
To be published in the Fall of 2005 as "Resolução alternativa de disputas em conflitos
de terra: uma avaliação provisória," in A. M. Buainain, ed., Gestão de Conflitos de
Terra e Reforma Agrária no Brasil (Campinas, Brasil: Editora da Universidade de
Campinas, Coleção Instituições, Agricultura e Desenvolvimento Sustentável): 1-52.
The Norman Paterson School of International Affairs
Carleton University
Ottawa, Canada jean_daudelin@carleton.ca
March 2004
 This study is based on a report originally produced for the UN Food and Agriculture
Organization. Thanks to Adriana Herrera and Antonio Márcio Buinain for comments.

INTRODUCTION
This paper examines alternative dispute resolution in land conflicts. It identifies its main characteristics and tries to assess the advantages and limitations of its current uses. It builds primarily on a series of case studies of conflict resolution processes and mechanisms commissioned by the FAO [FAO-2002], as well as on two groups of case studies of the conflict impact of land policy realized under the co-ordination of the author, for the International Development Research Centre [Baumeister and
Fernandez-2001; Cuadra and Saldomando-2001; Daudelin, coord.-2002; Favre-
2000; Lapointe-2001; McElhinny and Seligson, 2000], and of land policy in postconflict situations, for the World Bank [Bastian-2002; Chilundo et al.-2002; Cooper-
2002; Cubides-2002; Daudelin-2002; Durocher-2002; Gatunange-2002; Isaac-
2002]. It exploits as well the quickly growing body of works on land and resource conflicts and on the ways in which they are managed and resolved. While this paper is primarily meant to address land issues in the Americas, cases from the whole world are brought in to support the analysis.
This assessment is tentative for a number of reasons. There have been very few attempts at organising data on land conflict resolution or even, more generally, on resource conflict resolution. There is a systematic and extremely promising comparative research program currently under way on resource governance [Gibson et al., various publications], but —arguably with reason (see infra section 3.3), it does not specifically target land issues. As far as we know, moreover, and in spite of the laudable effort of the FAO in recent years, no comparative research program on land conflict resolution with a shared basic framework of analysis currently exists.
These problems are compounded for alternative land conflict resolution, an area that has not been frequently studied as such, albeit with a few notable exceptions
[Rodriguez-2002].
The paper is divided in two parts and six sections. The first part outlines a general framework to analyse land regimes (section 1), conflicts (section 2) and conflict resolution mechanisms (section 3) before presenting a simple assessment model derived from that framework (section 4). The second part of the paper is devoted to the brief examination of a series of cases (section 5) and the last one to transversal issues raised by those cases (section 6).
Classic as well as more contemporary political sociology and legal theory of institutions [Weber-1978(1920), Kelsen-1970(1938), Berger and Luckmann-1966,
Herbst-2000], revolutionary movements [Furet-1985, Grenier-1999] and
"contention" [McAdam, McCarthy, Zald-1996, McAdam, Tarrow and Tilly-2000] structure this analysis, although it also builds on recent work on institutional economics [Platteau-2002] and the political economy of conflict [Popkin-1980;
Berejikian-1993; Collier-2000; Berdal and Malone-2000]. For the sake of brevity and in keeping with the policy orientation of this piece, no systematic critical review of the relevant theoretical literature is included and very specific references to those works are kept to a minimum.
In broad terms, this paper contends that land conflict and their resolution must be understood as embedded in the political economy and sociology of tenure regimes, i.e. in political and institutional governance arrangements that manage access to land, security of tenure and distribution of land among those who have access to land. From that standpoint, formal and alternative conflict resolution mechanisms must fulfil the same requirements and can be analysed in terms of 1) their
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immediate –spatially and temporally- effectiveness in producing non-violent outcomes to disputes; 2) their cost, which has an impact on the relative preference of actors for one among a range of available conflict resolution mechanisms and on the distributional consequences of the outcome of the process; and 3) the long term validity of the outcome of the conflict resolution process.
Alternative methods, be they based on customary rules, arbitration or third-party mediation, can be promoted or defended as solutions to the inability of the formal tenure regime and its appendent conflict resolution mechanisms to provide immediately effective, cheap and valid solutions to land disputes. This analysis suggests that 1) they do not always satisfy those requirements, and 2) the conditions under which ADR could indeed fill the formal institutional gap are not always present and might be disappearing.
This is a work in progress. Comments are most welcome.
1. Tenure regime
The governance and management of land-related social, economic and political interaction is best understood as part of a regime, i.e. as a set of rules and institutions, formal and informal, that orient and constrain the behaviour of actors engaged in land-related activities. These rules can be legal or customary, 1 that is they may be based or not on state regulations. The processes and institutions through which those rules are generated, modified and enforced can likewise be formal or not, i.e. they may be based on explicit or implicit norms, written or unwritten.
The understanding of "regime" that underlies this examination of land issue can be used to analyse any social enterprise that is meant to regulate and control human action. It assumes that international regimes, such as the genocide convention, the
GATTS or the International Convention on the Protection of Protected Species, can be understood in the same basic terms as national regimes or matrimonial ones. Among those many shared characteristics are the existence of conflict resolution mechanisms and the conditions under which the latter produce outcomes that are valid over time.
1.1 Components
Tenure regimes organise a large number of issues that can usefully be organised under four headings: institutional arrangements governing the regime itself, and access to land, distribution of the latter and security of its tenure.
2 a) Institutional arrangements
Whatever its object, a regime has rules that define the mechanisms of its governance. These mechanisms organise the selection of its authorities, the ways in
1 Ramirez (2002, section 1 page 11 and 12 (from now on 2002:1/11-12) distinguishes three sources of rules: customary, market and legal. We leave market rules aside here, as they are nvariably underlied by customary or legal rules, i.e. markets are enforced, they are secondary institutions and their rules are, as a result, subsidiary.
2 This sub-section builds extensively on Daudelin-2002.
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which its rules are to be defined or changed, the procedures to be followed in the case of disputes, and the way in which the rules or the outcomes of conflict resolution procedures are to be enforced or, when violated, how sanctions are to be imposed.
Tenure regimes have taken the most varied forms. Given the central importance of land for survival and more complex economic activities, the institutions of land tenure have in fact been a core component of social institutions everywhere and since the very beginning of their documented emergence [Ellul-1961].
Two key general tendencies must be noted here. One is the growing formalization of tenure regimes, with the systematic survey and registration of a growing proportion of the planet's land surface, the systematic titling of that land, the replacement of customary or informal mechanisms of governance and conflict resolution by national state institutions. The other is the homogenisation of the standards and rules used and adopted, not only at the national level, but also globally. Private freehold tenure is possibly the most consequential of among those increasingly universal standards, gaining ground hand in hand with the growing globalization of markets.
Critically, it must be emphasised that much of the discussion of tenure regimes in recent years has revolved around the economic, social and political consequences of these two general tendencies and around the degree to which they should be resisted or encouraged by policy interventions. A growing number of works [Quan et al. eds-2001, De Janvry, Gordillo et al., eds-2000] suggest that from the standpoint of social equity, economic efficiency, environmental sustainability and political stability, the consequences of formalisation and homogenisation are ambiguous at best and, in a number of instances, frankly negative. b) Access
Access to land has a number of meanings.
3 In its most basic form, it points to the ability of willing farmers or breeders to obtain land on which to plant and harvest or pasture on which to graze their herd.
Defined as such, lack of, or inadequate access to land is a very common problem, from land poor countries with high population densities, such as Burundi or El
Salvador, and relatively land rich areas with massive rural populations, such as in much of South Asia, to land-rich countries with relatively low population densities in rural areas, like Brazil. Demographic and natural factors play a role in limiting access, as in Bangladesh, but social and political dynamics are also very important. A case in point is Colombia where, at the turn of the century, land was acquired in massive quantities by a minority of landlords to ensure an adequate supply of labour for their estates [Legrand-1998: 35-7].
The problem of access, however, is broader than that of landlessness. Fragmentation ends up making access meaningless, when parcels become to tiny to sustain a family, as in Chiapas [Favre-2001], or when succession rules in situations of extreme density, as in Burundi, often leave sons with barely enough space to build their house [Gatunange-2002].
3 For a comprehensive overview, which does not however tackles conflict per se, see
Alain de Janvry et al. eds.-2001.
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Neither should access be thought of as strictly related to ownership per se, as it covers the whole range of property rights and arrangements, from grazing rights, share cropping, usufruct, and all possible forms and modalities of leasing.
Finally, access to land under any arrangement and in any quantity only takes on meaning when embedded within a broader constellation of factors, such as access to seeds, agricultural inputs, credit, transport infrastructure or, critically, as in
Palestine, water [Isaac-2002]. c) Security
Tenure security, however it is attained [Platteau-2000] is critical for a number of reasons. It has been shown to have an impact on investments, which are often discouraged by insecurity, access to credit, which is facilitated by sound titles, incentives for resource conservation, which grow with security, as well as crop selection, which are constrained by insecure tenure.
