Land& Conflict THEMATIC GUIDANCE NOTE 03 PROTECTING AND STRENGTHENING THE LAND TENURE OF VULNERABLE GROUPS Thematic Guidance Note on Land & Conflict Disputes over land access and control often escalate into violence and conflict leading to dispossession and forced displacement within and across borders. Estimates indicate that 56 percent of conflicts are related to land and that most conflicts take place in developing countries. At the end of 2015, 95 percent of the 65 million refugees and internally displaced people were living in developing countries. The central role of land to livelihood, identity and power, most notably in rural-based economies explains why disputes over access and control of land frequently escalate into armed conflict and mass displacement. This Note is part of a series of World Bank Thematic Guidance Notes on land and conflict that present key issues, challenges and guiding principles to address land tenure issues in conflict and post-conflict environments. The three Notes in the series are: 01. Restitution, Compensation and Durable Solutions to Displacement and Dispossession 02. Integrating Customary Tenure into Formal Systems  03. Protecting and Strengthening the Land Tenure of Vulnerable Groups The audience for these Notes is both laymen and practitioners who are preparing a project or program in a conflict or post-conflict setting, including multi-lateral and bi-lateral institutions, governments, NGOs and others. These Guidance Notes seek to provide guidance on where to start and what questions to ask, not to be an exhaustive ‘how to’ for land and conflict issues. While these Notes are meant to stand alone, they are inter-related and may cross-reference relevant material from other Notes. 3 Issue and Why It is Important According to the Sustainable Development Goals, secure and equal access to land of vulnerable groups is one of the elements contributing to ending hunger, achieving food security and promoting sustainable agriculture. This section focuses on tenure but acknowledges that while secure tenure is a necessary first step, it should be complemented by a range of other development measures (access to markets, farm inputs, credit, capacity-building) to reduce poverty. Tenure systems reflect the distribution of power within society. As a result, dominant groups and individuals tend to benefit from the strongest form of tenure with access to valuable land and natural resources, while vulnerable groups receive weaker forms of tenure. Weak tenure arrangements can take various forms: •• Customary or informal tenure with no legal recognition and protection •• No rights to sell or transfer land •• Limited inheritance rights •• User rights limited to less profitable activities and subsidiary land rights such as food-producing cultures, gathering of wild food and wood, hunting or fishing •• Access to land is based on short-term renewable arrangements Weak access rights to land and natural resources reflect the socio- economic discrimination affecting certain groups and individuals. It compounds their pre-existing vulnerability and limits their opportunities to improve their living conditions. Groups suffering from social-economic marginalization can include: women, indigenous people, pastoralists, minorities, displaced people or migrants. Access rights depend on socio-economic status but also on whether individuals or groups are outsiders to the community. In customary systems, land is not only closely tied to subsistence, but also to the identity, religion and cultural values of the community. Land is not considered a commodity that can be sold outside of the community. What is often sold is the right to use the land but not the ownership that remains tied to the community. Thus, outsiders to the community (migrants or displaced people) will usually be granted only limited land rights. Vulnerable groups face many similar challenges, which can be addressed with similar responses. This section looks first at the common aspects and later examines those aspects that are more specific to women, indigenous people and pastoralists. Conflict- induced displacement exacerbates the difficulties already faced by vulnerable groups. Their socio-economic marginalization or the weak nature of their land or housing tenure rights makes it particularly difficult for them to protect or repossess their land or home and to strengthen their tenure rights after a conflict. They may also be confronted with discrimination or targeted as members of a vulnerable group (women, cultural or religious minority) during their displacement, endangering their lives and limiting their livelihood opportunities. This discrimination represents a challenge to their socio-economic recovery. This Guidance Note focuses on specific measures that can be taken for members of vulnerable groups and on the specific rights and relation to land that certain groups have, as well as references to key international standards protecting women and indigenous groups. This Guidance Note complements the Thematic Guidance Notes on “Restitution, compensation and durable solutions to displacement and dispossession” and on “Integrating customary tenure into formal systems”. 