In the course of intersecting post-conflict land tenure issues with the SL approach (Section 4), a range of lessons learned surfaced which are of further potential utility in enhancing SL approaches in poverty reduction by improving access to land resources.
A post-conflict recovering population will not wait for a legal system to put itself together before engaging in land tenure activities. It is instead up to the formal system to engage the emerging trends of the informal tenure sector early and continually in the re-establishment of the formal system, so that the two have a shared legitimacy and effectiveness that is of real utility. In the case of Rwanda, a senior government official noted that when local people were left to manage land distribution, issues were usually resolved. But when local authorities took the lead, problems often arose (Huggins 2004). Such a situation reveals that the informal and formal tenure systems in a post-conflict situation have developed in different directions, such that when they do interact, problems result. The SL approach, with its overall focus on the interaction between formal and informal tenure actions (how to make rights real), presents significant potential in this regard, particularly if the purposeful interaction of the formal and informal in the “processes, institutions, and policy” component is given priority.
It is expected that there are significant legal opportunities latent in the relationship between the “policies, institutions, and processes” component and “livelihood strategies.” This relationship provides one of the better ways to get at the informal institutional character (embodying informal norms, culture, and governance) regarding what people are actually doing, thereby providing the needed information necessary to inform formal laws regarding property rights.
Building human capital in post-conflict situations will entail taking advantage of the sequencing of formation of tenurial constructs (informal then formal) that will emerge on its own. This will have the advantage of working with the grain, building on what has already been learned, disseminated, and accepted within the informal system as the legal system later is able to be implemented. At the same time early and effective effort put into dissemination of what the state is doing with regard to national land tenure, can have the effect of influencing the development of the informal system, but not always in predictable ways - hence the need for ongoing information gathering from stakeholders.
A different form of human capital emerges in post-conflict land dispute circumstances - “objectivity” with regard to mediation of land disputes. In both Rwanda and East Timor dispute mediation processes occurred where lack of state involvement led to the spontaneous formation of local institutions to attend to emerging disputes, including large-scale community-level disputes in East Timor. Important in this institution is the objectivity of an individual or committee that oversees the mediation, and the recognition of this objectivity by the various sides in the dispute. This form is likely to be an important form of human capital regarding land dispute resolution in problematic post-conflict settings. That it differs from other forms that human capital can take (authority, education, training, and experience) is worth noting, and it would be well considered to include this form of objectivity in the post-conflict variant of human capital within the SL approach.
In the context of informal land dispute resolution, forum shopping can emerge as a positive aspect of the PIPs component. Valuable in that it can allow for a peaceful “process” (in a PIPs context) of dispute resolution, mediation, or just repeated attempts at these for large numbers of people and different groups. That forum shopping emerges on its own, and is operated and engaged in by local participants, and serves an important institutional need that the state is unable to provide in post-conflict settings, can be seen as a positive asset that local rural inhabitants do have control over. Given the history in many developing countries of the tenurial disconnect between formal and informal tenure systems, and that the re-development of formal systems in post-conflict settings will reproduce this if there is not concerted effort on the part of government and the relevant international community, a state forum may emerge later as only an addition to the shopping list of possibilities (e.g. Ethiopia, Uganda), as opposed to a single, national approach to dispute resolution.
Post-conflict situations are unique settings in their combination of a weakened formal system, robust, vigorous, but fluid, informal tenure activity, along with the presence of a peace accord, political demands and concessions regarding land, and international actors that can have a large interest and influence in the success of the peace process. While this combination carries risks, it also represents real opportunity for organizational, institutional, and policy reform in the formal land tenure sector. This can in potentially lead to an improvement over the arrangement that existed in peacetime. Such an improved relationship can come about as a peace accord seeks to resolve land issues involved in the conflict itself, and because the international community presence in a peace process will be much larger, and much more empowered, and therefore have more influence on government than in peacetime. The result can be a significant effort, pushed by the international community and attendant NGOs, to have legislation support local livelihoods. If this is the case (e.g. Mozambique, East Timor) then this is a significant component of what the rural poor can influence. While variables inherent in such a process can be articulated in the PIPs component, this component needs the addition of international actor policies, institutions, and processes to reflect this large role.
The livelihood strategies component in the SL approach allows an examination of moving from crisis strategies (during conflict) to adaptive and then livelihood strategies after a conflict. Being able to switch from one type of strategy to another requires that the process of pursuing one strategy does not militate against changing (often itself a process) to another. In this regard the SL approach can isolate what precise support may be needed to facilitate transitioning strategies.
Transitioning from one form of strategy to another can result not only in a redistribution of assets (natural, human, social, etc), but redistribution between types of specific assets (i.e. types of social assets or types of natural assets). In other words the type of asset required for the functioning of a crisis strategy can be different than that needed for an adaptive or livelihood strategy even though the quantity of the asset may be the same.