Institutions matter here perhaps more than in any other areas of land policy. While generalization on this scale is no doubt risky, tenure is possibly becoming less secure than ever before. It finds itself caught between the common—but not universal— breakdown of customary systems and attempts, by weak national states, to replace or do away with them.
The situation is difficult in poor transition countries, such as Cambodia, where the basis of traditional systems has been broken and new legal regimes are shaky
[OXFAM UK-2000; Cooper-2002]. It appears, however to be most critical in Africa, where “the laws and customs which have in the past assured farmers’ land rights” are under pressure [Atwood-1990], while the states that claim to replace them rarely have enough administrative capacity [Deininger-2001] to replace them, when they are not simply “failed,” or “informal” [Jackson-2002; Chabal & Dalloz-1998]. In such cases, all too frequent, one would be entitled to speak of a state-sponsored
“informalisation” of land tenure. In many instances, moreover, it is state actions themselves that create insecurity by instituting a legal pluralism that enable some to challenge customary systems by resorting to state authorities [Lavigne Delville-
2000:100; Rodriguez-2002]. The Americas are not immune to these shocks and ambiguities, especially in areas and countries where indigenous peoples have a strong presence or strong legal claims to the land, which means in fact much of the continent, from Colombia and Brazil to Guatemala and Canada [Durocher-2002]. d) Distribution
Unequal distribution is the most traditional topic in the debate about land and violence and it is the issue that has driven most attempts at land reform [McElhinny and Seligson-2000]. This problem is central to the discussion of land in the Americas
[Carter and Salgado-2001] but it is also acutely actual in Southern Africa, particularly in Zimbabwe and South Africa [Human Rights Watch-2002], where a small minority of people still control most of the land that is proper for agriculture.
Problems of distribution are not confined to large countries with massive farms and small populations. They also affect, often with even more disastrous political consequences, smaller countries and densely populated areas, such as Chiapas and
Palestine.
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Collective property, in particular state farms and state-sponsored co-operatives, used to be a significant component of the discussion of distribution, but market mechanisms now largely dominate policy initiatives and attention is now focused on the impact of liberalisation on the distribution of land between small and large land owners. e) A few caveats
These core issues are not objectively given, universal, or independent from one another. They are socially constructed and framed, their meaning changes according to the social, geographic and historical context and finally, they are inter-related.
The perceived acuity of these problems and their very existence implies that they be socially recognised and framed as realities and issues in a given social context
[Berger and Luckmann-1966]. The literature on socialisation and the work of social activists testify to the very subjective nature of these issues and to the fact that they need to be socially constructed as problems to become objects of action and collective mobilisation. This is perhaps most obvious in the case of distribution, as access and security have such brutal implications for survival that the threshold of their social existence is extremely low. However, research on disenfranchised groups, such as the Twa in Rwanda and Burundi, and Dalit in India, as well as much compelling work on gender has shown that the issue of access to land for as important a group as women, for instance, is far from even being problematised in many societies and even until quite recently, in academic work and policy interventions. No analysis, in sum, can limit itself or even focus primarily on socalled "objective" or "historical" grievances.
Beyond their constructed nature, access, security and distribution are very much context dependent. The repertoire of crops that are culturally, socially, technically, economically or politically available has a massive impact on the access needs of a peasant. The fact, for instance, that the agricultural discussion in Central Asia takes for granted that cotton and rice are to remain the agricultural mainstay of the region condemns everybody to "need" massive amounts of water in a region that has very little. Similarly, the productive cycle, pest resistance and productivity of a crop can drastically alter the “security needs” of a peasant. Compare dry and wet rice or coffee and bananas and think of the world change implied by the sedentarisation of cattle owning pastoralists.
Finally, the three issues are often profoundly inter-related: Weak tenure security can feeds concentration, with people willing to sell land they are not certain of owning at much lower prices, and environmental degradation, as owners have little incentive adopt long term land use strategies [Fearnside-2001], or both at the same time. As a result, insecurity often leads to landlessness or confinement of the poor to land of mediocre quality. The obverse has also been suggested, with secure individual freehold or collective ownership [Ostrom-2000 in Gordillo et al.-2000] providing a sound basis for sustainable small-scale agriculture and acting consequently as a bulwark against concentration.
1.2 Political nature
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Like all regimes, tenure regimes are inherently political: they are political constructs whose workings and outcomes are also political. As the institutionalisation of a particular set of rules, they crystallise a given distribution of power in the functioning of the regime itself and a certain configuration of differential access to land, security of tenure and distribution of ownership in the management of the assets they regulate. No adequate understanding of the conflict dynamics inherent to property regimes is possible that does not recognise their ultimately political nature.
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This line of reasoning must be taken further. Just like narrowly understood political regimes, tenure regimes can be democratic or authoritarian, their procedures can be more or less centralised, they can be more or less corrupt, stable or transparent, they can be discriminatory toward women, indigenous peoples, minorities, and so on.
Another facet of that political nature lies in the embeddedness of the tenure regime in the broader political system of a social unit. A tenure regime is in fact a local or sectoral specification of a broader political order. It must be analysed distinctly, however, as many of its characteristics can be different from those of the political regime in which it is embedded. A case in point is the tenure regime of Taiwan and
South Korea, which was extremely fair from the standpoint of access and distribution
–security is irrelevant here, although it was high—but whose origin and management were profoundly authoritarian.
This is an exception, however: in most developing countries, and in Latin America in particular, very inequitable social structures and very authoritarian political arrangements found a perfect correspondence in a most unfair land tenure regime
[de Janvry and Sadoulet-1993].
1.3 Validity
The central quality of a legal-political order is its validity [Kelsen-1938]. Such validity has two bases: 1) its internal consistency, if it is the overarching order, or, if it is an embedded order, both its internal consistency and its consistency with the broader legal-political order of which it is part, and 2) its effectiveness, i.e. the extent to which its rules are implemented, obeyed and enforced. A tenure regime is just such a legal-political order. Its validity derives from its consistency with the legal-political order or the broader political regime in which it is embedded, and from the extent to which its rules are respected and the decisions of its various instances enforced.
These two issues are interrelated: effectiveness is a necessary but not sufficient condition of validity and the degree of consistency has important practical implications for the effectiveness of the regime.
Neither its various mechanisms nor the extent of access, degree of tenure security or distribution of assets it defines have any bearing if a given tenure regime is not valid. This holds for both customary and formal regimes. Similarly, the validity of
4 In other words, one must take a much more forceful stand on this issue than
Ramirez, for whom it is a matter of interpretation: "Property regimes (…) can also be intepreted as an expression of the power balance (…) Regimes, laws and rights are part of the influences that underscore stakeholder and resource relationships; those relationships, in turn influence the countours of law and legal institutions" [Ramirez-
2000: section 2, p. 5].
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their outcomes define the relevance of conflict resolution mechanisms, be they formal or "alternative" (on which more later). a) Consistency
A tenure regime involves a number of principles, rules, jurisdictions and institutions.
Their articulation must be harmonious, i.e. the regime needs to be internally consistent. This problem is sometimes related to tensions in the legal framework. A case in point is Brazil, where constitutional guarantees regarding the protection of private property conflict with other constitutional provisions that guarantee a social function for land. The creative way in which this tension has been managed both by a large and well-organised social movement, the MST, as well as by the government, is at the very core of the remarkable land reform process currently taking place in
Brazil [Muller-2003].
Most consistency problems, however, regard tensions that result from the existence, in a given jurisdiction, of more than one relevant legal order. This problem is typically understood as legal pluralism. Some works paint pluralism as necessarily problematic [Lavigne-Delville-2000] and indeed, pluralism has been shown to have a number of drawbacks. These drawbacks are well described by Ricardo Ramirez:
"… the uneasy and unsynchronised coexistence of different bodies of law and different legal institutions has contributed to undermining the legitimacy of both systems. In its most dysfunctional variants, legal pluralism can:
- create a sense of confusion as to which body of law should and can be appealed to in a given type of conflict;
- offer opportunities for forum shopping by those whose financial and educational status makes it possible to operate effectively in both customary and state legal systems;
- disadvantage many people, often the poor and less educated, for whom formal state legal institutions are distant, expensive and conceptually foreign;
- create a sense of insecurity amongst land holders in customary settings as to whether their long-held rights will be respected by the state legal system, and can be defended against the incursions of outsiders, particularly with respect to common property resources held by the community as a whole, such as forest and pasture land" [Ramirez-2002, section 2 p. 4-5].
Ramirez also points out, however, that "the existence of plural land law regimes is not inherently problematic in many national contexts [Ramirez-2002, section 2 p.
5]." The problem lies instead typically in the existence of overlapping rules and competing jurisdiction.
