[Primer] There is no Vacant Land

A primer on defending Myanmar’s customary tenure systems

This Primer promotes a deeper understanding and appreciation of Myanmar’s customary tenure systems, which are under threat from the government’s new land policies. It looks at the nature and origin of traditional land and resource use customs and the functions these fulfill in Mayanmar’s rural communities.

Summary

Across the world, the livelihoods and well-being of rural communities have, since time immemorial, been assured through their customary land and resource management systems. Myanmar is no exception, and these systems have been especially valued in ethnic upland areas. Although increasingly under pressure, these systems still widely continue more or less intact, and continue to retain social legitimacy.

Customary tenure systems involve rural communities asserting authority over their local land and resources within their village areas, allocating rights and regulating access and use according to traditional cultural norms. At the simplest these institutions are codified social norms around resource access, and as such have existed across just about every inhabited landscape in the world.

They often involve the coordination of farming activities like planting, harvesting and grazing. They are based on a strong local identification with place and ecological landscape, and have evolved dynamically over the long term, giving rise to unique cultural landscapes. They tend to be sophisticated, flexible, and practical in terms of combining common and private rights and responsibilities across diverse resources. Beyond individual villages, they can play a key role in agreeing to inter-village boundaries, and regulating across clusters of villages who gets access to what resources, when and how. They can manage disputes both within and between villages in ways which have cultural legitimacy and embody principles of social justice. Their effectiveness is reflected in how highly valued they are by the communities who rely on them, and they evolve as the social composition and economic needs of the communities evolve and change over time.

There is increasing recognition of the prevalence of these systems and the importance to rural communities who rely on them. A recent study estimated that as much as 65% of the world’s land areas is managed under customary systems (RRI 2015). Across rural areas of Asia, Europe the Americas, and Africa, a wide diversity of customary land governance systems have been documented and continue to function effectively, with varying levels of state recognition. There are a wide diversity of customary systems across Myanmar, which go by a range of different local terms.

The recognition, understanding and study of common property and customary systems has been enjoying a remarkable renaissance around the world in recent decades. Academic research has demonstrated that customary systems are highly effective in enabling land and resource use that supports social well-being of ethnic communities. This is partly for economic reasons – because it can be highly efficient in delivering land and resource governance and management at relatively low cost with little conflict – and partly for social reasons – that they reflect reciprocal social relations over material resources.

However these systems are almost always misunderstood by outsiders, who without direct experience of them rarely seem to grasp the now all too unfamiliar concepts of local self-management, shared property (land and resources held in common) and social reciprocity (for instance labour exchange, and collective cropping). Negative judgements are frequently indulged in (‘unequal’, ‘anti-women’, ‘feudalistic’, ‘outdated’) with little basis in evidence, or time being taken to understand them properly.In fact, most of the criticisms levelled against customary systems are more applicable to state-based private land systems: where land ownership tends to be unequal, where few if any women have land titles in their names, where control is remote and inaccessible and bribe-seeking common, where taxation and input costs can drive farmers into debt bondage, landlessness, even suicide, and lastly where the systems tend to be static and inflexible over time.

In fact, most of the criticisms levelled against customary systems are more applicable to state-based private land systems: where land ownership tends to be unequal, where few if any women have land titles in their names, where control is remote and inaccessible and bribe-seeking common, where taxation and input costs can drive farmers into debt bondage, landlessness, even suicide, and lastly where the systems tend to be static and inflexible over time.

Misunderstanding can have serious consequences – policies commonly fail to represent these systems correctly, recognise their value, or protect their key elements. Misrepresentation has been common around the world, as customary systems have been over-ruled by colonial land administration centralisation:

How far these [mis]conceptions arose from ignorance or were deliberate has long been debated, every decade of persistence favouring the latter.

Alden Willy, 2006a

In Myanmar, these systems have begun to be eroded and undermined in recent decades, and many customary villages and village clusters are now either in crisis or feeling profoundly threatened. War, militarization and land and natural resource grabbing have already displaced many villagers and communities from their customary lands. Myanmar’s long-running military dictatorship ignored communities’ rights and treated community land and resources as ‘land at government disposal’, and in 2012 the government officially re-labelled them as ‘Virgin, Fallow and Vacant’. The Tatmadaw (Myanmar national army), as well as some other armed groups in the country, have summarily appropriated land and resources for themselves or their business partners, overriding village authority using menace or actual violence.

Although many customary systems have been able to persist, they are often hanging on by a thread. And as the country struggles towards democracy, economic development, and peace, new threats to customary lands and resource systems loom even larger. At the moment there is not yet even any statutory category through which to acknowledge customary systems and village land and resources held in common, and key influential actors appear to be preventing such recognition from attaining legal status.

