Democratic Land Control and Human Rights

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Democratic Land Control and Human Rights
By: Jennifer C. Franco, Sofía Monsalve and Saturnino M Borras, sciencedirect.com
02 November 2015
 

Democratic land control is inseparable from human rights.

It is important to understand demands for democratic land control in the context of broadly distinct political conditions that in turn each requires distinct political intervention, namely, respect/protect, promote, and/or restore democratic land control. In addition, we also argue that broader institutional instruments carried out simultaneously at different levels, ranging from conventional land reforms to the recently passed UN Committee on Food Security (CFS) Tenure Guidelines remain relevant or become necessary and urgent because the scope of democratic land control is far wider, and in the contemporary context land resources have become a wildly coveted by corporate and state elites worldwide. Finally, we argue that it is theoretically and politically important not to separate the question of democratic land control from the broader idea of an alternative (food) system, and so, linking it to the idea of food sovereignty as the latter`s land pillar becomes strategically important.

Understanding contemporary conditions and trends in democratic access to land requires looking at broad trajectories in political processes around land control, especially: who actually gets what, how, how much, why, and for what purposes? In this context democratic land control and human rights become inseparable or, arguably, democratic land control is a political economy way of saying human right to land. If the key assumption is how to ensure democratic land control—the bundle of rights and powers to ensure access and derive benefit from it, as Ribot and Peluso [1] explain—then two types of land policies are key to ensuring land access and control by rural poor people, namely, respect and protection of existing democratic land access and promotion of democratic redistribution of land control. The explicit emphasis on the democratic character underscores the bias in favor of previously marginalized working poor people.

Our take on democratic land control follows and interacts with our take on democracy itself, which is process oriented, attuned to the dynamics of contestation, and political conflict), and therefore focused on the challenges of democratization—democratization being a difficult process involving struggles within society and the state to overcome historical/institutional obstacles to the entire citizenry having full and effective access to real democratic governance. This view recaptures the idea of democracy as setting a very high standard, one not easily attained but worth trying to attain.

Clearly, rural democratization [ 2•] has proven to be especially difficult even in societies that are no longer predominantly agrarian like Brazil. Many obstacles remain to all rural citizens to fully and effectively exercise human rights, including such basic democratic rights and freedoms as the right to take part (participate directly and indirectly) in governing and the right to freedom of association and expression, for example. These are basic rights and freedoms that everyone, but especially rural working people, need to effectively participate in decision making that affects their lives. In many parts of the globe, the challenge of democratizing rural political arenas is at least partly tied up with issues related to the distribution of access and control of land.

Land is generally considered a scarce resource, a source of wealth and power, and tends to be distributed and controlled in an exclusionary, even monopolistic, way. The dominant pattern of land governance in many societies tends to be undemocratic, favoring a variety of elites within the state and in society. In these settings then, democratizing access and control necessarily means deliberately changing the institutional patterns of land access and control in favor of the previously excluded poor people in line with the notion of social justice [3].

This idea of democratic land control contrasts with a neoclassical economics idea of land governance which tends to privilege those who can mobilize the strongest legal basis for individual private property claims in the name of pursing economic efficiency [4].

In both types of policies discussed above, following de Schutter [4, 5 and 6] and building on Monsalve [7], we argue that the human rights framework in looking at land control has increasingly gained traction over time, and is likely to continue to do so.

Equating a human right to land with democratic land access is not unproblematic, theoretically or politically; for example, how to deal with antagonistic claims by rich farmers and landless poor peasants, both of whom can invoke their human right to land is not a settled matter.

We argue, however, that the human right to land, as any other human right, is first and foremost for those who are deprived of a certain standard which is needed to be able to conduct a life in dignity. At the very least, access to human rights is a necessary condition for achieving democratic land control. That is, working poor people who claim land are likely to need some form of human right to land in order to get closer to their political agenda. This is especially in the contemporary context of the convergence of multiple crises that have resulted in the revaluation of land, partly leading to the current global land rush, the corporate push to make land an investment instrument, and the corresponding questions about displacement and human rights [8, 9, 10, 5, 6 and 11].

However guarded it may be, global optimism around the Committee on Food Security and Nutrition (CFS) Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Tenure Guidelines hereafter), passed in 2012, has also shone a spotlight onto the human rights and land angle [12 and 13].

Finally, a re-emergence of the land question on the center stage of development policy practice and discourse today is partly due to the increasing political influence of (trans) national agrarian, environmental and food justice movements that have gravitated over time around the alternative vision of food sovereignty: the right of peoples to produce and consume healthy food in sustainable ways [14, 15, 16 and 17].