5 The challenge of consistency, in sum, lies not in the
5 Ramirez-2000: section 2, p. 5. To these two problems, Ramirez adds the failure "to reduce the uncertainty and insecurity surrounding some customary systems by according them a greater degree of formal recognition in the eyes of the state." We do not think this is warranted as the problem of validity can be solved in a variety of ways, including full effective devolution, full effective centralization or any intermediate arrangement. It is not possible to ascertain a priori which of those solution is most likely to ensure the validity of the regime. One must be extremely
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establishment of a unitary system —which can also be contradictory— but in the harmonious articulation of the various components of the tenure regime, be they components of one or many particular legal orders. b) Effectiveness
The most consistent tenure regime remains a set of abstract rules and might as well not exist if these rules are not enforced, i.e. if the regime is not effective. Such effectiveness can be based on custom, the subjective adhesion of the population affected, social pressure, or repression, i.e. it involves legitimacy and the use of force [Ellul-1964; Weber-1978; Roth-1968: XXXV]. The relative mix of those sources of effectiveness is not relevant to the validity of the regime, although it has important bearing on the cost of its management, which goes up with the need to maintain and use an apparatus of repression.
A critical component of the effectiveness of a regime lies in its geographical reach.
This is perhaps best framed by what Jeffrey Herbst calls, when referring to the political system as a whole, the ability of a state to "broadcast power" over space
[Herbst-2000]. The "gaps" that are regularly noted in the discussion of land tenure institution refer precisely to the inability of state institutions to effectively regulate tenure issues over their whole territories.
In Africa, the limited reach of state apparatus, in many cases little beyond the periphery of the capital city, is a major impediment to the effective institutionalisation of a tenure regime —be it unitary or pluralistic. This problem is less acute in Latin America but quite a few states still have limited abilities to enforce a tenure regime, or for that matter any other regulation, over the whole national territory. c) Normative dimensions: fairness, efficiency, environmental sustainability
The effectiveness of a tenure regime points in sum to its reach and to its political sustainability. The latter, however, must not be confused with the normative status of that regime. A given set of rules can be valid, i.e. internally consistent and effectively enforced, without those rules being legitimate —i.e. their enforcement can rely primarily on the use of force. Moreover, the validity of a regime says nothing whatsoever about the fairness of its arrangements, their economic efficiency or their environmental sustainability, to use only three of many possible normative parameters.
As will be discussed further in the sections on conflict and conflict resolution, validity must be assessed separately form normative issues. In the simplest possible terms, inequity, inefficiency and environmental unsustainability can be perfectly sustainable in political terms, i.e. can be very much compatible with a valid order. This is most obvious in the case of women's rights which tenure regimes almost universally flout without many political consequences [Deere and León-2002].
In other words, one must be careful not to confuse, for example, validity with fairness, or inequity with instability. Recognition of the normative ambiguity of careful, in particular, not to idealize customary arrangements. We will come back to this issue in section 6.
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conflict resolution or prevention per se, as distinct from specific cases that can only be identified on a case by case basis, must be part and parcel of any assessment of their functioning.
2. Land Conflict
Land conflicts are always explicitly associated with objective differences in access to land, security of tenure, and the distribution of entitlements over land. These define conflict "potential", especially when those differences overlap with class and especially ethnic boundaries. Much recent research on conflict suggests however that such endogenous factors are secondary to political opportunities and the mechanics of political mobilisation itself. These two groups of factors are exogenous to the characteristics of the tenure regime, except its validity, i.e. its ability to consistently enforce its rules.
2.1 Differential impact, grievances and conflict "potential"
The stakes in land conflict can be subsumed under a given tenure regime's enforcement of a certain breadth of access to land, a degree of security of tenure, and a given distribution of rights over land, including ownership.
Landless peasants can fight for a piece of land among themselves, with "foreigners", with the government or with holders of large expanses. Owners can fight over the relative value of competing claims to land, water or grazing rights, or they can fight to gain a higher level of security to enable investment, access to credit or the sale of their particular claim. Finally, small landholders or landless peasants can use or threaten violence so as to get a better distribution of landholdings, and these attempts can be resisted, sometimes violently, by those who currently own them.
A given regime always defines differential access, security and distribution. Any change in the regime or any change that affect the regime also has differential impact. In stability or in change, not everybody wins or loses to the same extent and, as a result, conflict or its potential is an inherent part of the functioning, the reform or the transformation of a tenure regime.
While one could always conceive those involved in conflicts as abstract individual actors, it is useful to examine conflict potential by looking at differential impacts from the standpoint of three social categories —gender, class, and ethnicity— that typically ground social identities.
Tenure regime the world over have typically placed women in a subordinate and sometimes marginal position [Deere and León-2002]; they have been one of the most fundamental component of unequal social structures that pit rich against poor, latifundiarios over peones, and more generally "lords and peasants"; finally, they often organise the distribution of land, access and security around ethnic identities.
Differential access, security and distribution among gender, classes and ethnic groups define grievances and as such they create potentials for mobilisations, violent or not, and thus for conflict. Between those potentials and these mobilisations, however, there is a very broad gap and one that might not need to be bridged: the existence of objective grievances appears increasingly to be neither sufficient nor even necessary for conflict to occur.
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2.2 Beyond "objective" grievances
The existence of a linkage between "objective" grievances and violent conflicts has been challenged by a large body of recent work on the political economy of conflict
[Collier-2000; Collier and Hoeffler-1999; Berdal and Malone-1999], on the political sociology of social movements and contention [McAdam, McCarthy, and Zald-1995;
McCarthy, Tarrow and Tilly-2000], and on the role of ideology and of intellectuals in revolutionary movements [Furet-1985; Grenier-1999; Wickham-Crowley-1993].
In policy circles, unfortunately, the only well known version of that challenge is Paul
Collier's, which is certainly the most simplistic in its focusing essentially on the issue of resources, as the main fuel of conflict, on the opposition of grievances and greed
[1999; 2000], as motives, and on the theory of false consciousness to explain largescale support for violent mobilisation [2000]. The only solid components of his model, the marginality of objective grievances and the centrality of resources to social movement success, had been established long before.
6 Already at the beginning of the 1970s, Killian and Turner could ascribe to what would soon be called
"resource mobilisation theory" the basic contention that "… there is always enough discontent in any society to supply the grassroots support of a movement if the movement is effectively organised and has at its disposal the power and resources of some established elite group" [Turner and Killian-1972:251]. Building on the research body that has specified and developed these last basic intuitions, one can analyse conflict by looking at three constellations of factors: political opportunity, mobilising structures, and ideological framing. a) Political opportunity
In its broadest sense, political opportunity refers to the institutional environment in which a mobilisation takes place, and identifies weaknesses in that context as critical factor of success. A classic analysis based on this hypothesis is Theda Skocpol's analysis of the role of war in the weakening of states that were, as a result, engulfed in revolution. Looking at France, Russia and China, she suggests that as a result of war, the state apparatus had become too weak to manage or resist the pressure of social movements in which peasant masses were central actors. [Skocpol-1980].
In terms of the preceding discussion of regimes in general and of tenure regimes in particular, this obviously points to what we have called the problem of "validity."
Political opportunities would be created by regime inconsistencies —as in the previously mentioned case of Brazil's constitutional order— and weak effectiveness, i.e. it would result from the unclear basis and the limited capacity for regime enforcement.
It is easy to see how this simple category enables one to encompass events such as international or civil war or the AIDS epidemics, processes such as the breakdown of a customary system or growing competition between the latter and an increasingly
6 Collier's theory of "greed" as a central motive of insurrectionary elites is particularly strange: with $600 million or $2 billion in a Swiss bank account, which greedy man or woman would spend his or her life "camping" in the jungles of Colombia or
Angola, and running from death squads and whole army battalions? The enthusiastic reception and acceptance of such a wild assertion in some academic and policy circles is just as bizarre.
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intrusive central state apparatus, policy intervention such as structural adjustment or a World Bank-sponsored program of individual titling, under a single heading, assessing all of those factors from the standpoint of their impact on the institutional resiliency of a given tenure regime. b) Mobilizing structures
These opportunities would remain so were it not for social enterprises that endeavour to exploit them. For these, organisational effectiveness and the ability to generate or capture resources are critical. The new economics of conflict focuses strictly on the latter, identifying in particular the presence of "lootable" commodities as a major risk factor [Collier-2000]. The history of Latin American guerrillas, including successful ones such as Cuba's, Colombia's before drugs came to play a central role in its financing, Nicaragua's and to a significant extent El Salvador's, suggests however that in the absence of high-value added primary products, a wellorganised group of ideologically committed individuals can literally create its resource base [Wickham-Crowley-1993; Grenier-1999].
This obviously does not diminish the centrality of resources for the emergence and reproduction of an organisation that is a party to a conflict, land-related or not. It points, however, to the subsidiary role played by the availability of resources and to the centrality of organisational structures. c) Ideological framing
Finally, conflict —like peace— simply could not be understood without factoring in the meaning that people attach to it. One needs to define a given lack of access, a given insecurity of tenure or a given distribution of land ownership as "unfair", "inefficient" or "unsustainable". One needs to identify some people as its "victims", and these as a collectivity, be it a gender, a class or an ethnic group. One needs to construct the past and the present as a history of oppression, exclusion or marginalization. One needs to point to a different set of rules as a solution to current problems or injustice and finally, one must define violence as a legitimate and effective tool to address the problem.
