Presentation on Resolving Local Land Disputes: Working with Local Institutions

Presented at UN-Habitat Workshop on Post-Conflict Land Tools Development, Geneva, June 2009

Post-Conflict Land and Property Rights

The breadth and the depth of resources on post-conflict land issues continue to grow steadily, especially as these relate to the return, reintegration and/or resettlement of refugees and displaced persons. In particular, the ‘Pinheiro Principles,’ developed by the UN’s Special Rapporteur on housing and property rights in the context of the return of refugees and displaced persons, provide the current standard for a rights-based approach to restitution and resettlement, whilst restitution has in some cases has been explicitly supported by UN bodies as part of the post-conflict ‘right to return’ under international law.[1] However, policy frameworks and expanded institutional mandates have not always resulted in effective responses to land-related challenges in countries recovering from war.

There are numerous well-documented pragmatic reasons - aside from the fundamental necessity according to international law and norms - why land and property rights should be comprehensively addressed in post-conflict situations.[2]

Given the fact that almost half of all post-conflict countries return to war within a decade, the aspect of conflict management is probably the most important. In many countries around the world, struggles over access to land are amongst the background causes  of armed conflict, and land tenure reform must address these. Even where land has not historically been a cause of violence, wars which result in long-term internal displacement or protracted refugee populations tend to be followed by secondary conflicts over land and housing once a ceasefire is in place and people start to return home. Local social networks are disrupted, putting strain on informal land access arrangements.

Many demobilised combatants, some born in exile or long absent from their home areas, require access to housing and land in order to put food on the table, rather than resorting to banditry.  Women, particularly widows and female heads-of-households, can be negatively affected by conflict- and displacement-related changes to the social fabric. Securing the land rights of women is likely to improve food security at the household level, as income controlled by women is more likely to be invested in family nutrition than men’s earnings.[3] Reinforcing or clarifying land rights is thus an essential aspect of efforts to re-establish the rule of law.  Successful return or resettlement of displaced populations strengthens confidence in the post-conflict situation, and is necessary to enable credible elections to be held.[4]

Peace is often followed by a UN- and NGO-fuelled economic boom, and liberalization of the economy. Rapid exposure of conflict-stunned communities to global markets and international investors can lead to disenfranchisement and conflict. Land and property transactions are likely to rapidly increase in frequency (UN and aid agency personnel need houses) and if this ‘land rush’ occurs in a situation of land tenure insecurity, confusion and disputes will result.  The negative effects on the population of rapid economic change may be reduced if the property rights of the poor can be secured.

Of course, land issues are always complex. What then is so special about post-conflict land interventions? The diverse interests at play in post-conflict situations, the political rivalries which continue into the post-war setting, the often great power differentials between victorious and ‘vanquished’ parties, security threats (such as landmines or rogue remnants of armed groups) which may limit access to parts of the country, and the urgency with which policy decisions need to be taken, combine to make post-conflict governance a huge challenge. Lack of reliable information is often a major constraint.

Adding to this complexity, in the majority of countries around the world, are the effects of war on a situation of de facto (if not de jure) legal pluralism. International laws and principles must be translated not only into the national legal framework, but also into the fuzzy areas where religious, customary, and informal systems compete, interact and overlap with national laws. Legal pluralism is a particularly difficult concept to grapple with after conflict, when the legitimacy of many of the actors involved in law-making and norm-setting (from local chiefs to heads-of-state) may be affected by their involvement in fighting or atrocity. Custom may have become more legitimate due to the ‘absence of the state’ during conflict, but often, traditional leaders have themselves been benefitted from the lack of accountability to dispossess local people of land.[5]