5 6 7 Challenges Durable solutions1 for displaced persons2 are achieved The limited capacity for vulnerable groups to defend their through sustainable integration in people’s place of origin rights creates a feeling of impunity, which encourages (return); in their area of displacement, (local integration); further land rights violations by individuals or by the state, or in a third location (settlement elsewhere in the country granting concessions on the land used by vulnerable for internally displaced people, or resettlement to a third groups. country foAs a result of their marginalization, vulnerable groups tend to be less educated, informed about their In conflict contexts, there is a risk that their restitution rights, and able to mobilize resources to defend them or to claims are not eligible (if the types of rights they enjoyed seek justice in cases where these rights are violated. are not included in the process). Limited access to justice: There is a similar risk that their land rights are not recorded and recognized as part of processes aimed at formalizing •• Customary systems provide weak tenure to vulnerable customary land rights. groups and may be biased against them in cases of disputes, since they do not represent the dominant group. •• Their tenure is not recognized by the statutory system, so it is unlikely to defend against encroachment on their customary rights. •• In cases where vulnerable groups possess legally recognized land rights, defending those rights through statutory courts is usually inaccessible to them (cost, language, and process) Guiding Principles Identify and document social and legal restrictions to land improved tenure security. The participation of members or access of vulnerable groups: This documentation enables representative of vulnerable groups to processes such as identifying areas of intervention in the customary and the transitional justice can also be a way to raise awareness by statutory (political, legal and institutional) systems. a post-conflict society of the discrimination faced by some of its members. Identify and record land rights of vulnerable groups through consultative and participatory methods. Empowerment of vulnerable groups: Projects disseminating information on land rights and ways to Ensure inclusion of vulnerable groups’ land rights into defend them should be supported. Services and capacity- restitution and formalization processes. building can take different forms: Check if legitimate land rights exist over state land prior •• Legal: Provide legal assistance and train paralegals to granting land concessions: An impact assessment within the community to raise rights awareness and should be carried out to ensure adequate compensation of monitor and denounce violations. affected populations, and envisage measures to mitigate this impact (preserving access rights to certain areas or •• Advocacy and political campaigning: To encourage resources, preserving migratory corridors for pastoralists). mobilization in defense of their rights and needs; lobby authorities and customary leaders. Awareness-raising at different levels of society: Authorities implementing restitution or formalization programs •• Technical: Capacity-building on agricultural techniques or judges should be sensitized to difficulties faced and the use of land markets by vulnerable groups in accessing land. Customary leaders and the community should also be sensitized Representation in institutions and forums involved in and trained in the same way, notably on national legal decision-making on land issues, implementation of land standards to limit further discrimination and contribute to tenure programs, and land-dispute resolution mechanisms: Positive measures should be taken to ensure the 8 recruitment of individuals belonging to vulnerable groups. •• When vulnerable groups do not have the means to rent This contributes to a better integration of their needs by land, civil society organizations can lease the land on officials designing or implementing policies and promotes their behalf. In India, an NGO leased private land for use trust. In relation to dispute resolution mechanisms, the by Dalit women, which improved their food security. post-conflict period often opens new opportunities to question pre-existing customary or statutory institutions Cooperative or collective action: In the Democratic and evolve towards more democratic structures Republic of Congo, the NGO Lofepaco leased land representing the interests of vulnerable groups. In Côte for vulnerable women (widow, displaced, single heads d’Ivoire, the rural land law established village committees of household, single women) without access to land. to decide on land disputes and recognize customary land Lofepaco also provided technical capacity-building to rights. The village committees are composed of traditional improve production and storage. With the profits from leaders, local officials and representatives of the various sales, a warehouse was built to store goods when prices groups present in the community . This arrangement was were low. Credit could then be provided based on the particularly important, as one source of tension was the amount of stored goods, therefore facilitating further land rights of “outsiders”. investment. As the women belonging to the scheme made sufficient profit, the organization is envisaging the creation Civil society organizations: They can play a great role in of a cooperative held by its members. training and empowering vulnerable groups. They can contribute to structure expectations and demands, and •• Cooperatives and associations of producers can relay these to relevant target groups (national or local significantly contribute to food security. As they authorities, customary leaders, private interests). They develop, they can provide increased services improving can also facilitate access to land in various ways (see the productivity, profit and the living conditions of their following). members: transformation of products for improved selling prices, transport agreements, negotiating prices •• Engage with the customary system to strengthen rights: for seeds and agricultural input, capacity-building in Customary systems are the main source of access to terms of management, agricultural techniques, and dispute resolution mechanisms in rural areas. In case of defense of their interest with authorities. recurrent discrimination by customary authorities, state authorities can make arrangements for local authorities Proclamation of moratorium on evictions in urban informal to work jointly with traditional dispute resolution settlements: In the Philippines, President Arroyo made mechanisms to prevent or remedy abuses. a land proclamation against evictions and promised to connect informal settlements on