Land Rights and the Rule of Law: Making the Connection (Part 2 of 2)

Robert M. Buergenthal

Landesa

(This concludes a two-part series on land rights and the rule of law, as shared with us by WJP Strategic Partner Landesa.)

During my two decades of work as a promoter of good governance and the Rule of Law, I have seen interest in the field ebb and flow.

In the 60s and 70s, the Law and Development Movement centered on developing the Rule of Law progressively and with limited support from bilateral donors or international organizations.

In the 80s and 90s, a new Administration of Justice- Rule of Law movement centered in Latin American and the former Soviet Union gained attention.

Now, we appear to be on the cusp of a renewed worldwide commitment to promote the Rule of Law and good governance.

The World Bank and other multilateral organizations support a growing range of justice reform efforts focused both on formal institutions and programs to empower the poor.

Recent U.S. and multilateral efforts in conflict countries from Afghanistan to South Sudan have also prompted a renewed focus on the links between democracy, economic development, and the Rule of Law.

Last year during the High-level Meeting of the UN General Assembly on the Rule of Law, the General Assembly reaffirmed its commitment to the Rule of Law and noted that Rule of Law and development are “strongly interrelated and mutually reinforcing” and should be considered part of the post-2015 international development agenda.

I see a major gap in the current conversation: Secure land rights for the world’s poor is missing from most discussions about the Rule of Law.

Recently, UK Prime Minister David Cameron outlined his “golden thread” for broad sustainable development: Rule of Law, transparency, openness, accountability, empowerment, freedom, property rights, and the absence of corruption.

In an address to the UN General Assembly last year, Cameron explained, “I am convinced that we need to focus more than ever on the building blocks that take countries from poverty to prosperity. The absence of conflict and corruption. The presence of property rights and the Rule of Law.”  This dialogue was most recently continued during recent G8 break-out meetings.

Notwithstanding many of his detractors who correctly seek more clarity, Cameron’s statement at this critical moment is most welcome. Despite the clear relationship between land, economic development, indigenous and women’s rights and the fact that land rights are a gateway right (they enable access to other rights); international human rights law does not yet explicitly codify a right to land.

Moreover, still too few Rule of Law donors and programs focus on efforts to promote secure land and property rights-USAID and the Bill & Melinda Gates, World Justice Project, Omidyar Network and Skoll Foundations are notable exceptions.

While there is increasing and welcome global attention on large scale land based investments, land grabs by foreign corporations from both the North and the South, land related conflicts throughout the globe, and a renewed focus on the World Bank’s application of its safeguard policies, property rights and emerging land related issues are seldom integrated into a discussion of the Rule of Law much less a notion of sustainable development.

After all the theoretical discussions and hyperbole, at the core of effective Rule of Law is support from people who believe that formal or customary laws are just and a decision to follow those laws and procedures because doing so is in the best interests of that citizen, her society and the global community.

The way in which we define the Rule of Law for institutional purposes or integrate land rights into viable policies and assistance programs remains a formidable challenge for the international development community. At the same time, there appears to be a growing consensus of the importance of land and property rights as a critical cross-cutting “enabler”.

Now if we could only translate that consensus into a focus of the next wave of international Rule of Law programs to help shape land tenure reform and land tenure systems.