The right to land at crossroads in Myanmar

By Transnational Institute • July 5, 2016

What is the role of land in establishing lasting future peace in Myanmar? The country is at a crossroads, and facing rapid land polarization. However, the inauguration of a new government chosen by a landslide in historic elections offers an unprecedented opportunity to change course in a positive direction. An approach that prioritizes poor, vulnerable and marginalized groups especially ethnic nationalities, women, and youth, could lay a foundation for peace.

Introduction

Myanmar is at a historic crossroads: one where the optimism of a critical juncture that is “more promising than at any time in recent memory” meets apprehension over what could happen if a “host of … social crises that have long blighted our country” go unaddressed. i Rapid land polarization is one of the crises gripping the country after more than sixty years of civil war and a raft of laws designed to move land out of the hands of rural working people and into the hands of ‘modern’ farmers and business actors. Yet the inauguration of a new government chosen by a landslide in historic elections offers an unprecedented opportunity to change course.

The current land problem is deeply mired in present and historical conflicts conditioned in part by past land law and policy. A major rethink is needed of how land and associated resources are regulated and for what purposes. An approach is needed that explicitly prioritizes poor, vulnerable and marginalized groups including ethnic nationalities, as well as women and youth, but in a way that takes seriously how they view their problems, issues, needs and aspirations. Taking such a step could play an important role in laying a foundation for future peace in Myanmar. Failing to take such a step could be disastrous.

All land law and policy must answer the question: who ought to have what rights to which land for how long and for what purposes? But achieving progress on the land question in Myanmar today is intertwined with achieving progress in the peace process. What happens on the land front will create opportunities or set limits on what happens in the peace process – and vice versa. The stakes are high. Discovering a way forward will require looking back.

But first it is important to take stock of three key land problems in Myanmar today and how each is addressed by international human rights law, including a relatively new set of UN guidelines on tenure called the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (VGGT), as well as by the recently adopted National Land Use Policy, the recently unveiled Karen National Union (KNU) Land Policy, and the NLD Election Manifesto, which may indicate how the new government intends to approach these issues in the future.

Taking stock

Seventy percent of Myanmar’s 50 million people live and work in rural areas. Ethnic minority communities comprise 30-40 percent of the total population while ethnic states occupy nearly 60 percent of the land area and are home to marginalized, vulnerable and often persecuted ethnic nationalities. Successive governments have treated rural areas as sources of revenue, but requiring central state intervention to be turned into economically productive spaces, either as zones of agricultural production or zones of natural resource extraction. Ethnic areas in particular were valued not for the people but for the natural resources they contained, which authorities exploited for economic profit while failing to (re)invest earnings to benefit local populations. Indeed, alongside political grievances and militarization, economic grievances fuelled civil war. The current crisis of rapid land polarization is fuelled by three situations.

The first situation involves people who previously had land, but were pushed off, mainly due to civil war and armed conflict, but also natural disasters. More than six decades of civil war led to multiple waves of distress and displacement of people and communities from their homelands. Recent figures place the numbers at nearly half a million of internally displaced persons (IDPs), plus nearly half a million additional refugees languishing mainly on the borders with China and Thailand. A million or more people ended up migrating to third countries.

Many IDPs and refugees want to return to their original places, and they want to do so with dignity and in safety. This is their right under international human rights law and international humanitarian law, including as elaborated in the Pinheiro Principles. Their right to return is also supported by the Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the context of National Food Security – currently the highest international standard on tenure issues agreed upon by governments, which was adopted by the UN Committee on World Food Security in 2012 and endorsed by Myanmar.

The right to return and restitution is also supported by the National Land Use Policy (NLUP) of Myanmar (paras. 38 and 74) adopted in January 2016. Indeed, this right has been taken more seriously in the final version of the policy (compared to earlier versions), with ‘restitution’ being discussed in five separate places, namely with regard to: (i) development of fair procedures (para. 8h); (ii) application of international human rights standards (para. 38); (iii) equal right of men and women to participate and represent the community (para. 75f); (iv) monitoring and evaluation for procedural compliance (para. 78d); and (v) conducting research ‘on best procedures for restitution of rights to land and housing of individuals, households and communities that had to abandon the area where they previously resided due to illegal land confiscation, civil war, natural disasters or other causes’ (para. 80n).

