March 2002
by Ricardo Ramírez, PhD
for the Land Tenure Service,
FAO Rural Development Division
Part 2 of 4
"The competing claims for land by peasants and the landowner are such that both can find legal justification for their actions. The Constitution informally legitimizes invasions by squatters, and the Civil Code justifies the resistance by farmers and their efforts for eviction. INCRA acts as advocate of the squatters, and the courts enforce the laws that allow the farmers to evict the squatters. Since there is no institution that determines which of the competing claims should prevail when they clash, the result is rural conflicts. (Alston et al., 1999b: 137) Brazil |
In addition to the sources of conflict and the conditions that shape the shift from grievance to conflict, there are issues of level (scale) and phases that require attention. Agrarian reform is a national level mechanism for land reallocation and legal reform. At the same time however, local level realities, customary rights, tradition and ancestral resource management and allocation practices exist at a more regional and local level. The levels of jurisdiction are part of the context, and they shape how different parties will address a grievance.
Terraciano (1998) talks about groups 'shopping' around for the customary or legal frameworks that best fit their interest in the context of land disputes in Niger. A comparative study of land tenure between Bolivia and Norway highlights how different kinds of conflict are resolved using different kinds of customary or official law systems (Goodale and Sky, 2000). Furthermore, Alston et al. (1999b) provide evidence about how different parties to a conflict will exploit the legal framework that best meets their needs. The shift from a grievance to a conflict can take place through different stages, each providing management opportunities to diffuse the situation and/or adjust institutional arrangements6:
"Thus, the movement from conflict "management" towards conflict "resolution" or "transformation" requires strategies and interventions that promote institutional arrangements that can facilitate and sustain the transition from violent conflict towards sustainable development." (Bush and Opp, 1999: 187) |
According to other analysis, three phases occur in accommodating interests: A first phase where stakeholders are content but where coordination is not questioned. A transition phase where some stakeholders feel threatened and work to meet their own needs without coordination; and a problem phase, in which all stakeholders feel uneasy and communicative action and participatory planning occur (Engel, et al., 2001). What is important in the context of this paper is that the different stages can be recognized, each leading to different strategies and mediation opportunities. In other words, conflicts evolve through time (phases) and space (different parties seeking to exploit local, customary rights Vs. national, formal legal systems), and so must the efforts to manage them.
We have now briefly referred to the three concept categories that address the most generic elements of the SUBSTANCE dimension. Multiple arrows could be drawn among them to signal their ongoing interrelationship. We have now described the general components, the beginning of a guide for conflict assessment. The literature in community forestry and in community-based natural resource management includes attempts at classifying conflicts. The examples in Boxes 6 and 7 illustrate the contrast between an approach that seeks to develop a classification of conflicts in community forestry (Desloges and Gauthier, 1997), and one that seeks to assess conflicts in the broader field of community-based natural resource management (Warner M. and Jones, 1998).
The community forestry example provides a general, concept-based classification. The first grouping of factors is comparable to the source of grievances concept group; the second addresses stakeholder groups, while the third deals with issues and interests, which would appear to follow the conditions grouping. The second example is based first on levels, and thereafter stakeholder groups are listed on the basis of the sources of grievance and some of the conditions. Neither of the examples addresses phases, nor do they separate sources of grievances from the conditions that shift them towards a conflict. Examples that utilize the phases of conflict as a primary parameter, may help differentiate between the sources of grievance and the stakeholder involved at an early phase, conditions that bring about the shift towards a conflict -which in turn may include new stakeholders or their actions7. Barringer's model of conflict is cyclical, which suggests a primary focus on phases. The level parameter may be part of a context, or part of the conditions that cause a shift. In any event, if a typology is only based on the first few concepts of the SUBSTANCE dimension, it stands to loose relevance to site-specific elements such as stakeholders, laws, and institutions.
Box 6: Classifying conflicts [in community forestry]"Thus conflicts have been classified on the basis of different but complementary perspectives. They include:
(Desloges and Gauthier, 1997:39-40) |
Box 7: Types of conflicts arising in CBNRMIntra micro-macro conflicts
Inter micro-macro conflicts
Micro-macro conflicts
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Disputes take place between people -as individuals and as organisational actors- and the nature of the disagreements is expressed through the relationships among them. Gender and power differences will dictate who participates in a dispute, who is left out, and who is consulted. Analysing the stakeholders involved and understanding why they are involved is an important element in conflict management. Who is involved is interrelated with many other factors: a dispute about boundaries will affect which groups or individuals are involved, what customary rules or legal mechanisms they may agree to refer to, how they relate to one another, and this in turn can be the very source of a conflict. In Potosí, Bolivia, a dispute about crop damage by a neighbour's flock of sheep will be addressed by an intra-hamlet customary dispute resolution authority that understand the role and concept of boundaries. In contrast, inter-hamlet disputes will be referred to the legal authority in the nearest town.
