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4.1.1 Models
Models and
principles can be read in and derived from the Charta of Human Rights, Agenda 21 and conferences following Rio 1992, the structures of existing
societies' systems (degree of democracy and the separation of powers), the economic order (decentralized, market economy and the idea of property) and the written constitution
(strengthening of important social groups, protection for minorities and equality for all
people before the law). |
Derivation of
models and of principles of land policy |
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| Constitutional safeguards in the
Federal Republic of Germany (extracted from the German Basic Law) |
Article 14
(Property, Right of Inheritance, Expropriation)
Property and the right of inheritance are guaranteed. Thier content and limits shall be
determined by the laws.
Property imposes duties. It should also serve the public weal.
Expropriation shall be permitted only in the public weal. It may be
effected only by or pursuant to a law which shall provide for the nature and extent of the
compensation. Such compensation shall be determined by establishing an equitable balance
between the public interest of those affected. In case
of dispute regarding the amount of compensation, recourse may be had to the ordinary
courts.
Article 15 (Socialisation)
Land, natural resources and means of production may for the purpose
of socialisation be transferred to public ownership or other forms of publicly controlled
economy by a law which shall provide for the nature and extent of compensation. In respect
of such compensation the third and fourth sentences of paragraph (3) of Article 14 shall
apply mutatis mutandis.
A land policy which is designed for stability and to create trust must
at least fulfill the following:
Long-term-oriented and secure from the influence of daily politics
and strategic behavior of politicians prior to elections;
Imparting visions regarding the aspired path of development;
Based on and tied to existing systems, expectations and successful
practices to keep creditability;
Focused on an evolutionary process of change to avoid revolutionary
upheavals;
Including an intensive dialogue between the government and citizens
and within civil society (e.g. concerning integrated land use planning).
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| Namibia: Outline of a national land
policy |
Fundamental
Principles:
equality before the law,
a mixed economy based on several forms of ownership,
a unitary land system, in which all citizens have equal rights,
opportunities and security across a range of tenure and management systems,
a focus on the poor,
the rights of women,
security and protection to all legally held land rights, regardless
of the form of tenure or the income, gender or race of the right holder,
public accountability and transparency.
(Govt. of Namibia 1996) |
Land policy
models are controversial and differ for various cultures, religions and political systems.
Discussions between the partners about these models in the policy dialogue (see section 4.2.1) or in national forum discussions
are usually necessary:
The rule of law does not necessarily mean equality of all people
before the law in every country or equal opportunity for men and women to the access to
land and its use.
A country-wide binding, uniform system of land tenure based on the
monopoly of power held by the state is often incompatible with indigenous regulations
governing the access to and distribution of land.
The deliberate promotion of groups which are seen as being at a
disadvantage by the international development cooperation such as the landless poor and women through land policy is not necessarily desired
socio-politically nor can they be politically implemented (yet) in every society.
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Models are
controversial and must be discussed |
Development
cooperation should help to clarify when and to what extent an active land policy is
required. During transformation processes (e.g.
in the former Soviet Union states), in the case of far-reaching market economy reforms
(e.g. African countries), or in countries with a very dynamic economy, an active
anticipatory land policy is especially required. If, however, a consistent and recognized
system and an effective land administration exist,
then the chance exists for the involved parties to legally make private contracts of
various sorts themselves on transparent land and lease markets (the state, however, is one
of many participants in the market). Since the results of these land tenure agreements do
not necessarily conform to the society´s objectives if they enable land concentration or accelerate the rate of environmental destruction,
then the government should not leave everything to the forces of the market. The
government should intervene in the land policy and at least set a binding framework. |
Private
contracts and state framework policy |
| Land policy and land
reform. Innovations in the operations of the World Bank Group |
If small
farms are so efficient, why does the market not transfer the land to them?
Tenancy & sharecropping are often
illegal or overregulated,
the poor cannot buy because land prices often exceed present value of
farm profits,
nonagricultural investors use land as hedge against inflation, as tax
shelter, and to gain access to subsidized credit, and these effects are capitalized into
land values,
macroeconomic stability and agricultural policy reform to eliminate
these incentives are necessary conditions for successful land reform.
(Binswanger 1996) |
Guiding principles do
not just have to be formulated for the land issue alone, but also for a consistent and
often complementary water policy, which has to include:
The basic supply of fresh water to be guaranteed for the present
generation,
The global supply of fresh water to be maintained for future
generations,
Fair access and user rights to be guaranteed, also with regard to
border crossing water resources and
The cultural identity and the political self-determination concerning
fresh water to be considered
(WBGU 1997). |
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