Forms Of Land Tenure Research Articles

The Principles of Investment Law in the Management of Mineral and Coal Resources Within Communal Land

The legal forms of land tenure by communal society, known as communal, are varies in Indonesia. Communal title has been considered as a juridical and common term, although each of communal societies actually has their own different technical term. Making communal land as an investment place of managing mineral and coal resources might bring some legal issues for communal society. The first issue related to less optimal implementation of the principles of investment law by both government and investors. It would impact on the emerging conflicts between communal society and investors. Second, the position of communal land loaded by given-period mining permit would turn into the state property after the period ended.

The Land–Water–Food Nexus: Expanding the Social–Ecological System Framework to Link Land and Water Governance

To date, the land–water–food nexus has been primarily addressed from an ecological, hydrological or agronomic angle, with limited response to the governance interface between the input resources. Likewise, in widely used heuristic frameworks, such as the social–ecological system (SES) framework, governance interactions between resources are not sufficiently addressed. We address this gap empirically, using the case of Tajikistan, based on a farm household survey analysis of 306 farmers. The results indicate that land system variables contribute to the willingness to cooperate in irrigation management. Specifically, formal land tenure has a positive effect on farmers paying for water as well as on the likelihood of their investing time and effort in irrigation infrastructure, which is decisive for Tajikistan’s food and fiber production. Irrigation system variables show that, e.g., being an upstream user increases the likelihood to contribute to labor maintenance efforts. We further discuss how decisions with respect to the land sector could be designed in the future to facilitate cooperation in other resource sectors. Further, we conclude from a conceptual perspective that the SES framework integrating a nexus perspective can be adapted: either (1) by adding a second-tier “governance nexus” variable inside the governance variable of an irrigation system; or (2) by adding a land resource unit and system outside the irrigation system.

The Principles of Investment Law in the Management of Mineral and Coal Resources Within Communal Land

The legal forms of land tenure by communal society, known as communal, are varies in Indonesia. Communal title has been considered as a juridical and common term, although each of communal societies actually has their own different technical term. Making communal land as an investment place of managing mineral and coal resources might bring some legal issues for communal society. The first issue related to less optimal implementation of the principles of investment law by both government and investors. It would impact on the emerging conflicts between communal society and investors. Second, the position of communal land loaded by given-period mining permit would turn into the state property after the period ended.

Panorama de los ejidos y comunidades agrarias en México.

Los ejidos y comunidades agrarias son la forma de tenencia de la tierra que abarca mayor superficie en el campo mexicano; ellos ofertan una importante producción agropecuaria y en sus suelos están la mayor parte de los montes, áreas forestales, manglares, costas, agua, minas y diversos atractivos naturales; sin embargo, poco se conocen sus características generales, por lo que este artículo presenta los rasgos principales de estas formas de propiedad del suelo y un panorama amplio de su situación actual (basado fundamentalmente en el análisis del último censo ejidal). Estos tipos de propiedad tienen un gran potencial económico y ecológico; sin embargo, la mayoría tiene grandes carencias que dificultan la producción agropecuaria y forestal. Además, no son homogéneos, pues presentan disparidades sustanciales en su dotación de recursos, al grado que solo una cuarta parte de ellos dispone de condiciones adecuadas productivas, siendo los ejidos y comunidades la principal forma de tenencia de la tierra en México; asimismo, alberga la mayor parte de la población rural. Las políticas gubernamentales (económicas y sociales) deben orientarse fundamentalmente hacia ellos, ya que cuentan con una enorme capacidad productiva y de generación de servicios ambientales, lo que falta para su desarrollo es el apoyo estatal.