Establishing who is a stakeholder depends on several interrelated considerations. "Stakeholder analysis can be defined as an approach for understanding a system by identifying the key actors or stakeholders in the system, and assessing their respective interest in that system" (Grimble, et al., 1995:3-4). Stakeholder analysis is an integral part of conflict management, and is best addressed using a systems approach that acknowledges the many interrelated factors that influence how is a stakeholder. Box 6 provides a glimpse of the roles it can play.
Grimble et al. (1995, p. 7) list a flexible set of steps for conducting stakeholder analysis:
In this useful guide, three major phases are described: defining the problem, analyzing constraints and opportunities, and agreeing on an action plan. These phases are common to several methods that seek to engage multiple stakeholders in joint analysis and action in natural resource management.
"…land boundaries in many parts of rural Bolivia are not understood by people spatially, but rather conceptually. Property is not something that is seen primarily as land divided on geometric principles, but rather as a set of continuing relationships regarding access to agricultural products that happen to be grown in widely diverse ecological niches." (Goodale and Sky, 2000: 4) [my emphasis] Bolivia |
The above example from Bolivia underlines how stakeholder analysis addresses the web of networks and relationships that individuals and groups belong to (Ramírez, 1999). The importance of these social networks is captured by the notion of "social capital", one that is relevant in wide range of contexts ranging from industrialized settings to traditional common property management regimes (Ostrom, 1995; Reimer, 1997; Forni, 2000; Riddell, 2000, FAO, 2001). "Those types of social relationships that a person has that are reciprocal and supportive of other capital formations have been designated lately in the literature as social capital." (Riddell, 2000). Social capital is particularly relevant in local policy implementation, as existing webs of social organization become mechanisms for local adaptation of norms and practices. Who becomes involved, then, is not just the result of a checklist of static attributes, but also the acknowledgement of the groups, mandates and activities that make up communities. In addition, by addressing interested parties as actors (or stakeholders), rather than as passive beneficiaries, the potential for community-driven approaches is reinforced in contrast with centrally driven reform (Alden Wily, 2000).
Stakeholder analysis is a central theme in methodologies that seek to accommodate multiple interests. For example, Ramírez (1999; 2001) provides a typology with eight contextual dimensions that come into play in accommodating multiple interests: the nature of the problem, the stakeholders, the convenor, the networks, stakeholders' capacities, stakeholders' choices over procedures to deal with conflict, negotiation, and dispute resolution. These eight dimensions function as lenses though which to analyse a multiple stakeholder situations. Box 8 provides further examples of what is involved in stakeholder analysis.
This section reviews some general considerations about legal frameworks, and the various roles they can play - both positive and negative - with respect to land conflict8.
It is convenient to think of legal frameworks affecting land as consisting of two distinct though inter-related components. They comprise, on the one hand, substantive laws - the rules expressing the rights, responsibilities and remedies of different stakeholders concerning land. They also consist of processes for resolving conflicts. These include, for example, the institutional apparatus of adjudication, such as courts and tribunals, the rules by which they operate, the criteria by which people gain or are denied access to such forums, etc.
Ideally, legal frameworks should play an important role in both diminishing the incidence of land-related conflicts, and in managing those that occur. Sound laws and functioning legal institutions will, in the best of circumstances, provide a secure and predictable foundation for both private and public action. Tenure and access rights will be clearly defined, the rules governing transactions will be coherent and fair, and remedies will be available when legal violations occur. Of course, no legal framework will eliminate land conflicts altogether, but the best of them will ensure equitable, efficient and consistent treatment of conflicts when they do arise, in a manner that generally is seen as legitimate in the eyes of the people.
There are numerous reasons why legal frameworks governing land usually fall far short of this ideal, and indeed, why on some occasions they arguably play a destabilizing, rather than stabilizing role. One contributing factor in many countries is the heterogeneous nature of the legal framework itself, brought about by the superimposition of several legal traditions, one upon the other.