Conflict takes place in a context that is thick with meaning and when that meaning changes, the whole situation changes. A case in point is El Salvador, or the whole of
Latin America, for that matter, where in the 1960s and 1970s, "inequality," for thousands of people, was considered utterly unacceptable and called for redress by all means, including the of violence. Forty years later, very little has changed from that standpoint and yet, guerrillas have demobilised and violent revolution is in most of the continent completely outside the agenda. The frame has changed.
2.3 Conclusion: Regime validity, political opportunity, and conflict
The mobilising structures and ideological framing that make violent social action and conflict possible are outside the realm of the tenure regime per se. The validity of the latter, however, to the extent that it defines the extent to which political opportunities exist at any given moment or in any given region, are clearly related to conflict. The link between a given tenure regime and conflict should thus be sought primarily in the validity of that regime, i.e. in its ability or inability to enforce a consistent system of rules over a given territory. The specific characteristics of a
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given regime, in terms of access, security and distribution, are immaterial when and where that regime is valid.
This applies to both customary and formal regimes and to all their components including, crucially, the mechanisms through which disputes and conflicts are resolved.
3. Conflict resolution, alternative or otherwise: A framework
The previous two sections lay the ground for a basic framework that can be used to analyse, compare and assess conflict resolution mechanisms.
A fundamental component of any tenure regime –or for that matter, of any regime— consists in the mechanisms through which disputes regarding its internal functioning as well as the application of its rules regarding access to land, security of tenure, and distribution of land are resolved. The enforcement of these rules and the non-violent resolution of those disputes are in fact a test of the validity of the regime, which in turn is a condition for the validity of the conflict resolution mechanism.
3.1 Validity, immediate effectiveness, and cost
The validity of the outcome of the conflict resolution process or mechanism, i.e. its consistency with the broader tenure regime and with the broader legal-political order of which the latter is a part, must be considered its ultimate test. A review of cases, however, suggest that it might be useful to examine two other dimensions of those processes and mechanisms, namely their immediate effectiveness, i.e. their ability to defuse a dispute when and where it emerges, and their cost.
The immediate effectiveness of conflict resolution points to their specific mechanics: how they are run, how participative or not they might be, who has the authority, what procedures are involved, what language is to be used, and so on. Much of the literature on conflict resolution is concerned with this problem. As will be shown in some of the case studies, however, it is important not to confuse the ability of a given mechanism to produce an outcome that defuses tension in a given place at a given time, with the ability of that same mechanism to produce an outcome that will be valid, i.e. that will be consistent with the broader tenure regime and with the overarching political structure, and that will be enforced by its effective authorities.
In other words, immediate effectiveness is no guarantee of longer-term validity.
The cost of a given conflict resolution mechanism is critical. Complex and necessarily expensive court proceedings, for instance, are profoundly exclusionary, especially but not exclusively for poor people. This can lead individuals, communities, unions or companies to prefer "alternative" mechanisms. This is for instance the origin of the very large movement towards alternative dispute resolution, mediation and arbitration in corporate North America. Conversely, Elinor Ostrom has suggested that the continuing use of tribunals for the resolution of conflicts over resources must be understood as the result of a comparative assessment of the relative costs and benefits of alternative and formal conflict resolution mechanisms [Ostrom-2000]. The same obviously holds for the still overwhelming preference of corporations for litigation.
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As should be obvious from this last example, the three factors are profoundly interrelated and validity is the core issue: it is critical to the cost assessment that drives resort to formal or alternative mechanisms, and it ultimately determines the long-term usefulness of specific procedures that meet with local and immediate success.
3.2 Formal or alternative
It should be clear from the preceding discussion that the challenges to be met by formal and alternative conflict resolution mechanisms are identical: the best of them will be immediately effective, they will be cheap and their outcomes will be valid over time.
In fact, a discussion that would severe the assessment of "alternative" mechanisms from an examination of their embeddedness in the broader legal-political order, which in this day and age means everywhere the national state and its "formal" institutions, risks producing results that are meaningless once inserted back in their empirical context. The idea, for instance, that there would be something relevant to be learned from corporate use of ADR in North-America for land conflict resolution in much of the developing world is simply absurd: the meaning of ADR in North-
America is completely derived from its insertion in the most minutely defined –and most expensive-- legal environment in the history of humankind. The "lessons" learned there would have utterly distinct meaning, if any, in the very tight and consistent customary environment that prevails in Guiné Bissau, or in the still fluid and poorly defined legal-political order that effectively regulates land tenure in some parts of Chiapas.
3.3 Summary of the analytical framework
A given tenure regime can be analysed in terms of: the relative validity of its institutional components, formal or not; differential access to land, from the standpoint of gender, socio-economic and ethnic groups; security of tenure, both in absolute terms and from the standpoint of gender, socio-economic and ethnic groups; distribution of land, among gender, socio-economic and ethnic groups.
A given conflict can be analysed in terms of: the political opportunities that make it possible; the mobilising structures and the resources its participants can dispose of; the ways in which those participants are framing the situation.
A given conflict resolution mechanism, formal or informal, can be analysed in terms of:
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its immediate effectiveness, in time and in space; its cost; its long-term validity.
4. Overview of cases
This section is a work in progress. Using the framework just outlined, it organizes the information generated by a series of case studies. Not all the "boxes" are filled as none of those studies were made using this framework. However, each case examined provides insights that are relevant to conflict resolution and its mechanics.
Some of the cases examined are not from Latin America. As will be shown in the next section, however, this is not consequential and it does not prevent us from identifying transversal issues that are very much relevant to land policy in this particular region.
Finally, it must be emphasized that these short analyses cannot do justice to the richness and originality of the cases studies themselves, nor are they meant to do so. The objective of this section is, modestly, to infer some basic insights from a systematic, and as such necessarily reductionist, comparison exercise.
4.1 Ecuador
These comments are based on the study of a conflict that took place between two communities in the province of Esmeraldas [Morales Feijóo-2002] with conflicting claims over the same land. Non-formal mechanisms of dispute resolution were successfully used. a) Tenure regime
Institutional components
The formal regime in the region examined is very weak. While territories have been adjudicated to the various groups, most of the land is still to be surveyed, titled and demarcated. The respective competence of the government institutions charged with the management of agricultural and forestland is unclear, whereas much of the land can apparently be characterized as either. Moreover, administrative and technical support to the population affected is lacking as are the resources that would be needed to secure it. State presence is limited and in fact, the relationship between the communities and the government regarding tenure arrangements appears to have been mediated by NGOs.
A variety of tenure arrangements do exist in practice, but they are poorly specified and regulated. Even for the two communities involved in the conflict, whose property is primarily communal, a range of arrangements are found in practice, involving individual, family and collective ownership.
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Customary regimes are also weak. The Afroequatorian community lacks a local organization and the Chachis have seen the traditional authorities, with their knowledge of traditions and customary rules, being displaced by a new generation of leaders that does not have those competence.
As the examination of the case makes clear, moreover, there is simply no institutionalized mechanism for the resolution of conflict over land that is available to individuals or communities in the region, which explains why the intervention of
NGOs was a sine qua non.
Differential access
The constitution gives a special status to land traditionally occupied by indigenous and afro-equatorian people. Land allocation by the National Institute of Agriculture conforms to those parameters, insofar as the communities keep to their traditional customs and traditions. In addition such land are inalienable, i.e. they are taken out of the market, notwithstanding the views of the communities that formally own them.
In practice, access is increasingly limited, even for the members of those communities. Pressure on the land is increasing for a variety of reasons: there is significant demographic growth among the communities themselves but the problem is made worse by the presence of colonists and the growing presence of large companies involved in palm cultivation and forestry. Finally, there are also protected areas in the region. The resulting land scarcity leads to instances of invasions by displaced peasants.
Security
Tenure security is generally poor. The constitutionally mandated right to land for indigenous and afro-equatorian communities, which is also recognized by the government agencies charged with the management of agricultural land, has not been acted upon.
As mentioned, much of the land in the region has not been legalized, which affects tenure security for mestizo colonists as well as for palm and forestry companies. The problem is made worse, however, by the informal arrangements through which colonists have "acquired" communal land from indigenous and afro-equatorian individuals or families. Commercial exploitations sometimes also takes place on land that formally pertains to traditional communities, thanks to political support. In both those cases, the illegal character of the process makes securing the tenure impossible.
Distribution
The case study does not mention a problem of distribution, although the presence in a single territory of a growing contingent of land invaders and of large commercial ventures points to a process of concentration. b) Conflict
The conflict examined pits Chachi and Afro-Equatorian communities. While land scarcity and the growing competition among and between the various players in the
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region was generating tensions, it is an external intervention that catalyzed the conflict. To accelerate the legalization of their land, the Chachis sought the help of the National Confederation of Equatorian Indians (CONAIE) and through them was able to secure the support of two international NGOs. The process was indeed accelerated but demarcation was blocked on the ground by the Afro-equatorian community, whose members felt their land was being taken away in the process.
Political opportunity
Very clearly, the conflict develops in the context of the weak state presence in the region and of the slow progress in the legalization process. In addition, however, interests in indigenous rights, in the national indigenous lobby and among international NGOs, provided the leverage needed by the Chachis to push their claim over that of an Afro-equatorian group whose level or organization, locally, was much lesser, and who did not have international support.