Adoption of volunteered geographic information into the formal land administration system in Kenya

Individualization of tenure through title registration programmes introduced in many African countries after independence with the promise of security of tenure and increased agricultural productivity has, instead, had the opposite effect. Informal land arrangements continue to emerge as a result of the slow pace of land adjudication (formalization) and updating of land information systems. The trend towards computerization of land information systems has only put focus on already existing formal land tenure arrangements, leaving out the informal social tenure arrangements. As a result, there are now many efforts worldwide motivated by the introduction of the Social Tenure Domain Model (STDM), and freely-available and easy-to-use technology tools to identify, document and map land in support of informal land administration arrangements. Actions are made towards the use of community-generated information to support land administration. Using theories from the interplay between formal and informal institutions, this paper discusses the potential outcomes in adopting Volunteered Geographic Information (VGI) in land administration in Kenya. Two case studies are presented that demonstrate the complementary-accommodating, versus the substitutive-competing approaches. These are then compared with the formal land adjudication process in Kenya. It is established that because of the direct involvement of the national mapping agency in land adjudication where VGI is utilized, the outcome is a case of formal adoption of VGI, while in the other case, where there is little or no involvement by the national mapping agency, the outcome is more of competition and substitution. The latter is an example in which the VGI is used just like any other information to inform policy making, rather than taking it as the authoritative source. We argue that since informality is – and will always be – part and parcel of land administration in many African countries as a result of ingrained social relations and power structures, adopting crowdsourced land information into existing formal land administration systems should consider the particular land administration process, satisfying innate demands and requirements, thus re-engineered to accommodate VGI.

PATTERNS OF DEVELOPMENT OF RELATIONS OF LAND OWNERSHIP IN THE AGRARIAN SECTOR OF THE ECONOMY

Every economic system is based on a certain system of relations of property that answers the certain level of development of productive forces. When this system of relations of property stops to provide progress of economic development, there is a necessity to substitute it by a new one. Exactly the objective necessity of development of productive forces predetermines the necessity of origin of new, higher pattern of ownership. For every system of relations of property, its own system of contradictions that provides its development is typical. Solving these contradictions conduces to the appearance of new adequate forms of further development of the system of property relations. In relation to the agrarian sector of the economy, any contradiction of agrarian relations is a form of expression of contradictions that are based on contradictions of land property relations. This implies that contradiction of relations of land ownership is the basic one in the system of agrarian relations and without its decision, it is impossible to solve all other contradictions of the agrarian sector and to form effective agrarian relations. For this reason, in order to work out an effective agrarian policy on the solution of existing in the agrarian sector contradictions, it is important to find out contradictions and law of development of land property relations in it. The topic of research is contradictions and laws of development of re land property relations in the agrarian sector of the economy. For clarifying these issues, there are applied dialectical, dynamic, systematic, and unity of logical and historical approaches, methods of generalization, analysis and synthesis, etc. The purpose of the article – expose dialectics of contradictions of development of institutional public forms of the functioning of economic systems and property relations in the agrarian sector, to define laws of development of land property relations. The driving forces of the development of any economic system are contradictions between the form of land ownership and the form of land tenure, between the form of land tenure and the form of direct farming, between the owner of the land and the immediate worker on it. The dialectic of the development of institutional social forms of the functioning of economic systems and property relations in the agrarian sector is that the development of land ownership relations leads to changes and transformations in the system of production relations, their transition to a higher stage of socio-economic development, and the emergence of new social forms of functioning of economic systems. In turn, the emergence of new social forms of the functioning of economic systems causes changes in the structure of property ownership on the land, leading to the emergence and dominant position in the agricultural sector of new types and forms of ownership, reflecting the socio-economic nature of the current social system. On the basis of the analysis of the evolution of land ownership relations in various economic systems, one can conclude that their development is characterized by certain patterns: the development and complication of property patterns are constantly underway; each form of ownership by its nature is historical; the emergence of a more developed form of ownership of land does not lead to a complete disappearance of the previous form of ownership; the more specific forms of ownership within a certain mode of production, the stronger are the driving forces and sources of economic system development; as the evolution of property relations weakens the antagonistic nature of social contradictions, there is a convergence of interests of opposing classes, social groups; each functional form of ownership reflects a certain level of development of the productive power of human labour; the means of realization of any type, type or form of ownership is the degree of human freedom; the development of the essential basis of property relations takes place in an evolutionary way, and the change in the legal form of ownership – institutional instruments; institutional forms of property combine both old forms and new; each typical civilization is characterized by a predominant property object that is specific for its conditions of development, which reflects the achieved level of development of the productive labour force of man and the corresponding formative peculiarities of the appropriation of means and production results, etc.