public land to services. Land allocation and lease: Securing land rights of This proclamation resulted in the improvement of tenure vulnerable groups can be a long-term process as and living conditions of informal settlers. it requires social behavioral changes in addition to adjustments to policies, laws and institutions. In the Temporary occupation certificates: In Kenya, the meantime, vulnerable groups need immediate solutions Municipality of Nairobi granted temporary occupation to improve their tenure and living conditions. Donors and licenses to promote efficient use of idle public land authorities should therefore facilitate programs providing while retaining long-term control. In Colombia, the only secure access to land for vulnerable groups. These condition for any citizen to obtain access to services is programs can include the following: to live in their homes and be able to pay for the services. Several intermediate tenure documents confirming •• Allocation of land with ownership or long-term lease: In possession and residence exist and can then be used Mozambique, the legislation recognizes rights acquired to request connection to services even without formal in good faith and squatter rights to protect the rights tenancy agreements. of internally displaced person who chose to locally integrate. Development of social housing schemes for vulnerable groups in urban areas: In Serbia and Georgia, authorities Lease agreements: Written lease agreements can provided housing to vulnerable groups (displaced people, significantly contribute to tenure security provided they urban poor, refugees) according to a program called respect an adequate notice period and are sufficiently “social housing in supportive environment”. Housing was clear on the rights and obligations of both parties. In provided for free or at very low cost with an open-ended Somalia, the Norwegian Refugee Council (NRC) and UN rental contract. Each building hosts a “foster family” whose HABITAT have promoted the use of standard written lease role is to facilitate access of the residents with social agreements to protect tenants from forced evictions. welfare services. 9 10 Protecting Women’s Tenure Rights Issue and why it is important According to FAO statistics (2011), women produce International standards between 60 and 80 percent of subsistence crops in developing countries. This production and the benefits Many international standards proclaim the right to drawn from market sales contribute to family welfare and equal rights between men and women and prohibit food security. Despite this crucial role, women have little discrimination based on sex, notably in relation to control over the land they use and the resources and food property ownership, and the right to adequate housing . they produce. The 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) explicitly protects Land tenure mirrors the distribution of power within women from discrimination with respect to housing, land society and men tend to dominate society, particularly the and property. It obliges states to grant “a legal capacity traditional ones. As a result, many statutory and customary identical to that of men” including “equal rights to systems, as well as social practices, favor men over conclude contracts and to administer property”. It further women. In customary settings, most women access land states that spouses should have the same rights in respect through their male relatives (father, husband, son). These to “ownership, acquisition, management, administration, rights can be summarily revoked by men subsequent to enjoyment and disposition of property”. Discrimination divorce or revert to other male relatives (husband’s brother) based on marital status is also prohibited. in case of death. In cases where a dowry was paid, a woman might not even be able to return to her family’s Standards related to situations of displacement and land if her family cannot pay the dowry back as some conflict also reaffirm the principles of non-discrimination customs impose. Single women, especially if they do not and the right to equality between men and women in have children, have even more difficulties to access secure relation to legal security of tenure, property ownership, tenure over land as they do not have the “protection” from equal access to inheritance, as well as the use, control of a man. and access to housing, land and property. The Pinheiro principles further call for a gender-sensitive approach In situations of armed conflict and displacement, the to restitution programs, with the adoption of positive proportion of women single heads of household and measures to ensure women’s participation. The Pinheiro widows increases significantly. It is also frequent for their principles recommend the recognition of joint ownership husbands to be missing for several years until they can rights of male and female heads of households. be confirmed dead and can then initiate a succession process. In cases where widows are denied the right to own property or inherit, this denial can affect their capacity The achievement of gender equality and empowerment of to access land, or may force them to accept arrangements all women and girls is one of the Sustainable Development such as marrying the brother of the deceased to be able Goals adopted in 2015. It calls on states to “Undertake to return to or remain on the land. If their land or home reforms to give women equal rights to economic has been occupied, they may face significant difficulties resources, as well as access to ownership and control when they try to repossess them due to their lower over land and other forms of property, financial services, status in society and to the weakness of their land rights. inheritance and natural resources, in accordance with Formalization of customary land rights may also worsen national laws.” their situation if their subsidiary land rights are not legally recognized or if the common lands they use for their subsistence are individualized as part of a land titling process. Women’s insecure tenure represents a threat to food security and to the wellbeing of their families. Conversely, secure access to land provides an opportunity to recover from the shock of conflict, reduces poverty, and limits their social marginalization. Women who own assets, enhance their status within the household. They are also less likely to remain in an abusive relationship and studies have shown a link between secure tenure and the reduction of gender-based violence. 