3.1 Violent conflicts usually result in significant changes to land tenure and its administration. Many people may have been displaced during the conflict. Host communities in safer areas may have faced increasing competition for access to land, forests and water with the arrival of large numbers of displaced people. Land administration systems may have suffered the loss of personnel, land records and facilities. The end of conflict provides an opportunity for a return to homes and stability. At the same time, it may result in changes to power relationships in a society and may lead to a scramble for land.
3.2 This chapter is oriented towards two audiences. It presents designers of emergency projects with an overview of land tenure and its administration. It provides land tenure and land administration specialists, as well as project designers, with a description of conditions that commonly exist in countries emerging from violent conflicts. Possible responses to address these conditions are given in chapters 4, 5 and 6. The chapter concludes by showing the importance of considering land tenure in emergency projects.
3.3 Land tenure is the relationship among people, as individuals and groups, with respect to land and other natural resources. This relationship may be defined by written law or by custom. Land tenure is an institution, i.e. rules invented by societies to regulate behaviour. The rules of tenure define how rights to land are to be assigned within societies. They define how access is granted to rights to use, control and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources of the land for how long, and under what conditions.
3.4 Rights to land, and housing upon it, are treated as elements of human rights in international law through conventions such as the International Covenant on Economic, Social and Cultural Rights (1966); the International Covenant on Civil and Political Rights (1966), the International Convention on the Elimination of all Forms of Racial Discrimination (1969); the Convention on the Elimination of all Forms of Discrimination Against Women (1981); and the Convention relating to the Status of Refugees (1951).
3.5 Land tenure is often categorised as:
1. Private: the assignment of rights to a private party who may be an individual, a married couple, a group of people, or a corporate body such as a commercial entity or non-profit organization. For example, within a community, individual families may have exclusive rights to residential parcels, agricultural parcels and certain trees. Other members of the community can be excluded from using these resources without the consent of those who hold the rights.
2. Communal: a right of commons may exist within a community where each member has a right to use independently the holdings of the community. For example, members of a community may have the right to graze cattle on a common pasture.
3. Open access: specific rights are not assigned to anyone and no-one can be excluded. This typically includes marine tenure where access to the high seas is generally open to anyone; it may include rangelands and forests where there is free access to the resources for all. (An important difference between open access and communal systems is that under a communal system non-members of the community are excluded from using the common areas.)
4. State: property rights are assigned to some authority in the public sector. For example, in some countries, forest lands may fall under the mandate of the state, whether at a central or decentralized level of government.
Most forms may be found within a given society, for example, common grazing rights, private residential and agricultural holdings, and state ownership of forests.
3.6 In practice, there may be multiple rights to the same parcel of land, e.g. the right to sell the land, the right to use the land through a lease, or the right to travel across the land. These rights can be held by several different persons or groups. This has given rise to the concept of "a bundle of rights" which is an analogy that the collection of rights to a land parcel can be pictured as a bundle of sticks. Individual "sticks" in the bundle of rights may be held by different people, they may be acquired in different ways, and they may be held for different periods. For example, the bundle of rights may be shared between the owner and a tenant to create a leasing arrangement that gives the tenant the right to use the land on specified terms and conditions. If the farm is mortgaged, the creditor may hold a right from the bundle to recover the unpaid loan through a sale of the mortgaged property in the case of default. A neighbouring farmer may have the right from the bundle to drive cattle across the land to obtain water at the river.
3.7 At times it may be useful to simplify the representation of rights to land by identifying:
use rights: rights to use the land for grazing, growing subsistence crops, gathering minor forestry products, etc.
control rights: rights to make decisions how the land should be used including deciding what crops should be planted, and to benefit financially from the sale of crops, etc.
transfer rights: right to sell or mortgage the land, to convey the land to others through intra-community reallocations, to transmit the land to heirs through inheritance, and to reallocate use and control rights.
Very often, the poor in a community have only use rights. A woman, for example, may have the right to use some land to grow crops to feed the family, while her husband may collect the profits from selling any crops at the market. While such simplifications can be useful, the exact manner in which rights to land are actually distributed and enjoyed can be very complex.
3.8 In broad terms, land tenure rights are often classified according to whether they are "formal" or "informal". There can be perceptual problems with this approach because some so-called informal rights may, in practice, be quite formal and secure in their own context. Despite these perceptual problems, the classification of formal and informal tenure can sometimes provide the basis for useful analysis.