Mobilizing structure
None of the two groups appears to have organized specifically for the confrontation and, as a result, levels of violence appear to have been limited. It is clear, though, that the Chachis could rely, with CONAIE and its international network, on much more extensive organizational support and resources. On the ground, though, and in the face of active resistance by the Afro-equatorian communities, these resources were not used, arguably because of their very nature.
Framing
Three symbolic frames are relevant to the confrontation. The first one involves the legitimacy of the claims of both communities in terms of their traditional occupation of the land. This is the logic that is enshrined in the Constitution and the one that, in theory at least, guides government interventions in the region.
The second one is centred on indigenous rights. It gives prominence to the Chachi claims and is critical to the mobilization of both CONAIE and the two NGOs involved.
The prominence of that frame at first put the Afro-equatorian community at a disadvantage and in some way forced it to physically resist the Chachi claim.
The third frame is environmental and is also key to the intervention of the two previous NGOs but also to that of a third one in the conflict resolution process per se
–to be examined next. From that standpoint, tenure security is critical to the protection or natural resources, an issue of particular importance in this region of exceptional biodiversity. It must be pointed out that this logic was tightly woven to that of indigenous rights as the protection of ancestral land was seen as a critical means to ensure environmental protection. c) Conflict resolution
The conflict was resolved thanks to the intervention of a third NGO, which was previously involved in the development of a cadastre and land registry, activities for which the project –CARE-SUBIR- had developed a program of legal support for conflict management through the training of paralegal community advisors.
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The latter, recruited from within the community, were trained in mediation and conflict management techniques, as well as in land survey. They organized and facilitated an extensive consultation process through which the members of each communities were asked to reconcile their claims and agree on multi-dimensional maps that specified each communities' entitlements. Throughout the process, the systematic writing of the claims and mapping exercize emphasized and facilitated participation and transparency. Thanks to the presence of paralegals from each of the communities, no outside involvement took place until the agreement was reached. Once the maps were agreed to by assemblies in both communities, they was then taken to CARE/SUBIR and, through the NGO, transmitted to state authorities.
Immediate effectiveness
While the study does not specify the time frame of the process, it notes that the extensive consultation slowed it down significantly. Moreover, there was resistance to the involvement of the paralegals among the new Chachis authorities, who saw them as a possible threat. In the end, however, agreed-upon maps were produced and this must be considered a successful immediate outcome. Confrontations, moreover, stopped.
In appears, in sum, that the technique used —systematic documentation, mapping, consultations, participation— and the assumptions —community members as facilitators of the process— worked on this issue and for these communities.
Cost
Once again, the study does not specify cost, but we can infer from various components of the discussion these were significant: 1) the comprehensive character of the training of the paralegals —mediation, conflict resolution and land survey; 2) the length of the process also implies important cost; 3) the involvement of an NGO from the outside in taking the process along its next steps, i.e. before government authorities.
It appears that the communities involved, especially the Afro-equatorian, who are devoid of community organization and whose mobilization was not supported by a national organisation, such as CONAIE, would have been unable, on their own, to support such process.
Long term validity
This issue appears to be most problematic. The study says nothing about the crucial next step, i.e. the acceptance, implementation and enforcement of the agreed-upon compromise between the two communities. The conflict resolution process was highly dependent on the targeted intervention of an NGO that has implementation capabilities –surveys, cadastre, land registry- but no enforcement capacity. The outcome of the process, in other words, does nothing to compensate for the weakness of the formal and informal tenure regimes.
Assuming that their land will effectively be legalized, it is likely, given the context, that other interests will be affected who are likely to contest, formally or not, the outcome, for instance commercial ventures or simple colons. From that standpoint, the ad-hoc character of the intervention and the absence of any kind of
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institutionalized conflict resolution mechanism, be it state controlled or not, leaves the ultimate status of the communitie's land open to question.
One could also add to these problems the fact that nothing was done to deal with the underlying causes of the conflict, namely, increased pressure on the land, both from within the traditional communities and from without. This, however, simply cannot be attributed to the conflict resolution mechanisms per se.
4.2 Mexico
This analysis is based on a study of conflict resolution in the context of the new tenure regime inaugurated by the 1992 reform of the constitution and the Agrarian
Law that specified those changes [Appendini-2002]. The study focused on communal land. a) Tenure regime
Institutional components
The current regime articulates three forms of property: full private property; inheritable collective use and usufruct of national land (ejidos); and full common property (comunidades agrarias). While private property is directly governed by the state, ejidos and comunidades agrarias have their own organizations, albeit their respective legal framework are defined by the agrarian law [Appendini-2002: 5-9].
While formal arrangements are comprehensive and the regime involves a highly developed and well-differentiated institutional apparatus, a number of weaknesses limit its general validity, in particular as pertains to access to land and security.
Differential access
Landlessness and land poverty remains a problem. Under the previous regime, land restitution to dispossessed comunidades agrarias, land endowments to landless or land poor peasants, ejido expansion and ejido creation, involved lengthy and complicated processes that left many without land or with too little of it. The new regime's emphasis on tenure security and the end of distribution as a means of agrarian reform limits the scope available to deal with those problems. Moreover, changes in the new law have had negative impacts of specific groups, as women, in particular found their rights weakened by the changes in inheritance rules according to which ejidatarios can appoint any person as their heir whereas, previously, the rights were passed to the wife and children [.32].
Security of tenure
The main goal of the 1992 reform was to increase tenure security to favour investment and productivity growth in the agricultural sector. A significant opening to a liberalization of the regime was introduced as individual ejido plots could now be turned into full private property following a vote of the ejido assembly. While this option was not formally open to comunidades agrarias, they could choose to become ejidos, which makes it possible for them to subsequently privatize family plots. A major program of titling and certification was launched in 1993. Called PROCEDE, it is meant to regularize the land tenure situation and management of communal
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lands, from boundary definition to the consolidation of communal mechanisms of governance and conflict management.
The program remains a work in progress and significant uncertainty continues to plague the tenure regime. One problem is that ejidos can decide not to become involved. Most limitations, however, appear to be related to the limited ability of the existing conflict resolution mechanisms to deal with emerging disputes, be they related or not to the implementation of the new reform program.
Distribution of land
Once century land reform has dealt with all the large haciendas. The growing fragmentation of ownership in some areas, however, leads to skewed distribution even in the absence of large holdings [Favre-2001]. This, however, does not appear to be a significant source of tensions, especially when compared with the access and security problems. b) Conflict
Conflicts arise both between and within communities. Most inter-community conflicts concern land boundaries and while their resolution is never easy, the nature of the problem is quite straightforward. Not so with intra-community conflicts which sometimes also turn around plot boundaries, but also regard inheritance issues, assignation of rights within the ejido or the comunidad agraria, the use of common land, the administration of community resources, or the political dynamics related to community governance per se.
In addition, however, quite a few conflicts oppose communities to outsiders, from illegal settlers to forest loggers, cattle rancher, large development projects, statedriven natural reserves and illegal traders of drugs or endangered species
[Appendini-2002: 43].
Political opportunities
Basic regime deficiencies, particularly regarding the mapping of communal land and plots, the quality and precision of the cadastre and land registry, and the still incomplete titling of the land generate significant amounts of tension. The changes in the inheritance rules also create disputes. In addition, however, the relatively ineffective functioning of existing conflict resolution mechanisms, both at the community level and beyond it, is itself an important source of conflict: not only does it let fester tensions resulting from access and security problems, but the sometimes poor functioning of the various instances of conflict resolution also generates tension.
Finally, the main government initiative —PROCEDE— does not reach many of the most conflictive areas, in part because it is a reactive program that depends on the willingness of the communities to be come involved, and in part because of its limited capacity to deal with conflicts that involve a large number of players, which paralyzes any attempt at setting up a negotiation process.
When considered as a whole, these problems certainly do not make for a failed regime or even for a weak one, and this lack of opportunity appears to have played an important role in the type of mobilizations that have been taking place: rarely have they led to collective actions that reached beyond the level of one or two
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communities. It is at that level, however, that most of the tensions exists, and in the areas that are most conflict that the state's presence is the lightest.
Mobilizing structures
Most of the cases examined involve individual- or local-level mobilizations. The study makes a few references to violent confrontations. In most cases, however, the disputes were dealt with, however inconclusively, through legally instituted channels, from the community to higher-level institutional arrangements. In all but a few cases, the individuals or the community had to rely on its own resources, with a few cases of NGOs or peasant organizations' getting involved but on the whole, having a limited impact on the general functioning of the regime.
Framing
The 1992 reform appears to have hollowed-out or at least severely weakened the ethnic rationale for political mobilization on land issues by giving ejidos and communidades agrarias much autonomy but at the same time leaving to their institutions the possibility of breaking down their very own material basis by privatizing ejido land. The cases mentioned in the study thus involve rationales that run a very broad range of possibilities, from narrowly defined individual rights, to women's rights, to traditional communal land to ecological sustainability. Such fragmentation of political framing certainly makes the management of conflict at the regime level much easier. c) Conflict resolution
Effective conflict management was a key objective of the PROCEDE initiative.