In this latter context, land has increasingly become a central pillar of a food sovereignty alternative [18]. Indeed, a discussion on sustainable soil use and management requires a prior clarity about the politics of land. If small-scale food producers do not have access to and control over land, it is premature to focus discussion on sustainable forms of production and soil use such as agroecology. If those who control the land are in the business of industrial-chemical monocrop production, they cannot be expected to adopt an inherently contradictory production system [19].

Three Interrelated Challenges in the Political Economy of Land Control

Three politically difficult challenges are contained simultaneously in the political economy of land control. These are, first, respect and protection of existing democratic land access, second, promotion and fulfillment of democratic redistribution of land control, and third, restoration of prior democratic land control that was lost for various reasons.

In situations where a good degree of democratic land control by working people over the land exists, such as in Mozambique especially in light of the 1997 Land Law, and in many areas marked by customary tenure where such condition is under threat, including from renewed waves of corporate and state enclosures [20], the task is to respect and protect people`s democratic access. While protection may sometimes require individual private property rights, protection should not necessarily and always mean formalization of land rights, which also tends to be interpreted in western liberal terms of individual private property rights along the logic of Hernando de Soto`s argument [21] (see [22] for a critique).

Numerous situations prevail where protection would be better achieved by promoting non-Western private property regimes, rather than the recent World Bank version of formalizing customary tenure in order to facilitate ease in corporate land control. This includes various modalities of relatively democratic customary arrangements based on some ideals of moral economy or subsistence/social insurance for land users, which can still be recognized without naïvely assuming that customary tenure is egalitarian (see [23 and 24]) Furthermore, respect and protection may come in the form of recognition of territorial claims of indigenous peoples [25] or of pastoralist routes and grazing area.

In settings marked by highly unequal distribution of land control, carrying out a depoliticized, technical-oriented formalization of land rights initiatives is likely to formalize and consolidate existing unequal land access. This is the case of many current formalization initiatives as in the Philippines, for example [26].

Formalization cannot be equated with democratization, at least not in the way we mean it here. The main challenge in highly unequal settings is to carry out redistributive land policies. In this context, redistributing land monopolized by a few elites to landless or near-landless people essentially means democratizing land access and control.

Depending on the socio-economic and historical-institutional context, the type of redistributive land policy required may vary: first, where unequal land control is embedded within a private property regime, for example, large farms like latifundia such as in contemporary Brazil [27], land reform should be embedded within a general agricultural policy that does not disadvantage the farming sector and that provides state support such as credit, irrigation and post-harvest facilities; second, where unequal land relations exist in a non-private property regime, such as in Myanmar today, for example, the challenge is to carry out democratic distributive land reallocation targeting agrarian working class households and not corporate and landed/political elites; third, finally, where unequal land control exists in the context of relatively smaller property plots controlled by nonworking elite owners, such as in some agricultural sectors in South Africa and Kerala, India, of the challenge is how to institute and enforce effective tenure and lease arrangements guaranteeing the rights of those who actually work the land.

In settings marked by unequal land control due to previous waves of historical expulsion [20], theft, violence or civil wars resulting in poor people`s loss of land control such as in current South Africa, Myanmar and Colombia, in addition to historical cases worldwide [20], the task is to carry out land restitution that considers democratic internal redistribution as a key component, and to not just restitute territories or big tracts of land to elite restitution brokers [3]. It is not to be automatically equated with a monetized form of restitution, which is essentially a technical quit claim procedure. This latter type has been adopted in numerous countries over the years, more recently in South Africa [28].

In all these complex political processes of redistribution of power to control land and derive benefit from it, there are issues that unite—and divide—particular clusters of people in society in particular ways, not just along socio-economic class categories, but along various identities as well: gender, generation, ethnicity, nationality, religion, among others. These issues involve complex social relations that partly shape the political character of land policies, that is, democratic/pro-poor or otherwise.

Trends in Land Policy Making

Unfortunately, it is rare to see land policies in the world today along the lines of respect and protection of existing democratic land control, promotion and fulfillment of democratic redistribution of land, and restoration of lost democratic land control.

Current international land policymaking shows two key trends. The first and main trend is formalization without respect and protection. This usually involves efforts to formalize land rights in the form of an individual private property system and aimed at transforming lands into investment instruments, although the World Bank is extending its conventional formalization logic to customary tenure as well, as long as the investmentability of land, as community land or individual access within it, is guaranteed or is given even greater ease.

The role of the state in redefining land use and property rights is central [29]. But in practice formalization has not always benefited the poorest of the poor, and at times has even undermined, not respected or protected, previously existing situations of democratic land control [30].

The second land policy trend today is: formalization in lieu of and/or without redistribution. Formalization aimed at protecting and expanding private property tenure systems and/or facilitating corporate control of land, consolidates, rather than breaks up the land monopoly of elite classes and social groups, as has happened in the Philippines [26].

