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  • Promises, Practices and Challenges?

There are no discussion topics on this book yet. The definitive documents are drawn up only after the period of announcement. Their application and maintenance must be effectuated by village committees that are created for this purpose. In practice, a certain number of technical and linguistic problems arose.

For example, the terms for local rights and rules are often difficult to translate into French. Further problems came about because of the administrative procedures inherent to statutory concession; the land requests that could be made on the basis of the land surveys and the certificates issued to the bearers of rights.

This made it difficult to take into account the full spectrum of arrangements related to land delegated rights, rights of non-natives possibly transferable by inheritance, sometimes combined with temporary access in the form of sharecropping to native beneficiaries, temporary transfers, security use, tenancy, etc. As a result, the rights that had been recognised officially were considered above other rights during the registration process. Another substantial concession was that the Ministry of Agriculture was in charge of keeping and implementing the land tenure maps.

We shall return to this subject further on.

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Even though the administration expressed some reservations, individual users were issued receipts and then extracts of the survey once the Pilot Plan was implemented. However, no comprehensive document confirming land rights was issued to the villages. The failure to set up a local authority responsible for permanently updating the land files was another considerable problem because without one, the system was nearly impossible to manage.

Furthermore, the lack of such a local authority signed away any possibility to improve local governance over land management. The Rural Land Law voted in Loi sur le domaine foncier rural was a victory for the supporters of centralised government land management and privatisation of land resources according to Western conceptions of ownership. It entailed a generalised land registration system. Registration must be demanded no later than three years after the handing over of land right certificates.

Land access was limited to the State, local authorities and persons of Ivory Coast nationality, leaving unsecured use rights only to non-naturalised residents of foreign origin, who have not yet obtained the Ivory Coast nationality 32 Begun in the s, the approach developed for the Rural Code in Niger required much discussion between different social groups.

Land Commissions apply this policy through a gradual process entailing the recording, making public, and updating of the different rights of users at the local level. The commissions are made up of customary authorities who play an important role in land management, as well as members of various administrative departments and the representatives of different users.

Since they operate on a larger geographic base, the commissions involve a collaboration of neighbouring chiefdoms. Positive progress has been observed in some areas, showing that this method can be efficient, especially when supported by persons not directly involved in the stakes at hand locally In a certain way, having started with an approach based on French legal tradition, this process in Niger is moving towards mechanisms that are closer to those of British common law see box 7. Box 7 Two opposing approaches to the recognition of rights in the former French and British colonial empires in Africa British colonial administration in West Africa made significant use of local power structures to mete out justice, maintain order and raise taxes.

With the exception of a few plantation and urban areas, most of the land was governed by indirect administration and customary law, via local courts and according to principles based on the British tradition of common law. Founded on jurisprudence, common law procedures are very flexible and permit new interpretations in the face of changing circumstances.

Southern Comfort: Economic Development In Latin America - Part 2: Land Rights and Property

It therefore upholds close relations with the values of the social group concerned. However, it is also liable to result in violations profiting powerful local interests, and can therefore run counter to the principles of fairness. The legal system is very different from a coded system that defines from a central position all the rules that must be applied uniformly throughout a country.

The common law and coded law systems result from the last three or four centuries of experience in France and Britain, and cannot be understood without reference to discords originating in the 17th century English Civil War and the French Revolution of In Madagascar, the Relative Land Security program deserves a closer examination for several reasons While steps forward have been taken in Madagascar, Ivory Coast and Niger, the ideological framework, of which absolute ownership is an integral part, endures.

A more radical break from this ideology would be necessary. Consequently, systems for recording different types of rights are still far from taking into full account the complex realities of multiple rights found in many African and indigenous societies. Nevertheless, the implementation of diverse new approaches indicates that numerous obstacles have been overcome. There is clearly a real interest in this kind of system, which empowers rural societies to manage their land and natural resources.

Therefore, it is vital to continue these practices while being aware that the process is long, and requires the acquisition of a genuine social capital 38 adapted to the present context. The enduring security of rights for the different uses of land and natural resources can be guaranteed only through lasting efforts to establish local democratic institutions capable of ensuring the sustainable management of these rights in the interest of the majority See below. In developing as well as developed countries, considerable areas of farmland across the planet are worked through systems operated by non-owners.

For this reason, providing land tenure security for farmers who are not owners is a highly important matter that concerns millions of people Tenant farming in its different forms free and temporary allocation, hire, sharecropping, with infinite altercations is practised in different situations as a function of prevailing land systems.

Such practices allow for both the elasticity of tenure and adjustments that would be impossible via sales of land ownership rights Continental Europe provides different and interesting examples of how the tenure of farmers and share-croppers might be secured.

Property Rights and Land Policies

Denmark was at the forefront in this area when, in , it adopted a modern tenant farming statute Legislation protecting farmers exists in most European countries, where family commercial farm production predominates. Recourse to tenancy generally tends to occur between the members of the same family, and does not play the same role or have the same implications depending on how they are affected by inheritance rules and other laws there are two main situations which result from the legal system in place: 1 equitable inheritance between brothers and sisters, implying shared property rights among each generation, and 2 the possibility that the farm is not divided through inheritances, i.

Although the historical inception of the concept of absolute ownership was in France, it is nonetheless in France where the most radical examples of tenure security for tenants and sharecroppers can be found. Adopted in the middle of the 20th century, these policies made it possible to modernise family farming in regions where tenant farming and sharecropping were common practice see box 9.

Box 9 The status of tenant farming in France At this time, French farming needed to modernise its production techniques.

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The texts concerning the status of tenant farmers are now incorporated in the Rural Code. The contracts are written. The minimum legal leasehold is for nine years. Long term leases of 18 to 25 years as well as career leases whose term is set until the retirement age of the tenant farmer are also possible.

