Land Grabbing as an Internationally Wrongful Act – NEW DS Report on Ending Land Grabbing in Myanmar

21 October 2019

DS has just published a major 184-page legal report on the land grabbing in Myanmar and how these processes constitute internationally wrongful acts. The report includes a 21-step legal roadmap to end land grabbing once and for in Myanmar, a nation that is one of the worst in the world in 

Although the general power of States to compulsorily acquire, expropriate or otherwise confiscate or ‘grab’ land, homes and properties is legislatively recognised in virtually all national legal systems, to be lawful these processes generally carry with them five fundamental pre-conditions. Namely, when housing, land or property rights are revoked or limited through these processes, this can only be carried out when the taking concerned is:

            1) subject to law and due process;

            2) subject to the general principles of international law;

            3) in the interest of society and not for the benefit of another private party;

            4) proportionate, reasonable and subject to a fair balance test between the cost and the aim sought; and

            5) subject to the provision of just and satisfactory compensation.

In all countries, the act of compulsorily acquiring land is highly regulated and something which rights-respecting governments are often reluctant to invoke except in exceptional circumstances when all other viable alternatives have been pursued. In general terms, the housing, land and property rights of affected persons and communities are often at the centre of proposed projects involving land acquisition and project evaluation processes, and active efforts are often undertaken by the relevant state authorities to avoid acquisition and resultant resettlement if at all possible, and when no other option exists, to ensure the full protection of relevant human rights norms. As this paper reveals, such points of view – even with the recent adoption in May 2019 of a new Land Acquisition, Resettlement and Rehabilitation Law– are almost entirely absent from the both the legal framework and practice of those engaging in the massive land confiscation epoch through which Myanmar is now passing and which it has experienced for decades. In short, all of these five basic international rules governing land acquisition by the State are systematically violated in Myanmar.

Indeed, if anything, measures to ensure that land confiscation in Myanmar is not carried out in a manner contrary to all of the five pre-conditions outlined above are almost universally absent when land is sought by others than those owning it, working it or residing upon it. Within the country, in fact, every act of land confiscation, acquisition, grabbing and expropriation in Myanmar can be assessed against these five pre-conditions, and in the overwhelming majority of cases – including those that have taken place subsequent to the so-called political reform process underway since 2011, and following the 2015 of the National League for Democracy – are structurally inconsistent with the norms expected of a country that has ratified human rights treaties protecting basic HLP rights. This report finds that the vast majority of all acts of land grabbing (including those acts of confiscation carried out under the Land Acquisition Act(1894), recently replaced by a new, but certainly not dramatically improved, land acquisition law) violate basic international norms governing these matters, and many constitute internationally wrongful acts.

In particular, the following list outlines common components of these processes in Myanmar today:

  • They are often contrary to national laws binding on the government of Myanmar
  • They are often contrary to international laws binding on the government of Myanmar
  • They are often contrary to general principles of international law
  • They are often carried out for private gain, not in the public interest
  • Confiscation is often carried out without any compensation whatsoever
  • When compensation is provided it is often neither just nor satisfactory
  • When provided, compensation is rarely paid prior to resettlement
  • When provided, compensation is rarely paid at the market value of lost land
  • There is little or no access to grievance mechanisms for affected persons
  • There is little or no access to legal counsel for affected persons
  • There is little or no access to an independent judicial body
  • Resettlement plans are virtually never prepared
  • Affected persons and communities lose income and livelihoods
  • Return to and restitution of confiscated land is rare, inequitable and often arbitrary
  • There is no national restitution law, claims process or commission, and thus no effective remedy for restoring HLP rights that were arbitrarily undermined. 

 

Arguably, thus, the sheer scale of arbitrary land confiscations and subsequent dispossession in Myanmar is so widespread, so inadequately regulated and so contrary to basic legal protections, that an exceptionally strong case exists for wholesale legal and policy reforms governing housing, land and property rights. An additional case can be made that all of the criteria needed for the International Criminal Court to become involved in this issue in the country are fully in place. When comparing what the people of Myanmar should be entitled to in terms of HLP rights, and what in practice they actually are forced to experience, we see nothing less than gross and systematic violations of internationally recognised human rights and other legal norms that the State of Myanmar has voluntarily undertaken to comply with in good faith. These include crimes against humanity and war crimes.