3.9 Formal rights may be regarded as those that are explicitly acknowledged by the state and which may be protected using legal means. Informal rights are those that lack official recognition and protection. In some cases, informal rights are illegal, i.e. held in direct violation of the law. An extreme case is when squatters occupy a site in contravention of an eviction notice. In many countries, illegal property holdings arise because of inappropriate laws. For example, the minimum size of a farm may be defined by law whereas in practice farms may be much smaller as a result of informal subdivisions among heirs. In other cases, informal rights may be "extra-legal", i.e. not against the law, but not recognised by the law. In some countries, customary property held in rural indigenous communities falls into this category. A distinction often made is between statutory rights or "formally recognised rights" on the one hand, and customary rights or "traditional rights" on the other hand. This distinction is now becoming blurred in a number of countries, particularly in Africa, which provide formal legal recognition to customary rights. Formal and informal rights may co-exist. For example, in a country that forbids leasing, a person who holds legally recognized ownership rights to a parcel may illegally lease the land to someone who is landless.
3.10 These various forms of tenure can create a complex pattern of rights and other interests. A particularly complex situation arises when statutory rights are granted in a way that does not take into account existing customary rights, e.g. for agriculture and grazing. This clash of de jure rights (existing because of the formal law) and de facto rights (existing in reality) often occurs in environmentally-stressed areas.
3.11 Security of tenure is the certainty that a person’s rights to land will be recognized by others and protected in cases of specific challenges. People with insecure tenure face the risk that their rights to land will be threatened by competing claims, and even lost as a result of eviction. Security of tenure cannot be measured directly and, to a large extent, it is what people perceive it to be. The attributes of security of tenure may change from one context to another. For example, a person may have a right to use a parcel of land for a six month growing season, and if that person is safe from eviction during the season, the tenure is secure. However, a person with use rights for six months will not plant trees, invest in irrigation works or take measures to prevent soil erosion as the time is too short for that person to benefit from the investment. The tenure is insecure for long-term investments even if it is secure for short-term ones.
3.12 Equating security with rights to sell and mortgage is true for some parts of the world but it is not true in many others. People in parts of the world where there are strong customary tenure regimes may enjoy tenure security without having the right to transfer, or having strictly limited rights, e.g. transfers may be limited to heirs through inheritance, or sales may be restricted to members of the community.
3.13 The sources of tenure security may vary from one context to another. Security may be provided through recognition and protection of a person’s rights by:
The local community and its groups such as local farmers’ organizations and water users’ associations;
The government in the form of political recognition of some rights, e.g. the acceptance of an illegal encroachment or settlement;
The state’s administrative structures and formal legal system.
In some countries, security can also be provided by coercive structures such as warlords that emerge in the absence of an effective state during periods of civil unrest.
3.14 Land administration is the way in which the rules of land tenure are applied and made operational. Land administration comprises an extensive range of systems and processes to administer:
land rights: the allocation of rights in land; the delimitation of boundaries of parcels for which the rights are allocated; the transfer from one party to another through sale, lease, loan, gift or inheritance; and the adjudication of doubts and disputes regarding rights and parcel boundaries.
land use regulation: land use planning and enforcement, and the adjudication of land use conflicts.
land valuation and taxation: the determination of values of land and buildings; the gathering of tax revenues on land and buildings, and the adjudication of disputes over land valuation and taxation.
Land administration includes an element of enforcement to ensure that people comply with the rules of land tenure.
3.15 In most countries subject to violent conflict, formal systems of land administration operated by government are often used only for land of high economic value, and so they may cover a small portion of a country. These formal land administration systems often have a low capacity to operate effectively even in the absence of a violent conflict. Informal or customary systems of land administration usually operate in the greater portion of such countries.
3.16 In the conflict, people may have lost their land in many ways:
The ruling authorities may have arbitrarily enforced evictions to remove people from their land. Land may have been expropriated without the payment of fair compensation to the original owners. The expropriated land may have been allocated to influential political and military figures at little cost.
Powerful landowners, perhaps employing armed gangs, may have forced people off their land. They may have also forced people with formal land rights to sign transfer documents as if they were voluntarily transferring their property.
People may have abandoned their land because of fear of violence and fled to safer areas. The ruling authority may have legitimized occupation of "abandoned" property, usually by a member of a more powerful group.
