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Land Law

 

LAND law structures the land tenure systems of the countries in which the World Bank works, and constitutes an important topic in the dialogue with Bank client countries on sustainable development. It creates property rights systems for individuals, groups and the state, which in turn create incentives to conserve and produce. It sets out the circumstances in which and processes by which rights in land can be transferred, permanently or temporarily, or used to secure loans. It also embodies some limitations imposed by the state on those rights, for instance zoning rules that limit land use, or rules prohibiting transfers of land to foreigners.  The rights may be full private ownership, or  use rights, or leaseholds, or customary rights. Land law also creates the legal basis for institutions that administer land, and sets out the rules for system such as land titling and registration, which facilitate the smooth operation of property rights systems.

 

These legal structures reflect basic allocative decisions of the society and influence the incidence of poverty and prosperity. They set the terms and conditions for transactions in land in ways that help determine efficiency of land use and influence emerging patterns of land distribution.

 

Most developing countries find themselves in the midst of profound transitions in this area.  Some countries are still working with colonial era statutes, which require reconsideration and updating.  These laws were framed almost exclusively with land’s productive function and individual producers in mind, and they often envisaged development scenarios that have not played out as expected.  With the growing awareness of environmental problems, there are new conservation values being put forward for factoring into these systems.  In other countries, the state appropriated and attempted direct management of most land, but now, in light of failures in state land management, are rethinking the role of private property rights and markets and redefining the roles of the state and local communities.  This is the position in “countries in transition”. This is an era of widespread land law reform.

 

The task of providing an adequate legal environment for land use is complicated in many developing countries by the existence of parallel and often overlapping formal and informal systems of land rules.  The informal systems may be deeply grounded culturally, as with customary land tenure systems, or relatively recent initiatives in self-governance by communities when the state has failed to provide effective rules governing land use.  These systems may have ambits clearly defined in law, or there may be overlaps between them, or national law may accord the customary system no legal recognition.  In these cases there may be struggles for power over resources, with each side attempting to take advantage of its law.

 

The success or failure of World Bank-funded projects can be directly affected by the presence or absence of an adequate legal regime for land, and the Bank confronts issues of land law adequacy in a variety of contexts:

  • Land law reform issues arise in policy discussions in connection with adjustment lending, and the World Bank may in some cases require conditionalities within its loan agreement with regard to reforms of land law.
  • The World Bank funds both land reform projects and land administration projects, and both types of project often contain sub-components on policy and law reform, and sometimes sub-components on dispute-settlement.
  • Land law issues can arise in the context of a multitude of other World Bank projects, including natural resource management projects, infrastructure construction projects, urban renewal projects, indigenous peoples development projects, not to mention law and justice system reform projects.
  • The World Bank has safeguard policies with which it must assure compliance by its staff and clients, and often these reflect Bank judgments about what is good land law. The Involuntary Resettlement Policy, for instance, protects those affected by Bank projects from uncompensated takings of land for project purposes, and the Indigenous Peoples Policy singles out indigenous land rights for special protection.

Those who work on land law reform know that it is not easy. Values about land are deeply held, and some issues such as state or private ownership, and the marketability of land, are deeply ideological and political. Elites resist law reforms that weaken their hold on land, as do officials in state bureaucracies that have profited from their power to allocate land. Drafting land laws that actually change the way in which people behave towards land is difficult unless a social consensus for change exists. Generally it is better to proceed through a Land Policy exercise, with extensive public consultation, in order to build such a consensus, and then move into the drafting of a new land law.
 
Reforming customary systems of land tenure, important in many Bank client countries, can be particularly problematic. These are more important in Africa but are also critical in selected countries in other regions, countries as diverse as Indonesia, Guatemala, and Tajikistan. In the past, ambitious attempts to replace customary tenure systems with statutory systems of rights have failed and left broad normative confusion in their wake.  Kenya is perhaps the best known case. More recently, the Bank has begun to try to work with these customary systems, either  assisting countries with registering the customary rights (as in a project in Ivory Coast) or supporting customary land administration by traditional authorities (as in a project in Ghana). Most countries will have dual (statutory/customary) land laws. Managing the interface between customary and statutory systems and setting the terms under which land moves from one system to another are key challenges in legal construction facing many developing country governments. 

