COMING SOON: FAO Technical Guide on Governing Tenure Rights to Commons & Animation Video, both prepared by IASS

Views from policy, science, and civil society

Millions of people worldwide depend on commons – the land, fisheries and forests which they use collectively as commons. Commons are essential to culture, identity and well-being. As a source of food and income, they are an important safety-net, especially for the most marginalized and vulnerable people. However, tenure rights to commons are often jeopardized by an increasing demand and competition for natural resources alongside processes of privatization, encroachment and commercial large-scale land transfers. Securing collective tenure rights to commons for local rights holders such as smallholders, pastoralists, fishing communities, indigenous peoples and the most vulnerable and marginalized people is hence a critical component in today’s transformation towards a sustainable world.

The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (short: Tenure Guidelines) provide a historic opportunity to recognise and secure tenure rights to commons. They are the first internationally agreed normative standard for the responsible governance of the tenure of land, fisheries, and forests. While they are a soft law instrument, they are of important legal significance due to their strong rooting in international binding human rights law. Adopted in 2012 by the UN Committee on World Food Security (CFS), they were developed through an unprecedented inclusive and participatory multi-stakeholder process, which included governments, civil society, the private sector, and academia. Since then, these different actors have been involved in efforts to make the Tenure Guidelines a reality on the ground.

So, how to make best use of the Tenure Guidelines to secure tenure rights to commons? What strategies can be employed and what experiences have been made so far? What are state responsibilities at home and abroad? What can be learned from advocacy for human rights and community land rights? And, what role for inclusive multi-stakeholder approaches for implementation?

The Policy Forum at the IASC Conference in Bern on 10 May, 2016 provided a great opportunity to bring together different communities of knowledge – namely the scientific commons community and practitioners from FAO, government, and civil society – in order to raise awareness and discuss strategies on how to make best use of the Tenure Guidelines to secure tenure rights to commons.

“The transformative potential of the Tenure Guidelines continues to grow as we transform the document into a political tool,” concludes Stephan Rist (CDE).

How the UN use and monitor the Tenure Guidelines to support tenure security

Francesca Romano from the Food and Agriculture Organization of the UN (FAO) emphasised that the Tenure Guidelines are a globally negotiated policy document. The work of FAO and others is now to bring its language into the national context. To this end, FAO’s main activities are to support governments through capacity building and creating dialogues on the Tenure Guidelines and the nature of legitimate tenure rights. In doing so, FAO aims to change the way people work on tenure rights.

The question of who monitors the implementation of the Tenure Guidelines is sensitive, as it impinges on matters that traditionally fall within the remit of national governments. As the international governance body and platform that negotiated the Tenure Guidelines, the CFS is mandated to set up an innovative monitoring mechanism. Some national civil society organisations (CSOs) are using the Tenure Guidelines already to monitor progress on certain aspects.

Strategies for securing commons from the new Technical Guide on Governing Tenure Rights to Commons

To increase the uptake of the Tenure Guidelines in national contexts, FAO provides Technical Guides, such as the Technical Guide on Governing Tenure Rights to Commons, which was prepared by the Institute for Advanced Sustainability Studies (IASS) through a multi-stakeholder approach and will be published in 2016, accompanied by a short animation film.

Charlotte Beckh (IASS) explained some of the key strategies to secure tenure rights to commons that stakeholders share through the Technical Guide:

  • The legal recognition of legitimate tenure rights to commons should be equally strong as individual property rights. And the devolution of rights and (co-)management of commons to the local level, where commons may be collectively governed by institutions representing various communities who share tenure rights to one commons area.
  • Strong procedural rules that accompany substantive rules allow for flexibility and accommodate the dynamics related to the governance of tenure rights to commons.
  • The mapping of tenure rights to commons in a locally based and participatory process that considers the social and geographical boundaries of commons.
  • Local governance structures that are consistent with human rights, are inclusive and accountable, e.g. natural resource committees that embed customary authorities in a way that prevents them from misusing their power and ensure equitable participation of marginalised, vulnerable, food insecure, and landless members of the community.
  • Development of awareness and capacities of commons related matters, e.g. in ministries, registries, and judicial authorities.
  • Fostering the ability to claim rights through an accessible and functioning judicial system, e.g. through the integration of local-level mechanisms and national systems of conflict resolution.
  • Increasing accountability through monitoring in inclusive multi-stakeholder processes.

State responsibilities at home and abroad to protect tenure rights to commons

The joint discussion and agreement of governments, civil society, and the private sector make the Tenure Guidelines a strong instrument even though the document is voluntary. Tenure rights and especially the recognition of all legitimate rights are fundamental for poverty eradication, which is a core objective of the Swiss development cooperation, explains Christina Blank from the Swiss Agency for Development and Cooperation. A commitment to implement these rights must, however, be made at the level of individual governments and requires adaptation to local contexts. The Swiss government supports the implementation by giving its support to FAO.