This in-depth report begins with an examination of how land confiscation takes place in the country, the scale of the practice, the methods used, who actually benefits from these practices, and how the legal system of Myanmar actually promotes what are, inter alia, illegal acts under international law. The second section then examines general international and national rules governing the practices of land acquisition in the public interest and what criteria need to be in place for such acquisition to be considered legal under international law. Section 3 then looks into how human rights law, including case law and jurisprudence has approached the sensitive issues surrounding land acquisition and what is expected of countries engaged in these practices. The next section then looks specifically at the core topic of this report; namely does land grabbing, confiscation or whatever terms are used constitute an internationally wrongful act which in turn activates State responsibility and the procedures and mechanisms that can be invoked to hold violator States accountable?

The report then concludes with a legal roadmap of constructive, specific and actionable recommendations designed to build an entirely new vision of housing, land and property rights in the country which is fundamentally different from how these issues are treated today in contemporary Myanmar.

You can read the entire report here: dis6171_land_grabbing_as_an_internationally_wrongf

Climate Land Bank Idea Gets Major Boost in New ADB Report

7 August 2019

A new report on Promoting Affordable Housing in Yangon, Myanmar published by the Asian Development Bank has, among other recommendations, urged the government of Myanmar to consider establishing a National Climate Land Bank to proactively address the looming climate displacement crisis in the country. The report notes that “Myanmar’s housing sector is struggling to cope with rapid urbanization, internal migration, and new demand from recent economic growth. These challenges are most apparent in the Yangon Region, where estimates suggest there will be a housing shortage of 1.3 million units by 2030. This publication assesses the current housing market situation in Yangon. It identifies reform options and offers practical recommendations to support the Yangon Region Government’s implementation of its affordable housing agenda and related policies.” With a specific recommendation to establish a climate land bank, the report continues “The central importance of land for security, stability, and economic development is already well-recognized by the present government and by all organs of civil society, which have commenced identifying state land resources for eventual distribution to landless rural poor households as part of broader land reform efforts. In this context, the establishment of the MNCLB would be a further element of broader land reform measures, which are already underway in the country. Without such an MNCLB in place, the growing numbers of people facing displacement due to the effects of climate change will increasingly have nowhere to go and thus be forced, as climate displaced communities everywhere, into urban slums or new residential options that are wholly inadequate to meet their basic human rights requirements.” Needless to say, Displacement Solutions fully supports this recommendation and also encourages the government of Myanmar, and ALL other governments as well, to immediately establish climate land banks as a workable tool in addressing the growing crisis of climate displacement everywhere. 

A full copy of the report is available here: financing-affordable-housing-yangon.

New DS & NRC Report on Obstacles to HLP Rights in Northern Mon State

16 April 2019

Land in south-eastern Myanmar is a critical resource for the mainly rural population which is in need of greater safeguards within the formal, informal and customary systems of land administration. Customary law continues to operate at the village level, largely unchanged since pre-colonial times. While exhibiting many of the positive elements commonly attributed to such systems throughout the developing world, customary laws in relation to the resolution of land disputes are not always effective and equitable, and do not always display qualities which are consistent with rule of law standards. Deficiencies in transparency, accountability and equality have the potential to undermine the ability of marginalised sections of the population to access justice and obtain fair outcomes.

Decades of military rule have exacerbated the structural inequalities experienced by Mon, Kayin and other ethnicities in their interactions with government authorities and the parallel administrations of Ethnic Armed Organisations (EAOs). This means that in addition to the large amounts of land-grabbing experienced by the population across Mon State, the avenues of resolving such grievances remain inaccessible to most poor rural populations, due to a combination of fear of authorities, language barriers, lack of knowledge regarding land law and dispute resolution mechanisms beyond the village level.  

The existing work of the Norwegian Refugee Council (NRC) and its partners in Mon State aims to raise awareness of Housing, Land and Property (HLP) rights, as well as Collaborative Dispute Resolution (CDR) techniques which can prove highly useful for resolving the disputes of populations at the local level.[1]Trainings on mediation and facilitated negotiation are well-suited to, and indeed share some similarities with, existing customary dispute resolution styles, which are akin to mediation. NRC plans to continue to pursue CDR trainings, with a special focus on eliminating some of the negative elements mentioned by villagers, such as bias and corruption, etc.

Generally speaking, rural populations and dispute resolution actors at the village level have not been exposed to significant amounts of information regarding the changing legal environment regarding land, or to the possibilities which exist for resolving disputes and/or gaining compensation for previous injustices. These populations would be greatly aided by continuous implementation by NRC and partners across Mon State of HLP trainings as a compliment to current Information, Counseling and Legal Assistance (ICLA) activities relating to civil documentation. EAO representatives who are tasked with assisting in dispute resolution at the village level would also benefit from the awareness raising activities, as well as the CDR trainings in areas where they are active.

