N. Forni
Nadia Forni is an FAO Consultant
The Near East covers a vast and diverse area. The predominance of Islam, in its various streams, is one of the unifying factors in the region. The egalitarian traditions of Islam informed the early systems of land tenure with tenets of social justice and equality. In the nineteenth century, the Ottoman administration codified the prevailing land tenure systems into a set of regulations that are still followed in much of the region, but many of the independent states that emerged in the twentieth century embarked upon redistributive land reforms without first examining the land privatization trends prevailing elsewhere. At the same time, historically developed customary tenure continues to regulate a large part of access to, and use of, the land.
Current land tenure systems are failing to address age-old problems: landless households and small farmers continue to compete for limited and fragmented cropland, and pastoralists are losing control of their traditional grazing areas. Access to water is becoming an increasingly important issue as the number of users grows. Major issues such as these are often perceived differently by governments on the one hand and citizens on the other. It is therefore essential that efforts are made to ensure a participatory approach to decision-making that involves the rural populations concerned.
BACKGROUND
A comprehensive overview of the theoretical and descriptive aspects of land tenure in the Near East region has been prepared for the Food and Agriculture Organization of the United Nations (FAO) (Rae, 2002). It outlines the historical background and major arguments in the land-tenure debate; implicitly (and sometimes explicitly) it leads to policy conclusions. The present article will therefore focus directly on some major policy issues without analysing in detail all of the conditions related to land tenure in the Near East, which may facilitate discussions on policies and programmes. For ease of reference, a working definition of “tenure” is provided here, keeping in mind that in this region, one is always speaking of both land and water tenure. Water and access to water are vital factors not only in the arid zones, but also in the most fertile cropping areas of the region, which are often dependent on irrigation.
Land tenure can be defined as the group of rights of individuals, households or communities with respect to land. Water also can be accessed under different types of rights. Tenure includes not only property rights, but also use rights of a permanent or seasonal nature. A tenure system may include rights sanctioned both by law and by custom. That is, alongside the formal legal systems, following defined administrative procedures, there also exist customary rules accepted by the majority of users (Forni, 2001).
The term “Near East” is used here to correspond to the country coverage of the Regional Office of FAO, which goes well beyond a strictly geographical connotation of the term and extends from Afghanistan to Morocco, from east to west. The Near East is thus used in its broadest connotation, including what used to be called the Middle East, or the area east of the Mediterranean and south of Central Asia, as well as North Africa (for various definitions of Middle East and Near East, see Shimoni and Levine, 1972). The Near East region defined in this way covers a vast domain. It includes the Arab world, but extends well beyond: on the east it borders on central Asia and shares the land-tenure characteristics of those areas; in the west and south it includes the Maghreb countries and the Sudan, bordering on the African region with its own specific land-tenure traditions.
In spite of wide intraregional diversity, the predominance of Islam in its various streams is an important unifying factor in the region. The Islamic contribution to systematizing land tenure, taking into account the subjacent tribal traditions of the settled and nomadic populations from the Himalayas to the Atlantic Ocean, cannot be overemphasized. The nature of Islamic tradition and organization can be either structured and hierarchical, as in Shi'a areas, or non-hierarchical, usually in Sunni areas. In various parts of the region, religious leaders sometimes intervene directly on matters related to land tenure. For instance, after the Islamic revolution of 1979 in Iran, the rights to be paid for using pasture were abolished after a number of theologians affirmed that access to pasture land was to be considered free (Papoli-Yazdi, 1991). However, on tenure issues, in most cases the influence of Islam and of its different representatives is indirect only. Islam provides rules of life and, along with the pre-Islamic customs it incorporates, it is subjacent in the legal systems in most countries of the region, or at least in the interpretation of legal systems.
It is significant that in Egypt, when the 1992 law that repealed the core of Nasser's land-reform legislation was being formulated, discussions were held with the Al-Azhar Sheikh on the conformity of the proposed law to Islamic Shari'a. The fatwa high committee of Al Azhar adopted the government position, but the radical Islamic group Gamaa el Islamia stated, on the contrary, that any legislation that further impoverished poor farmers must be opposed as being un-Islamic. The unrest following approval of this law was labelled as “Islamist” (see R. Saad and R. Bush in Bush, 2002). This underlines that any tenure regulation should conform to Islamic rules, as they represent a higher “social sanction” that is a prerequisite for enforcement of the regulations, but it also means that Islamic interpretation is not univocal.