12 Challenges There are enormous gaps between international standards international standards: This discrimination may be due to and the reality of women’s tenure to land. the absence of positive measures, policy and strategies to ensure that women can actually enjoy equal rights to Customary practices tenure. •• Denial of ownership (transfer rights). •• Access to statutory justice is limited by: •• Eviction of widows and divorced women from their land. •• Lack of women’s awareness about their rights. •• Exclusion from inheritance. •• Illiteracy of women who tend to be less educated •• Disputes over land rights further to divorce or in case of than men and do not feel comfortable participating in polygamy when several women claim the rights over the statutory justice because they do not understand its same land. procedures and sometimes its language. •• Women have access to customary justice but little •• Lack of formal identity and tenure documents (ID chance of positive outcomes due to social norms and cards, ownership contract, lease agreement) necessary the fact that customary justice is male dominated. As a to claim land rights. Moreover, in conflict situations it result, they tend not to try to defend their rights. is likely that those who had such documents no longer •• Women are excluded from decision-making processes have them. Issuance of such documents may be related to land use, management and transfer complex, lengthy and too costly for conflict-affected populations. Statutory issues •• Non-recognition of traditional marriages, which can limit Discriminatory legal framework: In some legal systems inheritance, restitution, and rights to formalization of women are not entitled to own property alone, or to customary land rights. take decisions on property without someone else’s authorization. •• Fear of social exclusion if women return to their community with a statutory decision going against Perpetuation of discriminatory attitude to women’s customary rules. rights despite a national legal framework compliant with Guiding principles Conflicts can sometimes create windows of opportunity to Key aspects to consider to protect women’s improve women’s social status. During the conflict and the tenure rights: absence of their husbands, they often demonstrate that they can take decisions and assume men’s responsibilities Assessment, data collection and monitoring: notably in relation to land. This gives them legitimacy to •• Review the social and legal context affecting women’s participate in discussions related to land. The policies and tenure rights. institutional changes that tend to follow conflict should be used as opportunities to integrate measures favorable to •• Mainstream the collection and use of gender- women’s land and tenure rights. disaggregated data on land access for purposes of assessment, program and policy design, monitoring In parallel, international attention for the establishment of and evaluation. land dispute resolution mechanisms in the post-conflict phase can provide enough leverage to influence the •• Develop gender-sensitive procedures, formats and composition of dispute resolution mechanisms in a way questionnaires that facilitate the recognition of women’s that supports women’s interest, in particular by ensuring land rights and the collection of gender disaggregated their representation within these forums. data. 13 Legal and institutional framework: Engaging customary actors: Reform relevant national legislation (land-related laws, While customary systems do not usually allow women to family law or civil code) where necessary, to ensure own and transfer land, they usually facilitate access to land conformity with international standards on equity between for food subsistence. Since statutory courts remain largely men and women inaccessible to most women, it is worth exploring how women could improve their tenure security in customary Establish gender-responsive measures in relation to land settings. mechanisms (restitution, formalization, dispute resolution) to address cultural, educational and financial barriers, Encourage NGO and government-led programs engaging notably: with customary or religious dispute resolution bodies. The tenure rights of women can be strengthened by increasing •• Accepting oral evidence. the capacity of traditional authorities on: •• Instructions translated in local languages. •• Mediation and arbitration techniques •• Provision of legal assistance. •• Organization of women information forums on land- •• National standards in relation to women’s land related rights. rights (when such legislation is in compliance with international standards) •• Exemption from procedural fees related to land rights claims. Highlight the provisions within customary or religious law •• Accessibility of offices (distance, opening hours) dealing (Sharia law) complying with international standards in with restitution, formalization of land rights and dispute relation to women’s land rights. Islamic tenure systems resolution. include provisions such as the waqf (islamic endowment) facilitating access of the most vulnerable to land. •• Ensure presence of women staff within implementing officials. Develop mediation committees where women can defend In Odisha (India), authorities took proactive measures their land rights in person (instead of being represented to recruit female officers among those implementing by a man) before customary or religious leaders, or before