Some degree of legal pluralism exists in almost every country, but this is most pronounced in countries where western laws and legal systems were introduced by colonial powers or otherwise imported from outside. Thus, in many African countries, for example, land laws derived from British, French or other European templates were imposed in settings where land relationships were already governed by long-existing customary laws. The intent was in some cases eventually to suppress or significantly alter custom; in other cases western land laws were applied selectively as and when it suited colonial powers and later, their post-colonial successors. In either case, the de facto situation was often that a large segment of the population continued to treat customary law as applicable, even as its status in the eyes of the state was dubious.
In situations where governments have aggressively tried to replace customary tenure regimes through the statutory imposition of individual land titling schemes, the result has frequently been deleterious, with severe consequences for the social fabric. But even in other cases, where government policy has been more benign, the uneasy and unsynchronised co-existence of different bodies of law and different legal institutions has contributed to undermining the legitimacy of both systems. In its most dysfunctional variants, legal pluralism can:
It is important to note that the existence of plural land law regimes is not inherently problematic in many national contexts. The difficulties that arise in practice often stem not from pluralism per se, but from long-standing failures to harmonize the operation and interaction of the various systems, to define the jurisdictions of each, and to reduce the uncertainty and insecurity surrounding some customary systems by according them a greater degree of formal recognition in the eyes of the state.
Indeed, over the past decade it has increasingly been argued that the rule of law can best be strengthened, not by replacing one competing system with another, but by accommodating diverse local systems of land rights within an over-arching legal framework. As Klug observes in the case of South Africa, for example, there are multiple informal tenure systems in operation based on indigenous notions of land holding and social norms. "Informal tenures...represent the sum at any given time of how social tenures are managed by users on the basis of the prevailing political economy together with their perceptions of what is legitimate, as opposed to what is prescribed in the official tenures." (Klug, op.cit.: 173). Klug and many others -such as Terraciano (1998) and Goodale and Sky (2000)- argue for the importance of integrating local norms and self-organized community groups in updating legal frameworks for land.
Such a strategy entails creating legal space within which communities are free to apply and modify tenure systems that have emerged from their own traditions and the legitimacy of which is grounded in the community itself rather than in legislation adopted in a distant capital city. While prominence is given to local choice, linkages with outside legal institutions and norms are clarified, and minimum checks and balances are retained in order to ensure that local arrangements comport with constitutional protections, human rights and environmental safeguards. Important new laws embodying this approach to varying degrees have been adopted in Tanzania, Mozambique, Philippines, Australia, Bolivia and others. Box 9 provides further details on recent Eastern and Southern African innovations.
Innovations such as these are conceptually intriguing and potentially fruitful; it remains to be seen what effect they will have on the ground. The challenges of implementation of such regimes are considerable, and the viability of such approaches in some areas undergoing very rapid social and economic change is open to question.
In assessing the role of legal frameworks in the management of land conflicts, particular attention needs to be paid to power relationships: On what basis is power built? How does it affect relationships? When and how do power relations change? What are the different dependencies at play (financial, social, and personal)? Vira et. al, 1998. "Legal frameworks for land holding and land use" Klug reminds us, "are never neutral" (1996:192). Property regimes are not only legal and production factors, they can also be interpreted as an expression of the power balance (Ostrom, et al., 1994; Ostrom, 1995; Dubois, 1998). Regimes, laws and rights are part of the influences that underscore stakeholder and resource relationships; those relationships, in turn influence the contours of law and legal institutions.
| Box 9: Recent Land Law Innovations in Southern and Eastern Africa
Previously, recording, registration, and entitlement were all geared towards individual ownership; now the link has been broken. Whilst certification remains indispensable as a founding route to land security, it is no longer necessarily tied to individualisation. Accordingly, new tenure laws in South Africa, Mozambique, Uganda and Tanzania make provision for not just individuals but also for two or more persons, groups, associations, and communities, to hold land in legal and registrable ways. The certification process itself has to change; it may be verbal, and verbally endorsed (Mozambique). The community itself may conduct the adjudication, recording and titling processes (Tanzania). As a matter of course, the local regimes through which these rights are created and sustained - customary land tenure systems - are being empowered in many ways. New tenure laws in Tanzania (1999) bypass the district level and directly designate the elected government of each village as Land Manager. Adjudication, registration, entitlement and land dispute resolution will take place within, and by each village community. In short, there will be some 9225 discrete tenure administrations, following the detailed guidance of the new Village Land Act, 1999. (Alden Wily, 2000: 3) |
In Mexico, the 1992 state-sponsored restructuring of property rights in the ejido system (the reform of Article 27 of the Constitution) instituted three key changes: 1) ejido land can be individually certified, titled and subsequently privatized , 2) permit ejidos to engage in joint ventures with domestic and foreign companies, and 3) put an official end to the government's land reform and redistribution program (which also affect communal lands) (Goldring, 1996: 272). |
In other words, what if the law is part of the problem? This question is particularly relevant in the context of land tenure where reforms bring about changes to legal frameworks, often affecting customary laws and resulting in contrasting perspectives among parties about the relative protection they enjoy and the rights they are entitled to. The examples quoted from Alden Wily above are particularly relevant.