Legal systems and tenure policies in the region are also intertwined with areas of global concern, such as protection of the physical environment and ecological sustainability, on the one hand, and poverty eradication and improvement of the socio-economic environment (more particularly, class relations in rural areas), on the other.
Ecological sustainability is closely linked to the issue of land and water tenure in arid and semi-arid zones. It acquires particular importance in areas where mobile livestock husbandry is complemented by crop production under marginal conditions. However, environmental issues are also relevant in the densely populated areas where there is a tendency to overuse scarce resources, which frequently leads to other problems, such as inadequate drainage and increasing salinity.
In the socio-economic sphere, rules and regulations concerning access to land, crop sharing and tenancies are vital to limit poverty among small farmers. Such regulations may help slow the perceptible slide of so many rural households from the status of land operator, albeit insecure, to that of landless labourer, with scant hope of being absorbed in non-agricultural activities. More generally, the issue of equity versus efficiency of land operation is closely linked to existing tenure relations and security.
It should be noted that major tenure and related issues are not new elements in the policy debates in the region; they have already been clearly identified (see Lambton, 1953; Warriner, 1948). There is continuity in the tenure systems in the region, and it is only the acuteness of the problems that changes over time, in line with population movements, economic crises and exogenous political factors. Rae (2002, p. 11) observes that, in fact, there is a long-term geographical stability among tribes and other rural groups in terms of land tenure, where land is used in “compact” areas that may be owned, cultivated and alienated by group members according to traditional customs.
MAIN ISSUES RELATED TO LAND AND WATER TENURE IN THE NEAR EAST
Some of the characteristic types of “official” tenure prevailing in the Near East will be presented here. However, it is important to keep in mind that, in this region, the difference between customary law, ‘Urf, and national law is sometimes very wide. In the cases of both land and water tenure, as Rae (2002, p. 35) underlines, the region is characterized by legal plurality where national law and ‘Urf coexist in the presence of several types of communal and individual rights and a “patchwork of tenure niches with varying rights” (ibid.). State law is often very similar throughout different countries of the region, and is also similar to the laws prevailing in European countries. This is primarily because of common derivation from the Ottoman code of 1858 and the precedents derived from European legal systems, and also because state law was compiled, and is now applied, by people who have broadly the same education and forms of expression. Customary law, on the other hand, is extremely rich and varied; it is unwritten, however, and publications or other documental sources are scarce, and the scope for local research is therefore very broad.
One peculiarity of the region is the prevalence of the state as the ultimate owner of the land. State land covers most uncultivated, so called “dead” land, or mawat, which includes grazing lands operated under common property regimes. It also covers land in cultivated areas, usually referred to as miri, mainly derived from what had been community land in pre-Islamic times, with the state later representing the community. A related peculiarity is the importance of possession versus legal property, where rights of use are possibly as important as ultimate ownership, and can in fact often be sold. The tendency throughout the region in recent years has been towards a constant and deliberate withdrawal of the state from land ownership, and from direct operation where it existed, in favour of private property and operation.
Land tenure types and their evolution
Different types of customary or legally sanctioned land tenure can be found, ranging from community to fully private. Until well into the twentieth century, group or clan organization prevailed over individual ownership. It has often been maintained that the Ottoman land code of 1858 never succeeded in the general registration of individual titles to land, because it was not compatible with communal village organization and because of the extent of marginal cultivation. The definition of cultivated land in marginal areas of the region is still an issue, and a “grey area” exists in which individuals try to obtain title to land through occasional, often ecologically harmful, cultivation of previous grazing land. The Ottoman code provided for the existence of the following types of tenure:
Private land, mulk: right of full ownership and alienation, as well as right to the usufruct of the land.
State land, miri: suitable for agricultural use where the ultimate owner is the state but the usufruct belongs, in most cases, to individuals. The codification of miri land in Ottoman times was often read as an attempt to centralize power against the large landlords and tribal groups by establishing individual rights for a large number of small individual cultivators.
Public land, waqf: reserved and immobilized, for some public (e.g. charitable) purpose, and usually leased, as it was in the past.
So-called “dead”, unreclaimed land, mawat: mainly used for grazing under common property regimes, and often a grey area with political undertones. Occasionally, individuals or tribal groups try to obtain title with varying results.
Current state legislation on land tenure is derived mainly from the Ottoman code, with changes drawn from western European civil codes. In most Near Eastern countries today, land can be classified, from the tenure point of view, as either state/crown land, private land or communal land – the latter mainly in places where ‘Urf prevails. The use of these terms refers to situations that differ somewhat from those found in Europe, for example (particularly the notion of state land). Private mulk and public miri land are often very similar from the point of view of tenure and operation. People using miri land can subdivide it among their heirs and have tenants.