At the same time urban-based administrators seem to be envisioning large scale ‘modern’ economic enterprises across Myanmar’s lands, in plans and visions that seem to imply that customary village resource management systems are either an impediment to ‘development’ or don’t even exist.

In reality, most of the land being labelled ‘vacant’ or ‘virgin’ land is actually customary village property, so implementing this law amounts to unjust appropriation of village property without acknowledgement of pre-existing rights or claims and thus violates several international norms and conventions. The third category – ‘fallow’ lands – at least recognises that the land is under use, but then reallocation of an already utilised resource seems all the more blatantly unjust.

Reallocating land and related natural resources without recognising and settling the pre-existing rights according to a due process is widely understood as intrinsically unjust and it particularly goes against the norms agreed to by many of the world’s governments in the 2012 FAO Tenure Guidelines (FAO 2012), to which Myanmar is a signatory. Indeed, much of Part 3 of these FAO Guidelines – especially section 9 in its entirety – is devoted particularly to spelling out when and how the rights of indigenous peoples and communities with customary tenure systems must be fully recognized and protected from reallocation, eviction and any legislative or administrative initiatives that would facilitate these. Yet this is happening widely, particularly in ongoing conflict zones and promoted by powerful military and commercial interests in the Myanmar government. The inescapable conclusion must be that it is part of a hostile economic, political and military strategy, and along with other recent notorious actions of the Tatmadaw, infringes the Geneva Conventions 1949, which states:

… Reprisals against protected persons and their property are prohibited.

Geneva Convention IV Article 33

In January 2019 seven United Nations special Rapporteurs for protection of a range of human rights addressed their concerns over the VFV Amendment to the Government of Myanmar:

‘we are concerned that this law may be used to illegally dispossess land users of their land without due process or adequate notice, undermine their human rights, and have a dispropoirtionate impact on poor, rural and minority communiteis, ethnic nationalities and indigenous peoples’ 

Internationally there is increasing emphasis across multilateral organisations and fora on the fundamental importance of proper protection and recognition of rights and tenure, and the adherence to basic norms of good land and resource governance (FAO 2012), as a basis for development. The UN Sustainable Development Goals, to which Myanmar is a signatory, state:

Sustainable development goal 1 – End poverty in all its forms everywhere.

  • Target 1.4 by 2030 ensure that all men and women, particularly the poor and the vulnerable, have equal rights to economic resources, as well as access to basic services, ownership, and control over land and other forms of property, inheritance, natural resources, …

Sustainable development goal 2 – End hunger, achieve food security and improved nutrition and promote sustainable agriculture.

  • Target 3 –By 2030, double the agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land, other productive resources and inputs, knowledge, financial services, markets and opportunities for value addition and non-farm employment.

Sustainable development goal 5 – Achieve gender equality and empower all women and girls.

  • Target 7 – give women equal access to economy resources as well as access to ownership and control over land and other forms of property.

In most customary tenure systems the ownership and control referred to in the UN SDGs is already assured, and it is assured collectively.

Where a local system is working reasonably well and is not subject to significant outside pressures that stress the system beyond its ability to adapt and mediate conflicts, outsiders should not interfere.

Freudenberger 2013

Despite all these norms and principles Myanmar’s Government has been interfering in and undermining these systems, and therefore undermining its own international commitments as well as the achievement of these development goals. A new amendment to the VFV law 2012 passed in September 2018, making continued occupation, without official permission, of land which is not municipal, private or state (i.e. land which is de facto customary) a criminal offence.

Yet there still remains no provision to clarify the pre-existing and as yet unrecognised, mainly customary, community rights. Customary systems and the wellbeing of those who depend on them are now gravely threatened by this law.

Few outside of ethnic areas fully appreciate what the customary tenure systems actually are, how they work, and how centralised authorities, statutory policies and jurisdictions undermine them in practice. It is time to recognise customary resource systems in law, and acknowledge these systems as the foundation of wellbeing in many rural areas. But in order to protect ethnic well-being and ensure post-conflict recovery, it is essential that these customary tenure systems are understood. This primer seeks to clarify the issues, improve understanding of customary land tenure systems and explore what should be done.

The non-recognition of the customary tenure systems of Myanmar’s ethnic groups is one of the key drivers of ethnic conflict in the country. It is related not only to respect and support of socio-economic and political systems of ethnic groups, but also closely related to the right to land for IDPs and refugees. Without addressing these issues, the prospects for national peace and development are grim.