The right to return and restitution of IDPs and refugees is likewise given fairly extensive treatment in the recently revised KNU Land Policy as well. The KNU commits to complying with the ‘internationally recognized Pinheiro Principles, taking into account the primacy of the right of IDPs to have their land be restored to them’, and elaborates measures to be taken in instances ‘where the original parcel or holding cannot be returned’ either to ‘those who suffered the loss, or their heirs’ (paras. 4.2.2 and 4.2.3).

For its part, however, the NLD in its Election Manifesto states only that it will ‘strive, in accordance with the law, to ensure the return to farmers of illegally lost land, and payment of compensation and restitution’ (para. 4.ii.d). This statement seems to articulate a fairly circumscribed wish, referring only to ‘illegally lost land’. Would this parameter be enough to cover all those who lost land over the course of civil war and across numerous waves of land grabbing? It seems doubtful. Indeed, this does not sound like a very strong commitment to remedying a grave injustice, and no mention is made of the extensive guidance to be found in international human rights and humanitarian law, as well as the VGGT, and even the NLUP, as outlined above.

The second situation involves rurasal working people who have been able to hold onto their land despite numerous problems and pressures but are in a weak position. These people are vulnerable to losing either the land itself or control of decisions related to the land. In particular, in Myanmar, ethnic nationalities and groups with customary tenure systems have been made especially vulnerable to legal land grabbing – most recently, for instance, by the combination of the two 2012 land laws (Farmland Law and the Vacant, Fallow and Virgin Land Law).

An underlying problem for this group of people historically is a lack of full entitlement and guaranteed respect for their right to the land (whether or not they have legal documents and regardless of cultivation practices) combined with a lack of public support policies that could help them stay on their land in the long run. This is a complex, difficult and long term problem affecting a great number of working people all across Myanmar today. There is no easy fix. Securing their legal land tenure rights alone is no guarantee that rural working people, especially the most vulnerable and marginalized, will be able to stay on the land in the long term. Securing legal land rights can even open the door to losing their land, for example in cases of economic distress or indebtedness.

What some would see as a dilemma, others see as an opportunity to lay the foundations for the emergence of a ‘modern’ agricultural sector in the long run. Roy Prosterman of the international NGO Landesa, in remarks made as part of a presentation at the Yangon School of Political Science entitled ‘Secure land rights for small farmers: A path for economic development’ in September 2014, said that “Global evidence suggests that in Burma the focus should be on making small farmers more secure on the land that they have rather than evicting them to make way for big plantations. Over time, as development takes hold people move to cities, and labour becomes more expensive. If the law allows voluntary transfer of land rights, between private parties, farm size will gradually increase, as it has in the US or EU countries’. Here, ‘development’ is understood as small farmers ultimately abandoning their farms and going to the cities.

Yet, another notion of ‘development’ is possible, one that does not require small farmers to abandon farming and one where the countryside is full of small farmers engaged in agricultural practices that can make a number of valuable contributions to society, such as helping to feed the world, to mitigate climate change, to provide productive employment opportunities, to maintain biodiversity, etc. This other notion of ‘development’ is apparent in recent research and advocacy initiatives of several local civil society organizations and networks such as Land In Our Hands (PDF) and the Ethnic Community Development Forum (ECDF), for example.