State land (miri) used for farming was often given in concession; it eventually became hereditary and was divided up according to Islamic inheritance laws: estates divided into individual lots paved the way for privatization. In general, occupation rights are inheritable both for the direct assignee and for the cultivating tenants, so that according to ‘Urf law, tenants may also transmit occupancy by sale and by inheritance. However, throughout history assigned land could in principle be confiscated and returned to the ruler (crown or state). Thus a certain margin of insecurity remained.
Share tenancy was the most common system of land operation during Ottoman times and is still important today on both mulk and miri landholdings. However, share tenancy has been recognized as one of the main deficiencies of the Ottoman code, as it contained no provisions to guarantee the security of the share tenant. This situation continued in the systems that replaced the Ottoman rule in the twentieth century, with little attention being paid to relations between landlords and tenants.
Communal land and its management were a peculiarity of many parts of the region, where erratic climatic conditions made production risky and therefore the community was used as security. Jointly owned villages practising crop farming were known as musha when the whole territory was undivided. When individual holdings were defined, they were known as mafruz. In general, the cadastres for musha villages followed a system of registering each villager's share of the land as a fraction of the total, while those who occupied land sometimes continued to exchange their shares. As a consequence, although the system is rapidly disappearing in most countries, there is considerable confusion regarding actual ownership rights.
Pastures are also largely managed as communal land operations. Common property resources are managed and customarily owned by a certain community according to sets of rules and rights, including individual usufruct but not individual disposal (Forni, 1999). The definition of common property is, however, sometimes confused with state or public property by the authorities, whether deliberately or not.
Today's systems of land tenure are thus the inheritance of a long historical tradition, but they have also been heavily influenced by European legislation during the twentieth century, and are currently in full evolution (for a comprehensive and well-documented view of agricultural history in the Near East, see Batatu, 1999, which deals with Syrian agriculture, but is also pertinent for other countries in the region).
The sections that follow look more specifically at land tenure as it applies in arid areas used mainly for pastoral production, water tenure and, finally, tenure in farming areas.
Arid-land tenure: pastoral production and marginal farming
The importance of pastoral tenure is related not so much to the number of people involved – which is usually imperfectly known and often statistically underestimated for political reasons – but more to the large size of the territories pastoralists traditionally control and its relation with political and ecological issues. Pastoral land tenure presents a special case where producers are often seen by governments as a political threat. Hence the rules and regulations proposed by governments are often intended to control rather than to support the producers. This partly explains the reluctance of many pastoralists in the region to participate in public programmes, because they suspect hidden motives.
Traditionally among the nomads, land lies outside commercial transaction, whereas private property is recognized for tents and animals. Land is the property of the tribe; it is available to individuals temporarily, even when it is cultivated. Within the tribal area, dirah, land is allocated among clans and the chief of the clan usually allocates land temporarily among members. There is a “contextual” concept of tenure that distinguishes between rights of access and rights of disposal, and the emphasis is on the kinship network rather than on individuals (Patrick, in Rae, 2002, Part II, Jordan Country Profile).
This system becomes problematic when several groups hold access rights, and in places where settled and semi-settled groups engaged in crop farming share access rights with mobile pastoralists. This happens, for instance, in Iran, where peasants and nomads share certain territories and landlords' flocks are often farmed out to shepherds on contracts similar to those used for crop sharing. It also occurs in Jordan, in recently urbanized land on the desert fringes that was originally under customary pastoral tenure. It has been reported, for instance, that the state, tribes and Palestinian refugees all claim rights to the same periurban land (Patrick, op. cit.). What need to be examined are tenure relations in different contexts in terms of both area and time. Pastoralists may be entering into tenure agreements in many different locations, and the tenure systems applicable to them will also vary between summer, autumn and winter; finally, traditional rights of passage and interrelations with settled agriculturalists' tenure systems must also be taken into consideration.
Historically, nomadic groups tended to have more egalitarian practices, even if the consultation involved primarily the more privileged layers of society. Today, however, the most common element in policymaking at the state level is a lack of participation by the population in devising the policies that will affect them directly. In the badia, it is the community that sanctions legitimacy “when state-legislated tenure usurps customary law”: the state is seen as an external actor, as Patrick has noted with respect to Jordan (ibid.).
