The history of South Sudan has been marked by persistent conflict, both before and after the coun... more The history of South Sudan has been marked by persistent conflict, both before and after the country’s independence in 2011, which has exacerbated the already complex web of overlapping land claims and unclear land rights. Many South Sudanese people, especially women, lack land tenure security. This report, based on qualitative research implemented in the South Sudanese cities of Torit and Wau in 2021 and 2022, aims to investigate practical interventions for land justice and the dynamics of land justice in South Sudan. To do so, the report focuses on three main topics. First, it provides an overview of land administration in South Sudan. Second, it investigates land-dispute resolution mechanisms, with a particular focus on the Community Mediation Groups (CMGs) implemented by the South Sudan Law Society (SSLS). Finally, it discusses women’s land rights in South Sudan in customary and statutory systems, the paths available for women to claim their rights, and women’s voices and roles in positions of leadership.
With governance increasingly regarded as co-governance, states’ capacity to steer, correct, and d... more With governance increasingly regarded as co-governance, states’ capacity to steer, correct, and discipline a wide range of self-governing actors becomes crucial for states’ effectiveness, efficiency, and democracy. This article investigates that capacity and the relationship between formal institutions and customary self-governance in areas of limited statehood. In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra-familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head-on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with d...
The scholarship on legitimacy of dispute settlement institutions has largely ignored community me... more The scholarship on legitimacy of dispute settlement institutions has largely ignored community mediation institutions operating in the global south. This article aims to remedy that gap, through a case study of community mediation groups in South Sudan, a state emerging from large-scale conflict where formal courts are only marginally able to fulfill their assigned roles and the rule of law needs to be built almost from the ground-up. The article studies both the empirical legitimacy of the community mediation groups and how they relate to the rule of law building project in the country. Is the empirical legitimacy of formal and informal dispute settlement institutions as a zero-sum relationship, where increasing popularity and use of informal dispute settlement institutions detract from the popularity and empirical legitimacy of formal institutions, inhibiting the maturation of the legal system and a rule of law? Or could informal dispute settlement institutions-with proper linkages to the formal system-strengthen formal institutions, both judicial and administrative? These are highly relevant questions for post-conflict states where building a well-functioning legal system is seen as a precondition for sustainable peace and development.
With governance increasingly regarded as co‐governance, states’ capacity to steer, correct, and d... more With governance increasingly regarded as co‐governance, states’ capacity to steer, correct, and discipline a wide range of self‐governing actors becomes crucial for states’ effectiveness, efficiency, and democracy. This article investigates that capacity and the relationship between formal institutions and customary self‐governance in areas of limited statehood. In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra‐familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head‐on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with data from exploratory fieldwork in two South Sudanese towns, this article aims to reflect on the cohabitation of customary and formal norms and values and the role formal legal and administrative systems, in areas of limited statehood, can and do play in boundary setting for customary self‐governance.
This paper sets out why land expropriation is a hidden danger of the response to climate change; ... more This paper sets out why land expropriation is a hidden danger of the response to climate change; a danger that is not adequately captured in legislation and that risks disproportionately affecting the poor. Measures to mitigate the risks and impacts of climate change are often dependent on states’ access to land. The legal mechanism through which states can obtain rights over land is expropriation, but a fair expropriation process depends on a number of structural conditions that are (partly or completely) lacking in many countries: effective recognition of people’s land rights; a legally detailed expropriation process and adequate administrative capacity to implement it; and respect for the rule of law and access to justice for the affected populations. Climate change exacerbates the problems that many states have with their expropriation processes: it brings new and more complex questions about the limits of expropriation; provokes more urgent expropriations; and disproportionately impacts the poorest people. Based on legal analysis and empirical research, this paper looks into the case of Mozambique in the aftermath of Cyclone Idai to show how issues related with expropriation are a hidden danger for many Mozambicans, but also for citizens of other countries in similar situations.
Land tenure in Timor-Leste: Between resilient custom and the resurgent state, 2021
Land registration has a magnetic appeal to politicians, state officials, and practitioners. The o... more Land registration has a magnetic appeal to politicians, state officials, and practitioners. The objective of this paper is, in dialogue with the other papers of this special volume, to highlight some of the main assumptions and misconceptions on which land registration programs are often developed, the problems that they cause if not carefully implemented, and the conditions in which they can actually improve people’s lives. This paper, based on my doctoral research (2020), does not aim to be a comprehensive literature review on existing knowledge regarding land registration nor an analysis of land registration in Timor-Leste, but aims instead to highlight a number of key authors and ideas on land registration that can contribute to the dialogue about this topic in Timor-Leste.