the land registration process. These officers worked local authorities. with women village committees to enumerate women’s Women’s empowerment land rights. This initiative resulted in a higher demand for women staff as women title-holders as they felt In addition to the measures mentioned under the more comfortable explaining their problems to women “vulnerable group” section: officials. Organize information meetings and booklets specifically Recognize traditional, customary and religious marriages dedicated to women to facilitate their participation and for purposes of establishing legitimate land rights understanding. and rights to inheritance. In Mozambique, authorities •• Support the creation of women’s associations to inform, enacted legislation recognizing such marriages and train and facilitate exchange on women’s land tenure inheritance rights of women. Such measures contribute to issues. The stimulation offered by collective action can strengthening women’s tenure rights in case of divorce or encourage women to take more initiative. death. •• Encourage civil society projects supporting gender Register joint ownership of men and women upon equality through: transfer and sale or as part of restitution and formalization •• Legal assistance. processes. In Rwanda, both women and children are •• Capacity-building activities on tenure and registered on ownership documents. In Ethiopia, the land professional skills to improve economic certificates were adapted to include the name and photo independence. of the spouse. The photo was key in ensuring that illiterate women could have visual confirmation that their interest in •• Encourage the participation of women in formal and the land was included in the certificate. informal decision-making structures. •• Develop community awareness and training campaigns As a result of this increased perception of tenure security, on land rights and transactions to avoid women being some women felt more confident to rent out their land for excluded from the administration, use and transactions farming as they felt they could defend their rights in cases of land and properties where tenants would not comply with their obligations. 14 Protecting Tenure Rights of Indigenous People Issue and why it is important Indigenous people tend to be politically, socially and •• The free, prior and informed consent of IP should be economically marginalized. Their management of natural ensured prior to any approval of projects affecting their resources is sometimes perceived as backward and land, particularly with regard to the development or unsustainable while it is actually often well adapted to utilization of mineral or natural resources. their environment and its preservation. As a result of the •• Studies should be carried out assessing and mitigating strong cultural, spiritual and economic attachment they the adverse environmental, economic, social, cultural have to their land, their identity and subsistence can be and spiritual impact of projects taking place in IP’s land put at risk in cases where their land rights are violated. and territories. These rights can be threatened by displacement resulting from conflict, environmental conservation laws or state •• Recognition of IP’s role in the protection and concessions granted to investors on indigenous people’s conservation of their environment and the productive land for exploitation of natural resources. Some of these capacity of their land, and responsibility of the state displacement factors can co-exist with investment projects to ensure that no storage or disposal of hazardous resulting in tensions that escalate into conflict between material takes place on IP’s land and territories. indigenous people, authorities, and the army or the •• IP are entitled to redress, restitution and compensation security services companies. in cases where their land, territories or natural resources are confiscated, used or damaged without their free, The socio-economic marginalization of indigenous people prior and informed consent or if damage results from a makes it difficult for them to reclaim their rights or protect project on their land. their land from unscrupulous investors, even when those are protected by law (see general section on vulnerable •• In case of projects on their territories, IP shall be able to groups preceding). It is therefore important to highlight participate in the benefits of the projects. the specific land rights of indigenous people that apply in •• IP should be protected from displacement the context of displacement, formalization, restitution or •• IP can only be relocated further to obtaining their free, development projects. prior and informed consent, and after an agreement on The two key international standards on indigenous just and fair compensation. people’s rights are the 1989 ILO Convention 169, and the •• They have a right to return to their ancestral land.49 2007 UN Declaration on the rights of indigenous peoples. These international standards recognize and protect the The Guiding Principles on Internal displacement, and special attachment of indigenous people (IP) to the land regional conventions such as the Great Lakes Protocol on and territories they occupy or use. They acknowledge Property Rights of Returning Persons, and the Kampala the collective, cultural and spiritual dimension of their Convention on Internal Displacement also protects the relationship to land notably their traditional tenure systems. right of indigenous peoples along with other groups with special attachment to land such as minorities, peasants, Key principles: and pastoralists. These regional conventions also reaffirm the right of these groups to be protected from •• The state should provide legal recognition and displacement, the right to return, restitution and to fair protection to IP’s land, territories and resources compensation. according to a process that includes their participation. The resulting mechanism should serve to recognize Moreover, regional human rights courts in Africa and and adjudicate IP’s land rights in case of dispute. This America “have interpreted the right to property in a way provision should be considered when implementing that assimilates property to possessory rights, regardless formalization or restitution processes in areas where IP of whether the property is owned formally or customarily.” live. The jurisprudence of the African Court for Human Rights •• IP have the right to own, use develop and control the and the Inter-American Court for Human Rights consider land, territories and resources they possess through that the right to property includes the collective rights of traditional ownership or use and to establish their indigenous people. priorities in terms of exploitation of mineral, water or resources on their land and territories. 