A typical recent case involving government intervention to break pastoral communal tenure occurred in Iran, where government interference from the 1920s until the Islamic revolution in the late 1970s was often accompanied by violence. The government's basic objective in the 1920s was to reduce the power and mobility of nomadic tribes in areas where border relations were fragile and the nomadic pastoralists did not readily observe the existence of modern state borders. Measures included blocking mountain passes and interfering with seasonal migration, along with more personally vexing restrictions such as forbidding the use of certain types of tent or enforcing a dress code. Also in Iran, in the 1960s, land reform attempted to settle the nomadic pastoralists, thus interfering with their tenure rights as well as with their traditional social organization, in order to break down their independence (Mortensen and Marcouiller, in Rae, 2002). The current situation is a mixture, with the Jihad Ministry in charge of coordination between different pastoral groups and with formal encouragement to participatory development (FAO, 1992).
The recognition of collective rights and the fostering of people's participation in the policymaking process could become important features of improved governance in pastoral areas. Rae (2002, Part I, p. 25), summarizing country-level information, mentions the merits of environmental leases and other methods to promote policies involving land-use protection under users' responsibility. It is not clear on the basis of available evidence whether any such leases have actually been tried in the field in the region, nor what the eventual lessons would be. This could be an important area for further investigation and experimentation.
Water tenure
Land and water tenure cannot be separated. In desert and semi-desert areas, pastoral production needs a carefully structured system of drinking water sources for both humans and animals. In the case of crop production, water access needs to be regulated in line with its scarcity. Access to water, whether from springs or wells, and the way access is organized, have always been central to agricultural production in the region.
According to Islamic theory (Lambton, 1953, p. 210), water cannot be sold. Only the channel through which the water flows, or the rights of use, can be sold. Larger rivers are owned in common by all Muslims, i.e. the community in the past and now the state. For smaller rivers, the situation depends on custom and circumstances. Canals belong to those who dig them. Wells are divided into those for public use, for private use as personal property, and for private use in pastures, where the owners have priority when they are in the area. In pastoral areas, the owners of the wells are sometimes not the same as owners of the pasture. Springs can be natural, in which case the individual who first uses a spring to reclaim the land has the priority; drilled by individuals, who then own them; or bored on private property, in which case they thus belong to the owner of the land.
According to Warriner (1948), water rights, as sanctioned by the Ottoman code and the civil codes based on Islamic theory, became rather confused over time. Water rights were treated as individual property and – confirming Lambton's statements – were not necessarily annexed to the land. The land could be sold without water rights and vice versa. This situation opened the way to speculators, who managed to control the water and could thus force people to sell the land. Pumps were now owned by townspeople, who thus earned money from them. It is to be noted that Warriner talks of access rights to water, and not of water property per se.
A clarification of the access rights to water has been taking place since these two writers were gathering their information. In many countries in the region, this has been undertaken along with the construction of major irrigation projects. However, as these projects have lost momentum, the initial bureaucratic organizations that assisted water users with high administrative costs also broke down. In the Syrian Arab Republic, for example, by the late 1980s, mismanagement of water because of uncontrolled individual landowner extraction was causing extensive water logging and salinity (Batatu, 1999, p. 75).
Concerning water rights in pastoral areas, according to Rae (2002, p. 34) the situation is different in grazing areas where “establishing rights in water brought with it a parallel usufruct right in surrounding pastures ... This means that water can be owned.” This is a very important but controversial point in Near East pastoral tenure theory, and the issue merits further study, specifically in terms of identifying current water rights, the conditions of access and alienability – whether for individuals or groups – and finally the connection between rights to water and rights to pasture or farmland.
The organization of water access is also essential in many farming areas. In Iran, the organization of the traditional underground canal system, qanats, was the responsibility of landowners in the past. When the landowning system was reorganized through redistribution of land, water distribution, which requires a high level of cooperation among individuals or enforcement by a higher authority, was one of the most difficult problems to be faced. In Egypt, water management is a state responsibility down to the level of the saqia, the last canal to supply water to the surface of the land, after which it becomes the responsibility of the irrigators, who are autonomous and may distribute water as they see fit. The peasants usually organize themselves into communities of irrigators. Dealing with water tenure thus also means discussing the function and organization of the groups that use water.
Tenure and social relations in farming areas
According to traditions of communal ownership in the villages, under the musha system for example, each household held an equal share of land in accordance with the egalitarian traditions of Islam. However, the social consensus on this system has been weakening in favour of private title to a specific parcel of land. In the 1950s and 1960s equity in land distribution was sought at the national level, as indicated by redistributive land reforms that gave private right of possession to a large number of poor rural households. They were not usually given full private ownership and disposal rights, but inheritable rights of use but not to alienate (see Forni, 2001 for the case of the Syrian Arab Republic). Although the reforms were inspired by a desire to help the underprivileged, a top-down approach prevailed. While this is not limited to the Near East, it has often been noted in the region that the perceptions and opinions of farmers, and more particularly of tenants and sharecroppers, are rarely elicited (with respect to Egypt, see the research carried out by Saad, in Bush, 2002).
