Someday, none of this will be yours: the predatory state eyes ‘public’ land

Ambiguous legal structures bequeathed to post-colonial and other developing states have complicated the meaning of ‘public’ land. Recent interpretations have followed the trends of either the development and human rights communities, such as attempts at post-conflict restitution; or the private property rights of foreign investors vis-á-vis state control. As described below by Rhodri C. Williams in his TerraNullius blog, at the heart of the issue is the highly contested nature of the line between private and public land ownership, leading to grey-area treatment of some land. Williams also explains how violence can arise when the basic human attachment to land conflicts with state claims, and how policy recommendations from international donors and institutions such as the World Bank can aggravate delicate and conflict-prone situations.

 

26 January 2012

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a  particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

    Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent Terra Nullius guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

     While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, The Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

Examples of this phenomenon are legion and far beyond the capacity of any mortal blogger to keep tabs on. However, a number of examples will be familiar to readers. For instance, patterns of land-grabbing in China that leverage official discretion over nationalized land to the detriment of smallholders are now deemed to constitute a threat not only to the political stability but also the food security of the country. Although the recent standoff in Wukan village led to rare concession, with the revolt leader elevated to village chief, Evelyn Chan argues on Open Democracy that such acts of resistance have been effectively coopted into Chinese politics, with the interesting question being “ not whether such protests can lead to reform, but rather: How it is that so many can occur without undermining the Party’s rule?”

Staying in the region, the BBC recently noted that Vietnam is facing an outright national donnybrook next year as an entire generation of twenty-year user rights to the country’s entirely state-owned stock of land come due for extension or discretionary reallocation. In the story’s opening vignette, a farming family that invested heavily in such land (on the apparent assumption that their rights would be extended so that they could pay their debts) is “pushed into a corner” and staves off eviction with home-made mines and shotguns. The nature of this incident implies that the circumstances at the original land distribution may have give rise to subjective expectations of tenure security on the part of millions of farmers – expectations that may be crushed as the rising value of land in rapidly developing Vietnam create incentives to shift it away from smallholders.

The results of such pressures in East Africa is described in Open Democracy by Rene Lefort, who portrays Ethiopia as the “world champion of ‘land grabbing’ – the practice of renting out vast expanses of farmland to local and, in particular, foreign investors.” Mr. Lefort makes an interesting historical argument linking control of land to centralization of power, from Emperor Selassie’s feudalism to the current regime’s policy of commercial agricultural development. Meanwhile, Human Rights Watch, in a new report, spells out the consequences of such policies for the indigenous minority groups currently being driven from their (officially public) lands on the pretext that they are ‘uninhabited’ or ‘underutilized’ (see page 70). The report may make awkward reading for donors active in Ethiopia, as well as the World Bank, which I gather has not entirely regrouped from its recent debacle in Cambodia and responds somewhat defensively to charges that it may again be at risk of violating its own resettlement policy in Ethiopia (page 64).

Nevertheless, there may be a silver lining to all of this. One of the key points made in Shaun Williams’ recent report on the Solomon Islands is that state land (at least in cities) may represent low hanging fruit for governments with low capacity that are interested in quickly increasing legitimate land-related revenues with a minimum of effort and political risk. As the briefing note points out, state land may comprise a smaller sector of post-colonial landholdings than that held in customary tenure, and is typically strategically placed and high in value. Reinforcing Erica Harper’s recent observations on the risks inherent in even the best-intentioned attempts to reform customary tenure systems, the J4P program plunks for starting by recapturing public land for public revenues (and therefore public services) before venturing into the customary territory where even development experts fear to tread.

Meanwhile, the difficulty of gauging good faith by Governments in their land dealings is demonstrated by recent developments in Liberia, where recently re-elected President Ellen Johnson Sirleaf has long been a paragon of pro-poor development and responsible land policies. This makes it all the more concerning that Ms. Johnson Sirleaf apparently unilaterally broke up a meeting voluntarily convened by a foreign palm oil concessionaire with communities negatively affected by its operations. It probably doesn’t help that some international pundits have urged a more top-down, interventionist approach to rural development in Liberia. However, in the words of Silas Kpanan’Ayoung Siakor and upcoming TN guest-blogger Rachael S. Knight in a New York Times opinion piece:

    Mrs. Johnson Sirleaf clearly takes seriously her responsibility to attract foreign investment. Her government must now become equally serious about placing Liberia’s citizens ahead of corporations and involving them in government decisions that affect their lands and livelihoods.

 

Article Source: Terra Nullius

Image Source: rudenoon