The primer is divided into 6 sections. First, it examines the key elements of these systems and how they function. Second, it considers their prevalence and continuity around the world. Third, it considers their characteristics, importance, and relative pros and cons. Fourth, it look at the changing conditions and fifth at current policy dynamics affecting customary systems. Last, it offers some recommendations.

Download Full Primer (English).

Letter from UN Special Rapporteur to Myanmar Government on VFV

On 21 January 2019, UN Special Rapporteur communicated to Myanmar Government regarding the Vacant, Fallow & Virgin Land Management Law. The letter was composed from the mandates of:

  • the Special Rapporteur on the situation of human rights in Myanmar;
  • the Special Rapporteur on the right to food;
  • the Special Rapporteur on the rights of indigenous peoples; 
  • the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context; the Special Rapporteur on the human rights of internally displaced persons; 
  • the Special Rapporteur on minority issues and the Special Rapporteur on extreme poverty and human rights

Read the full letter HERE.

TNI’s Commentary on VFV in Myanmar

A Commentary by TNI (Transnational Institute)

The recently adopted amendment by parliament to the 2012 Vacant, Fallow and Virgin Lands Management Law (VFV Law) has immediate, deep and far-reaching implications for many millions of rural working people in Myanmar, especially in ethnic nationality regions. The new law has also serious, negative consequences for the country’s development and the transition towards democracy, and ultimately for the prospects for a lasting peace in Myanmar. Read full commentary here.

A Commentary on Vacant, Fallow and Virgin Land Management Law in Myanmar

A Commentary by Jason Gelbort

The Government of Myanmar’s approach to land policy risks increasing land conflicts and exacerbating current challenges in formal peace negotiations. Civil society organizations strongly oppose implementation of the recently-amended Vacant, Fallow and Virgin Land Management Law (VFV Land Law), due to well-founded fears that its implementation will facilitate the displacement of villagers from their ancestral lands and will weaken customary land tenure rights. . . .

Please visit here to read full commentary.

LIOH’s Commentary on NLUP Forum 2018

We, Land in Our Hands (LIOH), welcome the initiative to develop a new land law. However, we strongly believe that law making process needs to be democratic that enables participation of affected and vulnerable people in decision making; guarantees the right of ethnic peoples & community to govern and manage land & natural resources; and solves existing land conflicts with socially just way.

The Government of the Republic of the Union of Myanmar leads the National Land Use Policy Forum based on National Land Use Policy (NLUP-2016) on 2nd and 3rd October 2018 in Nay Pyi Taw. One of the most important things within the NLUP is coming out a National Land Law. We, Land in Our Hands (LIOH), welcome the initiative to develop a new land law. However, we strongly believe that law making process needs to be democratic that enables participation of affected and vulnerable people in decision making; guarantees the right of ethnic peoples & community to govern and manage land & natural resources; and solves existing land conflicts with socially just way.

The National Land Use Policy (NLUP) allows the collaboration of the smallholder farmers and civil societies in making decision on land use & management on farmland. We understand that smallholder farmers and civil societies have been given safeguards regarding the economic and political interests as well as large control over economic and development projects. To teem down these safeguards, the forthcoming National Land Law needs expanding its extent to the rights to land and land sovereignty of the people instead of pruning into property rights. There is the need to have the laws protecting & ensuring the accessibility, the right to use & the right to manage/control the farmland for farmers and providing remedies (land restitution) to societies suffered from past and current violation of these rights.

In the land policy drafting process that had started in 2014, the Government initially arranged to approve the policies, that had been drafted with the opinion of a minority of individuals from the government side, in a setup where only a few civil society organizations including farmers in a very short amount of time. However, LIOH network and allied such as many ethnic farmers and civil society organizations had worked to get the wider consultation process that brings many stakeholders’ contribution, and thus some good outcomes were achieved (despite many concern points still remain in the policy). For example, we were able to include provisions such as ethnic land rights, land restitution and harmonization of land related laws.

Read full LIOH’s Commentary on NLUP Forum in English & Burmese.

LIOH’s Feedback on the Farmland Law amendments

The 2012 Farmland law does not protect either smallholder farmers or real farmers. Moreover, it cannot resolve the current land disputes. It is a law that encourages businessmen, companies and land confiscation. The Bill to amend the 2012 Farmland law will neither protect the farmers nor be effective at all. The current lands laws do not respect customary right to land in ethnic areas at all. Thus, a new farmland law must be developed instead of amending the 2012 Farmland law, that respects, protects and promotes the rights of small-holder farmers across the country.