As underlined by Rae (2002), recent emphasis in the region has been towards increasing the privatization of property rights to land with legally registered titles. In conjunction with structural adjustment principles, the emphasis has in fact shifted from equity to effiiency, and this change is reflected in tenure relations, which today tend to favour the full legal owners of the land over other types of right-holding, such as inheritable tenancies, on the grounds that this will facilitate investment and hence overall growth.
Land reforms and their follow-up
The Egyptian agrarian reform of 1952 spearheaded a series of similar legislation elsewhere in the region, and it would be useful to examine what took and is still taking place in that country. Land reform programmes in the 1950s and 1960s redistributed resources for both equity and efficiency purposes, with substantial results in terms of equity. These were redimensioned, but never dwarfed, by continuing population pressure on land and administrative rigidities. Efficiency results, particularly in terms of marketable surpluses, were often below expectations for a variety of reasons, including increasing autoconsumption of beneficiary households, but also because of inadequate planning systems and mismanagement. Land expropriated from private owners above a certain ceiling in most countries was declared state land before being given to beneficiary households, who became owner-like possessors. Part of the expropriated land was kept as state land for direct operation by the government, as was the case for part of the land in the Syrian Arab Republic (Forni, 2001), and more particularly in Iraq, where many collective farms were established on confiscated land (see Iraq Country Profile, in Rae, 2002).
In Egypt, the reform law maintained the private property of the original owners, but the beneficiaries received inheritable tenancy rights where the rent was fixed at seven times the land tax (Ray, in Bush, 2002). More than half of the country's cultivable land was redistributed from large landowners to smallholders, tenants and landless households. The large estates with more than 200 feddans (1 feddan = 0.42 ha) disappeared. Tenants could be evicted only if they did not pay the rent, and they were registered in agricultural cooperatives as holders, farming the land as if it were their own. Landowners were unable to sell their land because rents were not re-evaluated and over time they fell to levels that were much lower than market values, with the added burden of a tenant who could not be evicted. In short, there was not a free market.
From the government's point of view, reform also required heavy state spending for services. The intention of the economic adjustment policy finally enacted in the 1990s was therefore to withdraw the state as much as possible from economic activity and to stimulate a free market. Law 96 of 1992, effective from October 1997, reformed relations between landlords and tenants and revoked Nasser's agrarian reform law of 1952. New tenancy contracts were now only of annual duration. Landowners could finally dispose of their land.
The new law was consistent with the privatization and economic liberalization policies of the government, and did provide the basis for a better land market. However, there were obstacles to the establishment of a land market, one of which was lack of registration and proof of property. Therefore the government, with outside advice and assistance, pressed for land titling. Attention to access to land and landlessness thus became secondary. To obviate the problems of the newly dispossessed tenants, the distribution of reclaimed land was offered. But this had limited results because, inter alia, the two types of agriculture were too different, and because of lack of capital.
The inability to conjugate efforts in view of equity and efficiency is evident in most countries. The issue is how to save the equity gains without condemning the entire reform effort, which is not per se responsible for lack of efficiency.
The tenure web and fragmentation
A general discussion over landowners and land reform beneficiaries, as in the previous section, covers only part of the tenure relations in the region. In the Syrian Arab Republic, for instance, field investigations have demonstrated the existence of a substantial overlap of different types of tenure within one farm household, where a land-reform beneficiary may also manage other operations under a different title, i.e. as owner–operator, squatter, sharecropper or any combination of these (Forni, 2001). Mohamed Abdel Aal (Bush, 2002) calls this a “web of tenancy”. That is, agricultural holdings cannot be reduced to neat categories of tenants, sharecroppers, owners (so-called “clean patterns”): there are multiple interrelated tenancy relationships in which the landholder accesses land through combinations of more than one pattern. This multiplicity of tenures is also common in Jordan. Patrick stresses also the multiplicity of actors – different individuals and groups within the kinship group – as regards rights of use and alienation (Rae, 2002, Jordan Country Profile). This makes official policies in favour of individual land–titling rather abstract and not rapidly conducive to fostering a land market, as intended by governments. There is also a tendency for those with multiple tenures to hold highly fragmented parcels. Fragmentation, that is, numerous plots regardless of the size of the holding, is indeed another common characteristic of farming in the region.
