As the VGGT are aiming at securing land tenure and legitimate tenure rights as a core element within their framework, the focus for the discussion and exchange amongst all WG participants centred on guiding questions such as: How can the VGGT support improved recognition, identification and recording of legitimate land and tenure rights? Which instruments are appropriate for the prevention or solution of conflicts on overlapping land rights? How can an equal representation of all involved stakeholders be guaranteed? What needs to be taken into account when applying the VGGT in contentious contexts?
2 Main issues
Conflict resolution and de-escalation as subjects within the VGGT – highlights from the document
The VGGT name specific principles, requirements and obligations to be taken up primarily by states, but also by private and non-governmental actors for the resolution, management and de-escalation of land conflicts. Special reference was given to Part 5, chapter 21."Resolution of disputes over tenure rights" and Part 6, chapter 25 : "Conflicts in respect to tenure of land, fisheries and forests". It was highlighted that the VGGT plea for context related definitions of legitimacy and tenure rights. Regarding conflict management and de-escalation the VGGT aim at the creation of respective institutions. Impartiality and competence are requested from judicial and administrative bodies. States are requested to prevent corruption. Specialized tribunals and bodies should be constituted and special expert positions created. Alternative forms of dispute resolution shall be strengthened and ensure fair, reliable, accessible and non-discriminatory ways of prompt dispute resolution. In addition to that the VGGT request the prompt enforcement of effective remedies, the provision of legal assistance for vulnerable and marginalized people and the guarantee of right to appeal.
Legitimacy of tenure - Plurality of tenure and land rights
The overlap of formal, customary and informal tenure and land rights conceptions can become a major cause for disputes, when insecurity remains about their implementation and about their legitimacy. Subordination and disrespect for traditional, collective rights, which are often not acknowledged by the state, cause additional discontent, insecurity and tension. Disputes can arise, in particular when economic and/or political power relations are unequal and in a context of structural injustice, social inequalities and neglection of human rights. Examples of East Africa showed how plural land right systems evolve and how customary and traditional systems can be brought in line with formal legal systems. The recognition within law and the corporation of actors and authorities considered legitimate, where identified as key to success. Limitations in the traditional systems were shown as well: Where decision makers do not take enough responsibility for the local population and enforce customary law top down in order to serve their own interest, legitimation is lacking and consensual decision making is made impossible.
Land tenure security in post-conflict context – instruments and preconditions
In post-conflict situations, socio-economic and political tensions persist over a long period. Regarding land policies, restitution is one of the critical issues in post-war contexts, as refugees and internally displaced persons return and claim for rehabilitation and access to their former land that meanwhile is used by other groups. Especially were land use patterns changed as through plantation areas, forest conservation areas or large scale agricultural investments and also through in- and outmigration, rural land users face multiple pressure and security of land tenure is key factor for livelihood. As for the safeguarding of land rights in such conditions, one case from Cote d´Ivôire showed that documentation of the status quo prior to displacement involving all affected groups is of high importance. Furthermore the reinforcement of allocation of land certificates (instead of individual land titles) in a systematic and inclusive land registration processes. Registrations have to be affordable and implemented promptly, providing the same rights and access to all groups.
Reflecting on this from Sierra Leone showed, that in that case rather the misconception of land availability lead to a massive lease of land to foreign investors. Land which is urgently necessary for food production is now cultivated for industrial products for export. Local communities are more and more under stress and parts of the civil society call for a moratorium of further land concessions. Inclusive comprehensive data, as in this case an inventory of remaining arable land and respective tenure rights would be necessary as a baseline for informed decision making. The implementation of the VGGT should improve women’s and youth’s tenure security, land rights and empowerment, through this strengthening social stability in rural areas. The VGGT could help to solve disputes around tenure rights and support inclusive evaluation and monitoring processes by civil society actors.
Conflict management and resolution - instruments of local dispute resolution
Instruments of conflict management and land dispute resolution, as well as the respective standards and principles in the VGGT were demonstrated by means of examples from Mali and North Cameroon. Local mechanisms and conventions in terms of negotiation and advocacy processes between different user groups, e.g. pastoralists and resident farmers, can lead to dispute settlement. These processes are, if they are implemented appropriately, built on a consensual principle and contain compromise solutions. Such mechanisms can, however, only function if they are negotiated among equal opponents. As soon as an unequal power relation prevails between parties, authorities that are able to enforce the decision need to be incorporated. Such mechanisms are promoted by the VGGT as long as they are free of corruption and respect human rights principles. This human rights based approach is stretched to its limit where its normative legitimation is lacking. Sensitive solutions must be found that do not aggravate conflicts in an unintented way but contribute to a long-term sustainable solution. An in-depth analysis of respective local contexts and a progressive careful and conflict sensitive procedure have been recommended.
Land dispute resolution - Legal consultation for affected groups to address conflict
Where rule of law and good governance are lacking, extra-judicial mechanisms for conflict resolution are the only and best way to solve the land conflict. Alternative dispute resolution and extrajudicial structures should therefore receive special consideration for the implementation of the VGGT. Local authorities and traditional leaders should be incorporated into the establishment of special courts by active participation and representation. Accessible and useable local grievance mechanisms and the option for poor population groups to receive legal advocacy and consultation for the enforcement of their interest are inalienable preconditions for the fair and sustainable solution of land conflicts according to the VGGT. However, even in extrajudicial proceedings and cases the legal standards and regulations should be applied. There is the need for a good database, information, collection of evidence and the independence of jurisdictions and a peaceful conduct of negotiations. 'Soft' law like the VGGT can be integrated in legal procedures and transformed into ‘hard’ law in the medium term. Complaint mechanisms must comply with quasi-judicial standards to ensure effective remedy.