Which Way Forward? Using simulation models and ethnography to understand changing livelihoods among Kenyan pastoralists in a “new commons”

Over the last several decades there has been a transformation of the Samburu pastoral commons to new forms of land tenure and use. Government led land adjudication in the 1970s and 1980s established new forms of land ownership including group ranches and, in some places, complete privatization of land into individual parcels. An important question is what forms of land use and social relations emerge in the wake of land adjudication, and with what consequences? Can a “new commons” arise following transformation of the traditional commons? We address these questions by examining the aftermath of privatization in a Samburu community. Through ethnographic observations and interviews, we gain insight into peoples’ understanding of land use and current norms and practices and propose two diverse visions of the future – the “pastoralist imperative” of continued extensive livestock production and “future farmers” seeking a more settled, crop and wage labour-based livelihood. Using computer simulation models of the environment and households we conduct scenario analyses tracing the effects of land use practices and choices resulting from these different perspectives on variables such as livestock wealth, household income and food requirements, and ecological resources including grasses and shrubs. Our analysis suggests that privatization has yielded a “new commons” combining elements of individual ownership with shared management. These institutional innovations enable a continuation of extensive livestock production with new livelihood strategies that include a degree of land enclosure such as cultivation and land leasing. The analysis indicates that seemingly contradictory norms and practices can co-exist on the same land allowing considerable flexibility in production of livestock and crops. However, the models also demonstrate the limits that may be reached, particularly if common access is heavily curtailed.

Evolving frontier land markets and the opportunity cost of sparing forests in western Amazonia

Efforts aimed at sparing forests on tropical forest frontiers through REDD+, PES or conservation initiatives currently rely on a limited understanding of the operation of land markets and their effects on the opportunity cost of forests as frontiers develop. In this paper, we draw on a unique dataset of landholder-reported land transactions that includes post-1991 land sales-in three sub-montane frontier forest areas on the eastern slopes of the Peruvian Andes. We analyze reported land sales that took place between 1979 and 2013 among Amazonian frontier farmers and find highly active land markets in all three areas, often in the absence of formal land tenure. As frontiers developed, parcel size fell, as did the portion of remaining forest cover, and land prices rose, reflecting both forest clearing and general land price inflation as the areas became more populated and developed. Across three study districts in 2013, each additional hectare of forest cleared raised the expected price of a parcel of land by US $1371–$2587. Importantly, we estimate the opportunity cost per hectare of frontier forest rose markedly over time: by $124–$226 per year between 2003 and 2013, a rate of increase over that period of 9–27% per year. Forest conservation programs that rely on estimates of landholders' willingness to accept compensation for sparing forest need to take into account that these values change rapidly as frontiers develop.

“Land to the Tiller”: Unrealized Agenda of the Revolution

Abstract Land reform was perhaps the single most galvanizing issue of the Ethiopian Revolution. The changes effected in this regard led to the collapse of a social and political order that had prevailed for centuries. The Ethiopian Revolution broke the chains of serfdom and freed the peasants from feudal bondage. Although the archaic and exploitative land tenure system was brought to an end, the revolutionary slogan “land to the tiller” was not realized. The Land Reform Proclamation of 1975, which abolished the landlord-tenant relationship, at the same time instituted a new form of land tenure. It made the state the new landlord over all rural land in the country. The enshrinement of the state as the landlord over all of the rural land empowered it to intervene at will in the economic and political lives of people. This article aims to revisit the revolution’s land reform program and assess some of its legacies. The author’s perspective has been informed by his active involvement in the now largely forgotten Chilalo Agricultural Development Unit (CADU) project of the 1970s and his efforts to advance land reform legislation just before and after the 1974 revolution.