Civil society organisation (CSO) staff have only received limited in-depth training on HLP issues and this makes it more difficult for them to be able to counsel farmers on the details of relevant laws. It also makes it difficult to provide clear information on how farmers can register their land usage and approach formal justice systems in order to gain compensation or restitution. Consequently, further training for CSO partner staff would assist NRC in strengthening HLP knowledge among its beneficiaries, leading to increased protection against land grabbing. CSO staff also need to be involved in CDR training provided by NRC on facilitated negotiation, so that they can play a part in advocating for farming communities where they are in dispute with local authorities but lack the bargaining power and knowledge to argue their own cases.  

Increased knowledge of land law and dispute resolution techniques are important tools to help farmers realise their HLP rights in Mon State, but accessing the protection offered by the state land registration mechanisms should also be promoted. The input from farmers and key informants indicates that very few farmers in the study area are in possession of Land Use Certificates (LUCs) under the 2012 Farmland law. The majority hold their land under customary recognition, making these parcels vulnerable to land grabs by other actors. The reluctance to engage with the formal system is a result of lack of awareness, language barriers, fear of authority and prohibitive costs. A simple solution to this situation would be for NRC to expand its activities to directly assisting beneficiaries through its partner network to obtain LUCs, as is currently being done by Lokha Ahlin and the Human Rights Foundation of Monland (and by Ecodev in Myeik area, Tanintharyi and Spectrum in Kachin State). This activity would go hand in hand with the awareness raising efforts mentioned above, which would highlight to farmers why registration is critical.

Decades of conflict and land-grabbing across Mon State have resulted in thousands of acres of land being confiscated by a variety of actors. The vast majority of this land has yet to be returned. As most of these confiscations took placed during the military dictatorship, in very few cases was compensation paid, and if it was, it was not at market value. Although feedback indicated that cases involving the military are still too difficult to resolve for local CSOs, there have been successes through the formal legal system in prosecuting cases where the actors involved have been government and/or companies. Resolution of these cases usually results in return of lands where government was involved, or compensation being paid where companies were involved. Legal aid providers in Mawlamyine and across Myanmar have had limited successes with strategic litigation including in cases even where incomplete land documentation was available.

It is therefore the conclusion of this assessment that while CDR methods are highly beneficial in assisting to resolve land disputes at the village and village tract level, the resolution of land confiscation disputes involving more powerful actors requires the coercive power of the court system, since the administrative system cannot be relied on. Successful strategic litigation of would act as a deterrent to future actors planning on grabbing farmland and may result in either the return of grabbed lands or the payment of adequate compensation. This would enhance the standing of NRC and its partners among the beneficiary communities (and hopefully prevent reduced engagement caused by only engaging with them through training and awareness raising) by providing an example of how communities can be empowered to challenge illegal confiscations and see practical results.

You can read the full report here: mon_report_bind__1.4.2019__c2

 

 

Customary Land Dispute Mechanisms in Myanmar – New Report by DS & NRC

16 April 2019

This report provides an in-depth understanding of customary land dispute resolution in Kayin State, Eastern Bago Region and Shan State and its interaction with the formal statutory Government of the Republic of the Union of Myanmar(GORUM) system. A participatory community-based research approach was used to understand customary practices concerning land, including how land title is defined, enforced and how land disputes are contested, negotiated and resolved at the community level.

Based on the perceptions of local people and village leaders in the three research sites, the report identifies current practices as well as prior work on this topic in Myanmar and seeks to identify ongoing dispute resolution mechanisms and practices used by communities in ethnic nationality areas with a view to informing policy and programming on restitution. Key to this analysis is the question of what a genuine restitution process might look like in Myanmar and how customary practices might be integrated into it. Furthermore, if a genuine restitution process was established, what realistic capacity is there to integrate customary dispute mechanisms and authorities into it.

Based on in-depth qualitative research in 31 villages across 3 regions/states, it offers an insight into understandings of customary mechanisms that people use to regulate the use of land and the most important actors regarding dispute resolution, as well as their interaction with the formal system. This includes the following:

  • An analysis of key actors involved in customary practices of dispute resolution around Housing, Land and Property (HLP) issues
  • An analysis of power relations between the service providers of dispute resolution and disputants.
  • Public perceptions towards customary dispute resolution practices and their perceived strengths and constraints.
  • An analysis of the reasons why people choose to resort to customary dispute resolution mechanisms for their HLP issues (over the official state-sponsored mechanisms).
  • The existing relationship between customary dispute resolution practices and national statutory legal frameworks and its implications for justice and effective HLP dispute resolution.
  • How might national statutory legal frameworksin Myanmar integrate customary dispute resolution practices and authorities.