In addition, the implementation capacity by agencies implementing new laws is a key factor. The implementation of the law can lead to a contrast between the official or de jure package of rights and the actual or de facto package of rights. The contrast is accentuated by other government programmes and social practices that affect the production functions of the land (trade barriers, price supports, preferential credit, marketing and distribution assistance, extension services, and dispute resolution mechanisms, subsidized irrigation water, etc. (Goldring, 1996:272). In particular, Goldring (op.cit.) argues that the issue of credit in Mexico10 constitutes a critical gap which some fear may accentuate the trend of polarization and differentiation that critics of the reform of Article 27 talk about. The Mexican examples exhibit the challenge of implementing a major shift in agrarian policy as a source of conflict.
"In all agrarian societies land tenure rights are negotiated and transacted. Even in societies where sale, transfer, lease and so forth of land is said to be forbidden, people are observed to transact these rights for consideration. One need only witness the rich literature on prestation, pawning, absorption of outside populations, transfers at time of marriage, devisement and so forth found in traditional societies (e.g. Riddell, 1988; Riddell and Campbell, 1989). These transactions involved in exchanging primary and secondary land tenure rights are an essential part of the local group's use of social capital." (Riddell, 2000) |
There are other cases worthy of mention where the legacy of the legal framework is questionable, thus hindering the facilitation of reform (see Box 10). As Klug (1996) indicates, in South Africa some opt to ignore the formal law and resort to customary systems. The customary law of succession is based on perpetuating the family head's name and the creation of a permanent family fund. Klug argues that for rural women, neither legal system grants women access to rights to land. In addition, there a multiple informal tenure systems in operation based on indigenous notions of land holding and social norms. "Informal tenures, then, represent the sum at any given time of how social tenures are managed by users on the basis of the prevailing political economy together with their perceptions of what is legitimate, as opposed to what is prescribed in the official tenures." (Klug, op.cit.: 173). Klug and many others -such as Terraciano (1998) and Goodale and Sky (2000)- argue for the importance of integrating local norms and self-organized community groups in updating legal frameworks for land distribution.
| Box 10: "The legacy of illegitimacy"
The framework of South African land law that has been inherited by a post-apartheid South Africa is characterized by a number of elements which undermine its legitimacy and have profound consequences for the establishment of a functional system of land law. These elements include: a hierarchy of land tenures in which freehold title is privileged; the fragmentation of land law in different parts of the country; the lack of an adequate system for recording all land rights; the prevalence of bureaucratic discretion over the land rights of the majority of land holder and even over the disposition of land claims under the Advisory Commission on Land Allocation; a racial and gender stratification of inheritance in land rights; and, the resorting to informal tenure systems by those excluded from the privileged, official system of land rights. |
Legal frameworks shift with major policy shifts, and co-exist with other customary systems and with emerging ones that acknowledge local perceptions and norm. Organizational capacities and political commitment limit the implementation of new land tenure frameworks. In particular, the following factors will come into play:
In addition to the above factors, legal frameworks have an important role to play from a gender perspective. In many societies, women are excluded from effective decision-making processes and, without rights to own lands, be it under traditional or formalized laws (FAO, 2001). In Niger, women have use rights to inherited plots, and there are disagreements among chiefs as to whether women are permitted to own gardens (Terraciano, 1998). While rights discrimination against women is a violation of a basic human right, much remains to be done both in terms of reforming tenure rules and to change the administration systems to ensure women's tenure rights are enforced.
"Thus, the movement from conflict "management" towards conflict "resolution" or "transformation" requires strategies and interventions that promote institutional arrangements that can facilitate and sustain the transition from violent conflict towards sustainable development." (Bush and Opp, 1999: 187) [My emphasis] |
The above brief on the dimensions and constraints of legal frameworks signals the central role that institutions play in implementing laws and regulations. While official law is implemented through formal institutions, we have also reviewed alternative 'legal' frameworks that operate in parallel (e.g. customary or traditional law), as well as alternative means of managing disputes (e.g. alternative dispute resolution). Clearly the institutional and organizational dimensions of land conflict management are of particular importance. "Basic institutions have to be in place before the benefits of changes in property rights are felt by those members of society who need them the most." (Riddell, 2000). There are those who remain optimistic and argue that institutional arrangements hold promise in creating spaces for conflict resolution (quote by Bush and Opp) and those who are more weary about the potential for fundamental reform until the broader institutional framework itself shifts (Hendrickson's quote).