In most cases, land redistribution following agrarian reform legislation has not stopped fragmentation. In some cases, as is claimed for the case of Iran, land reform distribution itself results in small fragmented holdings consisting of non-contiguous plots (see Marcouiller, Iran Country Profile, in Rae, 2002). In other cases, even where holdings were assigned as one plot, inheritance has eventually broken them down. Most analyses use Islamic inheritance law as the explanation; however, this law does not differ from most other inheritance laws.
Warriner (1948) noted that while, according to accepted wisdom, subdivision and fragmentation is due to Islamic law, it tends not to happen among larger landowners, who obviously find a way to compensate heirs who do not receive land. In fact, a system of plot exchanges and other forms of compensation traditionally exists in most countries. According to some sources for Turkey (Rae, 2002, Turkish Country Profile), excessive fragmentation, which would prevent economies of scale, is counteracted by increasing leasing to create larger holdings, and by swapping plots among owners.
Nonetheless, the establishment of a proper channel for land consolidation and some strict rules, approved by local communities, on what can be physically subdivided and what should be subject to monetary or other types of compensation, is a standing issue in many countries.
The curse of landlessness
Much of the Near East, particularly in the relatively smaller parts suitable for crop production, is suffering from an increasing number of landless and near-landless rural households. The landless are those rural households that do not operate land under any form, have no access to non-agricultural employment and survive on casual rural labour. The definitions as adopted in Sinha (1984) also included non-agricultural rural households with no permanent employment and marginal farmers whose land operation is inadequate to support a household, i.e. who are near landless. At an expert consultation held at FAO in 1985, the difficulties in accepting an internationally valid definition came forcefully into evidence (FAO, 1985). It is therefore still necessary for governments to define what they mean by landless and to define their target group before they embark upon any remedial policy. At this point, the reader should be reminded that increasing landlessness is due to the failure of the whole development system, which is unable to absorb the population growth in the rural areas into other activities. However, the problem of landlessness also has its roots in the social relations in the countryside, and in unequal access to resources.
In Egypt, before the land reform of the early 1950s, the majority of farmers were either landless or near landless. According to Warriner (1948, p. 34), in 1940 over three-quarters of Egyptian farmers controlled less than one feddan and could thus be included in the near-landless category. The problem of landlessness was closely linked to the situation of latifundia and absentee ownership, and brought on the enactment of the redistributive land reform of 1952. However, by the late 1980s, 35 percent of the rural population of Egypt was still reported as landless (Rae, 2002, Egypt Country Profile). Although statistics on this subject are inaccurate and depend wholly on the definitions adopted, there is no doubt that the phenomenon has been increasing in spite of new land redistributions.
Nor is the situation any different in other countries of the region. In the Syrian Arab Republic, for example, where land reform has also taken place on the same lines as in Egypt, landless households accounted for between 6 and 36 percent of total households in a limited sample of villages surveyed. This means that the category had a different significance but still existed over the national territory, and was said to be growing (Forni, 2001).
The landless farmer may be very close to the definition of sharecropper, the so-called muraba'a, being paid one-quarter of the crop produced in exchange for labour only. But the landless farmers differentiate themselves from the crop-sharing peasants by the fact that they provide only labour and are easier to dismiss. Insecurity is the major characteristic of this group.
A landless agriculturist is equivalent in the pastoral world to a poor pastoralist without livestock and working as an insecure labourer. When dealing with pastoral tenure, the increasing phenomenon of pastoralists without assets, who own no livestock and work as wage labourers, should also not be forgotten. This group tends to be evicted from the system and suffers from the same problem as the landless in crop production.
In many countries it is essential to first identify the mechanisms that cause farmers to slide into landlessness so that governments can adopt policies to stem its increase while at the same time promoting the creation of alternative employment. Preventive action could include, for instance, measures to increase security of tenure or the provision of incentives to avoid fragmentation.
THE GEOGRAPHICAL DIMENSION: FOCUS ON SUBREGIONAL ISSUES
In the preceding sections attention has been placed on land-tenure policies and issues that may be relevant in several countries, although with different intensity. However, because of the differences in the region, the geographical dimension should not be overlooked, and the focus may have to be placed upon certain problems and issues relevant in specific areas. A number of examples are given below.
Afghanistan
In this country tenure was traditionally private in irrigated areas, with a predominance of tenants and sharecroppers receiving one-fifth of the crop. Tenure in pastoral areas existed under common property regimes with different local regulations allowing pastoral migration between summer and winter grazing areas according to customary access rights (see Marcouiller in Rae, 2002, Afghanistan Country Profile). The current situation, after decades of turmoil – and what might happen if even a fraction of the millions of refugees return to the irrigated areas and to their original pastoral grazing areas – is largely undocumented.