The use of customary and formal land laws and dispute mechanisms varies across research sites. However, research in these areas demonstrates the importance of customary land dispute mechanisms and the need to build more flexible policies to recognize customary land laws and authorities.

The full report can be accessed here: customary_land_disputes_resolution_

 

 

DS & NRC host two Restitution Workshops in Yangon

20 March 2019

From 13-15 March 2019, DS and our partners at NRC led and conducted two training workshops entitled ‘Understanding Restitution’ in Myanmar. The first, led by DS, was review of DS materials developed addressing HLP rights in Myanmar, and orientation for NRC ICLA staff from its field offices. The second, a more in-depth and strategic 2 day-workshop for key partners; namely the Karen National Union and Karen Development Committee as well as other NRC staff. It focused on the key elements required for building knowledge, and planning and developing institutional capacity to address restitution of housing land and property for individuals and families that have been forcibly displaced throughout Myanmar. Attended by 40 senior representatives of all three organizations, the workshop prepared the participants with a basic understanding of the mechanisms for restitution, and the building blocks for a future when restitution can assist internally displaced families and provide some form of closure for refugees to enjoy their full rights to housing, land and property in Myanmar.
 

The People of Myanmar Need National Agreement on Restitution

24 February 2019

A new 76-page report prepared by DS Director Scott Leckie with the collaboration of Jose Arraiza of NRC, with the support of the Joint Peace Fund, outlines the components of what an eventual agreement in Myanmar on housing, land and property restitution could look like. The report, entitled BUILDING AGREEMENT ON RESTITUTION RIGHTS WITH THE MYANMAR PEACE PROCESS AND NATIONAL LEGAL FRAMEWORK examines all of the necessary components that would need to find recognition within an eventual national agreement designed to ensure that everyone with a viable HLP restitution claim could submit these to an independent judicial body with enforcement powers strong enough to ensure the full enjoyment of restitution rights throughout all corners of the country. Millions of people with legitimate restitution claims have yet to be able to have these claims heard by judicial bodies with the power to enforce these claims to return to, recover and/or re-inhabit the homes and lands from which they have been forced to flee over the past several decades. The report points out that HLP restitution rights are widely recognised in international law, and that many other countries have adopted restitution laws and procedures as key elements within peace processes and the context of post-conflict peace-building. The practically-oriented report contains a full draft of a National Restitution Agreement which could serve as a model for peace negotiators and government officials as they continue to search for ways to secure a sustainable peace and strengthened democracy throughout the country as a whole. The full report is available here: Building Agreement on Restitution Rights in Myanmar (March 2019)

NEW DS & NRC Report on Resolving HLP Rights Disputes in Myanmar

10 January 2019

With support from MyJustice, the European Union and the British Council, DS and NRC have released their latest report designed to improvement the HLP performance in Myanmar. The report, Improving Access to Justice Through Community Based Dispute Resolution (CBDR) for Housing, Land and Property Disputes in Myanmar: Housing, Land and Property Rights Legal Awareness Information Material, outlines a range of frequently asked questions concerning HLP rights in the country, and how local level, community-based dispute resolutions measures might be accessed to promote HLP justice.

The full report in English can be downloaded here: HLP FAQ – Improving Access to Justice

The full report in Burmese can be downloaded here: HLP_FAQ-MM-Final23Jan2019_sml-150opt

 

Community-Based HLP Dispute Resolution Options in Myanmar – New Joint Publication by DS and NRC

15 November 2018

DS and NRC are happy to announce our latest publication promoting housing, land and property rights in Myanmar. Generously supported by MyJustice, the European Union and the British Council, the new report explores community based dispute resolution procedures and practices in the country. The full publication can be downloaded here: HLP FAQ – Improving access to justice

The Guardian reports on climate displacement in Myanmar

4 November 2018

Have a look at Libby Hogan’s article ‘We feel like hermit crabs’: Myanmar’s climate dispossessed, published on 1 November 2018 in The Guardian. The article is one of the first published by international media sources focusing on Myanmar’s latest displacement crisis, that of looming and massive climate displacement. DS Director Scott Leckie was interviewed for the article which also explores the need for the government of Myanmar to establish a national climate land back to deal effectively with climate displacement. You can access the article here: https://www.theguardian.com/global-development/2018/nov/01/we-feel-like-hermit-crabs-myanmar-climate-dispossessed.