. The process was not smooth, neither in legal nor in practical terms. Many conflicts arose as a result of the implementation itself, together with past conflicts. Norms, regulations and practices for conflict resolution also became institutionalized, with the result that Mexico has an elaborate legal framework with the competent public institutions for resolving agrarian conflicts.
In 1992, Article 27 of the Constitution was amended, as was the Agrarian Law.2 This meant a new approach to land reform, namely the end of land distribution and transferring attention to the issue of securing property rights. The objectives of the amended Article 27 were to extend the limited property rights of rural land that had been distributed to peasants under the agrarian reform, together with its resources (see Box 1). Under the new Agrarian Law, peasants may have full property rights (attain privatization) over their plots and the right to decide the destiny of the common lands and the collective resources of the ejido and agrarian communities. The reforms were intended to create an active land market, promote efficient resource allocation and enhance investment in agriculture.
The reform of Article 27 was followed by a programme aimed at regulating land tenure, by defining clear property rights for the millions of peasants in ejidos and agrarian communities and by providing them with proper titles to these rights. The Programme for the Certification of Ejido Land Rights and the Titling of Urban House Plots (PROCEDE)3 was launched in 1993 by the newly established Agrarian Attorney (Procuraduría Agraria). The programme faced the enormous task of resolving pending conflicts concerning land tenure, such as disputes between as well as within communities, before being able to present the ejidos and communities, as well as the peasants, with documents certifying the physical location and characteristics of the communities, the individual plots, land use and the identification of the persons with legal agrarian rights and the right of ownership of the plots. In the process, new tensions and conflicts emerged.
One of the most important aspects of land regularization and title programmes is the resolution of conflicts over who has rights, what rights and how the rights to land and resources are managed and enforced.
Property rights to land and other forms of natural resources are defined by the institutional framework that refers to different levels of institutionality. This means that the institutional context in which property rights are embedded have multiple normative levels, which range from the laws and regulations designed and enforced by public entities that govern access and management of land and its resources, as well as who is entitled to these rights, to the norms that structure the rules at the local level (written or decided by custom and use), to the everyday arrangements and practices of groups or individuals in exercising their rights. These practices are dynamic and may produce changes in local norms (Appendini and Nuijten, 2002; van der Haar, 2000a). A highly legalistic approach for dealing with conflicts in communities and among individuals is likely to be complicated and costly to enforce. Solving conflicts and disputes by consensus and agreement at the local level is therefore a key issue in land regularization programmes.
Box 1 Small private property. The owner has the right of use and usufruct of the land and the right to sell or dispose of it. The Constitution limits the amount of land allowed in private holdings. Ejido. Agrarian community created by land distribution under agrarian reform (1917-92). Land was given to the members of an ejido for use and usufruct, but remained the property of the nation. The rights are inheritable. By land endowment, peasants were given access to land in order to constitute an ejido. This process was often legally complicated; years could pass before the peasants had the final title. Although the ejido often
recognized the rights de facto, uncertainty left room for conflict (Embriz
and Rojas, 1999). Comunidad agraria. Agrarian communities are
collective owners of their land under a common property regime.
Restitution of land is the mechanism by which agrarian reform restituted
the land. Communities had to prove that they were the rightful owners of
the land of which they had been illegally dispossessed. If the documents
(often dating from the colonial period) were retrieved, community
boundaries were often ambiguous and the rights of different groups and
private holdings as well as rights to other natural resources (such as
water and forests) often overlapped. This uncovered conflicts among
communities that could be traced back over 100 years (Embriz and Rojas,
1999). |
In the case of Mexico, the institutional setting governing rural property rights is very complex, as is the heterogeneous countryside with its different agroecological, socio-economic and ethnic contexts.
On one hand, the legal framework that governs property rights (Article 27 of the Constitution and the Agrarian Law) sets the rules and the mechanisms by which they are to be enforced and monitored at all institutional levels. This means that the Agrarian Law also sets the legal framework for local decision-making mainly by giving authority to local community assemblies to decide and resolve a number of issues concerning property rights and land use. Hence, "participation and democratization" at the local level are issues that are prescribed by law. Formally, this gives legal legitimacy to the inclusion of local norms and customs in managing property rights and resolving conflicts. At the same time, the articulation of formal norms and local institutional practices is not a straightforward relationship, but is interpreted and reinterpreted at the local level and may differentiate among different stakeholders.