"It can be argued that bottom-up approaches to managing conflicts over natural resources will remain ineffective as long as the broader institutions which govern the management of natural resources are not reformed."(Hendrickson, 1997: 5) |
Clearly, the institutional and organizational dimension merits attention, especially as organizations outside the State become involved in mediation as opposed to either grass-roots movements that arise to protect the interest of groups or classes, or the formal institutions and commissions through which legal reform are implemented.
In the case of the Philippines, grass-roots organizations, NGOs, and governmental agencies opted to cooperate in the implementation of reform through the agrarian reform communities, ARCs (Box 11). The TriPARRD programme provided the means for local implementation with involvement of grassroots organizations, NGOs and local authorities. In this context, the NGOs have helped local groups become organized and take advantage of the opportunities that the Local Government Code provides (decentralization)12. In this case, NGOs have therefore played a mediating role (Carlson, 1999; Berger and Neuhaus, 1977), one that is also recognized as relevant in the case of Mexican agriculture and rural development (de Janvry, et al., 1995). Where there is less literature at hand, however, is about their role as potential mediators or managers of conflict.
Box 11: TriPARRDOne of the most promising peasant initiatives involves cooperation between people's (peasant organizations (POs), nongovernmental organizations (NGOs), and government organizations (GOs) in the implementation of the reform program. The program is supported and advised at the national level by NGO representatives, rural development scholars, and former DAR officials affiliated with Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN = Solidarity Toward Countryside Development and Agrarian Reform). The Tripartite Partnership for Agrarian Reform and Rural Development (TriPARRD) was launched in 1989 …to provide the "pull" (demand) for implementation…This reflected a strategic decision to work with the DAR within the framework of the new law, however flawed, rather than denounce the government and obstruct implementation of the law. (Riedinger, 1995: 190) The Philippines |
The nature and skill of organizations that are able to take on a mediating role in land conflict disputes will include the following features:
Among the factors to address in establishing or modifying organizations to become mediators we can include:
" One can distinguish two sources for the claiming of custodial authority for the past as community patrimony: the first is 'genealogy', through decent, and the second one is 'management' through control over resources, both of which interpret the past as ethnic history." (Libertini, nd.) Brazil |
This last section constitutes an acknowledgement that local realities are the context where case study development begins. Addressing the legacies of conflict (local economy, food security, physical and psychological health, personal security, availability of leadership, physical infrastructure, intergroup relations, women, children and vulnerable populations) and the political - social dimensions of the conflict (religion, cultural, group identities, political structures and institutions) are central challenges to land conflict management (Bush and Opp, 1999:189). The appreciation of historical and livelihood issue sets the context for conflict assessment (Strachan, 2001). A history of conflict may signal the difficulties that a mediator may discover (see Boxes 15 and 16). Rothman (1989) talks about the importance of defining conflict as a problem of relationship between parties rather than as conflicting interests, (from international conflict management). He suggests less attention be placed on competition over scarce resources and more on how the relationship dynamics deteriorate so that each party frustrates the fundamental human needs of the other.
The historical and livelihood issues are clearly site-specific. The way cultural dynamics and intra-household-gender relations work, will also determine how property rights are assigned. In particular, the property rights of a country and the different use rights will provide the context for a conflict typology. Box 12 includes a Nicaraguan example that was mentioned earlier.
Box 12: Typology of Conflicts (Nicaragua) CI. Over property limits (due to imprecision of initial attribution, related to lack of cadastre)
CII. Related to lack of or outdated documents
CIII. Invasion of under-used land
CIV. Superposition of rights
CV. Related to disagreement over property rights of indigenous populations
CVI. Specific to Agrarian Reform Land (Cooperatives or former cooperatives)
CVII. Other problems of enforcement of the rule of law
(de Janvry and Sadoulet, 2000:22) |
The typology in Box 12 provides us with a typology that Nicaraguan organizations can work with. Case studies from other countries will yield other typologies of land conflicts based on their particular property rights and use rights, which in turn will constitute a portrait of each particular historical and agrarian heritage. In the case of Nicaragua, the cooperatives were introduced during the Sandinista governments following the revolution, hence the many references to cooperatives in the example.
The above typology leads to the question: What conflict management approaches are appropriate for each type of conflict? This is the subject of the next Part.
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