This section uses the sustainable livelihoods principles (people-centered, sustainability, dynamism, multi-level) to look at the “on the ground” informal, land tenure of rural inhabitants in post-conflict settings.
The people centered priority of the SL approach, focusing on what people do have and are doing, is a particularly good fit with an examination of what people are actually doing on the ground with regard to change in land access in post-conflict situations. While there are a number of aspects of a post-conflict tenure setting that individuals, households, and communities can have control over, an examination of the emergence of norms in post-conflict situations, (particularly land tenure relevant informal institutions and evidence), and identifying these as strengths (particularly due to their local legitimacy and their pervasiveness), and considering how they operate, how they might be compatible with norms of different groups, as well as emerging formal law, will be a primary advantage in the building of legitimacy into formal law and development efforts, and will facilitate people’s ability to build on local choices.
While few civil institutions can endure the stresses of armed conflict, there are, nonetheless, specific institutional needs important to social relations even during times of strife. At the same time, the institutional fluidity of armed conflict allows for opportunities to reconfigure certain institutional arrangements to more closely suit the needs of particular groups and situations. This can result in the emergence of norms or “normative orders”, which attempt basic but important institutional services (Unruh 2003). Land tenure or more specifically tenure security is such an institutional need, especially for agricultural populations, due to the relationship between land tenure security and food security. The confusion, competition, confrontation, and yet importance of seeking secure access to rural lands during and following civil conflict can lead to a number of different ways (legal pluralism) for attempting to legitimize land access, claim, use and security in a fluid sociopolitical setting. And because legitimacy is an important part of this process, it can be, or become, bound up in the larger conflict (Unruh 2003). Civil conflict is based on the perception of legitimacy and non-legitimacy in various forms. Since it is legitimacy that is contested during conflict, the emergence or further development of legal pluralism in approaches to land access is highly likely, with different normative orders emanating from different loci of what is perceived to be legitimate authority (Howard P and Homer-Dixon T 1995; Kelly, K and Homer-Dixon T, 1995; Percival, V. and Homer-Dixon T 1995; Homer-Dixon, 1990).
The possession of evidence to prove and support rights of access and claim to land resources is a fundamental feature of land tenure systems. While formal tenure regimes generally hold the document to be the primary form of evidence in relations with undocumented tenure arrangements, customary tenure systems and normative orders regarding land contain a wide variety of informal evidence connected to relevant customary social and cultural features. During the course of conflict, forced dislocation and migration, evidence and legitimacy of evidence is subject to considerable change, primarily due to the role that community plays in determining what evidence is regarded as legitimate (Unruh 2003). Such control over what is or becomes evidence, legitimizes or de-legitimizes units of aggregation, kinds of rights, transactions, rituals, and ways of land use (Shipton, 1994). Thus competition and confrontation over who exercises this control with regard to a specific land area, or specific rights within an area, can influence the development of legal pluralism. This occurs as some claimants find themselves with evidence different from that considered legitimate or possessed by others as dislocation and migration scenarios reconfigure the important aspects of evidence (e.g. community, occupation, relevant cultural-ecological features, customs, ways of administration, etc.).
The significant role that documentation plays in attempting to assert rights, can become quite problematic in post-conflict environments where confusion, abuse, and incapacity of formal institutions can combine to create a situation whereby multiple, often contradictory, documentation (often of questionable origin, or obtained under questionable, or unfair circumstances) can be used to claim lands-and often the same lands. The uncertainty created by such a confusing use of multiple forms of documentation can serve to decrease tenure security, and increase the desire for land and property restitution efforts as a post-conflict environment matures. Mozambique has attempted such an effort, whereby many pending applications (foreign and national) under the previous law had one year to reapply under the new law or otherwise be cancelled (Norfolk and Liversage 2003). Given the large number of foreign property holders operating under “application in progress” for long periods of time, this was one approach to clearing up some of the overlapping claims and incomplete documentation (Tanner 2002).