Weaponizing Maps: Indigenous Peoples and Counterinsurgency in the Americas by Joe Bryan and Denis Wood

Reviewed by: Weaponizing Maps: Indigenous Peoples and Counterinsurgency in the Americas by Joe Bryan and Denis Wood Mario L. Cardozo Weaponizing Maps: Indigenous Peoples and Counterinsurgency in the Americas. Joe Bryan and Denis Wood. New York: The Guilford Press, 2015. xxiii + 272 pp. $35 paperback (ISBN 9781462519910). In the book Weaponizing Maps: Indigenous Peoples and Counterinsurgency in the Americas, Joe Bryan and Denis Wood present a critique of indigenous mapping projects in the Americas. The authors add to studies that expose the difficulties of simplifying indigenous lands into territories with fixed boundaries adapted to spatial planning. Bryan and Wood suggest that instituting such spatial representations may have unsettling consequences, even when these efforts are intended to establish or strengthen indigenous rights. As the book’s title suggests, the authors contribute to a growing literature of critical geography underscoring the militarization of mapping projects in developing areas. The book’s critique revolves around research led by geography scholar Peter Herlihy and his associates, who have developed and applied participatory research mapping methods during extensive work with traditional peoples in Latin America. Bryan and Wood focus on how some projects involving Herlihy have connected indigenous peoples in Mexico and Central America to U.S. military funding through the American Geographical Society (AGS). To establish this connection, the authors summarize the history of the AGS, including its relationship with imperial forms of geography since its origin in the 1850s and its alleged decline over the last few decades. More recently, the U.S. Defense Department has helped fund AGS’s Bowman Expeditions, which are participatory research projects that collect georeferenced human geography data, with the purported aim of augmenting geographic literacy to promote a better understanding of the world. Herlihy was a key researcher in the inaugural Bowman Expedition, the México Indígena project (2005-2008), which sought to evaluate the impacts of new land-tenure policies on traditional communities in Mexico. The project was controversial; it raised questions of ethics in geographic research linked to informed consent, the supposed ambiguity of the project’s objectives, and the significance of the project’s connection with the U.S. military. Indigenous leaders from Oaxaca, Mexico, who initially collaborated with the project, claimed they were unaware México Indígena was being financed by the U.S. Defense Department and declared themselves victims of geopiracy, fearing information about their communities had been gathered in part to feed intelligence to the U.S. government. Bryan and Wood contextualize the Oaxaca accounts with discussions of how the U.S. military has increasingly injected–albeit clumsily–anthropologic and human-geographic frameworks into its counterinsurgency and Small Wars guidelines, including [End Page 151] the moribund Human Terrain System program. In this manner, the authors link the U.S. government’s funding of AGS’s Bowman Expeditions to the Army’s efforts to collect data for the “applied human geography” components of counterinsurgency programs. The authors discuss some key efforts in securing indigenous rights in the Americas, particularly through territorialization processes. Bryan and Wood start by reviewing how native peoples in Canada pioneered in achieving a level of self-governance. These and other similar efforts involved mapping indigenous lands in order to gain official recognition. Initial indigenous mapping efforts seemed preoccupied with representing aspects of the landscape considered unique and relevant to indigenous peoples. Bryan and Wood argue that the fight for indigenous self-governance has seen a shift that now places more importance on land demarcation and the cartographic principles employed to establish precise boundaries, including GIS and GPS applications. This focus parallels the need—during colonial times in the Americas and in Western culture—to stratify the landscape into fixed categories of land tenure that may not reflect the spatial-temporal and historical complexities of indigenous lives and how they intersect with other geographies. This discussion, in particular, is connected to how a conservative framework of property rights has been used in counterinsurgency discourses to further push the supposed need to formalize land tenure and modernize the landscape. Although the authors engage often in critical thinking, the text is easy to follow, with relatively little jargon, and the story becomes increasingly engrossing as links among different accounts...

POLÍTICAS Y CONFLICTOS SOCIO AMBIENTALES: EL CASO DE LA TENENCIA DE LA TIERRA Y LOS MONOCULTIVOS EN EL CARIBE DE COSTA RICA (2006-2012)

The article makes a characterization of the main socio-environmental conflicts in theCosta Rican Caribbean in the period 2006-2012. This process will be presented from amain conflict between the state and local villagers, who maintain several disputes abouta series of policies that modify the forms of land tenure and the lack of regulations in systemsof pineapple and banana monoculture.