People in safer areas of the country may have lost access to land with the arrival of those who were displaced. IDPs and host communities are often able to reach agreements where the prevailing tenure system is adapted to accommodate the new arrivals. However, the requirements of IDPs arriving on a large-scale may exceed the capacity of a host community to accommodate them. IDPs and host communities may also pursue different approaches to the use of land. New conflicts may arise if these different approaches are incompatible.
3.17 Following the conflict, some people who were displaced from rural areas may seek land to settle in urban areas. Other refugees and IDPs return to their homes, either spontaneously or through an organized process. The return of refugees is provided through the Convention relating to the Status of Refugees. There is no equivalent international law for IDPs but their rights of return are addressed by UNHCR in its "Guiding Principles on Internal Displacement" which provide a non-binding framework for return and re-integration. These principles state that IDPs should be able to return to their homes or be able to resettle in another part of the country. The right of refugees and IDPs to return to their homes and places of habitual residence has been reaffirmed in resolutions of the UN Sub-Commission on Human Rights (2002/30) and the Sub-Commission on Prevention of Discrimination and Protection of Minorities (1998/26). Peace agreements, such as the Dayton Peace Agreement for Bosnia and Herzegovina, may also address the restitution of property.
3.18 When refugees and IDPs return to their home areas, they often find that their land is occupied by others. In some cases, the occupants are people who used force to seize the land, or who benefited from discriminatory laws to acquire it as abandoned property. In other cases, the occupants are also victims of the conflict who fled from other areas. It is thus common that people cannot recover their property without displacing the existing occupants. At times the occupants may retain ownership of their own property while occupying the property of others, a situation known as "double occupancy". Attempts to recover property may be violently resisted. People who are unable to return to their original lands will seek to be resettled elsewhere.
3.19 Men and women may have different opportunities to gain access to land. Violent conflicts may result in increased numbers of female-headed households but land allocations after the conflict may continue to favour men. Access to land by widows may be particularly difficult in some customary tenure systems.
3.20 Programmes to allocate land to beneficiaries may be abused. For example, people eligible for land allocations, such as displaced people and ex-combatants, may sell their land in the informal land market and then move elsewhere to submit another application for land.
3.21 Large-scale commercial operations may seek land in the post-conflict period. Following some conflicts, millions of hectares of forest and agricultural lands were granted to private companies and individuals for long-term investment and exploitation. Land speculation and land grabbing by elites may be common. This has the potential of placing the weak against people with connections, and leaving them feeling that they have been left out from the benefits of peace.
3.22 Recovery of some lands may be impossible because of mines and unexploded ordnance. Lands typically affected are those that were frontlines during the conflict. As frontlines may move back and forth across the countryside during the years of a conflict, mine-laying may have taken place over a large area. Such areas may have had massive migration as people fled the fighting. As a result, large numbers of people may be returning to areas with a high concentration of explosives. The location of mines is not commonly documented during the mine-laying operations. Removing land mines is a slow process and the return of people is usually not matched by the clearance of mines. As a result, mines continue to kill and maim people who are returning, and delay agricultural programmes to provide for food security.
3.23 Land records. In many conflicts land records are deliberately targeted for destruction by one or more of the opposing forces. Land records often contain information that serves the purposes of some people but not others. A group forced to withdraw from an area may remove land records that favour it, and may destroy records that benefit the opposition. In Timor-Leste, it has been estimated that 80 percent of records were destroyed. Personal copies of land records were often abandoned in the rush to evacuate, and were also destroyed. Without land records, proving rights is difficult.
3.24 Land records can survive. At times, staff of land agencies have rescued land records and hidden them to prevent their destruction. However, surviving land records cannot always be accepted without scrutiny. In some cases, land records may not show the current ownership:
Land records may show a deceased person to be the owner because the heirs may not have taken the steps necessary to become recognized as the legal owner.
Land records may show the owner to be someone who voluntary transferred the property to someone else. During the conflict, the land registration system may not have operated and many transactions may be informal. People acquiring land may have some documentation of the transfer but it may not meet the standards necessary for the transaction to be considered legal. When conflicts have lasted for many years, the number of informal transactions may be large.
The true identity of a purchaser may not be shown on the land records to avoid discriminatory laws in place at the time of the transfer. Instead, the name of an intermediary may have been used. After the conflict, this may give the impression that the intermediaries are the owners of the properties as their names appear on the legal documents.