 

A close examination of the World Bank’s practice in this particular area will show a considerable variety in approaches taken. This is in part because the Bank has no officially articulated Land Policy, but rather a number of pronouncements on more specific, narrower issues. But it is also because the social and economic circumstances of the Bank’s client countries are diverse and there is no one-size-fits all solution. This is an area where importation of statutes from first world countries is particularly inappropriate. This is because the real task is not simply providing a new land law, but legislating for the transition for the old to the new. Provisions on land administration and transitional arrangements bulk large in such drafting, and have few direct parallels in the land law of first world countries.


FAO Legal Office
This site includes FAOLEX, a searchable database of treaties, laws and regulations on food, agriculture and renewable natural resources world-wide, including land legislation. The site also includes some legal papers on line, and citations for other FAO legal studies available for purchase.

 

International Association for the Study of Common Property
"Virtual Library of Common Pool Resources" includes on-line articles, abstracts and papers from IASCP conferences, and searchable bibliographies. The site also provides information about upcoming conferences and other information about the organization.


Institute for Liberty and Democracy

The Instituto Libertad y Democracia (ILD), founded by de Soto, is a private, non-profit organization headquartered in Lima, Peru. It emphasizes the need for institutional reforms that give the poor access to formal property rights for their real estate holdings and businesses along with the tools to release the capital locked up in those assets.


International Development Research Centre: Conflict over Natural Resources

The site explores the socioeconomic, cultural, and political factors that contribute to conflict over natural resources. It also includes information about specific projects supported by IDRC in this area, publications written on the subject, and links to related sites


Land Policy Network

This World Bank site focuses on policy related to land tenure, land access, land titling, and administration. This site contains information for researchers, policy-makers, and practitioners, and includes many full text documents.


Land Rights in Africa
 
Maintained by Oxfam GB, this site includes a resource bank of papers about land tenure issues in Africa, as well as links to othere relevant internet resources.

 

Land Tenure Center, University of Wisconsin-Madison

LTC is an interdisciplinary research center and its site has for many years been the “gold standard” for information on land policy and land rights in the developing world. The links provided here have been largely culled from their longer list. 

 

LandNet Americas
The focus of this website is property registration in Latin America. It includes a bulletin board, document database, project database, discussion forum, calendar of events, and links to other websites.
 
Lincoln Institute of Land Policy 
The Lincoln Institute of Land Policy focuses on land use and land taxation in the US and abroad. Site includes newsletter and full text of some other publications, as well as information about Institute activities and publications available for purchase.

 

The Popular Coalition to Eradicate Hunger and Poverty 
This organization is a global consortium of civil society, intergovernmental and governmental organisations working to empower the rural poor through improved access to land and other productive resourcesmotto of this organization. Its stated purpose is "empowering the rural poor through land reform and improved access to productive assets."


Rural Development Institute
RDI is a nonprofit organization of attorneys helping the rural poor in developing countries obtain legal rights to land. RDI attorneys are experts in land law and policy who work with governments of developing countries, foreign aid agencies, and other partners to reform land law and consult on land policy. Many of its publications are available on line.


SD Dimensions: Land Tenure
 
The Land Tenure section of FAO's Sustainable Development Dimensions, this site contains information about the Division's activities, including publications, seminars, policy papers, etc.
 
System-Wide Initiative on Collective Action and Property Rights (CAPRi)
CAPRi is an Inter-Center initiative of CGIAR (Consultative Group on International Agricultural Research). The site includes several on-line publications.

 

Further reading

Jonathan Lindsay. 2002. "Chapter 8. Land" at pp. 203-242 in FAO Legal Office, Law and Sustainable Development since Rio: Legal Trends in Agriculture and Natural Resource Management.  FAO Legislative Study 73. Rome: FAO.



Updated as of February 23, 2007



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