Understandably, many rural working people in Myanmar today, especially many ethnic people whose land ownership is regulated under customary tenure systems that are not recognized by state law, want their entitlement to the land where they live and work to be recognized by state authorities, and this includes an aspiration to be free from the threat of forced eviction. It is an aspiration supported by international human rights law, including the Universal Declaration of Human Rights (Art.17) and by way of the Right to Housing, the Right to Food and Nutrition, the Universal Declaration on the Rights of Indigenous Peoples, and the UN Guidelines on Development Related Displacement and Eviction. This aspiration – in all its many variations and expressions — is likewise also supported by the VGGT. For example, the VGGT calls for recognition and respect of all legitimate tenure rights holders and their rights including (i) those that are not currently protected by law, (ii) particularly women and vulnerable people holding subsidiary tenure rights, (iii) indigenous people and other communities with customary tenure systems, and (iv) smallholders. This principle extends to a high level – it includes full recognition, respect and protection of individuals and communities with customary tenure systems even in settings where the State is legal owner of the land, fisheries and forests.

Notably, in Myanmar, the NLUP adopted in January 2016 made positive strides in this regard too, with specific supports and safeguards provided in numerous places throughout the policy. For example, the basic principle of recognition of a full entitlement (including decision making power) is discussed in core sections of the NLUP, including: in the ‘Objectives’ (‘to recognize and protect customary land tenure rights and procedures of the ethnic nationalities’ – para. 6c); in the ‘Guiding Principles’ (‘to promote people’s participation and collaboration particularly ethnic nationalities, women and smallholder farmers in decision making related to land and natural resource management’ – para. 7c); and in the ‘Basic Principles’ (‘to legally recognize and protect legitimate land tenure rights of people, as recognized by the local community, with particular attention to vulnerable groups such as smallholder farmers, the poor, ethnic nationalities and women’ – para. 8a). In the NLUP, the principle also extends to explicit recognition and protection of land ‘under rotating and shifting cultivation and customary cultivation practices’ (para. 29d), and, it could be argued that the provision on recognition and protection of ‘natural resources and ecological system[s] that provide shared livelihood and socio-economic development benefits to the surrounding communities’ (para. 29e) can be interpreted as providing further recognition and protection of those surrounding communities and their access and control of said natural resources and local ecosystems.

The KNU Land Policy for its part likewise seems to offer fairly solid and extensive coverage across a range of particular circumstances. For example, most fundamentally, para. 2.3.3 states that ‘KNU Authorities must provide legal recognition for socially-legitimate tenure rights, including customary occupation, use and related practices not currently protected by written law. KNU Authorities must define through widely publicized rules the categories of rights that are considered legitimate, with special emphasis on socially-legitimate occupation, use and related practices, and provide all persons, including those who against their will, have been alienated from their homelands and deprived of their customary occupation and use rights as a result of past and current conflict, with a degree of tenure security which guarantees equal legal protection against arbitrary evictions, forced evictions, and harassment and other threats, and ensures that their legitimate tenure rights are fully realized and restored and not otherwise extinguished or infringed’. Specific measures are mentioned delineating rights as well as responsibilities of those having occupation and use rights, and also ‘prioritizes positive agricultural investments’ that ‘prioritize marginalized, poor and vulnerable peoples and village communities in building rural futures based on economically viable, ecologically sound and culturally appropriate farming practices’ (para. 3.9.4), and public investments that ‘support, protect and reinforce peasant farmers’ own investments, including local indigenous knowledge and customary farming practices’ (para. 3.9.5).

The third situation involves rural working people who for one reason or another have little or no land on which to construct a viable and dignified livelihood. This is the fate, for example, of family members who are excluded from ownership and/or inheritance, especially women and some siblings in many rural households, who may end up working as wage labourers in other peoples’ farms or forced to migrate elsewhere in search for paid work. But it is also the fate of rural working people in settings marked by increasing land concentration, and steps also need to be taken to roll back land concentration where it has occurred and to prevent it from happening in the future.

