land governance and the securing of rights in developing countries
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Land governance and the securing of rights in developing countries. The White Paper of French Development cooperation. Objective.

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land governance and the securing of rights in developing countries

Land governance and the securing of rights in developing countries

The White Paper of French Development cooperation

  • To provide a tool to facilitate dialogue and exchanges with all the stakeholders involved in projects having a land dimension or implications (governments, technical and financial partners, etc.)
  • Based on work accomplished over more than 10 years by the land-development committee (multi-disciplinary working groups co-chaired by the MAEE and the AFD).
  • White Paper produced by members of the committee from mid-2007 during thematic meetings and study days.
  • Next stage: to prepare a strategic guidance document.
A document covering rural and urban land.
  • A document focused on developing countries.
the different sections of the white paper
The different sections of the White Paper
  • Section 1: the contemporary land question – unprecedented challenges on an historic scale.
  • Developing countries are encountering unique challenges: a high demographic growth rate, high or rapid urbanisation, competition between worldwide agricultures and territories.
Developing countries are faced with the issue of access to land for populations for production purposes and to feed and house themselves:
  • Food safety policies, based on support for peasant farming, are required. Broad and secure access to land is one of the conditions.
Developing countries must prevent and regulate disputes over access to land and natural resources:
  • Inequalities of access to land exacerbate poverty and exclusion.
  • Competition for land, disputes linked to contradictory systems of land standards, territorial claims and the defence of identities, are four major sources of land-related disputes which can be addressed politically.
Developing countries are faced with the diversity of rights in respect of land and renewable natural resources, the legacy of the past:
  • In the majority of developing countries, in particular in Sub-Saharan Africa, States are still strongly influenced by land management and land administration methods dating from the colonial era.
  • Jurisdictional dualism endures because of the persistence of pre-existing land rights.
During the 20th century, in rural areas, although they implemented diverse land policies, States came up against land laws that were rarely fully implemented as they were difficult to apply to existing land systems.
A need for land policies in a liberalised world:
  • From the 1980s, States have refined their role, limiting their direct intervention in the area of land.
  • The legitimacy of the State’s authoritarian intervention in the distribution of land rights is disputed. At the same time, however, current challenges call for States to pursue proactive policies.
Section 2: An analytical framework for land situations.
  • The role of land and its functions vary according to the parties involved:

Potentially competing functions:

  • Production function for farmers;
  • Part of the assets of companies and their investment strategy (in particular for transnational companies that invest in large agricultural domains);
  • Represents a saving strategy for some urban households;
Closely interwoven rights and identities rooted in history in many peasant societies in the South;
  • Key economic (potential sources of taxation) and political functions for States.

Hence the need for coordination and arbitration:

  • Major importance of land governance mechanisms, from the point of view of multi-stakeholder political negotiation, not only at national level but also at the level of territories.
Regulatory mechanisms bring into play land rights which can be contradictory:
  • At local level, land rights represent a complex set of individual prerogatives and collective regulations;
  • In particular for the poorest populations, land tenure frequently relies on the possibility of mobilising multiple rights;
  • The treatment of jurisdictional dualism by States is often a factor of exclusion, with different parties being able to claim rights over the same land;
The standardisation of land rights in order to “streamline” them can lead to the exclusion of the most vulnerable groups;
  • Over the last two decades there has been a shift towards recognition of the existence of local rights and practices with a view to reconciling local land regulations and State mechanisms. It is above all a political issue which can conflict with economic considerations.
The commoditisation of land rights and land tenure
  • The commoditisation of land continues around the world, although in rural areas non-market transfers are still predominant;
  • Granting formal rights, in particular title deeds, is not the only means of guaranteeing land tenure (role of clear usage rights, difficulty of asserting a title deemed illegitimate, etc.);
  • Land tenure rests less on the legal status of the rights held than on the social consensus on these rights, their legitimacy and the reliability of arbitration systems in the event of disputes.
Section 3: Which land policies are needed to tackle the challenges of diversity and sustainability?
  • Land policies and land governance
  • Issues relating to the governance and effectiveness of land administration reforms give rise to convergent approaches based around 3 principles: (i) Recognition of the diversity of systems of land rights and tenures; (ii) Recognition of the central role of the land administration, which must be accessible, reliable and transparent; (iii) Establishing accessible institutions capable of enforcing laws and resolving land disputes.
Adapting or reforming land policies?

The White Paper briefly reviews land policies from the late 20th century.

  • The direct intervention of the public authorities has not lived up to expectations for technical and political reasons;
  • Various studies demonstrate a strong correlation between a low level of inequalities and economic growth, whereas in rural areas the issue of the equitable distribution of land remains a topical issue;
  • Agricultural reforms have developed towards “market-assisted agricultural reforms”.
The relevance and impact of land tenure in terms of reducing poverty are today being called into question, with few programmes having been carried through to completion;
  • The reform of the legal framework often comes up against the resistance of the administrations responsible for land administration;
  • The modernisation of land administration is frustrated by a lack of skills and financial resources. Corruption, the interests at stake and a lack of transparency also compound the problem.
This raises the issue of land policies that can meet the challenges of the 21st century.
  • Meeting the challenges of diversity, scarcity and sustainable development supposes proactive land policies based on a sufficiently broad social consensus and strong political determination;
  • A land policy is above all the result of the practices of the parties charged with its implementation. The development of new governance methods will play a key role in the construction of these new land policies.
Section 4: Proposals for positioning French land-related development aid

Beyond the still intense debates between an initial approach placing the emphasis on the integration of different rights systems into a single private ownership system guaranteed by the State, and the unification of land markets, and a second approach geared towards social and economic integration, as well as recognition of jurisdictional pluralism, some consensus has now been reached with regard to a number of areas of intervention:

Ensuring the security of land tenure and protection against eviction;
  • Guaranteeing fair access to land and proposing a range of legal options corresponding to the diversity of situations;
  • Promoting choices as regards land governance and administration, ensuring fairness and reliability in the application of land policies, taking into account the diversity of rights encountered;
  • Strengthening dispute arbitration systems at all levels;
  • Designing appropriate spatial planning tools;
  • Implementing non-exclusive rights and deed registration systems that are adapted to local systems and mutually compatible;
Reforming land taxation, which is necessary to improve the financial resources of local authorities.

A second consensus has emerged around key principles for the commitments of financial backers (European Union guidelines).

The White Paper proposes several additional principles:

  • Avoiding an approach based on supply principles and the transfer of models;
Acting in support of national processes and supporting them by taking account of the state of advancement of the national debate and the acceptability of projects;
  • Factoring in the capacity of administrations and integrating capacity-building actions.

The White Paper identifies a number of strengths in French cooperation action: recognising the diversity of situations and land standards; implementing actions that correspond to a country’s socio-economic context; supporting the gestation of political decisions by promoting inclusive approaches, working in coordination with other financial backers.

Better explained, these main areas of strength could form the foundations of a future strategic guidance documentplacing the emphasis on promoting democratic land governance and increasing the security of stakeholder rights by supporting the national processes of public debate and developing and negotiating the implementation of inclusive and effective land management policies.
Finally, the White Paper proposes that French cooperation should:
  • Integrate land issues in its country diagnoses;
  • Define each country’s land-related actions by analysing current policies, reforms in the pipeline, the maturity of the land debate and in line with contexts and priorities;
  • Create and support, at regional or international level, opportunities for access to information, exchanges of experiences and capacity building, to supplement the existing process.

and proposes the creation of an informal discussion and information group at European Union level.