Moreover, the everyday practices of participation and democratic procedures in decision-making are often in contradiction with the reality of power structures within the communities and a "state corporatist culture" which for decades permeated the local practices of decision-making.4 Consequently, people may well be organized informally outside the recognized structures in fragmented groups, networks and kin in pursuing their specific interests.
This article focuses on the way in which the recent experience of Mexico in carrying out PROCEDE has dealt with conflict resolution aimed at reaching solutions to disputes at the local level.5 Although the land regularization programme allows for democratic and participatory approaches to conflict resolution, procedures are entrenched in the legalistic framework and practices of formal institutions that rule and enforce property rights in rural Mexico. Little attention is given to how disputes or conflicts are actually negotiated or solved at the local level. Hence, there is a need for a better understanding of how people deal with the conflicts that emerge from claims to rights and their enforcement. There is space for strengthening people's participation in the bargaining process as well as the tools of government and non-government actors in enhancing cooperation between individuals and communities for resolving conflicts and avoiding the creation of new ones.
The now historical land reform distributed 51.4 percent of Mexico's territory to peasants from 1917 to 1992. Land distribution was carried out by: land restitution, land endowment, expansion of the ejido, and creation of new ejido population centres (Box 1). The procedures by which land was given in possession to ejidos and agrarian communities included a long list of legal instances and decisions at different levels, from the local institutions and authorities to the president of Mexico. There was plenty of room for conflicts to flourish within the process itself.
Some of the most common conflicts between communities concerned boundaries. The agrarian communities often inherited these conflicts because of the ambiguity of boundaries established centuries earlier and disputed ever since among the various neighbours. As for the ejidos, proper measurements and maps may never have been drawn up. Conflicts over inheritance rights were also common within households (de Walt and Rees, 1994).
Box 2 A typical ejido has a basic spatial structure (see diagram): the urban population nucleus where people have their house lots and where the plots assigned for urban collective purposes such as the school, the unit for women's agro-industrial projects and other collective activities are located; the fields for cultivation assigned in individual plots for each ejido household;1 and the lands held collectively, or for common use, namely grazing, forest or marginal lands.2
1 There are few ejidos in
which crop lands are held collectively and farmed as such. |
The new Agrarian Law of 1992 made several important changes. First, land reform through land distribution was discontinued. Second, the rights of the ejido members were extended. Although remaining the property of the nation, by a majority vote of the Assembly, ejidos can decide to change this regime and allow members to lease or sell their individual plots.6 Furthermore, the Assembly decides how to assign common lands and enter associations with external capital. Third, the plots assigned for housing in the ejido population nucleus are allotted as private property.
PROCEDE began in 1993 and is still active. The programme has faced the enormous task of regulating the land tenure situation of the agricultural and urban plots, tracing the boundaries of common lands in ejidos and also communities - a total of 27 252 ejidos and 2 194 communities in Mexico.7
PROCEDE started with the ejidos, which would subscribe to the programme on a voluntary basis. Thus both the institutions involved in the programme, as well as the ejido members first had to be convinced of its benefits. Therefore, the promotion of the programme by PROCEDE was very important. A new generation of rural promoters, called inspectors (visitadores), were key in this process and in carrying out the programme at the field level.
For a better understanding of the procedures of the land regularization programmes, a brief description of the ejidos and their organizational structure is given in Box 2.
The members of an ejido or community are those people with rights to land or membership. Belonging to an ejido or community means having not just the right to land but a variety of other rights: allotment of an individual family plot for cultivation; access to common lands; access to collective resources, such as forest and water; and participation in the governance of the ejido and its resources. It also implies such obligations as complying with the rules and performing the tasks assigned to its members.
It is important to note that not all peasants have rights as ejido members. In some ejidos there is not enough land for everybody, particularly in the case of children and third-generation ejido families who received land decades ago, or in cases where the expansion of the ejido was not sufficient or not achieved. Consequently, there may be people living in the urban nucleus of the ejido who do not own land and do not participate in the Assembly (see below) because they have no rights as ejido members. However, sometimes they cultivate the land, as owners, or plots of common land, to which the landless are given access. Other people with no access to land simply live in the urban nuclei, the community residents, and have only a limited voice in affairs concerning schools, health centres, etc. Thus there is a large exclusion element in the "democratic and participatory" institutional setting of ejido governance.
