Encroaching on Land and Livelihoods examines whether national expropriation laws in 30 countries across Asia and Africa follow the international standards established in Section 16 of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security (VGGTs). Section 16 of the VGGTs establishes standards on expropriation, compensation, and resettlement to ensure tenure security and responsible land governance. The UN Committee on World Food Security officially endorsed the VGGTs in 2012. Private companies, governments, NGOs, and other stakeholders are increasingly accepting the VGGTs as a new international standard on land tenure.
Only four of the 30 countries clearly define public purpose to allow for judicial review.
Of the 30 countries, India and China are the only countries with laws that limit the amount and types of lands that governments can acquire.
Of the 30 countries, only India, Vietnam and Indonesia have laws that require governments to survey, inform, and consult affected populations prior to expropriation.
Only six of the 30 countries have laws that make strides towards respecting legitimate tenure rights by ensuring customary tenure holders and users of undeveloped areas are entitled to compensation.
None of the 30 countries have laws ensuring that the government will conduct a comprehensive and gender-sensitive valuation of compensation consistent with the VGGTs.
Eight of the 30 countries have laws that provide prompt payment of compensation, a right to negotiate compensation amounts, and a right to challenge compensation decisions before courts and tribunals.
Of the 30 countries, only India has a law providing robust rehabilitation and resettlement procedures.
As a broad legal power enabling governments to take land and resources from citizens for public purposes, expropriation can help governments serve public needs. However, expropriation can also trigger land disputes and threaten the wellbeing of the people who rely on the land for their livelihood and wellbeing. When misused to benefit exclusively private interests, expropriation can line the pockets of corrupt officials and private companies, without any benefit to the public. When expropriation decisions are made behind closed doors, the risks to land rights and livelihoods may intensify. Even when expropriation is used for a genuine public purpose, compensation and resettlement measures may reduce the living standards of affected landholders, particularly the poor and vulnerable who depend on their lands for food, income, cultural identities, and other basic needs. The ripples caused by expropriations can be far-reaching: insufficient compensation and resettlement assistance hampers the ability of affected landholders to purchase or relocate to alternative land, leaving them homeless and without income. Without a home or income, affected populations may fall into poverty, suffer health problems, or endure other consequences of displacement, such as lost community structures and unraveling of the social fabric.
Recognizing a need for established international norms governing land tenure, the UN Committee on World Food Security, in 2012, endorsed a set of voluntary principles known as the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security (VGGTs). The VGGTs establish best practices that “are backed by international consensus of governments, international NGOs, civil society, and the private sector.” Section 16 of the VGGTs establishes standards on expropriation, compensation, and resettlement.
Encroaching on Lands and Livelihoods considers whether national expropriation laws in 30 countries across Asia and Africa follow the international standards established in Section 16 of the VGGTs. It analyzes laws against a set of 24 indicators (hereinafter “expropriation indicators”) based on the legal standards established in Section 16 and provides examples of expropriation practices drawn from literature reviews to illustrate the importance of adopting international standards. Based on this analysis, the paper offers a set of recommendations that identifies steps that governments, civil societies, and other stakeholders can take to adopt international standards on expropriation, compensation, and resettlement.
The 24 expropriation indicators are designed to align with the principles established in Section 16 of the VGGTs. They ask yes or no questions about the legal provisions established in expropriation laws. (“Partial” is an answer option where laws only partially satisfy the question asked by the indicator.) Answering the questions posed by these indicators entailed reviewing a broad range of legally binding instruments, including national constitutions, land acquisition acts, land acts, communal land acts, agricultural land acts, land use acts, regulations, and court decisions.
Reform expropriation laws to:
Clearly define public purpose
Limit how much and what kind of land governments can take
Establish transparent and participatory expropriation processes
Compensate those who hold land under customary tenure
Ensure gender-sensitive, sufficient compensation is paid
Minimize forced evictions and provide displaced persons with relocation allowances, alternative housing and access to productive alternative land