Favoring decentralization and participation, it was meant to increase the ability of the local authorities to resolve local dispute and to encourage as much as possible compromises between individuals. This was done through the careful articulation of local level norms and practices with the overarching legal framework: autonomous and participatory spaces were thus defined and structured as integral parts of a highly differentiated and organized institutional framework [3].
In organization terms, conflict resolution lies primarily in the hands of the ejido or comunidade agraria's assembly. Problems that are not resolved at that level are tackled through external processes of conciliation, arbitration and, ultimately, to the agrarian tribunals.
In many ways, this is possibly the most comprehensive attempt at creating a functioning tenure regime on a pluralist basis, capitalizing on the legitimacy, effectiveness and low costs of locally established communal structures of authority.
In many ways, and in spite of the many limitations already mentioned, and of the contradictions and lacunae that will soon be, this experiment appears to be singularly successful.
Immediate effectiveness
The study suggests that there are still many problems with the system. It appears in particular that the current structure is unable to resolve far too large a number of
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case to be considered efficient. The author notes, in particular, that the highest reaches of the system, the agrarian tribunals, have "received 109,000 cases of which
85% were of ordinary competence" [Appendini-2002:32] which is a clear indictment of the effectiveness of lower-level resolution mechanisms.
It also means that the process is slow, which affects access and tenure security, which further damages the tenure regime's legitimacy.
Cost
The de facto centralization of the resolution of local disputes involves very high costs, which not only impacts on the efficiency of the regime as a whole also puts the poorer contenders in those disputes at a disadvantage.
Long-term validity
The basic structure of the conflict-resolution mechanism appears to be sound, as the system is geared toward recognizing the decision of the level that is closest to the individuals and the communities involved, thus making the best possible use of local norms and community-level social capital.
As the author points out, given the problem of effectiveness that were just noted, the challenge is to create conditions in which individuals or local authorities could resolve most of their disputes without any need to move to higher and more central authorities. For that purpose, she suggests changes along two paths: the first involves deepening democracy and participation at the local level, so as to strengthen the legitimacy of local-level authorities and, presumably, to increase in this way their ability to resolve conflicts; the second involves the capacity-building and of the various players, from PROCEDE agents to community members, in mediation and conflict resolution.
We will come back in section 5 to those proposals and on the assumptions on which they are based. For now, however, we can conclude that the long-term validity of the outcomes of land conflict resolution in Mexico depends on the ability of local-level instances to manage a growing proportion of the disputes that arise.
4.3 Guatemala
This analysis is based on a comparative case study of the recent experiences in land conflict resolution in Guatemala [Castañon-2002], which provides a comprehensive survey of the various ways in which government and non-governmental institutions have been dealing with land conflicts since the end of the civil war. a) Tenure regime
Institutional components
Guatemala's tenure regime is remarkably under-developed, dysfunctional and ineffective. Most municipal boundaries are only demarcated provisionally, for instance, and many of those provisional boundaries are not even clearly established
[Castañon-2002:66]. The situation is obviously little better and often worse as one gets down to communal land and individual plots.
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A number of governmental institutional arrangements have been set up in recent years to deal with land surveys, titling, cadastre-development and land conflict resolution. Most are underfunded and/or utterly dependent on external funding. The mandate and jurisdiction of many of those organizations overlap and/or are poorly defined.
In the de facto institutional vacuum, a large number of organizations have become involved, particularly but not exclusively in the field of conflict resolution, from peasant and indigenous organizations to the Church and international NGOs, from international organizations such as the OAS or the UN to bilateral aid agencies like
USAID.
Land administration and governance, as a result, is utterly lacking in consistency and in effectiveness. Guatemala does not have a valid tenure regime.
Differential access
Landlessness and land scarcity is a very old problem in Guatemala, one that time has not lessened. Colonization, government-sponsored or spontaneous, is reaching its physical limits as the country's traditional safety valves see such competition for land that they have become its most conflictive regions: according to the government,
80% of the land conflicts in the country take place in the five departments of the
North and North-Central parts of the country [Castañon-2002: 33]. A demographic explosion among indigenous peoples and a continuing problem with land concentration further aggravates the situation.
Security of tenure
The very poor quality of land administration and management have resulted in very high levels of tenure insecurity. Land is poorly surveyed and land registries unreliable. Castañon gives the example of the San Jacinto municipio, with a total area of 60 square km, and registered land totalling 89 square km, a situation that is probably not very exceptional.
Among the most important factors of tenure insecurity, the study documents cases of overlapping rights, poorly defined boundaries and formal dispute resolution mechanisms whose outcome is not legally binding. The problem of landlessness that was just noted, which feeds illegal occupations, the limited enforcement ability of state institutions, as well as the very conflicts that stem from all those factors create a quasi-generalized situation of insecurity.
Distribution of land
Concentration of land ownership has been and remains a major problem in
Guatemala. The Peace Accords' provisions for agrarian reform were submitted to a national referendum and turned down following a massive effort by latifundista lobbies and a less than convincing one by mainstream political parties and organizations. The (mis)distribution, moreover, continues to follow ethno-racial lines. b) Conflict
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With the end of the war and the massive repression of the peasant population that accompanied it, and with the opening of a space for public representation, land conflictivity has exploded. It appears to centre primarily on issues of access and security.
Political opportunities
The extreme weakness of the tenure regime meets very poor state capacity to enforce any of its laws or any of the administrative decisions of its various administrative components. This creates an environment where the space for the use of unregulated private or collective power and violence is extensive. Regime enforcement depends largely on the political wherewithal of the players involved and thus varies extensively.
Mobilizing structures
The variety of sources of land-related tensions, the decentralized nature of the disputes and the very weakness of the tenure regime, which does not provide a clear target for political action, favour a fragmentation of the mobilization processes that has not been compensated, as in Brazil or, to a much lesser extent, in the Philippines
(see below), by a successful attempt at "federating" local demands and integrating the various local movements into a larger political movement.
The presence of various state institutions and especially of a number of foreign agencies, and the resources each made available to the players probably also contributed to the continuing fragmentation of land conflicts and of attempts to resolve them.
Framing
The weight of inter-communities tensions and the relative displacement of the national-level concentration issue, which clearly defines ethno-racial coalitions, by access and security preoccupations at the local level, which do not, as the fight for specific rights or specific plots of land can just as well involve poor indigenous neighbours than rich ones [Stoll-2000], no doubt made it difficult to frame the surging conflictivity in ethnic or even in class terms. This probably also played a role in the weakness of the mobilizing structures beyond the local level.
As a rule, in sum, while discourses of identity certainly structure many of the conflicts examined by the study, these are very much local and essentially horizontal and most conflicts examined are framed in just those terms. c) Conflict resolution
The study examines eleven different land conflict resolution endeavours, each of which were involved in various, in some cases hundreds, of conflict. Four of those endeavours were led by government institutions (FONTIERRAS, CONTIERRA, CONAP, and the Secretariat of the Presidency, for the other); four by civil society organizations (the Catholic Church, ERIPAZ, the Mesa de negociación de Verapaces, and peasant organizations: CNOC, CONIC, CUC); one by a foreign NGO (CARE); and another two by international governmental organizations (the UN "MINUGUA" mission, and the OAS-Propaz initiative).
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The specific procedure used varied, but most involved extensive consultations and participatory methodologies and included training and capacity-building, be it on mediation and conflict resolution or on the legal dimensions of the project. Many involved mediation interventions but others also included open support for the political organization of the peasantry.
Immediate effectiveness
As a rule, land conflict resolution is not very effective in Guatemala today and it represents in fact one of the weakest components of the tenure regime. The various endeavours examined met with the most varied results and none of them can be considered significantly more successful than the others. There is in particular no correlation between the methodology used and the rate of immediate success: in some cases, simple mediation and representation of the community's claims proved enough, in other cases, extensive consultation and training led nowhere, in others very strong political organization proved insufficient, and in still others, only government involvement to buy land proved enough, and so on.
Cost
One of the two bottlenecks that the author identifies to explain these poor results is the lack of financial resources both for the effective functioning of the conflict resolution mechanisms and for the resolution per se of the conflicts, for instance through the acquisition of contested or alternative plots. He points out that successful negotiation processes always benefited from the material support of NGOs or religious organizations, typically to ensure that poor peasants could even only join the conflict resolution process.
From the other side of the ledger, this means that current mechanisms are too costly, which has the predictable consequence of excluding the poorer parties. It also means that with current arrangements and given the financial resources available to the government and/or the communities, the conflict management system simply cannot deliver resolution and while the author points exclusively to the need for more international support, there is no reason to look also at the determinants of such high costs —and perhaps also at the benefits of such an exclusionary system and, beyond the strict limits of land administration, at the consistency of such arrangements with the broad functioning of the Guatemalan state.
Note that these remarks concern the "system" as a whole, i.e. including not only the mechanisms run by the Guatemalan government, but also those that have been set up and are being run by civil society actors and international organizations.
Long-term validity
The high cost of the current system is obviously a major impediment to the longterm maintenance of its outcomes and to its ability to maintain any degree of legitimacy.