The systems of governance for the ejido and agrarian communities are legally established by the Agrarian Law. The highest local authority is vested in the General Assembly, which makes all the major decisions in the ejido concerning access to and management of all natural resources, the recognition of rights for eligible members and the internal rules of the ejido. Conflicts concerning matters related to tenure and resource management are set within this context, giving the Assembly authority to resolve conflicts based on consensus or majority vote.
Hence, the internal organization of the ejido and communities includes the mechanisms by which conflicts are discussed and may be solved, as the local authority is invested with the right to make the competent decisions. Formally, the process is participatory and democratic. However, the right to membership is exclusive and part of the local population is left out of the decision-making process. This feature may contribute to conflicts inasmuch as family members of those individuals with agrarian rights are not part of the decision-making processes. This situation may create conflicts within the household, which is only represented formally by its head. For example, the Agrarian Law leaves the possessor of the land title free to choose his or her heirs, and this may lead to conflict.8 Even though people may respect the will of family members, the authorities and public institutions will only recognize those individuals who have established "rights".
Formally, then, there are different actors at the local level, with different rights and levels of participation in the decision concerning the ejido and the population nucleus. Although several institutions (see footnote 7) are involved in the land regularization process, it is the Agrarian Attorney who is in charge of the programme, and at the local level it is the agrarian inspector,9 who represents the Agrarian Attorney and who is responsible for the whole procedure of land regularization within the ejidos and the communities.
The inspector is the first external instance for resolving conflicts by means of settlement or agreement among conflicting parties, prior to presenting the conflict to a formal instance such as the Assembly or the agrarian tribunals. The non-agrarian rural or municipal and local authorities may also have a role in carrying out the programme, since they cooperate with the inspector to provide information about the rights and situation of the ejido. The agrarian subjects are often in conflict with such authorities and this may make the certification procedure more difficult.
The implementation of PROCEDE follows seven steps from the promotion and acceptance of the programme to the final registration of certification.
A brief description of these steps is given below together with some of the problems that may emerge.
First (step 1), the inspector approaches the ejido and meets informally with local authorities, peasant organizations and representatives of public institutions at the local level in order to promote the programme. From the start, a person from the ejido (called the becario campesino) assists the inspector - an informal way of training local people. The inspector makes a diagnosis of the ejido, including the way it is organized, participation, pending agrarian cases and conflicts. There is a special form for registering conflicts, which are classified by type of conflict, the reason for conflict and the parties involved, as well as proposals for their solutions.
Filling out the diagnosis form may lead to disagreement: for instance if the information given by the commissioner is biased. Although the inspector is trained to make the diagnosis, there is no specific methodology involved. The inspector is provided with a manual that lists information to be obtained, and mainly consults the commissioner. At this point, conflicts are only listed.
Next, the inspector meets with the commissioner and the supervisory council in order to fill out a formal questionnaire on the ejido, to check the information gathered in step 1. The viability of the ejido entering the programme is discussed (step 2). If there is a positive opinion, meetings are held with key local people - formal or informal leaders, groups of ejido members. Finally, the inspector and his or her immediate superior decide whether the ejido should enter the programme.
Sometimes inspectors or the local authorities try to persuade the ejido to accept the programme. There have even been reports of threats of dispossession of land if ejido members are reluctant to accept. Such actions are illegal.
Registration to the programme is then formalized by vote of the Assembly (step 3). A representative from the National Institute of Statistics, Geography and Informatics (INEGI) explains how the measurement of the land will be carried out. Working groups, called auxiliary commissions, are established in order to identify the ejido boundaries, and ejido members are encouraged to participate. A first draft of the ejido map has to have the written consent of the members. Each of the following procedures has to be made public and consent given by the Assembly.
The auxiliary commission presents the results of the manual map of the ejido boundaries prepared by the working group. It also reports on the conflicts that have emerged and the agreements reached to solve them (step 4). All conflicts are registered in the diagnosis and a special report on conflicts is written by the auxiliary commission.
The formal measurement of the territory and the final maps of the ejido are now prepared, under the supervision of INEGI (step 5). At this point, the individual plots are measured. The auxiliary commission, the inspector and the becario campesino also have to be present during the measurement of the individual plots and lands for common use. In every case consent must be registered.
If the ejido members affected are absent when their plots are measured, the commissioner provides the information, which is accepted and incorporated into the map.
The majority of conflicts concern individual plot limits. These account for 30 percent of the disputes settled by the agrarian tribunals from 1992 to 1996.