This article discusses the inherent limitations of law in transitional justice processes regardin... more This article discusses the inherent limitations of law in transitional justice processes regarding land grievances. Through analysis of the case of Timor-Leste (East Timor), a country marked by post-colonialism, post-authoritarianism, and post-conflict. The article shows how complex transitional justice regarding land grievances can be, and argues that a legalist perspective gives a limited view of these grievances, both for studying and finding solutions to them. The article employs the concept of ‘wicked problems’ to overcome the limitations of law. First, it shows how these grievances should be studied through a multi-disciplinary approach instead of a purely legal one. Second, it argues that transitional justice regarding land grievances is primarily a political issue, and creating adequate arenas for political negotiation should be prioritized. Finally, the article shows that, due to its complexity and political nature, transitional justice for land grievances is ultimately a s...
Thousands of people had to flee their homes when Cyclone Idai hit Mozambique in 2019. In its afte... more Thousands of people had to flee their homes when Cyclone Idai hit Mozambique in 2019. In its aftermath, the government resettled more than 80,000 people from high-risk areas to safer ground. This article analyses resettlement as a durable solution to disaster response. The question of durable resettlement due to climate-related displacement is especially pertinent in the light of ongoing climate change. Based on empirical research, we show that, although the government succeeded in providing a short-term response to the disaster, there are two major impediments to using resettlement as a durable solution: the lack of citizen participation in the decision-making process leading to resettlement; and the gap between the short-term humanitarian perspective and a longer-term development viewpoint. Resettlement can hardly be seen as a durable solution to climate-related displacement as long as key principles are not respected.
International Journal of Transitional Justice, 2021
This article discusses the inherent limitations of law in transitional justice processes regardin... more This article discusses the inherent limitations of law in transitional justice processes regarding land grievances. Through analysis of the case of Timor-Leste (East Timor), a country marked by post-colonialism, post-authoritarianism, and post-conflict. The article shows how complex transitional justice regarding land grievances can be, and argues that a legalist perspective gives a limited view of these grievances, both for studying and finding solutions to them. The article employs the concept of ‘wicked problems’ to overcome the limitations of law. First, it shows how these grievances should be studied through a multi-disciplinary approach instead of a purely legal one. Second, it argues that transitional justice regarding land grievances is primarily a political issue, and creating adequate arenas for political negotiation should be prioritized. Finally, the article shows that, due to its complexity and political nature, transitional justice for land grievances is ultimately a search for acceptable, rather than optimal, solutions.
Moçambique é um país propenso a desastres naturais tais como cheias e ciclones. As alterações cli... more Moçambique é um país propenso a desastres naturais tais como cheias e ciclones. As alterações climáticas estão a aumentar os riscos destes desastres. O reassentamento é a principal solução adoptada pelo governo para reduzir o número de pessoas que vivem em áreas de alto risco. Mas como se faz esse reassentamento? As pessoas estão satisfeitas com os seus novos locais de vida? São compensadas pela perda de propriedade e meios de subsistência? E quanto às pessoas que usavam as terras onde são feitos estes novos reassentamentos? Este relatório de pesquisa discute estas questões e mostra as realidades no terreno. O relatório é baseado numa revisão da literatura e legislação relevante, bem como pesquisa empírica realizada em Moçambique. Argumentamos que existem algumas lacunas no quadro legal que devem ser resolvidas, especialmente em relação aos processos de expropriação. Para assegurar que o reassentamento seja uma solução duradoura, as necessidades de longo prazo das pessoas reassentadas têm que ser consideradas. Para isso, é necessária a colaboração entre os actores humanitários e de desenvolvimento, assim como recursos consideráveis. Finalmente, recomendamos que se preste atenção às relações entre antigos e novos residentes nos locais de reassentamento para detectar e prevenir tensões e conflitos.
Mozambique is a country that is prone to natural disasters such as floods and cyclones. Climate c... more Mozambique is a country that is prone to natural disasters such as floods and cyclones. Climate change is increasing disaster risks. Resettlement is the major solution taken by the government to reduce the number of people living in high-risk areas. But how does such resettlement take place? Are people satisfied with their new places of living? Are they compensated for the loss of property and livelihoods they experience? And what about the people that were making use of resettled land before? This research report discusses these questions and shows realities on the ground. The report is based on a desk study of academic literature, grey sources, and relevant legislation, as well as empirical research carried out in Mozambique. We argue that there are some gaps that should be addressed in the legal protection frameworks, especially in relation to expropriation processes. To ensure that resettlement is a durable solution, people’s longer-term needs in displacement should be addressed. For this, collaboration between humanitarian and development actors is required, as well as considerable resources. Finally, we recommend that close attention is paid to the relations between old and new settlers at resettlement sites to avoid tensions.
