The commons and customary law in modern times: rethinking the orthodoxies (original) (raw)
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Law and Development Review, 2016
One of the many post-colonial claims of indigenous people is the re-assertion of their rights over their land and its resources. Colonial history has created for many people a plural legal system and this, combined with social and economic changes, presents new challenges for development in the realm of traditional or customary land. This article focuses on the Pacific island state of Vanuatu, formerly known as the New Hebrides. At independence in 1980 allodial title to all land was returned to the custom owners while colonial forms of land law were also retained. In 2013, after nearly a decade of concern about land alienation, the Vanuatu government introduced the Custom Land Management Act. This article critically analyses this attempt to safeguard customary law and customary institutions in formal, written law, considering in particular the implications for law and development in a plural land law regime.
Analysis of ways to codify customary communal shifting cultivation land in Myanmar Kirsten Ewers Andersen Stating the Problem Research into the Commons can contribute to the struggle for land rights of indigenous communities, if the research can suggest the means for the indigenous communities to articulate their claims and seek ways to have their land protected under statutory law in a way that does not distort their traditional tenure arrangements. The present research looks at this struggle for land rights in Myanmar to show how the application of the Theory of the Commons and its guiding principles can prepare a stepping stone for the preparation of procedures that eventually could become embedded in a legal and regulatory framework for land registration of customary communal agricultural land of upland ethnic groups. The argument is that in S. E Asia it is better for indigenous communities to try to find a way to register their customary communal agricultural lands despite the possible loss of original indigenous notions of the wider landscapes and territory in which their agricultural land use is embedded. If land is not protected by some legal means, the land may be lost to land concessions in agribusiness. Control of land is the basis of communities' livelihood as well as power and influence today. Present day governments in S. E. Asia wish to retain as much land as possible under their control based on the eminent domain of the state with the aim to promote agribusiness for export production turning land into capital. 1 Land grabbing in the 21st century of any untitled land by the State and commercial interests is a risk that communities today can counter primarily through protests, if they dare. They cannot go to court, because their land is not titled. In Myanmar, as elsewhere, there had been an acceleration of business and corporate interest in mineral and natural resources and agricultural land for business in rubber, oil palm, corn and cassava, not to mention tropical timber, and once the timber is gone the land can be planted with palm oil as has happened all over Indonesia. In S. E. Asia, this has led, as said, to comprehensive loss of untitled land for upland indigenous peoples in Myanmar, in Lao PDR and in Cambodia. The aim of the research was as advocacy research to influence the military government of the Union Solidarity and Development Party (USDP) during the reform process that started 2012. The goal was to protect the customary tenure arrangements of indigenous communities in the uplands through a possible customary communal land registration based on an idea that a codification of customary communal tenure under an overall statutory framework would protect the land against the ongoing land grabbing by agribusiness and the military. The intermittent research during 2013-16 therefore focused on recording the customary tenure arrangements of pilot communities in Chin
International Journal on Minority and Group Rights, 2020
Worldwide, 2.5 billion people today depend on lands managed through customary, community-based tenure systems. Although land and natural resources are recognised as essential elements for the realisation of many human rights, international human rights law does not recognise a human right to land, except for indigenous peoples. With the recent adoption of the UN Declaration on the Rights of Peasants and other people working in rural areas (undrop), the right to land is now recognised for new categories of rural workers. This article explores the governance of land and natural resources beyond the case of indigenous peoples’ rights. It argues that undrop contains key and mutually reinforcing elements of the human rights and collective action approaches to the governance of land and natural resources, and therefore has the potential to ensure the social and environmental ‘viability’ of the commons.
Environmental Conservation, 2006
OWNERSHIP OF CUSTOMARY LAND: AN INSPECTION FROM POLITICAL PHILOSOPHY
Two conceptual errors, this paper argues, are responsible for the continued controversy over customary land ownership. First, two related but distinct concepts, ‘customary land’ and ‘communal ownership’, are treated synonymous. In other words, the existence of customary land is understood to imply customary ownership. Second, countries grappling with this controversy were mostly European colonies. They used to be inhabited by many tribes, who considered them as independent nations. This suggests that the lands colonised by the Europeans did not constitute single nation-states, as they exist today. The resident tribes achieved political independence by forming one nation-state, which implies the surrender of their independent status. This political change is supposed to transform the pre-independence distribution of land ownership in the country. More specifically, the national government is supposed to be the owner and distributor of land rights in the country. The existing customary land literature seems to be overlooking the importance of this point. Finally, the paper suggests a general principle that may have the potential to help resolve the controversy. This principle, developed based on John Locke’s theory of property right, says that property in any object is created by the employment of human labour. In other words, a man can claim a piece of land as his property only if he has made this natural gift useful to him and/or others by expending his physical and/or mental labour. This Lockean principle may be used to generate solutions to the continuing Herculean controversy over customary land ownership.
“Hybrid institutions”: Applications of common property theory beyond discrete tenure regimes
International Journal of the Commons, 2009
Property rights theory has contributed a great deal to global understanding of the factors shaping the management, governance and sustainability of discrete property regimes (individual, State, commons). Yet as the commons become increasingly altered and enclosed, and management challenges extend beyond the boundaries of any given property / territory, institutional theory must extend beyond discrete property regimes. This paper argues that even within conventional natural resource management domains, crucial elements of the commons literature provide powerful explanatory frameworks for theory and practice outside the realm of pure common property resources. Building on common property resource and externality theories in general, and the Ostrom and Coasean traditions in particular, we pose an alternative use of the term "Hybrid Institution" to explore the governance of common or connected interests which cut across property regimes. Following a general introduction to a set of propositions for encompassing this expanded realm of analysis and application, we use the literature on integrated natural resource management to frame the scope of "commons" issues facing rural communities today. Empirical and action research from eastern Africa and logical arguments are each used to illustrate and sharpen the focus of our propositions so that they can be rigorously tested in future research. This analysis demonstrates the instrumental potential of the concept of Hybrid Institutions as a framework for shaping more productive engagements with seemingly intractable natural resource management challenges at farm and landscape scale. Our analysis suggests that central elements of the Ostrom and Coasean traditions can be complementary explanatory lenses for contemporary resource conflict and management.
LAND RIGHTS: NATIONAL AND INTERNATIONAL LAND POLICY FRAMEWORK, TREATIES AND GRASSROOTS REALITIES
International Journal of Multidisciplinary Research and Technology, 2023
Ownership of land and allied resources is an emerging reason for dispute all over the globe. These disputes affect the perspective of rural growth, human rights, indigenous culture, ecological conversation, and attempt to combat changes in climate conditions. Traditionally, most of the land resources are governed and owned by the local and indigenous communities through their customary tenure system. In the last several decades due to various reasons, the perspective towards land resources is changed and land became a commodity. The landowners have also changed their perspective and used it as a commodity to get financial resources. The land is a primary source of developing livelihood assets of humans and the life cycle of biodiversity. Recent trends in land markets and emerging land conflicts are indications of future societal and administrative problems. To minimize further impacts proper policies and protection measures are important. Protection of the traditional rights of indigenous people is a primary duty of governance and society. The appropriate policies and conflict resolution mechanism is important to secure the livelihood of forest dwellers. This paper is intended to address the emerging challenges and land rights issues from a wider perspective.