The tenant is entitled to renew the lease for nine years, except in the case of cancellation for serious reasons or repossession [the lessor can repossess the rented farmland only if it is to be worked by himself or his wife or by a descendant of age or an unconstrained minor, who must both partake in agricultural work effectively and permanently and live in the dwellings on the repossessed property].

A tenant that has improved the rented property through work or investment is entitled to compensation from the lessor upon expiry of the lease. The minima and maxima between which the rent can vary are set by the prefecture per agricultural region, for both the land and the farm buildings.

A specific jurisdiction has been created to deal efficiently with disputes between owners and tenants to ensure that the law is executed effectively. Rural lease courts give primary hearings to disputes involving tenant farming and share cropping statuses. These courts are composed of two owner-lessors, two tenant farmers and a presiding judge. This policy has not led to a reduction in the amount of land leased out and the original goal to modernise farming has been reached.

Landowners have been deprived of much of their rights without the need for an agrarian reform. Furthermore, land rentals for farmland have been cut to a symbolic minimum and farmers have obtained the guarantees necessary to make long-term investments On the contrary, the application of this policy in Spain has led landowners to refuse to rent their land to tenant farmers. Obviously, the scope of this discussion is not limited to Europe.

Reflection on the nature of conceded or derived rights and the ways in which they can be secured is also on the West African agenda. The importance of bundles of rights in African land ownership systems raises a number of insoluble problems when use rights are to be secured solely by the granting of ownership title deeds. For a few years now, promising work has been accomplished as far as establishing more secure contracts for delegating use rights between different actors Tenancy is least common in Latin America, whereas the development of rental markets on this continent would be an effective means for poverty reduction by increasing secured land access.

In such a context, landowners fear that if they were to lease their land to tenant farmers over long periods of time, they would lose their land rights to their tenants. Their strategy is therefore to keep their tenants in a precarious state through short leases of one year or even as short as a crop cycle, in spite of the disadvantages this represents for the development of economically sustainable and efficient forms of farm production.

In fact, several countries around the world have passed legislation aiming to regulate the situations faced by tenant farmers and sharecroppers. For example, there is the legal prohibition of sharecropping in Mali and Cape Verde, as well as in Honduras in a completely different context. Not only were these laws generally not implemented, but also they often backfired when they were applied, frequently resulting in worsened working conditions for poor farmers.

Far from condemning any new attempt to give tenant farmers greater tenure security in similar circumstances, these failures once again emphasise that laws merely reflect the political climate at a given time. Significant changes cannot be made simply by passing legislation. Assuring land use rights turns out to be even more difficult when it involves groups whose rights are not fully acknowledged in general. Such is the case of women in many regions of the world, in different ways and at different levels. The example given in box 10 provides an illustration.

In these three countries, the prevailing cultural conceptions of rural societies assign women to domestic chores and reproduction while men do the farming. The direct participation of women in farm production, though considerable, is not given the recognition that it deserves. Although their constitutions declare that all people are equal regardless of their sex, certain agrarian laws and certain underpinnings of civil law discriminate against women. In Honduras until , the agrarian reform laws recognised solely the male head of household as eligible for land allocations, and thus women were excluded.

This was still the case in the Dominican Republic in , with even severer restrictions. Lastly, inheritance legislation and customs are so that the sons tend to inherit the land while the daughters inherit other kinds of goods e. The changes underway in certain countries nonetheless demonstrate that things can evolve rapidly, when different policies are applied.

This is the case of the land ownership legislation process in some Central American countries. One should speak of distinct kinds of property rights. For a historic analysis of the genesis of this fiction during the French revolution refer to J. Two kinds of mechanisms are frequent, an ordinary one, which requires occupancy in good faith and documentation to prove it, and the extraordinary one, which does not need to fulfil those conditions, but however requires a longer period of occupancy. It usually includes a geometric description of land parcels linked to other records describing the nature of the interests, and ownership or control of those interests, and often the value of the parcel and its improvements.

It may be established for fiscal purposes e. These papal decrees determined once and for all the conditions of land ownership in Latin America: the land belongs to the government first colonial, then republican , which in turn assigns it to individuals according to its own criteria. August , pp. Washington, D. The Bank recognises the failure of some of its previous programmes, such as that of assigning title deeds to land in Kenya.

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  8. This text is an answer to the main questions asked at the World Bank on its actions related to land. Even though the practices of this institution do not always match its declarations on paper, it is interesting to observe the changes in its discourse, which would have been unimaginable ten years ago.

    World Bank and Oxford University Press, They are organised as a function of two oppositions between thing and good non liable or liable to be converted into a commodity and public and private as a function of socially recognised use. Le Roy, A. Karsenty, A. Pour une gestion viable des ressources naturelles, Paris: Karthala, Chauveau, PM. Bosc, M. Basserie, KK Bini, G.

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    8. Paillat, K. Lands deemed ownerless are put under state ownership. Any land not registered after a certain period of time 3 years if there has been no temporary franchise, 10 years in the case of land over which customary rights are exercised peacefully is deemed ownerless, and is thus taken over by the State.

      Property Rights and Land Policies by Gregory K. Ingram

      Owners are obliged to exploit their land, or else they risk losing their tenure rights. This authority has benefited from Danish and European cooperation for many years. In other regions however, establishing Land Commissions can provoke serious problems, and the effects depend on the current power play in the area and the possibility of changing it without too many conflicts, with or without external aid.

      Mortimore quoted in P. Similar contradictions exist in Central America between the land administration system set up by Spain and the one established in British protectorates. This is the case of Nicaragua, where the British protectorates on the Atlantic coast and the Kingdom of Mosquitia differ from the western part colonised by the Spanish.