Example: Solving conflicts due to mapping
In El Cerrito, an ejido in the State of Guerrero, during the Assembly in which the draft map was presented, one ejido member objected to a road that had been traced through his plot, and was used by everybody. He thought his plot had been divided into two and that he would have to pay taxes for each plot, in spite of the inspector's efforts to explain this was not the case. When the Assembly was held, the member agreed to leave 3 m for a road along the edge of his plot (SRA, 1998: 247).
Once the map of the ejido has been drawn up with its boundaries, identification of plots for different uses and the individual plots, an Assembly is held (step 6). This is the most important assembly of the whole procedure, when the final decisions concerning land rights (who are the agrarian subjects) and land use are taken. A quorum of two-thirds is required for the first assembly and 50 percent plus one for the next. If the ejido map and the list of agrarian subjects with rights are approved, the documents are presented for formal registration in the National Agrarian Registry (RAN). If any subjects disagree, they are informed of the four formal mechanisms available to solve conflicts: the Assembly, which is internal and direct, and the external mechanisms, which are conciliation, arbitration and the agrarian tribunals.
Even though this is the most important assembly owing to the necessity of obtaining consensus and a democratic solution, it may be difficult to gather the required quorum of two-thirds of the ejido members, particularly if the migration rate is high. If a second round is convened with only 50 percent plus one of the members, decisions taken with two-thirds of the vote means that 37.5 percent of the members may actually decide the future of an ejido. Voting is individual but not secret; therefore there may be social pressure on the voters.
Example: Procedures are not always smooth
In the coffee-growing region of Veracruz, the commissioners informed the ejidos about the PROCEDE programme. Some communities understood that the programme was obligatory and, if not accepted, the land would be taken away from the peasants. The programme was implemented in various ways, according to the administration of each community. For example, in one case, the control of the ejido was in the hands of the commissioner and local municipal authorities who belonged to the political party in power at the national level. They were known for their authoritarian methods and so the boundaries of the individual ejido plots were set according to the political group in power at the local level also. Even if this was accepted by the Assembly, it was well known that decisions were not taken in a democratic context (Velásquez, 1999).
When all the tasks have been performed and approved, the ejido Assembly presents a petition to the RAN, which finalizes the procedure by issuing ejido certificates to the ejido and to each member for his or her agricultural plot and urban housing plot (step 7). The RAN also registers this in the registry.
In summary, the procedure for carrying out PROCEDE in the ejidos and communities is founded on the formal norms of governance within the ejidos and the functions of the public institutions as established by the Agrarian Law, namely the Assembly, which has a number of attributes concerning land regularization.10 The existing institutional context was thus adjusted to the needs of the procedures. Other mechanisms, such as the election of representatives within the ejido to carry out specific tasks with the public officials of PROCEDE, INEGI and, in some cases, the SRA, and electing a special task force (the auxiliary commission) were not new to the ejido members. Participation was therefore built upon a formal structure that already existed within the ejidos. However, as is discussed below, participation may have constraints.
PROCEDE at first made progress in the ejidos with few conflicts, owing to voluntary acceptance of the programme. But, over the years, it has become increasingly difficult to incorporate new communities into the programme. The programme did not start in the agrarian communities until 1998.
In many communities the procedures take several years, hence the gap between the number of ejidos that have accepted the programme and those that have obtained the final certificates. In 1999, 84.4 percent of the ejidos had been incorporated in PROCEDE, and 66.4 percent had completed the steps of titling urban plots and certification of ejido lands. As for the agrarian communities, 34.3 percent had entered the programme, but only 12.3 percent had completed the certification process.
A comment on the agrarian communities is necessary because of the specificity of their organization, which requires a more flexible procedure for implementing PROCEDE. In the agrarian communities, customary norms have to be respected, particularly for the 1 395 indigenous communities in Mexico.11 This has led to diverse practices concerning land tenure - such as sale and lease of plots and changes in land use that were not registered by the Ministry of Agrarian Reform, but are recognized by the local people. However, this also led to complex situations that make identifying property rights more difficult.
Example: San Nicolás Malinalco and Jesús Maria: two agrarian communities in the southwest of the state of Mexico
These two villages (pueblos) are separated by only one street. But the Presidential Resolution of 1968 only recognized one title for both villages, although each claimed titles from colonial times - a situation that has led to many conflicts about the shared land. The Assembly approved PROCEDE in 1998, but only 33 percent of the members of the community were present. Nonetheless, the Assembly took place. Eight months later, the Assembly recognized the list of community members and residents, as well as the allotment of plots, common lands and urban nuclei. Not all of the people were in agreement as some considered themselves to be "private" landowners because "outsiders" had bought some forest land in 1940 but had never legalized the transaction, and now did not want to be listed under the common property regime of the agrarian community. While some peasants finally complied reluctantly, others did not receive the certificate.