Sudan
The specific tenure of southern Sudan shares characteristics with neighbouring African countries more than with the Arabized north. As long as the conflict in the country persists, it is not likely that the government will address tenure issues. It may be useful for future purposes, however, to collect information on tenure structure and issues in the different parts of the country.
The Maghreb
The evolution of tenure in the Maghreb, more specifically in Algeria and Tunisia, has progressed through opposing phases and conflicting policies. In Algeria, the pendulum has swung from state confiscation and the experience of self-management, to privatization and state withdrawal. In the pastoral areas, the situation has gone from abolition of pastoral leadership at the time of steppe nationalization, and then back to 'Urf, but with a largely dislocated leadership that had lost its traditional enforcement authority (Rae, 2002, Algeria Country Profile). In Mauritania, the tributary relationship among clans, and in particular the continuing status of customary dependence of whole ethnic groups, has its expression in tenure rights. This issue needs to be discussed so as to identify socially acceptable but also equitable alternatives.
In addition, the rise of landlessness has been continuous, accompanied by growing rural unrest in the whole subregion. This situation is linked to overall development strategies and is affected by exogenous factors such as stricter European migration policies.
A major problem area: Palestine
Much of the political struggle under way today is rooted in the control of land and water. Getting down to the technicalities of tenure relations with respect to land, trees or water on the basis of traditional law and of modern Jordanian, Egyptian and Israeli law would be a service for peace, irrespective of the final users.
Traditionally the same main types of land tenure existed in Palestine as in other countries in the region: privately owned land (mulk), community owned cropland – mainly musha with no written title – and finally state land. This last category could be uncultivated land (mawat) – used mainly for grazing under customary rights, but also for marginal cultivation with frequent fallow – mainly registered in the twentieth century as state land, or it could be miri land. Again, as elsewhere in the region, much cropland was miri, i.e. ultimately state-owned but privately operated and open to inheritance.
Warriner (1948), referring to the situation before partition, indicated a persisting tradition of musha land whereby arable land in a village was allotted equally to each inhabitant. Each household operated land in different parts of the village, with periodic reallotments of scattered strips and a high level of fragmentation of holdings. Musha land was not recognized under the Ottoman land laws, or in the subsequent legal systems, but it continues to exist today in much of the West Bank. Fully private land (mulk) is said to be a rarity, and is present mainly in or around urban areas. On the other hand, wakfs, mainly religious endowments, are common and continue to exist more or less undisturbed.
Current Israeli settlements in the West Bank mainly emerged on state land; therefore the major issue is what rights local people had and have on state domain, and how can they have a voice in decisions on its use. The first permission to establish an Israeli settlement in the occupied territories must be obtained from the Custodian for governmental and abandoned property, which functions as part of the Israeli civil administration. Authorized settlements can take the form of cooperatives, like those that existed within Israel's pre-1967 borders, i.e. kibbutzim or moshavim, but also of so-called community settlements and so-called urban or rural settlements, which are mainly of a residential character and provide subsidized housing to commuters into Israel proper.
Whatever their form, and whether or not they have an agricultural production objective, a central element in the establishment of settlements is the declaration and registration of land as state land and the consequent right of the occupying power to manage the land. Other methods used are declaration of land as abandoned property and expropriation of land for public needs. In the case of private property, as expropriation of private land under Jordanian law is possible only for public purposes, this instrument was mainly used for the construction of roads serving the settlements. In addition, there are some limited possibilities for purchasing land in the free market.
In many cases a combination of these different methods of land acquisition has been used. As a consequence, about 40 percent of the West Bank had been declared state land by 2002, and about 90 percent of the settlements were established on land that had been declared state land. The population living in the settlements in the West Bank (i.e. not including Gaza), rose from about 3 000 people in 1976 to about 200 000 by 2002, in addition to a population of approximately 2 million Palestinians (for these and subsequent data on Israeli settlements, see The Israeli Information Center for Human Rights in the Occupied Territories, 2002).