There is another weakness to the system, however, that is even more crippling: the formal articulation of the various conflict resolution mechanisms in place to the overarching legal framework is absent in all cases but that of FONTIERRAS. This basically means that the outcome of most processes can be legally contested by the losing party without any guarantee that it can withstand the challenge, with further
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risks of conflict down the line. What we have in fact, in the narrowly defined subregime of land-conflict resolution, is an utterly dysfunctional pluralism.
When combined, these two bottlenecks make for still more clogging, as the diffusion of relatively limited amount of resources among a large number of competing but, for the most part, ultimately invalid processes further limits the sums that could effectively be put to good use.
The weight of this specific weakness, however, should not be exaggerated. The multiplication of non-state land conflict resolution process results from the utter inability of the state to manage conflicts as they arise or to deal with some of the basic sources of conflictivity, i.e. the absence of an effective land reform that would quickly free large mounts of land and open up much space for local level accommodation. This case reminds us, in other words, that one should be careful not to reduce the problem of the long-term validity of conflict resolution mechanisms to a technical issue or to a problem of allocation of external funding.
4.4 Philippines
These comments are based on a study of two cases of conflict in the Negros
Occidental province of the Philippines, a zone described by the author as "the last bastion of landlordism in the country" [9]. The first conflict opposed farmers and farm workers who were beneficiaries of the land reform program, and landlords that were resisting the program. The second conflict involved three different groups of land reform beneficiaries with competing claims over the same piece of land. In both cases, non-formal processes were involved but only in the first case have they produced a successful outcome. a) Tenure regime
Institutional components
For more than half-a-century, land policy in the Philippines has been centred on addressing the emancipation of tenants and the dismantling and redistribution of large properties. Land reform is inscribed in the 1986 constitution (Art. XIII, section
4) and regulated by the 1988 Comprehensive Agrarian Reform Program (CARP), which extends the reach of the reform to "all private agricultural land[,] regardless of
[the] crop produced." [2002: 3]. The legal infrastructure appears to be well developed, with clear areas of jurisdiction for agrarian reform institutions and the rest of the legal system, with the Department of Agrarian Reform having its own adjudication bodies. Much of the implementation of the program is decentralized, a key role being played by the Municipal Agrarian Reform Officers (MARO).
In practice, and while significant progress has been made in parts of the country, the reform process has been slow and there has been de facto conflicts of jurisdiction at the local level. To a significant extent, this appears to derive from the administrative and legal complexity of the process, the lack of knowledge of the latter among potential beneficiaries but also in the judiciary, particularly at the local level. These problems have been exploited by landlords unwilling to relinquish their properties, who have also been willing to use illegal means for that purpose, be it force, kickbacks or pressure on local officials.
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[Note on institutional arrangements for conflict resolution: adjudication bodies for the DAR and higher courts, with a note on the confusion at the local level related to the undue involvement of lower courts.]
The study makes clear that in spite of these obstacles, the regime is functional and, as will be seen, the resolution of the conflict involves less substituting or challenging it than agilizing it by developing the capacity of potential beneficiaries to use it and especially prodding it to proceed with implementation and enforcing the measures adopted, both through political pressure. The need for the latter clearly points to the existence of political limits to the regime.
Differential access
The legal complexities of the agrarian reform process, the cost associated with its use, and its decentralized implementation generate important differences in the ability of actors to use it —or to block it— for their own purpose. Both these factors favour landlords, who have the resources to exploit the ambiguities of the law and especially of its implementation, as well as the power, at the local level, to influence the officials charged with implementation. As will be seen, however, these same factors sometimes create tensions among potential beneficiaries whose ability to use the legal and institutional arrangements to their advantage varies significantly.
Security of tenure
The intent and spirit of the agrarian reform process is clearly slanted towards small peasants and, consequently, it is the large landlords' tenure that is under threat.
Once again, however, effective use of the various administrative and legal procedures, as well as the illegal use of force or threath thereof have been used to effectively resist redistribution and in some cases to get adjudication bodies to cancel measures of emancipation or even land reform titles. As mentioned above, these problems indicate a degree of weakness in the ability of the regime to enforce its rules.
Distribution of land
The case study makes clear that while agrarian reform has progressed in the country as a whole, land remains quite highly concentrated in the Negros Occidental province, where agrarian reform has met up to now with successful resistance from landlords. b) Conflicts
Two conflicts are reviewed here. The first revolved around an extensive peasant mobilization that forced government authorities to confront reluctant landlords and start to implement the land reform program in various haciendas. Tensions existed both between the peasant organizations and the authorities, especially at the local level, and between reluctant landlords and joint pressure and action by local and regional authorities, including the police, and peasant organizations.
The second conflict saw one group successfully get a formal ownership award but, in the face of an appeal by the landlord, delay the effective occupation of the land awarded. Significant increase in tensions, including violent confrontations, only happened, however, when two other groups, who also had claims over the land —as
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former farmworkers of the landlord— move in to effectively occupy the hacienda albeit without any formal recognition of those claims.
Political opportunities
A number of institutional weaknesses played an important role in the emergence and, in some cases, in the aggravation of the conflict. The legal complexity of the process, the consequent lack of transparency and the resulting deficient knowledge of its detailed proceedings fed both conflicts. In the first case, it opened avenues of resistance for the landlord. In the second, meanwhile, it gave one group an advantage that might not have been warranted strictly on merits, leading to the mobilization of the two others groups who felt they also had a claim to that same land. Finally, the decentralized nature of land reform administration also appears to have given an advantage, in both cases, to reluctant landlords, who could more easily use their local influence to sway local officials.
Clearly, however, the tenure regime as a whole appears robust and most actors involved ultimately decided to abide at least in part by its procedures, trying to exploit them to their advantage instead of challenging it openly or of carving a space in which other rules were to apply.
Mobilizing structures
The case study mentions some instances of violence confrontation, especially in the conflict among the competing groups of farmworkers. Organized mobilizations, however, involved at most the non-legal occupation of land designated for distribution or already awarded formally, or demonstrations and other forms of public pressure, such as hunger strikes, designed to force authorities to accelerate the reform process or to implement measures already adopted. Moreover, there does not appear to have emerged a peasant organization or co-ordinated peasant movement reaching beyond the specific interests of hacienda-level groupings.
The NGOs involved in the conflicts studied are all human/social rights lawyers organizations and their role appears to have been limited to capacity building on land issues, mediation and conflict resolution. While for instance, the political mobilization that imposed land distribution to the reluctant landlord, in the first conflict, can be likened to Brazil's Landless Movement's type of action, there does not appear to exist a tight integration of the peasant movement, very much local, and of its political outlook, which narrowly focuses on the occupation of that particular piece of land, with the broader objectives and field of action of what seems to remain a dedicated
support endeavour. Obviously, things could change and continuing lack of progress might well provide the incentive to fully integrate the various local struggles on one side, and the peasant mobilizations with their intellectual supporters, on the other.
Framing
The general logic of the mobilization appears to have been essentially reformist. In fact, the main demands regard the application of existing laws and of the current constitution. The conflicts do not flow from a challenge to the legitimacy of the formal tenure regime, but instead from the limitations of its current implementation: the peasants want the state to apply its policies. c) Conflict resolution
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In the first conflict, which opposed farmworkers organizations to reluctant landlords, the key was the training of community organizers in the haciendas by a legal service
NGO. "People's Organizations" were then set up in each hacienda that focused on ways to move the reform process forward through administrative and legal proceedings but also with political pressures on local, regional and even national authorities. The function they play in their respective country's land reform process is basically the same, however: they force the government to be true to its own commitment to redistribute land to the landless. From the standpoint of this assessment, however, these mobilizations —just like those of the MST in Brazil— cannot be understood as conflict resolution mechanisms per se: while they arguably address issues that feed tensions and conflict, they do not by themselves act on the latter. In fact, these organizations would be involved as a party in conflict resolution processes per se.
The second case studied provides us with a conflict resolution mechanism per se. It also involved the training by a lawyers' NGO of leaders from the three groups of farworkers involved. The training covered land reform-related legal issues, negotiation techniques and dispute mediation skills. Working with those leaders, now made "paralegals", dialogues between the three groups were organized, trying to devise a solution that would provide mutual gains for all involved. After five dialogue sessions, however, negotiations were stopped as the group who had formally been awarded ownership of the hacienda's land decided to wait for the court decision regarding the landlord's appeal.
Immediate effectiveness
The political mobilizations met with a range of outcomes, from nothing at all to the effective occupation of the land awarded, with the support of local authorities and the police. Continuing mobilization was sometimes required, however, to sustain the gains and avoid expulsion by force. Arguably, however, no progress at all would have been made without pressure being exerted. To the extent that the conflict is defined in structural terms, i.e. as access to land, political organization can be considered an effective instrument of resolution. From the standpoint of the management of conjunctural tensions and conflict, however, mobilization per se contributed nothing and appears in a few cases to have been a source of tension.