Mathieu Boche from the French Ministry of Foreign Affairs and International Development states that the French government regards the security of legitimate land rights as a requirement for sustainable development. It has set up a multi-stakeholder platform, the Technical Committee on Land Tenure and Development, to provide international support for land policies in developing countries. The Tenure Guidelines help to frame a dialogue on commons that the French government facilitates with stakeholders around the topics of territorial development, decentralisation, access to commons, and supporting civil society organisations through multi-stakeholder platforms. In Senegal, for example, France supports local communities to define what they want from commons and, based on their willingness, supports the development of local rules for participatory mapping and other processes for land-use planning (etc.) and feeding in the outputs into dialogues with their government. The French development cooperation aims to create spaces for different actors to develop a joint agenda, even though local stakeholders are under huge pressure of fragmentation. Often the land concession system stems from colonial times and must be questioned. To further increase the understanding of the diversity of commons and strategies for securing commons, the French government has launched a two-year research programme. France will also reflect on the French activities to support the implementation of the Tenure Guidelines in the course of the stock taking event at the CFS 43 in October 2016.

What can be learned from advocacy for human rights and for community land rights?

Tom Griffiths from the human rights NGO Forest Peoples Programme points out that many policymakers have very little understanding of the questions of land rights systems, customary law and ownership regimes, and the human rights aspects related to land rights. Policymakers must be better informed about the importance of land tenure standards in legality and sustainability initiatives and regulations. For example, tenure issues should be central in current policy discussions on possible measures to be included in the EU Action Plan on Deforestation. To support community land rights at national level, the conversation must go further into specific grassroots land struggles. Work on land rights at the community level must take as it starting point local agendas and priorities for justice and change. This is necessary in order to adapt rather technical global standards and frameworks to local contexts. Civil society has an important role in applying these documents and relating them to human rights and local characteristics.

Griffiths also emphasised the importance of considering collective land and territorial rights that are shared among various neighbouring communities with respect to efforts to secure commons. There is in many countries, since the colonial era, a trend towards the “villagisation” of tenure rights, which has sought to fragment collective tenure regimes over the commons and allocate rights to single communities. For example, in Peru individual communities can obtain legal land titles, but shared titles among different villages are less feasible under current national laws. Lessons from advocacy work show a need for action research with rights holders on customary tenure and on traditional knowledge, community mapping, and fora for groups of villages to exchange information about land rights and land restitution.

Strategies to ensure that investments do not infringe on legitimate tenure rights

Elisabeth Bürgi, researcher in international law from the Centre for Development and Environment (CDE) notes the Tenure Guidelines are already resulting in trickle down effects. Many countries have recently made progress in modifying and aligning land policies and legislation with the Tenure Guidelines, for example Sierra Leone. The human rights commission in Sierra Leone, for example, uses the guidelines as a legal instrument. To strengthen the Tenure Guidelines it is important to further clarify the legally binding aspects in the document and how to use it. For example, committed governments can require investors to fulfil the Tenure Guidelines in order to receive investment contracts. Investment treaties negotiated between governments should also refer to the Guidelines. There is also a need to discuss how access to markets and incomes can be secured for commoners in order to safeguard the long term viability of commons. In this respect, trade regulation and its impact on markets need to be taken into account. Bürgi argues for the creation of a database to document the variety of regulations and good practices on commons from different countries. This would provide a pool of innovative ideas to inspire governments and stakeholders. She also sees a need to link tenure rights to other discourses of development issues such as the rights to organise and associate and to self-determination as these rights are neither properly recognised in many countries. In this respect, it is important to discuss both rights and the limits of rights to commons in order to protect the rights of those who are not part of the community. This is similar to the discussion about (cooperative) food sovereignty and its limits.

Relaunching the discussion on a right to land would be very timely. A General Comment on the Right to Land by the Human Rights Treaty Committee would be an important instrument to clarify the scope and limits of such a right, including rights to commons. This idea is currently gaining momentum.

The Policy Forum was co-hosted by the Institute for Advanced Sustainability Studies (IASS) and the Center for Development and Environment (CDE). It was prepared and reported on by Charlotte Beckh and Elisa Gärtner from the Land Governance team of the IASS and moderated by Stephan Rist from the CDE.


Contact:

Charlotte Beckh, charlotte.beckh@iass-potsdam.de

Elisa Gärtner, elisa.gaertner@iass-potsdam.de