Differences in decision-making time horizons, from short (war) to near-term (post-conflict) to longer- term (development), will influence the type of sustainability pursued by individuals and communities. In once sense, conflict, and post-conflict sustainability in livelihoods will be difficult for much of the rural population given how extractive (exhaustive) livelihoods can be, in terms of the depletion of assets (natural, social, physical, financial). In another sense however there are wartime and post-conflict approaches that, while exhausting particular assets, do exhibit resiliency. In this regard two features of sustainability are noteworthy in a post-conflict environment: resiliency in the face of external shocks, and non-dependence upon external support. If people are still alive after a war then they have enjoyed some form of resiliency in what they were doing; and with the exception of refugees, non-dependence on external support is common. Thus the short-term decisions involving migration, dislocation, highly extractive natural resource use, banditry, borrowing, calling in loans, status as refugees, etc. - in aggregate constitute a sustainable way of dealing with conflict situations.
As well post-conflict pursuits of sustainability, especially with regard to land tenure, can include, farming quickly on land not one’s own (including planting quick producing crops) and then moving on; or for some farming a plot every year so as not to lose it in extremely tenure insecure situations; use of naturally occurring famine foods; and extraction of natural resources (timber, wildlife and other natural products that have a sale value). In other words what can be pursued in terms of resiliency is a constantly changing menu of extractive, low investment, opportunistic, short term, and usually dead end (resource exhausted) activities that can, taken as a set of activities, be seen as sustainable in post-conflict scenarios. An important feature of this approach is a fortuitous access to a variety of assets that may or may not legally belong to individuals, along with an ability to switch asset access quickly once asset exhaustion occurs.
Examination of post-conflict land tenure through the informal tenure domain allows multi-sectoral, multi-level constraints and opportunities to be identified. In post-conflict settings new laws have the opportunity to address land and property issues in the context of what people are already doing “on the ground”, with a view to moving from the fluidity of post-conflict situations to a more solidified and peaceful social and legal environment. Positive examples exist. In a case from India, local-level state officials in some locations are given the discretion to operate at the interface between formal and informal legal systems and pursue opportunities for adjustments between systems. In this case local-level officials do not seek to impose state law, but instead attempt to convince, co-opt, or realistically use any legal system, custom, norm or combination thereof to attain the state's objectives (Bavnick 1998).
While not born out of armed conflict, the example nevertheless provides some potential utility for post-conflict scenarios. Local-level officials can be charged with facilitating the dialogue, interaction, and adaptation between the state and other normative orders which are in place subsequent to a conflict, especially with regard to land dispute resolution-one of the most volatile aspects of a peace process (Unruh 2003). Ethiopia provides a different, and more formalized example. After several decades of civil conflict, Ethiopia’s constitutional article 78 (5) now accords full recognition to non-state customary, and religious courts of law and their legal guarantee is ensured. In Ethiopia significant room appears to be allowed for litigants to “forum shop” where customary and religious courts only hear cases where contesting parties consent to the forum. In the Mozambican peace accord and subsequent legislation regarding land, broad state recognition of multiple approaches to tenure has contributed much to the success of the processes. In East Timor a special restitution law is to be put into place as a priority law to deal with the many problematic issues involved in the post-conflict situation.
Outside of armed combat, post-conflict scenarios are arguably some of the most dynamic and fluid of circumstances regarding the interaction between society and resources. This is especially the case due to the proximity of conflict and recovery settings, and the often ambiguous distinction between the two for large numbers of civilians. Landmine presence plays an important role in this dynamic, a role which grows significantly as other forms of violence end, but landmine encounter continues (Unruh et al 2003). In post-conflict situations the scramble for access to the assets necessary to re-establish livelihoods for large numbers of people, together with the pursuit of land access by large-scale commercial interests, speculators, and others who use the fluid land tenure situation to acquire resources (Unruh 2001), brings how actors intersect with land-based resources to the forefront of tenure activity very quickly. As well, groups and individuals disenfranchised from the gains of transition from war to peace may resort to violence in order to survive-or to obtain what is perceived to be deserved in terms of a peace dividend-with serious impacts on a peace process (Willet 1995).
In work relevant to post-conflict tenure situations, Lund’s (1996) land tenure work reveals that “open moments” become important, in which intense periods of social rearrangement occur-particularly in land disputes. As a result an open moment is an opportunity where the room for “situational adjustment is great and hence where the capacity to exploit it is crucial for the actors”. In war and post-conflict situations, legitimacy, authority, and rules (social assets) are much more fluid and open than perhaps at any other time. And while such a situation can provide for some difficulty (such as low predictability) on the other hand it can be of considerable utility for smallholders attempting to access or re-access land and other capital.