Many of the same principles and provisions in international human rights law and in the VGGTs that support full entitlement to land for poor, marginalized and vulnerable (groups of) people could be interpreted and used to support the full realization of the right to land for people in this third type of situation. In addition, the VGGT make reference to land size ceilings and land redistribution as measures that could be taken in this regard. Historically, in different moments in other parts of the world, land redistribution has been undertaken to reform agrarian structures marked by monopoly control of land by either private landed classes or the state. As a policy measure, land redistribution involves (i) transferring land-based wealth (ii) from private landed classes or the state (iii) to landless and near-landless working poor people (poor peasants and rural labourers). As agreed by governments in the VGGT, ‘Redistributive reforms can facilitate broad and equitable access to land and inclusive rural development. In this regard, where appropriate under national contexts, States may consider allocation of public land, voluntary and market based mechanisms as well as expropriation of private land, fisheries or forests for a public purpose’ (para. 15.1), particularly where ‘a high degree of ownership concentration is combined with a significant level of rural poverty’ (para. 15.3).

A land size ceiling involves fixing a maximum allowable amount of land holding. As a mechanism, it is the very ‘heart and soul’ of any redistributive land reform programme: it is the application of a land size ceiling that detects land inequalities and thereby allows a determination of whose lands should be covered and by how much, thereby supplying the land to be redistributed, while at the same time enabling detection of any ‘leakage’ of land from the programme. Land size ceilings must be pegged at a level that ensures an adequate means of livelihood for all citizens. The use of a land size ceiling is endorsed by the VGGT (para. 15.2).

While strong in other areas, the NLUP adopted in January 2016 is relatively weak in addressing inequality within this third type of situation. Rather than adopting an across-the-board land size ceiling and traditional redistributive measures to address monopoly control of land-based wealth by transferring land from landed elites to the landless, the NLUP relies on ‘establishing reserved land areas for allocation to landless citizens’ (para. 21i), on setting land size limits ‘based on the capacity of individual companies’ (para.33b), and land tax and other taxation mechanisms ‘to prevent land monopolization and land speculation’ (para. 52). But such measures have been taken in the past elsewhere in order to avoid real redistribution, and have not been effective in rolling back or preventing land concentration and so do not offer much hope for addressing this problem in Myanmar.

For its part, the KNU Land Policy has quite an elaborated section on land redistribution as a ‘crucial measure toward fulfilment of the basic vision and objectives of this land policy’ and ‘will prioritize rural working poor and landless and near-landless, marginalized and vulnerable people and communities, and will guarantee equal treatment of men and women’ (para. 4.3.1). And the KNU policy adopts a ‘right of use’ land size ceiling in furtherance of this aim: ‘up to 20 acres for wet rice farming and between 2 to 5 acres for silt land farming’ and with a possibility of up to 50 acres under certain circumstances (para. 3.7.3).

Meanwhile, the NLD Election Manifesto is silent on the need for redistribution. Instead, its focus is on distribution of supposedly ‘new land’ – saying specifically that they will ‘identify fallow, vacant and virgin lands that are suitable for agriculture, and distribute these lands to landless people, providing them with legal ownership rights’ (para. 2g).

Looking ahead

For people who live and work on the land In Myanmar, the meaning of land is found in social, economic, political and cultural relationships built over time, amongst themselves and with other life forms in the landscapes where they live. These relationships anchor everyday life and link the past to the future. But rural working people have long been squeezed by militarization, land grabbing, discriminatory public policies, and economic pressures.

The overall picture poses a major challenge for the new government. Side-lining the needs for land and aspirations for peace of the people who have been caught in the different types of situations outlined above could be disastrous. Yet the new government’s agenda in rural areas seems poised to do just that. Its agenda is two-fold: development of ‘modern industrial farming’ on the one hand and promotion of natural resource extraction on the other hand.

For the NLD, developing a ‘modern industrial farming’ sector involves, among others, opening up ‘new areas for farming’ from ‘vacant, fallow, virgin’ land. This is not the first time such language has been used. Attempts to make ‘new land’ available for new (economic) purposes (new farmland, new investment) have occurred numerous times in the country’s past: the 1894 Land Acquisition Act under British colonial rule, the 1991 Wastelands Instructions during the State Law and Order Restoration Council (SLORC) era, and the 2012 Vacant, Fallow and Virgin Land Law under the previous Thein Sein Government.

