Struggles over property rights in the context of large-scale transnational land acquisitions. Using legal pluralism to re-politicize the debate

Resumen

Abstract

A key issue in the context of increasing large-scale land acquisitions in developing countries is how poor populations can prevent their land rights being encroached upon by more powerful actors. To date, the majority of policy recommendations have been directed towards the legal recognition and formalization of land rights in order to safeguard local and historical land rights holders, as well as towards the design and implementation of ‘voluntary’ guidelines or codes of conduct which should regulate large-scale investments in land, in order to contribute to positive development outcomes. We argue, however, that these types of recommendations tend to depoliticize the debate surrounding access to land and natural resources. This paper therefore aims to reintroduce a political dimension into the analysis, by proposing a framework based on the socio-institutional definition of land rights consistent with the legal pluralist approach. It acknowledges a multiplicity of land rights and rights holders, governed by the existence of several superimposed normative orders and social fields. It also implies that state and non-state normative orders interact to determine land management practices and, as a result, also the actual ‘rules in use’ that are followed and enforced locally.

We demonstrate the analytical potential of this theoretical framework using case studies from Ghana and Madagascar, two countries with different legal traditions and distinct levels of recognition of non-state tenure systems. Our tentative analysis reveals that what is fundamentally at stake are power relations and social struggles between actors in a variety of social fields. The key is therefore to strengthen the bargaining capacity of weaker actors within certain political arenas when it comes to land. Their capacity is not unrelated to the nature of formal national and international legal orders, since these co-shape and affect actors’ bargaining position, but we should not expect a one-way relationship between formal rules and the effective enforcement of the rights of the poor. Related issues that will also play a critical role in the analysis are broader discursive struggles regarding the concept of ‘idle land’; the role of small-scale family production versus large-scale entrepreneurial production in agricultural development; and the requirements of social and environmental sustainability.