Desarrollo sostenible y transformaciones en la organización del trabajo femenino rural:

Aunque en el nivel internacional la mujer rural es considerada clave para el desarrollo sostenible, en la ganadería uruguaya su trabajo continúa siendo poco (re)conocido por los formuladores de políticas públicas, provocando la migración de las más jóvenes y la “masculinización” de la actividad ganadera en ese país. Como ejemplo, los sistemas nacionales de estadística sobre el trabajo femenino no registran las actividades no remuneradas de las mujeres en las explotaciones agrícolas familiares, a las que usualmente consideran no productivas, y han subestimado sistemáticamente las transformaciones en la organización del trabajo rural femenino. Este estudio contribuye a entender mejor el cambiante papel de la mujer rural, al analizar, por medio de entrevistas semi-estructuradas y observación participante, a: i) cómo se organiza el trabajo de mujeres dedicadas a la ganadería bovina de carne y de leche a partir de cruces entre perfiles ”“jefas, co-jefas y observadoras pasivas- y consideraciones sobre la gestión de la explotación y del tiempo; ii) las diferentes dinámicas de toma de decisiones, según los perfiles y roles de las mujeres; iii) una dimensión más subjetiva de las mujeres ganaderas, con sus percepciones y visiones de sus propias actividades laborales en transformación. Se identificaron cinco factores que inciden en su perfil: relación de la mujer con sus familiares, características socio-económicas, tamaño de la explotación, presencia de empleados asalariados y tenencia de la tierra y/o de animales.

China's Stealth Urban Land Revolution

Both supporters and critics of China’s urban land use regime use the language of state ownership to describe it. But significant reforms have taken place to that regime since the early 1990s — so much so that over much of China’s urban land area, de facto re-privatization has already occurred. This is because the long-term use rights granted over urban land are economically and legally very similar to full private ownership, and indeed can be found in other jurisdictions where nobody doubts the existence of a private land ownership regime. Although some uncertainties remain, this is because the cost of maintaining them is low whereas the cost of resolving them is high; as that cost balance changes over time, there is reason to believe that they will be resolved before they become a drag on economic development. The analysis presented here applies not only to China, but to any jurisdiction where something less than full fee simple ownership (or its equivalent) is the dominant form of land tenure.

A Modern Paradise

On the Honduran North Coast, the Afro-indigenous Garifuna struggle to maintain access to and control of their ancestral lands. Their concerns are due in part to the Honduran state’s long-standing goal of modernizing the North Coast and providing an attractive site for foreign investment in land and tourism. The state’s commitment to improving the country’s development profile by opening coastal land ownership to foreigners often overlooks international and constitutional recognition of communal forms of land tenure. Ethnographic participant observation in the Garifuna community of Tornabé, a fishing and farming village in the Tela Bay region, supplemented by semistructured interviews, historical data collection, discourse analysis, and research on agrarian and environmental policy, suggests that Garifuna displacement is a product of the state’s development imaginaries, which racialize the Garifuna as backward and consider their blackness redeemable only by their labor. En la costa norte de Honduras, los garífunas afro-indígenas luchan por mantener el acceso a y control de sus tierras ancestrales. Sus preocupaciones se deben en parte a la meta de largo plazo del estado hondureño por modernizar la costa norte y hacerla atractiva a la inversión extranjera en tierras y turismo. El compromiso del estado por mejorar el perfil de desarrollo del país accediendo a que exista propiedad extranjera en la región costeña a menudo ignora el reconocimiento constitucional e internacional de formas comunales de tenencia de la tierra. Observación etnográfica participante en la comunidad garífuna de Tornabé, una aldea de pescadores y agricultores en la región de Bahía de Tela, complementada con entrevistas semi-estructuradas, recopilación de datos históricos, análisis del discurso e investigación sobre política agraria y ambiental, sugiere que el desplazamiento forzado garífuna es un producto de imaginarios de desarrollo estatales que los racializan como retrógradas y consideran que su negrura sólo es redimible a través de su trabajo.