The main legal channel for land requisition as unused state land is to be found in the 1858 Ottoman law. The essential part of the Ottoman land law was initially adopted by the British mandate legislation and later by the Jordanian legislation, and was therefore in vigour at the time of West Bank annexation in 1967. Lands under ultimate state ownership were defined as miri, cropland close to inhabited areas and suitable for agriculture, and mawat, land far away from villages, in principle empty unused land. In both cases, the legal status could be ambiguous. In the case of miri land, according to the Ottoman law anybody who operates the land for ten continuous years acquires rights of use, but if the land is not farmed for three years, it can be withdrawn and passed on to somebody else. According to a restrictive interpretation of the Ottoman law, it was thus possible to seize any miri land not farmed for three consecutive years, and miri land farmed for less than ten years, as well as much of the land defined as mawat.
Palestinian farmers often become aware of the situation when it is too late to appeal legally. The deadlines for appeal are tight, documents are needed and there are related costs. In addition, there used to be many plots that had indeed not been cultivated for three consecutive years because the owners had found work in Israel and were less interested in agriculture, or because it was difficult to obtain the permits to drill wells. A related issue is that the areas of jurisdiction of the settlements include large empty areas ready for future expansion. How these areas are controlled varies. Palestinian farmers still use part of them for agriculture or grazing, and may often not be aware of their changed status. To sum up: small farmers have limited capacity to object to plans for settlements because of poor information and lack of contractual power.
The controversy concerning water rights has also become very acute regarding both rivers and wells because there is competition for the use of water among different uses and users, and because of the high water consumption of the Jewish settlements.
CONCLUSIONS
Some of the most urgent policy issues to be dealt with in the Near East in connection to land and water tenure have been mentioned in the preceding sections. These are: tenancy regulations and the streamlining of rights and duties of owners and tenants; the reassessment of water rights to prevent mismanagement and overuse of this essential resource; excessive fragmentation of holdings and the need to promote land consolidation; the increasing level of landlessness linked to subdivisions of holdings down to uneconomical scale and lack of non-farm employment; and the recognition of traditional use rights of pastoral populations over their grazing areas.
The role of the state in the region, which was traditionally very strong during most of the twentieth century both as ultimate owner of the land and overall controller, is now weakening. Recent emphasis has been towards privatization of property rights and decreased state intervention, but traditional forms of tenure continue to be important in regulating people's lives and interactions.
More participation by these rural populations in the identification of the policies that concern them would appear to be highly desirable. A proactive policy towards identifying groups and possible hubs of social aggregations, which could ensure a participatory process, is therefore an essential condition for approaching the issues of land and water tenure.
GLOSSARY
Badia: desert and semi-desert pastoral areas.
Dirah: area over which a tribal group claims traditional ownership, or right of access.
Fatwa: decision of religious authorities.
Feddan: area equivalent to 0.42 ha.
Kibbutz (pl., kibbutzim): in Israel, collective agricultural settlement with equal sharing of production and consumption, and collective organization of labour and housing.
Miri lands: state land suitable for agricultural uses, usually assigned to individual operation.
Moshav (pl., moshavim): in Israel, agricultural cooperative settlement based on equality of members, each having the right to cultivate an equal plot of land.
Muraba'a (quarter): system of labour payment in kind as a share (quarter) of the crop.
Musha: collectively owned cropland, equally subdivided to households that hold rights for individual operation.
Qanat: underground water channel.
Shari'a: law of Islam.
Sheikh: leader of a tribal group or of a religious order.
*Shi'a: branch of Islam recognizing Ali, son-in-law of the Prophet, as his successor with hereditary succession to his descendants.
*Sunni: (majoritarian) branch of Islam recognizing the succession of Caliphs as legitimate successors of the Prophet.
‘Urf: customary law.
*Note: Sunni and Shi'a are the major, but not the only, subdivisions among Muslims. They differ to some extent in the interpretation of the Koran and also in their approach to land tenure.
REFERENCES
For a complete bibliography on the subject, see Rae, 2002.
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Forni, N. 1999. Technical note on pastoral land tenure. Common property regimes and their relevance to grazing areas. Paper prepared for FAO Project No. GCP/SYR/003/ITA, Range Rehabilitation and Establishment of a Wildlife Reserve. Rome, FAO.
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Papoli-Yazdi, M.-H. 1991. Le nomadisme dans le Nord du Khorassan. Paris/Teheran, Institut Français de Recherche en Iran.
Rae, J. 2002. An overview of land tenure in the Near East Region. Part I; Part II, individual country profiles; and Bibliography. Rome, FAO. (mimeo)
Shimoni, Y. & Levine, E., eds. 1972. Political dictionary of the Middle East in the twentieth century. London/Jerusalem, Weidenfeld and Nicolson.
Sinha, R. 1984. Landlessness: a growing problem. FAO Economic and Social Development Studies No. 28. Rome, FAO.
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