Given these two policy trends today, and in the context of a continuing global land rush, the rural poor who have managed to maintain existing democratic land access may lose such access, while those who do not already have such access/control are unlikely to make gains in this direction any time soon. The challenge is how to change the balance of state and social forces worldwide in order to spark a trend reversal, and of in this context, the political framing of land rights is of critical importance.

Human Rights Framework for Democratic Land Control

In the face of renewed corporate-led enclosures globally, a human rights framework to democratic land control becomes even more relevant than ever. Politically speaking, and following the flow of discussion above, there are two interrelated rights: the right to have rights and the right to make rights real, in other words, to make them exist and to benefit from them in reality and not just on paper. In turn, in the context of human rights, respecting and protecting existing democratic access to land where it exists, promoting redistribution of access to land where it is required, and restoring lost land access and control where it is demanded, correspond to the state`s three core human rights obligations (respect, protect and fulfill). Human rights are thus a powerful instrument toward securing democratic land control.

While the human right to land has not been internationally recognized yet, land is inextricably connected to the enjoyment of a whole series of already recognized human rights. These include, inter alia, the right to an adequate standard of living, including the right to adequate food and housing, the right to work and the right/principle of self-determination. In the case of the right to food, the close link between land and food was identified in the General Comment N° 12 of the Committee on Economic, Social and Cultural Rights on the right to adequate food; and subsequently dealt with in detail by the two previous UN Special Rapporteurs on the right to food, Jean Ziegler and Olivier de Schutter. Several UN Special Rapporteurs (the former Special Rapporteur on Economic, Social and Cultural Rights DaniloTürk, the former Special Rapporteur on the Right to Housing Miloon Kothari, and the former Special Rapporteur on the Right to Food Olivier de Schutter) have called for recognition of a right to land [31].

So far, the right to land and territory is recognized for indigenous peoples only in ILO Convention N° 169 and in the UN Declaration of the Rights of Indigenous Peoples (UNDRIP). Nevertheless, there is a wealth of hard-law and soft-law human rights instruments related to land that are altogether so well advanced [32••] that the notion of a ‘right to land’ stands on a solid ground.

The Tenure Guidelines mentioned in the beginning of this paper provide practical guidance on how to apply a human rights approach to land and can thus potentially contribute to protecting and promoting democratic access to land by reinforcing poor people`s right to have rights [33, 34 and 13]. Finally, a UNDRIP-type declaration on the rights of peasants is currently being drafted in the Human Rights Council as a response to the call of La Via Campesina and allies for an increased protection of the human rights of peasants and other people working in rural areas [35].

If and when such a UN declaration is passed, it will contribute tremendously to political mobilizations by subaltern groups for democratic control over land. This is because international institutions, including conventions or treaties, can be critical political resources to marginalized land claim makers in settings where national land laws are not that pro-poor. In such settings, international conventions can become part of mobilization repertoires aimed at remedying this situation through political engagement. Human rights framed international conventions and instruments offer marginalized land claim-makers much-needed political-legal leverage to face those opposed to pro-poor land policy change. This is because human rights instruments help to legitimize poor people`s mobilizations aimed at democratizing resource tenure. It is useful to look at diverse ways in which this dynamic, anchored on a human right to land, can play out.

Setting I: In settings where relatively democratic access to land by working poor people exists, but is not fully and effectively recognized by state authorities, as seen in many conflict areas involving Economic Land Concessions (ELCs) in Cambodia, for example, the urgent task is to protect such democratic access by putting in place varying forms of rights. In the current context of global land rush, it is often thought that formal private land titles can shield poor people from land grabs, and indeed this may be the case for some people in some circumstances. But in the end it is not just the piece of paper that matters, but also the authoritative power it carries (or not) within a given balance of social, political and economic forces on the ground. Issuing a paper title does not in itself change the balance of power in society into a permanently supportive one, while converting poor people`s rights into property rights can also expose them to the insecurity brought about by the forces of the free market. We argue that securing rights is at its core a political process, often long and difficult, that goes beyond merely issuing formal-technical documents like titles. From this perspective, a more sure way of securing rights involves using a human rights framework.

Setting II: In settings marked by inequality in land access and control, the main and urgent challenge is to redistribute land, which requires passing laws or policies that put in place legal guarantees in favor of poor people`s access and control and ensuring that these laws and policies become authoritative on the ground and in the courts of law Again, the challenge goes beyond establishing rights on paper, to making them authoritative and effective in complex realities marked by actually existing unequal power structures and power relations. In societies where private land monopoly exists, such as in contemporary Colombia, partly undermining poor people`s human right to food, it is the human right to food that can be invoked to pass land reform or land restitution. The challenge for this broad type of setting is probably one of the most difficult political challenges because it directly confronts the sanctity of private property.