The contribution of Archie Mafeje to the debate on land reform in Africa

Archie Mafeje raised pertinent issues that are still hampering land reform and agrarian development efforts in Sub Saharan Africa (SSA). He rightly argued that land reform in Africa was wrongly premised on European, instead of African jurisprudence, that most countries are concerned with the modification of tenure, instead of executing a proper land reform, in the practical sense of land redistribution and the introduction of new forms of land tenure, even in former white settler states with serious misdistribution of land between races; and that the communal nature of land tenure in Africa was misunderstood to mean that any and every individual can lay claim on any piece of land or be granted access at will. Actually, Mafeje wisely pointed out, as this article shows, that traditional African forms of tenure offered considerable opportunity, as well as security, to peasant land users, often making implementation of individual tenure not only unnecessary, but potentially counter-productive. This is sometimes aggravated by conflicts arising from misunderstandings owing to the co-existence of both customary and national government political authorities in the allocation of land. This faulty land reform process is therefore responsible for the agricultural and food crises that are still being experienced in the region.

The people’s choice: options for land ownership in South Africa’s land reform

This paper analyses land tenure reform in South Africa from the perspective of land redistribution and restitution projects. It takes the absence of a clearly defined tenure reform in the country as its point of departure to argue that land redistribution and restitution projects serve as a vehicle through which forms of land tenure in post-apartheid South Africa are expressed. There is dissonance between the official position on giving land to large groups under the legal entity of the CPA and the practice and preferences at project sites. The paper suggests that a progressive land tenure reform policy requires a bottom-up approach that takes into consideration various ways in which beneficiaries of land reform could own and use land.

Squatter Settlements in the Kathmandu Valley: Looking Through the Prism of Land Rights and Tenure Security

Rural–urban migration has resulted in the rapid growth of slums and squatter settlements in the Kathmandu Valley. Such migration is due to low socio-economic growth, a poor land administration system, inadequate capacity to cope with housing needs and poor governance. These settlements are not recognised administratively, but they are legitimatised through the provision of amenities. However, due to the lack of land rights and tenure security, the squatter settlements are facing multiple problems, i.e. lack of urban investment, poor access to financing options, increasing vulnerability and social exclusion. The present trend of land development and housing provision is inadequate due to the limited allocation of land and housing units. A twofold strategy is necessary to reverse this trend. New policies are required to recognise the existing genuine slums and squatter settlements and prevent the formation of such areas in the future, to make provision for easy finance options and affordable housing units, as well as to establish special funds for upgrading and relocating squatters. At the local level, different forms of land tenure should be granted to squatters after classifying them based on their characteristics. Instead of providing freehold land title and free shelter and amenities, the identification of the right combination of grants and loans through the establishment of community credit and a microfinance system is recommended so that the relevant communities can purchase (rent or lease) the land and house and extend infrastructure development in the long run. Economic empowerment of the dwellers and coordination between local-level and national-level institutions are prerequisites to reverse the current situation of the settlements.

Land sales and the transformation of social relations and landscape in peri-urban Mali

Small-scale land acquisitions are transforming long-standing human–land relations in West Africa. In particular, high rates of urban population growth lead to the transfer of land from non-market customary tenure systems to market-based, formal land tenure regimes on the edges of cities. The literature suggests that the conversion process from inalienable land to private property is highly contested, locally specific, and historically contingent. However, little is known about how this process affects a community. In the Kati cercle on Bamako’s peri-urban eastern edge with exponential growth in land registration, this village case study examines: (1) how residents secure livelihoods, and (2) how the advent of a land market affects livelihood strategies. Interviews conducted in 2011 in the village of Soro complement data collected in 1996 and 1987. The longitudinal data show increases in population as well as indicators of relatively stable livelihood strategies. Since 2001 only men in the chieftancy lineage and families close to it have sold land, and that land was of least value to them using the subsistence logic of grain production. Those authorizing land sales at the local level are also the immediate beneficiaries. Land privatization reduces access to resources for those with secondary land rights recognized through social relations in a customary tenure system. This study concludes that public policy in areas undergoing land conversion – especially peri-urban areas – should consider the impact of social differentiation in communities and how new land values will change land use and access.