3.25 In other cases, land records may show the legal owner of record to be someone who acquired the land by force or fraud:
Land records will not show that transfer has taken place through coercion. People have been threatened with violence if they did not state that they entered into a voluntary transaction to sell their property.
Land records may be falsified. Counterfeit documents have been produced to convince officials that occupants have legal rights to the property.
3.26 In yet other cases, people returning to claim their land may find that it is being occupied by people who legitimately acquired ownership during the conflict. For example, beneficiaries of land acquired by the government through illegal expropriation may have sold it to bona fide purchasers, who are shown as the legal owners.
3.27 Legal framework. Legislation may be flawed in several regards. Some laws may discriminate against ethnic groups, e.g. placing restrictions on property rights. Laws may be selectively applied against particular groups. Other laws may not provide adequate safeguards for women, e.g. not allowing them to inherit.
3.28 Existing legislation may not provide for some of the complex realities of a post-conflict setting, e.g. the restitution of land and resettlement on a large scale. There may not be legal and procedural safeguards to ensure restitution or payment of compensation. The steps needed for an owner to regain property may not be defined. Numerous grey areas may exist in determining whether a person is a lawful owner or not.
3.29 New legislation may be passed rapidly and without careful consideration of the implications. Laws to provide access to land may conflict with other legislation. Legislation concerning land tenure may change many times throughout the process. When legislation is changing rapidly, judges and other officials may not know which versions of laws and regulations are to be enforced.
3.30 Courts. Impartial procedures for resolving disputes are often not available in post-conflict situations. The court systems may not exist, or they may be so overburdened or ineffective that they do not provide a remedy. Corruption may be widespread. Alternative dispute resolution mechanisms may not exist. The rules for making judgements may not be clear. Judges and other court officials may be unfamiliar with procedures to provide access to land where they exist, and they may lack knowledge of concepts such as international law or human rights.
3.31 Enforcement. Property disputes may continue because court orders and other eviction notices are not implemented. A court order may not be enough for someone to recover property. Politicians and officials who wish to prevent minorities from returning may refuse to carry out orders to evict their supporters.
3.32 Communication. Programmes to inform the public may be weak or non-existent. Many IDPs may live in dispersed groups and may not know about programmes and procedures for restitution. Rumours are likely to be common and may fuel fears.
3.33 Operations. The capacity to carry out land administration functions is usually limited. Trained technical staff and managers may have migrated or been killed. In Rwanda, three-quarters of public service personnel were lost, and eighty percent of trained legal personnel were killed or in exile. Vehicles, equipment and facilities may have been destroyed. Responsibility for operations may be divided between different government agencies, and between central and local levels of government. Coordination may be difficult and communication between agencies may be limited or non-existent. As a result, problems arise such as the same parcel of land being allocated by different agencies to different people.
3.34 Refugees and IDPs may return on such a massive scale that the land administration system is not able to cope. Much resettlement thus takes place informally. Attempts to speed up the process by introducing computer systems can be unproductive if they are poorly designed and implemented, and lengthy delays may arise as a result of limited human and technical capacity.
3.35 Corruption. Lack of accountability may result in the theft of funds. Commissions to allocate land to refugees and IDPs may transfer land to themselves or family members. Land administrators may be under pressure from elite groups to favour them. Petty corruption may be widespread, with claimants being required to pay bribes.
3.36 Funding. The demand for funding typically exceeds the resources available for programmes to provide access to land and improve land administration. Strategies that are developed are sometimes impractical in light of the limited resources available.
3.37 Dependency on others. Because of the weakness of the post-conflict governments, the international community may have a greater influence than would otherwise be the case. Coordination between the government and donors may be difficult. They may have different interpretations of norms of human rights, e.g. with regard to the protection of rights of women and minorities to land. There may be different priorities with regard to restitution, compensation, resettlement, and the reconstruction of a land administration system. Differences of opinion may exist as to whether customary tenure should be replaced by statutory tenure, and whether common property resources should be privatized.
3.38 The existence of customary tenure in a country will introduce a set of additional issues. Women, and widows in particular, may have difficulties acquiring access to land. In many customary societies, women gain access to land through their husbands or male relatives. Women who are displaced because of the conflict may have difficulty returning to their homes if their husbands or brothers were killed.