Setting III: In settings marked by unequal access to land due to past waves of enclosures and expulsions resulting in people being dispossessed and displaced, such as in Colombia, Myanmar and South Africa, land restitution becomes an important policy. However, land restitution can be nondemocratic if it is limited to awarding large chunks of land back to elite parties without an accompanying redistributive component, that is, restitution without redistribution [3]. The right to restitution is an important human rights angle to land rights in these settings, as it was in post-1994 South Africa [28], and in contemporary Colombia [36]. A land restitution law may be passed but may not necessarily be implemented uniformly within and across claimant communities, or may be implemented in a manner of restitution by substitution, that is, cash compensation instead of land restitution resulting in the perpetuation of the undemocratic status quo in land distribution, and so on (see, e.g. the South African experience [28]).

In all three of these broad types of settings, the realization of a human rights framework is marked by three overarching challenges.

The first challenge involves ensuring rights in reality. Respect and protection of existing democratic access, promotion of redistributive land policies where there is none, and restoration of lost access on paper are one thing. Making these rights real is another. There are many good laws and principles and policies that get stuck on paper from one country to another. As Franco [37] and Houtzager and Franco [38] have explained, looking at the Brazilian and Philippine experiences, laws and policies are passed, but they neither self-interpret nor self-implement. Moreover, in settings marked by unequal land access and control, and where some laws or policies on land redistribution, forestland reallocation, restitution and lease arrangement do exist the challenge is how to transform formal rights into real redistribution.

Historically, it is common to see progressive land reform laws that, when the existing balance of state and social forces changed, became stalled after a brief moment of reformism. The case of the Philippines is an example, where land reform gained momentum and peaked during the 1990s, and then subsequently lost steam to not be implemented in any significant way since then. Peasants and their allies usually must demand their right to make their rights real [39, 37 and 40].

In the context of redistributive land policies such as land reform and land restitution, how to use these rights to effect real redistributive reforms will be a key challenge of the Tenure Guidelines. This is the main challenge, one that has been flagged by Ben Cousins [39]. This is a critical point, especially in light of the relative optimism surrounding the recently adopted Tenure Guidelines.

Second, defending the human rights of human rights defenders, which is very closely linked to struggles for the human right to food and land, is critical. This is especially true in situations where there is rising criminalization of land claim making from below, as currently witnessed in Colombia, Brazil, Mozambique, Thailand, Cambodia, Myanmar, and the Philippines, among others.

Third, possible policy expressions to address the human rights-oriented measures around respect, protect, promote, restore and fulfill do not necessarily and always require state-oriented, western style land property rights or systems. A variety of community-oriented mechanisms can be as effective and more desirable [41].

Conclusion

The human right to land is a key governance concept and instrument that is essential for the achievement of pro-poor democratic land control. Sufficient hard and soft norms support the recognition of the human right to land.

In all the settings discussed above, land laws for democratic land control do not self-interpret and self-implement. There is no doubt how fundamental and critical are autonomous social mobilizations from below by subaltern groups; and an integral part of this is their use of the human right to land as a radical and powerful mobilizing narrative to frame land claims from below. Without such claim making from below, the radical potential of a human right to land is not maximized. It is thus equally important that the human rights needed to demand accountability be protected and promoted. This includes the human rights of human rights defenders as mentioned above, and the upholding of the true spirit of free prior and informed consent (FPIC) to advance human rights toward democratic land control especially in the context of global land rush [42].

However, in the absence of any reform-oriented initiatives toward democratizing land control by state actors, whatever their motivations or intentions, land claim makers are unlikely to make significant impact. Interpretation and implementation of (human) rights in the context of democratic land control is best seen from a state/society interactive perspective, which highlights the importance of institutional spaces, formal and informal, which reform-oriented state and societal forces need to support strategic interactions between them. From this perspective, one is able to see how struggles for agrarian justice are embedded in the broader struggle for democratization; that is, struggles to expand the effective reach of human rights in reality systemwide.

This approach treats social forces within and between the state and society in relational context, recognizing that:

Rights and empowerment do not necessarily go together. Institutions may nominally recognize rights that actors, because of imbalances in power relations, are not able to exercise in practice. Conversely, actors may be empowered in the sense of having the experience and capacity to exercise rights, while lacking institutionally recognized opportunities to do so. Formal institutions can help establish rights that challenge informal power relations, while those informal structures can also undermine formal structures [43 and 36].

Original article

Themes
• Advocacy
• ESC rights
• Indigenous peoples
• International
• Land rights
• Landless
• Property rights

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