16 Additional guidance in relation to investments on World Bank Operational Policy (O.P) 4.10 on indigenous indigenous people land and related displacement include: people (2005 revised in 2013): In recognition of the risks that development projects can have on the strong cultural, The UN Basic Principles and Guidelines on Development- spiritual and identity links that indigenous people have Based Evictions and Displacement (2007): The document with their land, O.P 4.10 requires investors to ensure free, provides procedural and substantive guidance and prior and informed consultation with indigenous people safeguards to prevent or remedy displacement for reasons and establishes that the World Bank will finance a project of development. only if it benefits from the large support of the community. The FAO Voluntary Guidelines on Responsible Governance The operational directive presents a set of measures to of Tenure : These guidelines call for the respect of avoid or, where impossible, mitigate adverse effects of legitimate tenure rights of farmers and indigenous people a development project on indigenous people (social and with the aim to support the right to food and development. environmental assessments, arrangement to ensure that the community benefits from the exploitation of their The Guiding Principles on Business and Human rights natural resources). (2011): These principles provide a set of guidelines for states and companies to prevent, address and remedy human rights abuses committed in business operations. Online tools are available to help companies evaluate their level of due diligence, and to track companies perpetrating land grabs. Challenges The legal framework protecting the land rights of The post-conflict period often creates a high risk of indigenous people may not be in line with international dispossession through state concessions due to an standards. improvement of security and access. Even when a specific law in accordance with international The lack of measures adapted to the situation of standards protects indigenous peoples’ land rights, there indigenous people can result in the denial of their land are often contradictions between its provisions and the rights. ones included in other legislation related to exploitation of natural resources such as extractive industries and mining. Guiding principles* Ensure that the national legal framework is compliant Support information, capacity-building and participation with international standards or adjust accordingly. of indigenous people in decision-making forums and institutions by drawing on resources of international and Review laws that may have an impact on the land national civil society groups specialized in indigenous rights of indigenous people (laws related to forestry, people’s rights. mining, extractive industries) and ensure consistency with international standards. The procedures in such * In addition to measures mentioned in the general laws should respect the right to free, prior and informed vulnerable group section consent. 17 18 19 Protecting Tenure Rights of Pastoralists Issue and Why is it Important “Pastoralism is a livelihoods system based on livestock Displacement often results in loss of cattle for smaller rearing, mobility and the extensive use of communal land.” groups of pastoralists and a disruption of their access to This sentence epitomizes the nature of the pastoralist’s markets. Upon their return or in the post-conflict phase, relation to land. Their livelihoods do not depend on a the incentive to restock their herd may reignite tensions particular plot of land but rather on group access to vast and violence when the restocking is done through cattle territories for livestock pasture. Their access rights to raids. The length of the displacement may also require land and natural resources are selective, seasonal and renegotiating pre-conflict arrangements related to not exclusive. The modalities of access rights tend to be grazing rights and water access with the same or new negotiated periodically with other user communities. communities. Depending on the new power relation, this may put pastoralists at risk of not having enough pasture The land needs of pastoralists depend on the type of for their livestock and endanger their livelihoods and way pastoralism they practice: of life. •• Nomadic pastoralism depends exclusively on their International legal standards livestock. The protection of pastoralists land rights appears in the •• Agro-pastoralists complement cultivation with livestock Guiding Principles on Internal Displacement although rearing. the protection provided extends to other groups: “States •• Transhumance pastoralists undertake seasonal are under a particular obligation to protect against migration between wet and dry seasons, or between the displacement of indigenous people, minorities, highlands and lowlands to ensure adequate pasture for peasants, pastoralists and other groups with a special their livestock. dependency on and attachment to their lands” The Kampala Convention on Internal Displacement protects Pastoralism is particularly widespread in Africa. In South from displacement “communities