From the standpoint of immediate effectiveness, paralegal training and support, which was present in both cases examined, appears to have much less ambiguous implications. In the first conflict, it enabled the farmworkers to play the formal game and thus transferred much of the conflict to the legal apparatus. In the second one, it contributed to levelling the field between the three groups, potentially enabling the two that were at an disadvantage to use the system subsequently.
The dialogue process, focusing on the identification of a mutually advantageous solution, and building on the negotiation and dispute mediation training, however, was a failure. Very clearly, it can be attributed to the fact that one group could play both the local informal game, and the formal one, which it felt, in the end, was more promising.
Cost
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The study does not analyze the cost of the training and political organization and, for the second conflict, of the support provided by the lawyers to the dialogue process.
It is possible, however, to distinguish between two types of expenses involved here, one of which is likely to be much more productive that the other.
The most problematic one regards NGO support for the dialogue process itself, which is probably not sustainable and certainly not cheaply or autonomously extendable to other conflicts, given the limited resources of the farmworkers. It is very much a dependent process. The training and organization, however, have very different implications. They can be considered an investment as they are likely sustainable with little more than the resources of the communities involved. Once community leaders are trained, their very involvement in the process sustains knowledge maintenance and acquisition. The same holds for political organization, which is likely to be sustained by the relative precariousness of the gains, given continuing resistance on the part of landlords.
Long-term validity
The short-term outcomes of conflict resolution in these cases are, to say the least, ambiguous. Paradoxically, however, the tenure regime's capacity to peacefully manage the tensions that arise from land conflict has possibly been significantly increased. Both training and political organization, to the extent that they empower farmworkers within the system, are likely to increase its legitimacy and over time, its effectiveness.
The failure of the dialogue process that was attempted in the second conflict is most instructive. It points to the need to carefully articulate conflict resolution with the broader functioning of the regime, both legal/administrative and political. As noted in the study, a key factor in the failure was the lack of participation by political authorities. This closed off the possibility for the groups that were not awarded ownership to consider land elsewhere. It also put a cast of the prospective reliability of an outcome that was not immediately validated by the competent authority.
Political factors are only one side of the problem however. The fact that the group that had won the award had the possibility of playing both the informal and the formal game is typical of failed legal pluralism as it weakens the local informal process in the eyes of all participants. The embeddedness of the resolution mechanism within the broader regime was problematic and, to a large extent, this problem doomed the process.
5. Parameters for Land Conflict Resolution: Tentative Conclusions
The cases examined supra generate a number of surprisingly clear policy implications. These insights touch on four basic issues: a general model for conflict resolution in tenure regimes; decentralization processes as a key component of the functioning of this model; participation and democracy as central political challenges of the model; and finally the special role of dispute resolution techniques.
These insights obviously call for further critical assessment and this is why they are being presented in a tentative manner.
5.1 A general model: Towards functional pluralism?
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For states in developing countries it appears that a careful articulation of formal government rules and institutions with local ones represents the most promising way to establish a land conflict resolution sub-regime that is effective, relatively cheap to operate and that produces outcomes that are enforceable over the long term. By harnessing local-level social capital and by giving easier access to conflict resolution mechanisms to the poorer sectors of the population, such arrangements provide, in theory, at least, the most efficient answer to the problem of managing the disputes and conflicts that are inherent to the functioning of any tenure regime. The grail is to functionally integrate "a strong legal framework with the formal and informal institutions that play an important role in resolving conflicts at the local level"
[Gordillo-1999, quoted in Appendini-2002:6], i.e. to create a system of legal and institutional pluralism that is functional.
This applies most clearly to poorer and weaker states, but even richer countries can benefit immensely from higher regime efficiency. The example of Mexico, examined before, is most telling: with high levels of legal expertise, highly developed legal and institutional mechanismss, and extensive administrative and enforcement capabilities, existing institutions are proving unable to effectively manage existing land conflicts.
Obviously the specific forms that such a model is to take in a given country cannot be determined a priori. In any form, however, conflict resolution mechanisms need to tackle the same challenges.
The basic challenge is to find the right way to fully integrate local level conflict resolution mechanisms with the rest of the tenure regime, so as to ensure that their outcomes are valid. The situation to avoid is the Guatemala's, where a most conflict resolution initiatives, and there are many, are not strictly linked to the legal/institutional framework and can thus be undone by appeals to the latter.
One can imagine many ways to tackle it, from full autonomy to the local instance without possibility of appeal, to more flexible arrangements that open up the possibility of challenging the decisions of local instances without weakening the legitimacy and ultimately the conflict-resolution capability of that instance.
The case studies point to three possible answers to this basic challenge: decentralization, participation, and the use of alternative dispute resolution techniques. They also suggest, however, that on would look in vain for a straight answer, as all have limitations and trappings.
5.2 Mechanics: Decentralization and Local Autonomy?
A degree of decentralization appears to be a sine qua non for the effective functioning of such a conflict resolution system. However, this does not mean that the local administrative authority is necessarily the best locus in which to house that responsibility. As the cases from the Philippines clearly show, local public officials are likely to be extremely vulnerable to the pressures of local landlords or strongmen, which transforms them into parties to the conflict and destroys their ability to effectively enforce resolution agreements.
Harnessing local level social capital implies that the relevant instance is one that has extensive local legitimacy, which often means investing customary authorities with
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legal power over disputes. In all cases, obviously, this calls for a strict definition of the responsibilities of those authorities and of the procedures that are to be followed.
Mexico's current system probably best approaches such an arrangement.
Such community-based decentralization cannot mean that the state moves out of a given region, as, by definition, the authority and legitimacy of community institutions cannot operate on conflicts between communities or on conflicts between outsiders and the community. On the supra-community level, in other words, it is unlikely that a state substitute can be found.
Finally, a basic requirement for such arrangements is the existence of a functioning community organization or authority structure. Without it, not only is there no way to "realize" social capital, but even inter-community agreements cannot rely on local norms and institutions to ensure their enforcement.
5.3 Politics: Participation and Democracy?
Reliance on community-level institutions and norms is not a strictly technical matter: it means building on a given political structure, i.e. on arrangements that crystallize a given distribution of power.
The main requirements of an effective conflict resolution system is not per se participation or democracy but legitimacy, i.e. the ability of a given authority to enforce its decisions without using force. This is the only thing one needs.
From the standpoint of effective conflict resolution, in other words, the preoccupation with participation and democracy must be put to the test of community level legitimacy. It is not difficult to imagine externally imposed "participatory" processes that could end up weakening local norms and institutions. This would certainly be the case for areas where significant migrant populations are present or where the local power structure is highly patriarchal. Arguably, in such cases, fairness and justice call for the questioning of the local authority structure. But the consequences of such a challenge are not necessarily positive for the ability of the community to effectively deal with disputes.
Social-political engineering would thus be called for here, requiring more state engagement, not less, which somewhat defeats the political and economic rationale of decentralization.
At the same time, however, the Mexican case study suggests that such engineering might be necessary anyway. As Appendini points out, the overwhelming majority of the cases taken up to the agrarian tribunal concern issues of ordinary competence, and in many cases inheritance inheritance problems raised by women. The latter's unwillingness to leave the resolution of their case to lower instances is the best possible expression of their refusal to recognize their legitimacy. In such cases, very clearly, democratization of local authorities is a critical step in the development of their ability to deal local tensions.
Along the same line, the case studies clearly show that one must recognize the implications of capacity-building and political organization at the local level for the effective enforcement of a tenure regime, including its conflict resolution components. It would be very misleading to conceive of local authority maintenance as some kind of apolitical social dynamics.
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Still, one should be careful not to confuse what could be termed the practical legitimacy of a given authority –the one that counts from the standpoint of Kelsenian validity- with the democratic and participatory nature that a typical western understanding of legitimacy takes for granted.
5.4 Techniques and third parties: ADR and its agents
The case studies suggest that the specific characteristics of given dispute resolution process are ultimately irrelevant to its outcome. The extent to which the process capitalizes on the institutional, political and social capital available is the critical variable. The embeddedness of the specific process, whatever its characteristics, in the really existing regime made up of what formal and informal rules or norms effectively apply, determines the extent to which its outcome will be effectively enforced or challenged and whether it will be sustainable over time.
The logic of embeddedness and the idea that sustainable outcomes need to build on what social and political resources are available locally significantly limit the scope for effective third party interventions and confine it to institutional consolidation, at the central and local level, and to capacity-building. While targeted interventions can sometimes bring immediate results, the sustainability and ultimate validity of the latter depends on the broader characteristics of the tenure regime, including its local political basis and the quality of its articulation with the country's broader legalinstitutional framework.
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CONCLUSION
Land conflict resolution must be understood as part and parcel of a given tenure regime's institutional framework, of which it is a critical component.
Tenure regimes in developing countries are typically poorly developed and have proven unable to effectively manage the tensions and conflict to which they were confronted.
Centralized systems are costly, exclusionary and for these reasons both ineffective and inefficient.
The cases overviewed suggest that effective land conflict resolution needs to harness the social capital, the institutions and the norms that exist at the community level.
For that purpose, arrangements need to found that functionally articulate the formal arrangements that characterize a country's broad legal/institutional framework regarding land tenure, and local institutions and norms.
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