As for the lands for common use, the communities decided that the common lands that had been deforested should remain as commons. These lands had been cultivated by individual families under the coamil system - maize is cultivated for three or four years and then left fallow for as long as ten years. People who had cultivated the commons for many years could continue, but PROCEDE was requested to register the land as commons. This was contrary to the Agrarian Law, but PROCEDE had to comply with the will of the Assembly and register the individual plots on the official map (Rivera Herrejón, 2000).
The procedure of land certification can generate conflicts or bring out conflicts that were latent. Many of these were the fault of the former agrarian reform process, for example, when the assignation of plots or the use of common lands had not been formalized but held by norms of use and custom. Hence, when communities are obliged to formalize tenure, conflicts may well emerge regarding land allocation that had been agreed upon decades ago.
As has already been mentioned, the Agrarian Law emphasizes that autonomy to the ejidos and communities is the basis of conflict resolution and the Assembly is the highest local authority for reaching a consensus. Therefore, PROCEDE authorities will try to persuade members of ejidos and communities to resolve conflicts within the Assembly in a participatory and democratic way. However, there are at least two problems: one is the institutionalization of participatory democracy and the other is the conflict that may emerge between collective and individual decisions.
First, the will to establish democratic methods for decision-making may not always be realistic when, in many ejidos and communities, conflicts may traditionally have been solved by other methods that may be legitimate and congruent with the ejido and community members.
Participatory democracy also implies that the Assembly will meet periodically and that the minimum quorum required in order to make decisions is reached. As stated above, it is not always easy to get the ejido members to attend. On average, 49.5 percent of ejidos hold from one to six meetings a year (SRA, 1998: 166); furthermore, the custom of leaving decision-making to the ejido commissioner is still prevalent, as under the former Agrarian Law (until 1992), and may be difficult to change in many cases. Finally, the Assembly is restricted to members of the ejido, and so is highly exclusive of other people who live in the community and are affected by the decisions taken. This may refer particularly to the wives of ejido members.
The second problem is the contradiction between giving more power to the Assembly and at the same time empowering the capability for individual action. In other words, giving individuals more autonomy in order to carry out actions such as transferring land-use rights to other ejido members, community residents or associations, without having to consult the Assembly, has a direct impact on the administration of the ejido.
In summary, the formal mechanisms for conflict resolution, giving ample powers to the Assembly, assume that the community or ejido is a homogeneous entity and not a stratified social group in which unequal power relations may permeate the Assembly. In most instances, this is unlikely to be the case. The Assembly is a public space, and power relations such as those relating to gender, local leadership and group factions are likely to influence decision-making. Moreover, the presence of external agents, such as the inspector or INEGI personnel, has an influence on people's participation and decisions. This may be reinforced by the fact that the inspector's manual recommends that "for the approval of the reports and agreements reached within the Assembly concerning the boundaries, destiny and assignment of land, voting must be nominal and open" (Procuraduría Agraria, 1994).
Controversies that are not solved by the Assembly are sent on to one of three external mechanisms for conflict resolution: conciliation, arbitration and the agrarian tribunals.
Conciliation is a formal procedure established by the Agrarian Attorney. It means assisting the parties involved in a dispute to come to an agreement. The "conciliator" is an agent appointed by the Agrarian Attorney, who acts as a third, neutral, agent and who will provide arguments and guidance aimed at resolving the controversy and proposing terms for an agreement.
The second mechanism, arbitration, is also a formal procedure that is adopted voluntarily by the parties in dispute in order to submit a controversy for the decision of an arbitrator, in this case the Attorney. This process leads to a resolution that has obligatory enforcement for both parties.
The third mechanism for formal external conflict resolution, the agrarian tribunals, were established in 1992. These tribunals solve all matters that cannot be solved by the former means in a formal, legal and obligatory manner.
These three mechanisms involve high transaction costs. People often need to travel outside the locality, and the length of the process may damage the agricultural activities of the persons involved.
