BlogLand Rights

Mar 25 2014

Commentary Series, Part IV: The Voluntary Guidelines on the Responsible Governance of Tenure and Large-Scale, Land-Based Agricultural Investment

This post is part of a series developed by The Chicago Council on Global Affairs and Landesa to highlight the importance of securing land rights for smallholder farmers. This series is running concurrently with the World Bank’s 2014 Land and Poverty Conference taking place in Washington, DC. Follow the conversation on Twitter with hashtag #landrights.

In 2012, the FAO developed and proposed the Voluntary Guidelines (VGs) in an effort to boost food security, reduce hunger, provide protection of legitimate rights in land and other resources, and prevent the ills created by the global trend towards large-scale, land-based investments (LSLBIs) in the developing world.

The Voluntary Guidelines contain good or best practices for governance of land.    The VGs include many of the land-related governance best practices endorsed over the past 25 years for implementation within developing countries – rights recognition and formalization, dispute resolution, transfers and transactions, modern land administration, principled compulsory acquisition, legal frameworks, rule of law, due process, FPIC, and others.  There is really no question that a land access and tenure milieu that largely matched up with the VG tenets would provide an accessible, principled, and equitable playing field for all who use and benefit from the land.

The Voluntary Guidelines is a terrific playbook for land governance, but the main players in the land game–the governments—are often under-staffed and under-resourced. Begging the question: who will implement the VGs?

The VGs themselves say that implementation is the responsibility of states.  Civil society and the private sector are called upon to collaborate with government when possible.  Indeed, most of the systems, processes, and procedures needed to make the VGs a national reality in any developing country can only be delivered by government.  , While the size and complexity of the tasks are simply too big to expect civil society, private sector actors, or affected communities to take them on by themselves, governments are likewise ill-equipped to deal with this challenge.

For example, if a national or local government follows the VGs when making a large land purchase in Africa, it will almost certainly have to parse customary claims, identify and resolve disputes, acknowledge and broaden awareness about women’s rights to the land, formalize the resulting rights, and negotiate payments to households in exchange for sale or lease.  A tall order.  Similarly, an equitable compulsory acquisition framework that comported with the VGs would be built around sensible public purposes, reasonable and timely compensation, and due process rights to appeal.  This requires the state to create and sustain a complicated and costly legal, judicial, and administrative mechanism.  There are huge tasks to be accomplished in implementing the VGs.

Thankfully, the states trying to implement the VGs are starting to see real enabling support from donors.  The G-8, through its Global Donor Working Group on Land, recognized the struggle to fulfill the VG implementation responsibility when it committed to assist seven African countries in realizing the VGs.  This support will achieve greater transparency in land transactions, provide more responsible governance of land tenure, and broadly increase government capacity to deliver on these goals.  Others are helping as well.   The FAO has begun to create tools to build state capacity to implement the guidelines.  Countless NGOs are sponsoring initiatives aimed at bringing the VGs to life.

But even assuming strong donor, civil society, and citizen support of VG implementation, the implementing governments face decades of work to make national embrace of the VGs a reality.  In the meantime, many investors still want to make LSLBIs.  How can they go about it in the “right way” now—before government’s sort it all out?  Moving forward with LSLBI without following the VGs may lead to disenfranchisement of vulnerable populations and increased wealth for a few at the expense of the many.

In most rural settings in African countries, local capacity to identify and parse individual rights (while protecting those of women), map and record the rights, negotiate equitable contracts for lease or sale, and ensure regular payments in exchange for the land rights does not exist.  In many cases, there is no “public” with which the private can partner.  These are monumental capacity-building challenges.  The VGs may have provided better insight as to what capacity needs to be developed, but the need remains much the same.

Perhaps an interim approach might lie with a “principled one-off.”  That is, an LSLBI that comports with the VGs but that could be done in an environment that lacks mature, functional national land policies, laws, local government capacity, and related land administrative structures.  This would require a model that could transparently and equitably parse, map, resolve, formalize, record, and then contract benefits to smallholders.

A “circuit rider” approach might be tried, with a VG-compliant system coming, along with the investor, to the purchase area.  Skilled practitioners – land administration and paralegal professionals – would be called into service around a discrete LSLBI.  Investor sponsorship (in training or by covering costs) might be feasible at this level, but the state could still “own” the process.  Investors ought to be willing to foot the bill; many have pledged to comport with the VGs or other principles.  But, today, in many countries, the lack of government capacity makes it impossible to do so.  Would this kind of approach buy the time needed to more broadly grow the national capacity needed to make the VGs work across a country?  Could it provide just-in-time application of VG principles at the epicenter of a large land purchase?  It might be a better option than hoping LSLBI actors will wait until the VGs have been fully and properly implemented.

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