An initial decrease in vulnerability due to the end of overt hostilities, can be followed by an increase in vulnerability as a significant percentage of the rural population begin moving across the rural landscape, seeking to return to home areas, proceed to new ones, engage in eviction of others, encounter land mines, and lose assistance provided during the conflict and immediate post-conflict period.
This section describes the utility of the SL approach to “characterize” or better define post-conflict situations, in order to bring clarity to priorities, legislative direction, and development efforts. The case study design would focus on assessing the utility of SLA methods, and advise on changes that would tailor these to post-conflict situations.
This section outlines issues and questions that comprise an initial design to analyze the application of SL approaches to post-conflict land tenure and land administration. The lessons learned above provide a preliminary guide here for looking at specific aspects of the post-conflict environment.
1. A primary macro level question is whether land access problems are acting to slow the progress of the peace process and recovery. Such an issue emerges from the overall outcome of the relationship between structures and processes. The development of this relationship can provide for an overall aggregate process of secure re-access of land, or considerable difficulty in this regard. If the latter is the case, then what are the livelihood strategies of those unable to re-access (or access) land (e.g. resident in shanty towns, engaged in resource extraction, banditry, etc.), and how are these serving to slow recovery. Information necessary to assess this would include an examination of the resettlement and reintegration process, the resulting security of tenure, and the activities of those unable to secure access. Aggregate level views can be difficult to obtain, and may require access to district level officials, NGOs, and donor efforts.
2. The match, or degree of support, between any new or existing legislation (along with government structures and institutions), with what is going on “on the ground” for the national smallholder community will be important. What do the current ‘laws in existence’ provide (legal analysis) in terms of support (specifically) for land access or re-access and the security of these lands in the post-conflict environment? If there is a process of legislative reform underway, what is the stage of the process, how open or closed is it, and how influential are representatives of various stakeholders in the process, including smallholders or their representatives or advocates; largeholders; and members of the international community? How is information dissemination pursued in the reform process, i.e. to what degree does the smallholder community know about such a process?
3. Related to number 2 above, are the primary patterns of land tenure (and tenure problems) that are emerging from the smallholder sector in different parts of the country. Will either the current “laws in existence” or new legislation be able to adequately connect with these emerging patterns and problems in a way that supports smallholder livelihoods and demonstrates legitimacy, equity, and enforceability? If not, what “direction” are these patterns taking in terms of livelihood strategy and livelihood outcomes? Important sub-questions here can include: what is the current status of the land market and what structures and processes attend to this market; what institutions (at what levels) are in place for land-related conflict resolution or mediation (including human capital), and what is the effectiveness, fairness, utility, and accessibility of these institutions; is “forum shopping” a developing alternative for smallholders, and is the state structure and institutional arrangement for resolving conflicts one of several possibilities?
4. A fluid post-conflict environment will see many in the smallholder sector attempt to switch livelihood strategies between crisis, adaptive, and sustainable strategies. In this regard a case study would need to examine, what land-related problems are involved in transitioning between livelihood strategies? What are the primary obstacles to transitioning to more durable, sustainable strategies, and how does land access, tenure security, land conflict resolution play a role? What are the capital assets (and asset change) needed (as attached to land access) that would facilitate more effective transitioning?
5. The combination of an accumulation of land tenure problems and issues that need near-term attention after a conflict, together with a much weakened post-conflict administrative capacity to deal with these, means that significant categorization of problems may be needed in order to quickly reduce the overall magnitude of issues, and more effectively deal with the large number of problems (categorical level solutions). The results of such a categorization can have real utility in an analytical, policy and legal effort that seeks to be able to address a host of issues with some rapidity-time being an important factor in post-conflict land tenure. Currently in East Timor the donor supported effort by the Ministry of Justice’s Land and Property Unit is categorizing a large volume of complex (and often overlapping) access and claims problems that deal with dislocation, transmigration, resettlement, restitution and eviction. Much of this results from a chaotic documentation setting in which coercion, and abuse of the Portuguese, and Indonesian formal tenure systems took place. In East Timor there exists a complex set of issues involving mixes of formal and informal claims and access problems which reside in a fairly fluid sociopolitical environment. The need to reduce the overall volume of such problems quickly is significant, so that the government is seen as ‘active’ on the land question, and in order to reduce the prospect of local returnees taking such matters into their own hands (particularly eviction and restitution), with potentially volatile consequences. This attends to the issue raised in Section 4 on livelihood outcomes, whereby the state stands to gain if it is in a position to handle certain large problems quickly. In East Timor access issues are categorized by type of problem involving sets of title and informal claims, and history, and existing law. And while this appears to be serving East Timor well, the question emerges, what other types of categorization might be workable in an SLA context, and how might the SL approach be used to define categories. Such categorization might be defined by:
a) livelihood outcomes
b) by forms of relationship with the state
c) by asset sets
d) by evidence
e) livelihood strategies