In consequence, it is highly desirable that disputes are solved at the early stages of the land regularization procedures. The agrarian inspector is thus a key person since he or she deals directly with the individuals involved at the various steps of PROCEDE. This is recognized and even encouraged by the programme but, again, guidelines are focused on the more formal aspects such as how to obtain and register information concerning conflicts (Box 3), and not on how to deal with conflicts or how to guide individuals in the process of negotiation and reaching an agreement.
Similarly, the guidelines for use of the ejido questionnaire (Box 4) are applied during step 1. This questionnaire includes detailed questions about the agrarian conflicts encountered in the ejido. It is interesting to note that, although questions 17 and 18 ask whether conflicts have been resolved, there are no questions on how the negotiation process was carried out or how an agreement was reached.
The Agrarian Attorney classifies conflicts and provides a statistical account according to a codified system.12 However, there are no methodological considerations of how a process of conflict resolution should be carried out at the individual and Assembly level, as if the allocation of formal space for local decision-making were enough to guarantee such a process.
Moreover, the procedure of PROCEDE takes into account only the participation of the population involved and the Agrarian Attorney's agents, mainly the agrarian inspector or the external formal mechanisms of conciliation, arbitration or the agrarian tribunals. There is no consideration of other, informal, actors that may intervene as mediators, such as non-governmental organizations (NGOs). Rather, these have been undermined, even in cases where NGOs have been active in local affairs. For example, many NGOs are involved in defending the interests of communities against the encroachment of their resources, often by neighbouring communities, leading to a complex conflict situation that may have deep historical roots, or against outside interests, such as concessions to private enterprises for exploiting resources, as in the case of indigenous communities with forest resources.
As external actors, NGOs are identified with the interests of the communities.
Box 3 The auxiliary commission receives, organizes and classifies the reports referring to possible conflicts (such as individual rights, ejido boundaries or plot
limits) generated during the measurement process. It informs the Assembly
about the existing conflicts regarding boundaries and the list of
individuals with agrarian rights.
During the Assembly on assessing the boundaries, allocation and use of land:
Source: Procuraduría Agraria, 1994.Hence they often "take sides" in a conflict, and have, in the past, often been in opposition to the interests of public organisms, for example at the local and state levels. Therefore, it is not surprising that public entities do not credit the presence of NGOs as actors that may be involved in conflicts around land tenure situations. However, they have a vast experience and understanding of the problems of the communities where they are involved. |
Peasant organizations are another external actor that may be involved in disputes over land tenure. Peasants have a long history of organized mobilization for land. Organizations involved in land tenure conflicts at present mainly support ejidos and communities that have pending cases such as restitution of land or indemnity for land that has been expropriated (for urban use, oil exploitation, etc.). Hence, peasant organizations also defend the interests of their constituencies and are not neutral actors in solving land disputes.
Box 4
Source: Procuraduría Agraria, 1996. |
A particular actor in conflict resolution is the National Indigenous Institute (INI), a public agency that acts in disputes defending the interests of the indigenous population by providing support and legal counselling to the communities. INI gives advice to communities on matters related to PROCEDE, such as its objectives, how the programme proceeds, the impact and repercussions - negative and positive - of entering the programme.
In conclusion, PROCEDE has a legalistic approach to conflict resolution in spite of the space given to the local resolution of disputes formalized by the Assembly. The tools given to the agrarian inspector are formally aimed at identifying, classifying and directing conflicts to legal channels. The inspector has no guidelines for dealing with conflict resolution at the local level, and has to draw on personal resources and commitment to his or her work.
Many conflicts can be resolved at the local level using an "institutional" rather than a legalistic approach. The challenge is to suggest mechanisms for reaching agreements between individuals in dispute by negotiation before turning to legal instances, which have high transaction costs.13 But even in the Assembly, there may be transaction costs if consensus is not reached, or social cohesion may be eroded.
Such an approach should basically attend to the issue of the context-specificity of each community, including the local norms and organizing practices of the people, and next ask the basic questions concerning property rights:
Mediating in disputes or conflict resolution cannot be left to the inspector alone, and to his or her abilities or common sense; agents must be provided with the skills and tools required for a systematic approach to reach agreements and for including the population in participatory practices. Individual talent, such as leadership, legitimacy, etc., is an important element, together with building on the capabilities of groups and their organizing practices that strengthen the bargaining power of local people, particularly of the weaker groups.