Reflection from a Cambodian perspective, where human rights violations belong to people´s and civil society actors´ everyday lives, showed the importance of impartiality and independence of a judicial apparatus. Where this is not secured, jurisdiction gets manipulated by political decision makers. When the economic and political interest in land are big and political will to safeguard land rights for the local population is lacking, civil society actors risk jeopardy when claiming human rights issues. The VGGT could be helpful here, if external actors would include them as mandatory on programme as well as on policy level for cooperation.
3 Main messages and Conclusions
A key contemporary contentious issue is the uncertainty over land and tenure rights compounded by overlapping land claims and different land rights conceptions which are promoted by different local, national and international stakeholders. Food insecurity, structural injustice, social inequalities and neglection of human rights as well as the growing interest in land acquistions by national and international investors contribute to these conflict dimensions.
Due to the complexity of societal and political frames particularly in fragile and conflict affected countries the application of guidelines should always refer to the specific local and political context and its risks and opportunities. Relevant actors, their interests and motivations need to be analyzed quite carefully before starting the process of implementation. The VGGT implementation in conflitive contexts always bears the risk of misinterpretation of legitimacy and misuse of political power.
Tenure disputes can easily escalate into violence on various levels where the rule of law and the formal institutions fail and social exclusion is perceived.
In conflictive situations, the rule of law and the authority of formal institutions have often broken down. But traditional and customary systems of authority generally persist. Those systems should be acknowledged and taken care of, as they are accepted on local level and may provide the only remaining social/community authority. Efforts to support conflict resolution should focus on customary systems and support weaker parties in order to enable them to play a crucial role in the process of conflict management.
The VGGT offer a salutary opportunity to integrate informal systems with formal/legal systems, for greater legitimacy and effectiveness and serve as a starting point for conflict management and resolution. But community consultation is key to achieving such integration. Top-down approaches are generally unsuccessful.
Dealing with tenure issues in post-conflict situations is a highly sensitive issue, as in nearly all contexts interwoven with political interests and power on the one and questions of integration and/or return, as well as survival and food security on the other side. Community consultation, meaningful participation in decision making processes and consensual approaches are key to achieving integration of the different interest groups and sustainable solutions.
Legitimacy and ‘downward accountability’ of authorities as well as low-cost, and timeliness of adjudication of tenure disputes are central preconditions for effectiveness and constructive conflict management and resolution.
A coherent whole-of-government strategy needs to be developed and different government authorities – in both donor and other countries – must pursue their respective roles in support and implementation of the VGGT and connected policies.
The VGGT might create a new political momentum in countries, where the political will for implementation is lacking, if external actors and donors would use the VGGT as an obligatory tool not only towards their partner countries, but also within their own policy and practice. Establishing own grievance mechanisms and pursueing their respective roles in supporting the implementation of the VGGT could be important signals and serve as models.
The specific recommendations from the presentations and results out of the discussions were summarized, presented by and discussed with the WG’s rapporteur during and at the end of the workshop. Starting with a collection of general observations and remarks, disputes over the use, management and control of land and productive resources such as fisheries, forests and water resources were described as endemic to human society. The complex cyclical relationship between disputes regarding land, fisheries, forests and water resources was underlined and stressed that they impact food security and overt conflict. With this in mind the following recommendations were brought forward:
- States should take maximum advantage of the opportunities that the VGGT provide for addressing these issues in a comprehensive, evidence-based and participatory fashion, in order to promote social justice and political stability and to break cycles of conflict through non-violent means.
- States should incorporate the VGGT in national law and policy, and in development cooperation policy and practice.
- States should recognize and strengthen customary tenure, and avoid measures that strengthen the strong, and weaken the weak. Legitimacy (downward accountability), low-cost, and timeliness of adjudication of tenure disputes are central to effectiveness.
- With regard to ‘symmetric’ community disputes on tenure issues, States should give priority to support for and recognition of horizontal mechanisms (village committees, local conventions), and empowerment of marginalized communities.
- Especially for ‘asymmetric’ tenure disputes (including those involving TNCs) States should establish and support specialist tribunals/complaint mechanisms (where possible integrating traditional authorities) empowered to adjudicate land conflicts. (Minimum standards: independence, binding decisions, preliminary injunctive relief, accessible - also to groups, consultation, alleviation/reversal of burden of proof.)
- All actors should respect social/community authority. The application of VGGT should support the integration of informal/customary/traditional systems with formal/legal systems and thereby increase legitimacy and effectiveness. Community consultation has to play a central role to achieving such integration. Top-down approaches are generally unsuccessful, and to be avoided.
- Civil society groups/NGOS should utilize the VGGT as a ‘soft law’ resource in negotiations and particularly litigation (e.g. re landgrabbing).
- Donor community, FAO and other appropriate institutions should provide technical and material support for implementation of above recommendations at the national level.
- Different government departments and authorities – in both donor and other countries – must pursue their respective roles in support of implementation of the VGGT according to a coherent whole-of-government strategy.
- In the process of follow-up to the VGGT, CFS should play a leading role as the international forum for exchange of best practice in achieving effective integration of formal and customary systems for resolving tenure disputes. CFS should also play a key role in general inclusive monitoring of the VGGT´s implementation and its impact assessment with regard to social inclusion and conflict dynamics in various contexts.
- Shortcomings within customary systems from a rights-based perspective have to be addressed in an appropriate and conflict sensitive manner. All actors need to proceed carefully, so as not to jeopardize legitimacy. There may be a role for an appropriate UN human rights expert study on integrating customary systems and principles with human rights law – possibly by HRC Expert Advisory Committee.