with special attachment Sudan, more than 70 percent of the population participates to and dependency on land” and affirms their right to in the pastoral economy. Livestock being the main source restitution and return. of income and food security, disputes related to access to natural resources such as land and water are frequent and often degenerate into violence. Livestock is also a source of political and social power. It is therefore targeted during power struggles between different fighting factions. The use of armed men to protect livestock or carry out cattle- raids contributes to violence. Challenges The key challenge for pastoralists is their increasing Reduced access to land results in a disruption of difficulty to access land at a time when climate change and traditional migratory routes and creates conflict with recurring drought or floods require increased mobility and pastoralist or agriculturalist communities affected by the extensive access to land for livestock. change. In addition to factors already mentioned such as growing population this reduced access is mainly due to: Challenges include: •• Individualization of common lands through titling. The lack of understanding or neglect of pastoralists’ special relation to land: As a result, the implementation of •• Granting of state concessions on common lands. laws and policies on restitution, formalization of customary land rights and titling can have a prejudicial effect on •• Measures of environmental conservation. pastoralists. The tendency to link the legal recognition of land rights to agricultural use may result in ignoring the rights of pastoralists by considering the land as vacant and using it for other purposes. 20 Guiding principles: The policy and legal framework should protect the Encourage dialogue between communities and land rights of pastoralists based on an analysis and negotiation of decentralized agreements regulating understanding of their specific needs such as mobility access rights between pastoralists and agriculturalists. rights and seasonal access to resources. In Niger, the These can be an effective way to protect the tenure legislation regulating tenure of agricultural and pastoral and livelihood of pastoralists and agriculturalists by lands provides pastoralists free access to natural establishing reciprocal and sequential access to resources resources. A “territoire d’attache” (home territory) where such as water and grass. Depending on the localization pastoralists spend most of their time or return between and the specificities of the issues, such agreements can migrations is determined. Pastoralists have priority access be regional or local, and involve local authorities and to their “home territory” although access remains open to customary leaders. other users. In Mali, a charter on pastoralism guarantees the right to mobility across agricultural and pastoral areas Strengthen traditional dispute resolution and of the country as well as access to natural resources. governance institutions: Although their functioning may In Mauritania, where production from pastoral activities have been disrupted by the conflict, these bodies bring contributes to 80 percent of the country’s gross domestic institutional memory and knowledge of sustainable natural product, the legislation regulating land tenure represents resource management. an interesting example of codification of nomadic Ensure that the rights of elite pastoralists do not pastoralist tenure granting strong tenure rights. The encroach on those of small pastoralists or other legislation provides that overlapping, collective seasonal vulnerable groups: Elite pastoralists benefit from easy use rights to pastoral resources (land, water, forage, salt access to political and economic decision-making circles, licks) prevail over individual cultivation rights. Rights to which can result in arrangements detrimental to small pastoral resources are exclusive to those who practice pastoralists. nomadic herding. Mobility is preferred over a sedentary lifestyle. Collective or private interests seeking to establish land rights must first obtain the permission of customary land users. Moreover, areas identified as “pastoral areas” are excluded from private ownership. Protect the right to mobility: •• Establish migratory corridors. •• Protect common lands as common resource pools with open access to water, grazing, fishing, and hunting. Formalization and individual titling: In cases where an individual title deed is given over land also used by pastoralists, access rights of pastoralists should be integrated into tenure registration policies and laws and easement reflected in documents confirming ownership. Protect the access rights and right to mobility of pastoralists in the context of state concessions (prior consultation, mitigation measures such as easement and compensation) 21 22 23 Endnotes 1. SDG 2.3 : “By 2030, double the agricultural productivity and incomes of 22. Principles on Housing and Property Restitution for Refugees and Displaced small-scale food producers, in particular women, indigenous peoples, Persons (Pinheiro principles), article 4 family farmers, pastoralists and fishers, including through secure and equal access to land, other productive resources and inputs, knowledge, financial 23. Pinheiro principles article 4 services, markets and opportunities for value addition and non-farm 24. UN General Assembly, Transforming our world: the 2030 Agenda for employment.” Sustainable Development, A/RES/70/1, 21 October 2015, SDG 5.3 2. For more information on this see thematic guidance notes on the « 25. World Bank, Systematic property registration : rights and remedies, May Restitution, compensation and durable solutions to displacement and 2016, p. 46 dispossession » ; and on the « Integration of customary land rights into formal systems. » 26. UN Interagency Framework Team for Preventive Action, Land and conflict : Guidance note for practitioners, 2012, p. 56 3. IDMC, Whose land is this? Land disputes and forced displacement in the western forest area of Côte d’Ivoire, November 2009 27. See also : World Bank, Systematic property registration : risk and remedies, May 2016, pp. 45-47 4. Although the rural land law was adopted in 1998, before the conflict started, the mixed composition of the Village Committees is well suited to 28. UN Interagency Framework Team for Preventive Action, Land and conflict : the tensions between different groups that preceded and resulted from the Guidance note for practitioners, 2012, p. 56 conflict. 