Guiding Principles:
Land Tenure in Development Cooperation

Orientierungsrahmen:
Bodenrecht und Bodenordnung

Deutsche Gesellschaft
für Technische Zusammenarbeit
Abt. 45 / Div. 45

Thus, the will of the Tanzanian administration to reform the land administration is barely distinctive since decentralization and democratization considerably restrict their influence on key resources and make decisions more transparent. In Niger, the commissions for conflict resolution are filled with members of the nobility who mostly favor the interests of the wealthy owners. In Nicaragua, high public servants acquired valuable land during the change of power at the end of the Sandinista regime, thus handing down additional smoldering conflicts and legal insecurity to the new system.

In Asian countries such as the Philippines and Laos, large tracts of land have been removed from legitimate owners and users. The tracts are under military control. The military repealed the law and has implemented a highly controversial strategy of exploitation, for example, through clearcutting and extorting compulsory levies from the local people. (However, the positive influence on the principles of the rule of law must be recognized in countries where the military operates within its legal rights.)

Not only in Cambodia do Mafia-like interest groups react swiftly to a quickly formulated and implemented legislation to legalize illegally purchased land by registering their titles. This process is often referred to as "land laundry." In Chiapas, Mexico, governmental authorities awarded the rights to land that was actually the property of the indigenous people to interested ranchers (cf. 2.3.2).

The long history of land reforms which have failed shows that massive social conflicts due to anticipated land reforms are attempted to be defused through symbolic policies. In Guatemala and Brazil, the government promotes the colonization of rain forest areas and in buffer zones around national parks to take the edge off land conflicts and to postpone the problems to the future. In 1992 the NAFTA agreement "freed" the export-oriented large farms from the sword of Damocles from an anticipated redistribution of land in Mexico since the new primary agricultural policy goal was international competitiveness.

The refusal of African local authorities to continue to lease land to "outsiders" or to allow trees to be planted postpones immediate conflicts with land-seeking smallholders and agricultural enterprises. However, it creates new conflicts with the state administration and development projects in which resource protection is the focus.

"...It is unlikely that the government on its own will move in the direction in democratizing land tenure given vested interests within the state. A consistent and organized voice from civil society has to develop to take up the land issue" (Shivji 1996). This critical estimation by the chairman of the "Presidential Land Commission" in Tanzania puts the main problem of the participation of the affected in solving conflicts in a nutshell.

Decentralization and the solving of land tenure problems according to the subsidiary principle are goals which have been declared as a part of the reform process in most developing countries (Gordillo 1997). Land forms a crucial element of a constitution, and therefore those immediately affected by the fundamental revisions of the regulations of access and use of land should be consulted from the very beginning. International donors send very strong signals in this respect. The implementation of the reforms down to the local level demands corporate joint solutions, so that the composition of the committees and the procedural sequence are more uniform. The gap between autochthonous and modern solutions to conflicts from the "top" and from the "bottom" can only be reduced in this way.

Equipping the local population with more authority and responsibilities also requires stronger participation of the public in selecting members of arbitration committees and local courts.

"Empowerment" in no way guarantees that the rights of all involved persons will be acknowledged in hierarchical societies, as in Asia. Despite agrarian reforms after a revolution which had the goal of breaking up existing structures of power and dependency, the traditional elite regained influence quickly.

The basic values of land tenure conflict resolutions, such as decentralization, democratization and subsidiary, remain an empty shell as long as they are not accompanied by financial and planning autonomy for the "small administrative units" (e.g. through land tax at the community level). Only they can enable the (re-)construction and the maintenance of necessary institutions, flexible ways of dealing with conflicts and responsibility for designing development and land use plans.