The aims of conflict resolution at the local level, therefore, are the following:
PROCEDE was designed as a highly participatory programme, aimed at involving the rural population in activities such as measuring the land, decision-making and conflict resolution. This procedure was incorporated under the legal framework of the local institutions of land management, mainly by taking part in the Assembly where each stage of the programme is validated and where conflicts are discussed and if possible resolved by majority vote.
However, as can be seen in some of the examples shown above, this process may be slow and costly, or the solution unsatisfactory to some people, or it may not comply with the resolutions, or legal disputes may become further protracted by appealing to the agrarian tribunals. Notwithstanding the detailed design of conflict resolution by PROCEDE, there is a need for reinforcing conflict resolution by enabling people to bargain and negotiate agreements before reaching formal mechanisms, even at the local level, such as the Assembly.
First, in the case of rural communities in Mexico, there is a complex and rich fabric of social and cultural norms and practices that permeate formal institutional settings. The legal institutional framework recognizes this diversity by giving local institutions involved in ejido and community management the authority to decide on matters concerning land and natural resources. Therefore, there is institutional room for diversity, although in most cases this needs to be reinforced in practice so that democratic and participatory practices become a part of everyday decision-making in the communities. The process of conflict resolution may be strengthened, for instance, by developing skills at the local level, or by establishing participatory methods for discussing the benefits and/or problems of the land regularization programmes.
Second, the agrarian inspector - the PROCEDE agent in the field - is the one person on whom many responsibilities rest, since he or she is responsible for promoting, coordinating, supervising and reporting on each stage of the programme at the community level - as well as being the person invested with the responsibility of helping the actors in the dispute to reach an agreement in coordination with the local authorities. However, there are no special tools or methodologies for the PROCEDE officials to accomplish these tasks. The manuals set out the more formal requirements on how to report and classify conflicts but do not provide guidance on how to intervene as mediators.
There seems to be room for more precise tools for conflict resolution, and also for other external agents to mediate in conflicts concerning land regularization, such as NGOs or peasant organizations that do not yet have a relevant role in the PROCEDE process. Both types of organization, when involved in rural communities, have much broader agendas, but land rights are entrenched in most of these struggles. Consequently, NGOs with a good knowledge of the communities and their problems could be given a recognized role in conflict mediation.
In conclusion, it is necessary to enable the different actors in the regularization process to become skilled in conflict resolution by providing appropriate methodologies and by capacity-building at the local level for carrying out the bargaining process and for reaching agreements. This can be based on the existing local institutional structure of the ejidos and communities, ensuring democratic and participatory practices and the inclusion of all members of the ejido and communities, as well as non-members, in matters of importance to the community as a whole.
A summary of recommendations for strengthening land regularization and conflict resolution at the local level is given in Box 5.
Box 5
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Appendini, K. & Nuijten, M. 2002. El papel de las instituciones en contextos locales: Cuestiones metodológicas en investigación de campo. Revista CEPAL, 76 (in press).
Córdova Plaza, R. 2000. Gender roles, inheritance patterns, and female access to land in an ejidal community in Veracruz, Mexico. In A. Zoomers & G. van der Haar, eds. Current land policy in Latin America. Regulating land-tenure under neo-liberalism, pp. 161-173. The Netherlands, Kit Publishers and Iberoamericana/Vervuert Verlag.
De Walt, B. & Rees, M.W. 1994. The end of the agrarian reform in Mexico, past lessons, future prospects. San Diego, CA, USA, Center for U.S.-Mexican Studies, University of California.
Embriz Osorio, A. & Rojas Rabiela, T. 1999. Los sistemas de tenencia de la tierra en México. Transiciones y rupturas. Fuentes para su estudio. Paper presented at the international workshop Transiciones en materia de tenencia de la tierra y cambio social. Casa Chata, Mexico, CIESAS-Institut de recherche pour le dévelopment. (March 1999)
Fernández Osorio, O. 1999. El conflicto agrario en Oaxaca. Estudios Agrarios, 5(13): 103-114 (September-December).
Jones, G.A. 2000. Between a rock and a hard place: institutional reform, and the performance of land privatization in peri-urban Mexico. In A. Zoomers & G. van der Haar, eds. Current land policy in Latin America. Regulating land-tenure under neo-liberalism, pp. 201-226. The Netherlands, Kit Publishers and Iberoamericana/Vervuert Verlag.
Nuijten, M. 1998. In the name of the land. Organization, transnationalization and the culture of the state in a Mexican ejido. The Netherlands, Wageningen Agricultural University. (Ph.D. thesis)
Procuraduría Agraria. 1994. Manual del visitador, Mexico.