29. World Bank, The Voluntary Guidelines and the World Bank : Gender 5. UN HABITAT, Land and conflict, guidance note for practitioners, 2012, p. 54 Equitable Land Governance in Odisha, 2016 6. UN HABITAT, GLTN, Secure rights for all, 2008, p. 25 30. UN Interagency Framework Team for Preventive Action, 2012, p. 57 7. A cooperative is a farm, business, or other organization which is owned and 31. UN Interagency Framework Team for Preventive Action, 2012, p.57 run jointly by its members, who share the profits or benefits. 32. UN Interagency Framework Team for Preventive Action, 2012, p.57 8. FAO, Les coopératives agricoles nourrissent le monde. Journée mondiale de l’alimentation, 16 October 2012 33. African Studies Centre Leiden, Leiden University, Post-conflict land governance reform in the African Great Lakes Region, Part III. Securing 9. UN HABITAT, GLTN, 2008, p. 21 tenure of smallholder peasants, ASC Infosheet 32, 2016 10. UN HABITAT, GLTN, 2008, p. 21 34. NRC, Somalia, p. 36 11. UN HABITAT, GLTN, 2008, p. 20 35. International Labour Organization Convention 169 (ILO 1969), 1989, article 13 12. IDMC, March 2015, p.32 36. United Nation Declaration on the Rights of Indigenous Peoples (UNDRIP), 13. Plateforme souveraineté alimentaire 2016 de la Fédération Genevoise de 2007, article 26 Coopération, Les familles paysannes sèment l’avenir : La souveraineté alimentaire en Afrique : expériences de terrain et nouveaux enjeux de 37. UNDRIP, 2007, article 27 coopération, 2016, p.71 38. For more information see World Bank thematic notes on “Restitution, 14. NRC, Influencing durable solutions, an advocacy package, the practice of compensation and durable solutions to displacement and dispossession” housing, land and property rights in Somalia, 2016, p. 33 and on “Integrating customary tenure in formal systems” 15. Oxfam, India Policy Brief No19, Women’s right to agricultural land : 39. UNDRIP 2007, article 26 and ILO 169, 1989, article 7 removing legal barriers for achieving gender equality, June 2016 40. UNDRIP, 2007, article 32.1, ILO Convention 169, 1989, article 7 16. Universal Declaration on Human Rights (UDHR), article 2 and 16 ; International Covenant on Civil and Political Rights (ICCPR), article 3, on 41. UNDRIP, 2007, article 32.2 equality of men and women and 26 on non-discrimination ; International 42. UNDRIP, 2007, article 32.3 and ILO 169, 1989, article 7 Covenant on Economic, Social and Cultural Rights (ICESCR), article 2 on equality between men and women, and 3 on non-discrimination. 43. UNDRIP, 2007, article 29 17. Universal Declaration on Human Rights (UDHR) article 16 on ownership, 44. UNDRIP, 2007, article 28 International Covenant on Economic Social and Cultural rights (ICESCR) 45. UNDRIP, 2007, article 32, ILO 169, 1989, article 15 article 11 on the right to an adequate standard of living, and General Comment 4 on the right to adequate housing and 7 on protection from 46. ILO 169, 1989, article 15 forced evictions. 47. UNDRIP, 2007, article 10; ILO 169, 1989, article 16 18. CEDAW, article 15 48. UNDRIP, 2007, article 10; ILO 169, 1989, article 16 19. CEDAW, article 16. H) 49. UNDRIP, 2007, article 10; ILO 169, 1989, article 16) 20. CEDAW, article 16, UDHR, article16, General Comment 28 of the International Covenant on Civil and Political Rights (ICCPR) 50. Revista Latino-Americana de Derecho Internacional (LADI) Housing, land and property in forced displacement situations a key to peace, justice and 21. Guiding Principles on Internal Displacement, Principle 4, 1998 durable solutions, by Barbara McCallin, December 2016, p.14 24 51. LADI, 2016 p. 15 52. FAO, Voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security, 2012 53. LADI, 2016, p. 23 54. UN Interagency Framework Team for Preventive Action, 2012, p.57 55. UN Interagency Framework Team for Preventive Action, 2012, p.57 56. UN Interagency Framework Team for Preventive Action, 2012, p. 57 57. Norwegian Refugee Council, Pastoralism, conflict and recovery in South Sudan, 2016, p.2 58. NRC, 2016 59. NRC, 2016 60. Guiding principle 9 61. Kampala Convention, articles 4.5 et 11.5 62. World Bank, Systematic property registration : risk and remedies, p. 49 63. African Studies Centre Leiden, University of Leiden, Post-conflict land governance reform in the African Great Lakes region : Part II- Reshuffling land ownership for development, ASC iInfosheet 31, 2016 64. UN Interagency framework for preventive action, p.58 ; ASC Infosheet 31/2016; NRC 2016. 65. Source for the two examples : UN HABITAT, GLTN, Secure rights for all, 2008, p.24 66. USAID, Integrating customary land tenure into statutory land law. A review of experience from seven sub-saharian african countries and the Kyrgyz republic, 2008, p. 8 67. UN Interagency Framework Team, p.58 68. UN HABITAT, GLTN, 2008, p. 27 69. UN Interagency Framework Team, 2012, p. 58 70. African Studies Centre Leiden 71. C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169) 25 Guidance Note on Land and Conflict: III. Protecting and Strengthening the Land Tenure of Vulnerable Groups Prepared by Barbara McCallin for the Land and Conflict KSB, GSURR, World Bank Group, financed by the Stability, Peace and Security Global Solutions Group and the Land and Geospatial Global Solutions Group Please contact landandgeospatial@worldbank.org for further information. You can find a version of this document on the following website: Land and Conflict KSB, Social Urban Rural Resilience Global Practice