Determinants of Household Decision to Join Community Forest Associations: A Case Study of Kenya

Forests contribute significantly to the livelihoods of forest adjacent communities. Under the Kenya's new Forest Act (2005), community participation in forest conservation is provided for through formation of Community Forest Associations (CFAs). This study focused on Ontukigo and Ngare Ndare CFAs involved in participatory management of Ontulili and Ngare Ndare forests in North Central Kenya. It aimed at identifying household factors associated with decision to participate in PFM and the differences between CFA and non-CFA members in their participation in forest conservation activities. Semi structured questionnaires were administered to randomly selected 80 CFA and 80 non-CFA members. Factors influencing household decision to join CFA included household size (, ), age (, ), number of cows (, ) and sheep (, ) owned by CFA (6.6) and non-CFA (4.2), farm size (, ) and forms of land tenure. Other factors included distance of homestead from forest (, ), sources of fodder (, ), access to forest products (, ), crop land (, ), and awareness of Forest Act 2005 (, ). Participation in forest conservation was positively influenced by CFA membership (, ). Majority of CFA members (80%) participated highly in forest patrol, fire control, tree nurseries, and tree planting activities.

Land Rights and Nomadic Peoples: Using International Law at the Local Level

Introduction Despite a profound attachment to their lands and territories, nomadic peoples throughout the world and history have seen their land encroached on and reduced. International law has played a significant role in the non-recognition of the rights of nomadic peoples. For a long time international law has been based on territorial rules that were supporting the view that to be occupied a land needed to be used in a settled fashion, with the dominant view that lands occupied and used by nomadic communities were empty and therefore open to colonisation under the imperialist fiction of terra nullius (Gilbert 2007). The development of human rights law within the international legal framework has arguably changed this approach by focusing on the fundamental rights of the individuals rather than on state power to control its territory. Nonetheless, international human rights law does not refer to the specific situation of nomadic peoples, and no treaties include any specific rights for nomadic peoples. Instead, the focus is on universal human rights applicable to all. Under this universal framework of protection, nomadic peoples could find some protection for their specific nomadic lifestyle, notably under the banner of cultural rights. Cultural rights are an important part of human rights law, and they include the right to practise and maintain a specific way of life. Hence, while human rights law does not specifically mention a right to a nomadic lifestyle, the general and universal protection offered to all cultures should, in theory, protect a nomadic lifestyle. With this in mind, this short article is aimed at highlighting how international human rights, despite been drafted and negotiated in New York or Geneva, could be of relevance at the local level for nomadic communities when it comes to their rights to land. The article is a review of some of the main points that were developed in a workshop, during the Dana +10 meeting, on the relevance of human rights law when it comes to land rights for mobile indigenous communities. The first section examines the content of land rights under international human rights law. The second section focuses on the process rights. The third section focuses on practical ways to use international law at the local level. Land Rights as Human Rights Despite the lack of inclusion of land rights within the international treaties, land rights have nonetheless been examined by both international human rights monitoring bodies and international and national courts. Indirect protection for land rights has been included under the umbrella of other protected rights such as property rights or the right to food, for example. Probably the most relevant human right in the context of land rights is the right to property. However, the right to property has generated a lot of controversy since its inscription in the Universal Declaration on Human Rights in 1948, to the extent that the fight to property was not included in the two main human rights treaties of the 1960s, the two international covenants which form the main basis of international human rights law. The controversy was notably on whether property rights should be considered on an individual basis (Western approach) or through a more collective approach (Soviet approach). The fight to property has been largely developed under the Western view that property is individual and when it comes to land rights, it is predominately about protection of individual title to the land in a very settled manner (Gilbert 2007). By and large, the human rights jurisprudence on property rights is still largely based on this individualistic and largely settled approach to property rights. Property rights are about the rights of the individual, but in many situations nomadic and semi-nomadic communities are claiming a collective right to their lands, not individual title. Therefore, customary forms of land tenure developed to serve the way mobile peoples use the land, namely common property regimes, are not effectively protected under this approach. …