Procuraduría Agraria. 1996. Cuestionario ejidal, Mexico.
Ramírez, R. 2002. A conceptual map of land conflict management: organizing the parts of two puzzles. SDdimensions. Rome, FAO. (March)
Rivera Herrejón, G. 2000. ¿Por qué los ejidatarios están ignorando la reforma del ejido?: dos experiencias en el centro de México. Paper presented at the XXII International Congress of the Latin American Studies Association, Miami, Florida, USA. (March)
Secretaría de la Reforma Agraria. 1998. La transformación agraria. Origen, evolución, retos, testimonios, SRA, Mexico.
van der Haar, G. 2000a. The contested nature of land tenure regularization. In A. Zoomers & G. van der Haar, eds. Current land policy in Latin America. Regulating land-tenure under neo-liberalism, pp. 271-287. The Netherlands, Kit Publishers and Iberoamericana/Vervuert Verlag.
van der Haar, G. 2000b. The "indianization" of land reform: the Tojobal Highlands of Chiapas, Mexico. In A. Zoomers & G. van der Haar, eds. Current land policy in Latin America. Regulating land-tenure under neo-liberalism, pp. 147-160. The Netherlands, Kit Publishers and Iberoamericana/Vervuert Verlag.
Velásquez, E. 1999. El parcelamiento de tierras ejidales en una subregión cafetalera del sur de Veracruz. Estudios Agrarios, 5(12): 175-195 (May-August).
1 The author is grateful to Lorena Cortés, Valdemar Díaz and Gabriela Torres Mazuera for their assistance.
2 This article establishes the norms governing the resources of the nation, which are the land, underground resources and water.
3 Programa de Certificación y Titulación de Derechos Ejidales y Titulación de Solares.
4 See, Córdova Plaza, 2000; Fernández Osorio, 1999; Jones, 2000; Nuijten, 1998; van der Haar, 2000b.
5 Private land holdings are not included in the programme.
6 If the ejido opts for giving full ownership rights, the individual plots have to be registered in the Registry of Public Property. This registry is different from the National Agrarian Registry (RAN), which only attends to tenure under the ejido or agrarian community tenure.
7 For this, PROCEDE required the collaboration of four major institutions: the Agrarian Attorney (PA), the National Institute of Statistics, Geography and Informatics (INEGI), the National Agrarian Registry (RAN) and the Ministry of Agrarian Reform (SRA). Other public institutions occasionally involved are the Ministry for the Environment or the Federal Commission on Water (SEMARNAP), for cases of disputes over natural resources or water resources. The National Indigenous Institute (INI) provides guidance and legal representation to indigenous communities on agrarian matters.
8 The former law assigned the right of inheritance first to the spouse and then to the offspring. One out of every five agrarian judicial cases brought before the agrarian tribunes refers to succession of rights.
9 The field promoter and coordinator of PROCEDE.
10 It determines the use of ejido land - human settlement, common lands, parcelled lands; divides the lands into plots and recognizes them formally; regularizes the tenure of those with possession and others who lack agrarian rights certificates; decides on the internal regulations of the ejido.
11 Indigenous communities are particulary important in the agrarian communities of the states of Oaxaca, Guerrero, Mexico, San Luis Potosí, Hidalgo, Michoacán, Puebla, Durango and Chiapas.
12 Conflicts are classified as follows: due to invasion, dispossession, boundaries, succession; according to ownership or beneficiary of lands; conflicts that emerge over recognition of rights; due to sale, rent and allotment of land, assignation, trials awaiting solution, pending cases; conflicts over basic documents, political, social or religious aspects, expropriation, other conflicts.
12 Ramirez (2002) provides an exhaustive discussion of conflict resolution referring to land-management issues. He highlights, inter alia, the importance of context specificity and the institutional context.
Ejidos may, however, be very heterogeneous in their activities, ranging from commercial agriculture, mainly on irrigated land, to peasant households cultivating food crops on rainfed land. Over time, the growth of urban zones may have encroached upon the territory of nearby ejidos, so that there lands may be urban or semi-urban. There are ejidos along the coast, where fishing is the main activity, or where beaches may be exploited for collective tourist enterprises or land leased out for that purpose. Other ejidos located in ecological reserves have the reserve as their resource. Each type of ejido presents specific issues concerning land regularization and the type
of conflict involved.