Time and again the problem has been that this classification has overlooked the fact that many areas adjudged by town- and city-based state administrators to be ‘wasteland, vacant, fallow or virgin land’ were in fact populated and inhabited, very much alive with human activity and inscribed by human practices. Each time, wittingly or unwittingly, the concept was used to dislodge and dispossess people.

References to ‘vacant, fallow, virgin land’ (or ‘VFV land’) in earlier drafts of the NLUP were a major point of contention. It is a category that has been firmly rejected by many small farmers, ethnic nationalities, and land rights activists: ‘there is no vacant, fallow and virgin land in ethnic areas’. The final NLUP still contains a category, now called ‘other land’, that encompasses ‘urban land, village land, religious land, public land, government administered vacant, fallow, virgin land and wasteland that are not classified as forestland and agricultural land etc.’ (para. 13c). Yet it also contains provisions that appear to open a path for people to reclaim as protected customary land, areas that have been (mis)identified as VFV land. For example, paragraph 68 states that ‘The customary lands of ethnic groups used traditionally that fall under current forest land or farmland or vacant, fallow and virgin land classifications shall be transparently reviewed, registered, and protected as “customary land”, in accordance with the Constitution of the Republic of the Union of Myanmar, and land allocation to any land user, other than for public purposes, shall be temporarily suspended until these lands are reviewed, recognized and registered as customary lands’. Paras. 69 and 70 further reinforce this new protection. This is a major achievement.

By contrast, the NLD Election Manifesto revives the concept of vacant, fallow and virgin land as land available to be reallocated for new farming areas, which, when combined with a stated aim to eradicate shifting cultivation, is likely to put the new government on a collision course with many local farmers, ethnic nationalities and land rights activist groups – the same groups who had mobilized against the 2012 Land Laws and the earlier drafts of the NLUP.

The NLD ultimately puts forward a very particular vision of agriculture and rural development that follows the same top-down, one-size-fits-all prescriptions that have been advocated and pursued by some Western donor governments and agencies and multilateral institutions elsewhere in the world for decades. Such approaches have tended to overlook specific conditions on the ground and ignored voices from local communities. ‘We will work towards the development of a modern farming sector, the fair resolution of farmland disputes, the establishment of land tenure security, and transparency in line with laws and regulations regarding the protection and transfer of farmland. We will work to ensure sufficient access to necessary inputs and finances for the development of the farming sector and rural areas. We will enable access to livelihood programmes for the landless and itinerant workers. Through the development of the agricultural sector, we will also see the bolstering of the industrial and service sectors and increased exports’. This vision of development seems very disconnected from and indifferent to the particular complex political circumstances and social history of Myanmar.

Digging deeper

Perhaps what is most striking in all this are the differences with regard to public consultation in shaping the policies and policy approaches by the different actors mentioned here.

Much law making under the previous government was not inclusive, public and democratic – e.g., the Farmland Law, the Vacant, Fallow and Virgin Land Law, the Special Economic Zone Law, and the Investment Law, among others. These laws reflect a ‘modernizing’ economic development agenda, which although perhaps ‘reformist’ in the context of pre-2010 military rule, are still extremely exclusive, anti-social and ahistorical. They entail: (i) formalising individual land rights for some users and securitising a legal land market; (ii) incentivising a relatively few legal land users to adopt ‘modern’ farming practices (iii) formalising removal of vast numbers of other land users in order to free up the land for ‘modern’ types of investment; and (iv) attracting large-scale, especially foreign private investors to convert these lands (considered to be a previously ‘dead asset’) into a ‘modern’ money-making asset. These are pro-big business measures that ignore the urgent and pressing need for wider recognition, restitution and redistribution of land.

Given this trend, it was thus rather unexpected that an unprecedented process of public consultation for a new national land use policy (NLUP) took place in the last years of the previous government. The initial drafts were made behind closed doors, but the government opened the door to a public consultation in late October 2014. Regardless of the intentions behind it, the move created unprecedented political space for previously excluded voices to try to shape the policy and open up the process further. At first this space remained pretty narrow, but over time it grew wider, as civil society groups jumped in to try to make something meaningful of the moment. The public engagement that took shape during this time surely compelled the government to extend the time frame of the consultation period and to add several additional (and previously unplanned) public meetings and mechanisms.