3.39 Access to land by pastoralists may be important. Control over arid lands and pastures may be unclear. In some countries, the state has claimed nominal ownership to land used by pastoralists but has not exercised control over the land. Pastoral lands may not be clearly defined on the ground, further adding to the confusion. In arid areas, the variability of rainfall results in mobility being important to the livelihoods of nomadic pastoralists as well as others. Mobility occurs within the home territory of a pastoral group. It may also occur at a regional level, with pastoralists migrating along routes on a seasonal basis. Access rights to land and water are often traditionally negotiated between different stakeholders, e.g. for establishing the conditions of rights of way through different home territories. Access is typically based on social organization, and people may become involved in a conflict because of their membership in an organization. Conflicts over land, and their resolution, are thus usually not expressed on an individual basis but are arranged around social groups.
3.40 Customary rights are often not documented, and the destruction of land records may not be critical for areas governed by customary law. Where the customary structure is still in place, customary leaders should continue to provide the institutional memory of who holds what rights, and should allocate land and adjudicate disputes.
3.41 There may be a gap of knowledge if customary leaders have been killed or displaced. A further problem is that a lengthy conflict may weaken customary institutions and erode the credibility of the leaders. This may occur in cases where a leader lacks respect from members of the community, e.g. because the leader assumed power through interference by one of the opposing forces, or manipulated the conflict to acquire the position.
3.42 Customary law frequently exists alongside statutory law in a situation referred to as "legal pluralism". Local decisions governing land may be based on a combination of statutory and customary law, with wide variations in interpretations from one area to another. The pluralism of authority over law can allow people to choose the legal framework that provides them with the best claim to property, a process known as "forum shopping". Legal pluralism can be beneficial by allowing people to adapt to social, political and environmental changes, and by allowing the existence of diverse systems of land tenure that have evolved to meet local conditions. It can also be harmful as it may increase uncertainty and confusion when people pursue different ways to legitimize claims to the same parcel of land.
3.43 Where customary tenure and statutory tenure co-exist, they may change at different rates. A "land rush" often follows a peace settlement. For example, some groups may consider the chaotic post-conflict setting as an opportunity to re-assert historical claims to lands which they lost in the past. People may acquire land in informal ways if formal approaches do not exist, or cannot be easily used. Customary or informal tenure may evolve quickly compared to the re-establishment of the land administration system. In the absence of formal government structures, communities may modify customary or informal systems to address conditions that did not exist before the conflict, and for which there are no traditional rules. In some cases, elements of customary law, e.g. access to land by women, may clash with new non-discriminatory policies adopted after the conflict.
3.44 Providing secure access to land is an important part of dealing with emergency humanitarian needs as well as longer-term social and economic stability. Secure access to land helps victims of conflicts to have a place to live, to grow food, and to earn income. Security of tenure, without fear of eviction, allows people to rebuild economic and social relationships. More broadly, it allows local regions and the country to establish their economies. It supports reconciliation and prospects for long-term peace. See Box 2.
3.45 Regardless of the cause of a conflict, violence over a wide area and a long period of time will result in many land tenure problems. People who have been displaced will need to have their property restituted or will need to be resettled elsewhere. Without addressing these problems in the short-term, the peace process is likely to be restricted. Some land tenure issues, while important, may need to be deferred until there is sufficient capacity in the country to address them. For example, programmes such as large-scale land reforms are highly complex and are likely to be beyond the capacity of a country emerging from a violent conflict. They should be introduced, however, as soon as there is a capacity to implement them.
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BOX 2 Sustainable peace following violent conflict may be jeopardized by a failure to resolve land tenure issues. A peace agreement in a still uncertain setting can be threatened by land disputes arising from the return of refugees and IDPs. Providing access to land in post-conflict settings can be complicated, with many legitimate yet competing claims for land. In addition, there is a need to address access to land by vulnerable people including women and children, the elderly, and ethnic and political minorities. Resolving issues of access to land can provide many benefits:
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3.46 Too often land tenure issues are not considered at the time of recovery and reconstruction. Land tenure issues may be ignored because those planning the recovery of a country do not realise the importance of addressing them. They may be ignored because they are considered to be too complex and difficult to address. They may also be ignored because of lack of political will; those who were actively involved in the conflict may have used the opportunity to acquire property of others. Whatever the reason, ignoring land tenure problems will not make them vanish, and may result in renewed conflict. For example, in some post-conflict situations aid workers tried to help displaced people by settling them on land that had been incorrectly identified as vacant. In doing so, local communities were inadvertently dispossessed of their rights to that land. The people displaced by the original conflict were put in the midst of a new conflict as the communities tried to recover their land.
