Guiding Principles:
Land Tenure in Development Cooperation

Orientierungsrahmen:
Bodenrecht und Bodenordnung

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

Only an overview of the problems based on these points can be given below.

Many reforming and transforming countries have not yet acknowledged (or re-acknowledged) registered private property of land as a fundamental system of ownership despite far-reaching liberalization of the economy (Uzbekistan, Vietnam, Ethiopia, Angola, etc.). This is officially due to the foreign nature of the "imported" characteristics of this institution (e.g. Africa). These countries are searching for appropriate land tenure institutions themselves.

A latent danger of increased land concentration, an increase in inequality of the distribution of wealth or the smoldering ethnic conflicts over land are the causes of the problem. "We cannot privatize land. We have seen people take up arms for it." (Statement in the Land Tenure Workshop in Uzbekistan, see Eckert & Elwert 1996:53).

The listed reservations are explainable ideologically as the "socialization" of private property was always at the center of socialistic revolutions. Since the current administrations of many reforming countries continue to be represented by the same political power that was also responsible for the socialist system (Ethiopia, Benin, Laos, Uzbekistan, etc.), the return to private property would throw out the traditional models which were a source of identity for the society and it would render the policies of the past illegitimate.

Private property requires a functional land register system (cf. 3.10.2). In many developing countries such a system has only been established for urban agglomerations, and they are rarely updated. After revolutions, land registers were manipulated (Benin or Nicaragua) or in part systematically destroyed (Cambodia). Thus, high costs for reestablishing the land register arise for the national economy and many countries do not wish to pay such transaction costs.

All reforming and transforming economies have established permanent land use rights in their constitutions or land laws in the recent past. These use rights are transferable to a large extent. Even where registered private property is not permitted, selling and buying land are factually possible and tolerated. The temporary private use of (state) land is regulated by a broad spectrum of forms of leasing, heredity, gift giving or renting. This land is very similar to privately owned land concerning the flexibility for transferring and, therefore, offers great opportunities for dynamic economic and sectoral change.

The obsession of exaggerated accuracy for detail in the process of formulation of the land rights leads to inconsistencies. This occurs especially in the traditional "control and command" state (e.g. Laos, Cambodia, Uzbekistan). Laws assume the character of ordinances in this process that have been used in the past dictatorship for ruling their people. This accuracy limits the individual scope of decision making and action and impedes quick economic and social change.

Countries like Laos or Cambodia that have relied extremely on external legal and economic advice during the transformation process are, once again, subject to the danger of unverified adoption of "out-of-culture" concepts for land rights and regulations concerning family law and law of inheritance. Western concepts may possibly contradict autochthonous or Islamic regulations.

Since countries are mainly pursuing the goal of strengthening family farms with the allocation of leased land once in the hands of the state or production cooperatives, deciding on the minimum amount of land required or the maximum farm size to prohibit land accumulation is necessary. No conformable solutions are possible as it depends on the "man-land ratio" in a specific area, the proposed farming system, the land capability and the availability of water and the distance from urban markets.

The design of tenancy relations is one of the most sensitive areas of reform. Often, the lease conditions are different for different situations such as when the state leases land to either family farms, cooperatives or agricultural industrial businesses or between private land users. Since the reform in Vietnam, land for annual crops is leased for 20 years and land for permanent cultures for 50 years (Hayami 1994). Therefore, leaseholders have a longer planning horizon and can implement soil improvement measures.

To achieve this especially in the post-socialist countries, complementary access to working capital, machines, credit and advisory services must be certain. Many of these services were provided in the past by the state cooperatives which have been dissolved. Strong dependence has remained, however. Independent farming is hardly possible; families often do not even strive towards it during times of upheaval. Land redistribution and the new design of leasing are not very effective without accompanying agricultural policy impulses.

Negative experiences have been made with the overregulation of landlord-tenant relationships. Minimum standards for lease contracts, however, have proven to be effective instruments in the strengthening of legal security. The following are examples of the standards: contracts put in writing or clear witness regulations, minimum lease duration, clear determination of the responsibility of the landlord and the tenant and the way of payment. This is also valid for all other private legal contracts involving the transfer of land (mortgage, inheritance, sale, etc.).

African and Asian countries fear, often mistakenly, too low production incentives and especially a polarization of the distribution of wealth in the case of land leasing, and thus laws prohibit particular leasing forms including shareholding. Leasing prohibitions lead inevitably to parallel "gray" markets increasing the risks for both landlord and tenant.

Governments have had to clarify whether the restitution issue belongs in the constitution, i.e. on which level decisions dealing with restitution should be made (laws, ordinances, etc.) in controversial debates. In Laos and Cambodia, a deadline has been set after which the claims can be sought. This results in land expropriated immediately after the socialist upheaval in the 1970´s not being amendable. In addition, political refugees are often omitted from the group allowed to make claims. Especially the influential, but also returning emigrants willing to make investments have attempted to politically influence legislation to their benefit. Offers for compensation are often unattractive for old owners considering that the public purse is empty. Nicaragua attempted to generate funds by selling state farms. In Germany, the debate has come up again in February 1998 if land in the former GDR which was expropriated by the Soviet military government between 1946 - 49 should be restituted.

When expropriation and collectivization are also connected with far-reaching resettlement of the rural population such as in Ethiopia and Tanzania, then all attempts of any kind to return to the pre-revolutionary status quo are an illusion.

In most law codes on land tenure considerable importance is placed on the ability of the government to claim land which is privately used for a "superordinate public interest". This type of expropriation is possible when land is being used "inefficiently" or "incorrectly." It is, of course, hardly possible to determine if such a case is being presented. In Uzbekistan lower public servants and unfortunate neighbors start such lawsuits supported by money for corruption.

The range for dealing with autochthonous law is wide; the reforms can be distinguished as "replacement reforms" and "adaptation reforms." (Bruce et al. 1995). While the former attempted to replace autochthonous law in Africa, reforms in individual countries are now intentionally building upon autochthonous law (e.g. Niger, Botswana, Gambia and Senegal). However, if customary rights are written down or otherwise determined (restatement), their flexibility may be lost and what is enshrined in the laws is only the momentary current status.

(Bruce et al. 1995:4)