In reality, the political dynamic that unfolded was rocky, fluid, contentious and intensely uncertain. Yet it still went forward, lasting well beyond the originally envisioned time frame. Throughout the process, civil society actors raised key issues, criticising the government draft when necessary on specific points, while putting forward alternative proposals and formulations in hopes of them being taken up. A revised draft that came out in mid-2015 took up at least some of the ideas from civil society groups. Although an improvement over the very pro-business draft of October 2014 (for TNI’s response, see Pro-Business or Pro-Poor , the Challenge of democratic and inclusive land policy making in Myanmar and Linking women and land in Myanmar) this revised draft still left much to be desired. Fortunately, the public was again invited to contribute comments and suggestions and many of the same groups again submitted comments and recommendations (for TNI’s response, see Assessment of 6th draft of the national land use policy NLUP).

The final result is the NLUP that was adopted in January 2016, which we have seen, in many ways and in spite of its limitations, is far more responsive to and reflective of real needs and aspirations of those who have suffered human rights violations and land injustices of various sorts, than the policy outlines found in the NLD election Manifesto. The latter evidently was not the product of public consultation, and it seems to suffer from many of the very same weaknesses and problems that the earlier versions of the NLUP did before it was subjected to a process where people could provide feedback and recommendations. Still, it is not too late to rethink the current situation in order to take on board some of lessons learned from history and to synergise with some of the ideas taken up in other existing land policy documents.

Conclusion

Myanmar is at a historic crossroads where rapid land polarisation means that a major rethink is needed of how land and associated resources are regulated and for what purposes. The good news is that there is a lot of thinking about and rethinking of land policy happening both inside and outside the corridors of state; many people are putting serious time and energy into thinking about what should be done, and at least for the time being, the political space exists for previously excluded voices to weigh in and be heard.

Both the NLUP and the KNU Land Policy are positive examples of what can be achieved when policy making processes are opened up and public participation and consultation is encouraged. Both policies have shown how it is possible to acknowledge and take steps to address the fundamental concerns and aspirations voiced by real people, especially those who have been most harmed by past policy and law. Both policies, for example, have taken on board the aspirations of many IDPs and refugees who want to return to their places of origin, or at least be given a chance to explore if that possible and if so under what conditions. Both policies have also taken on board the need expressed by many to take steps at the policy level to guarantee respect for the right to land of all, especially the most vulnerable and marginal and including the customary land rights of ethnic nationalities. The KNU policy goes further by recognising the importance of addressing existing land inequality through land redistribution and recognising the possibility of preventing serious land inequality in the future through a land size ceiling.

The NLD does not yet have (or has not yet made public) a detailed land policy, but only its election manifesto, which has several weak points with regard to land related issues and was also not part of consultation process. Ironically, the NLUP adopted under the previous government is far closer to the VGGTs than the NLD election manifesto. Those hoping for change in a better direction will likely have to struggle on. The future remains uncertain especially for ethnic nationalities whose right to land and tenure rights are not recognised by current laws, for landless and near-landless rural working people, and for IDPs and refugees who wish to return.

Yet there may still be some time and cause for hope that in the future, the new NLD government will unveil a more detailed position (and take actions) on land that take on board these and other good points found in the NLUP and the KNU land policy. After all, solving the land problem is tied to the country’s prospects for peace. In the end, moving forward meaningfully in the peace process and on the land front will require an approach that puts state-led initiatives at the service of community-defined and community-led processes of negotiation and collective decision-making, and opening political space particularly at the ground level for those most affected to debate and negotiate amongst themselves their own visions of the future. This can only be done with real public consultation, where the actual needs and aspirations of those who have been most affected in the past and will be most affected in the future are finally heard and reflected in law and policy.

Tags: Business and Human Rights, Ethnic Nationalities, Karen National Union, Laws, National League for Democracy, Transnational Institute

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