Thus, while we welcome any initiative to revise the current Farmland Law, we feel very strongly that the nature and character of the currently proposed amendments are not what is needed. They fail to address the true weaknesses of the existing law and at the same time they move regulation of land even further in the wrong direction.

Thus, while we welcome any initiative to revise the current Farmland Law, we feel very strongly that the nature and character of the currently proposed amendments are not what is needed. They fail to address the true weaknesses of the existing law and at the same time they move regulation of land even further in the wrong direction.

Read the full LIOH’s position & feedback on the Farmland Law (English) (Burmese p.1-6; Burmese p.7-12).

Read . . . LIOH’s Statement on the Farmland Law Amendments

LIOH’s Comment on the Draft National Land Use Policy

National Land Use Policy of Myanmar: Our Response and Recommendations

“The land use policy will have significant impacts on all land use types in the whole country including small-scale to large-scale land users. It is important to balance land use for country’s economic development and promote social justice with equitable tenure rights and control of land, forests, fisheries, water and associated natural resources, for all, with special emphasis on women, youth, poor, vulnerable and marginalized peoples”

EXECUTIVE SUMMARY

This report analyzes and provides feedback on the draft National Land Use Policy (NLUP) of Myanmar made public on October 18, 2014. It is based on eight consultation workshops organized across the country by Land in Our Hands (LIOH). LIOH is a farmer network of more than 60 community based organizations (CBOs) and civil society organizations (CSOs) dedicated to promoting, protecting, respecting, and fulfilling the land tenure rights of small-scale farmers and fisherfolks, particularly rural women and ethnic communities. LIOH welcomes the unprecedented opportunity to take part in this very crucial land policy making process at time when Myanmar is at a crossroads.

The success of Myanmar’s reform process is tied to resolving the country’s land crisis, and at the same time, there is a need to protect communities’ lands from confiscation in this climate of increased foreign investment. The NLUP will play an important role in addressing both of these concerns, and the current draft contains several promising aspects. However, LIOH has also identified many serious flaws in the policy-making process and the policy itself, and this report is our way of offering a sincere and forthright response to the draft NLUP, including specific recommendations.

Of the utmost concern is the undemocratic process by which the NLUP has been drafted. Although drafting of the policy began in late 2013, it was not made publicly available until October 2014. At this time, the Myanmar government planned to collect feedback in just 17 consultations of 3 hours each within 18 days in 14 states and regions. The short time frame meant local communities were ill prepared to provide feedback on a long, and technical document. It is this flawed consultation process that prompted LIOH to hold its own consultations, analyze the draft policy, and provide its own feedback. We recommend that the government of Myanmar further extends the deadline for public comment and publicizes the draft NLUP widely in local languages online and through the media, both independent and state-owned.

The content of the draft NLUP also falls short of following international norms and best practices as outlined in the United Nations Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. It does not prioritize small-scale farmers, minority ethnic peoples and other poor, vulnerable and marginalized sectors of society, nor does it provide sufficient measures to prevent them from being dispossessed of their land and livelihoods. Instead, the policy prioritizes and gives special privileges to business investors, which could spark more land grabs and create more land problems within the country.

LIOH recommends that the policy must be re-drafted to reflect the overarching principles of human dignity, non-discrimination, gender equality, holistic and sustainable approach, rule of law, good governance, and free prior and informed consent. Furthermore, the policy should detail clear answers to the following questions: Whose rights, what rights, what purpose, and who gets to decide?

Specifically, the NLUP must respect ethnic land policies, outline a dispute mechanism with local participation, include a mechanism for redistributive land reform, and recognize the right of returning refugees to restitution of their land and property. Furthermore, the land classification system must be revised, and the people using the land must be involved in the classification process. The categories of “vacant, fallow, virgin land” and “permanent taungya” are unacceptable to people in ethnic territories. The NLUP must also include truly bottom up decision-making and participation in survey assessment, zoning, and information creation and management. It must protect the specific rights and needs of women, and protect the right of ethnic communities to practice shifting cultivation. The policy must also implement safeguards to protect the land tenure rights of communities threatened by project concessions, following the UN Guidelines on Development Related Evictions and Displacement. Lastly, the NLUP should provide for a clear, impartial, and independent monitoring process to evaluate the policy and recommend improvements.

Time should be taken for the National Land Use Policy to be re-drafted with the full inclusion and meaningful participation of representatives of small scale farmers, ethnic groups, women, youth and other people and communities who will be most effected, as well as parliamentarians and independent experts.

Read full document . . . English / Burmese