The history of South Sudan has been marked by persistent conflict, both before and after the coun... more The history of South Sudan has been marked by persistent conflict, both before and after the country’s independence in 2011, which has exacerbated the already complex web of overlapping land claims and unclear land rights. Many South Sudanese people, especially women, lack land tenure security. This report, based on qualitative research implemented in the South Sudanese cities of Torit and Wau in 2021 and 2022, aims to investigate practical interventions for land justice and the dynamics of land justice in South Sudan. To do so, the report focuses on three main topics. First, it provides an overview of land administration in South Sudan. Second, it investigates land-dispute resolution mechanisms, with a particular focus on the Community Mediation Groups (CMGs) implemented by the South Sudan Law Society (SSLS). Finally, it discusses women’s land rights in South Sudan in customary and statutory systems, the paths available for women to claim their rights, and women’s voices and roles in positions of leadership.
With governance increasingly regarded as co-governance, states’ capacity to steer, correct, and d... more With governance increasingly regarded as co-governance, states’ capacity to steer, correct, and discipline a wide range of self-governing actors becomes crucial for states’ effectiveness, efficiency, and democracy. This article investigates that capacity and the relationship between formal institutions and customary self-governance in areas of limited statehood. In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra-familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head-on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with d...
The scholarship on legitimacy of dispute settlement institutions has largely ignored community me... more The scholarship on legitimacy of dispute settlement institutions has largely ignored community mediation institutions operating in the global south. This article aims to remedy that gap, through a case study of community mediation groups in South Sudan, a state emerging from large-scale conflict where formal courts are only marginally able to fulfill their assigned roles and the rule of law needs to be built almost from the ground-up. The article studies both the empirical legitimacy of the community mediation groups and how they relate to the rule of law building project in the country. Is the empirical legitimacy of formal and informal dispute settlement institutions as a zero-sum relationship, where increasing popularity and use of informal dispute settlement institutions detract from the popularity and empirical legitimacy of formal institutions, inhibiting the maturation of the legal system and a rule of law? Or could informal dispute settlement institutions-with proper linkages to the formal system-strengthen formal institutions, both judicial and administrative? These are highly relevant questions for post-conflict states where building a well-functioning legal system is seen as a precondition for sustainable peace and development.
With governance increasingly regarded as co‐governance, states’ capacity to steer, correct, and d... more With governance increasingly regarded as co‐governance, states’ capacity to steer, correct, and discipline a wide range of self‐governing actors becomes crucial for states’ effectiveness, efficiency, and democracy. This article investigates that capacity and the relationship between formal institutions and customary self‐governance in areas of limited statehood. In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra‐familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head‐on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with data from exploratory fieldwork in two South Sudanese towns, this article aims to reflect on the cohabitation of customary and formal norms and values and the role formal legal and administrative systems, in areas of limited statehood, can and do play in boundary setting for customary self‐governance.
This paper sets out why land expropriation is a hidden danger of the response to climate change; ... more This paper sets out why land expropriation is a hidden danger of the response to climate change; a danger that is not adequately captured in legislation and that risks disproportionately affecting the poor. Measures to mitigate the risks and impacts of climate change are often dependent on states’ access to land. The legal mechanism through which states can obtain rights over land is expropriation, but a fair expropriation process depends on a number of structural conditions that are (partly or completely) lacking in many countries: effective recognition of people’s land rights; a legally detailed expropriation process and adequate administrative capacity to implement it; and respect for the rule of law and access to justice for the affected populations. Climate change exacerbates the problems that many states have with their expropriation processes: it brings new and more complex questions about the limits of expropriation; provokes more urgent expropriations; and disproportionately impacts the poorest people. Based on legal analysis and empirical research, this paper looks into the case of Mozambique in the aftermath of Cyclone Idai to show how issues related with expropriation are a hidden danger for many Mozambicans, but also for citizens of other countries in similar situations.
Land tenure in Timor-Leste: Between resilient custom and the resurgent state, 2021
Land registration has a magnetic appeal to politicians, state officials, and practitioners. The o... more Land registration has a magnetic appeal to politicians, state officials, and practitioners. The objective of this paper is, in dialogue with the other papers of this special volume, to highlight some of the main assumptions and misconceptions on which land registration programs are often developed, the problems that they cause if not carefully implemented, and the conditions in which they can actually improve people’s lives. This paper, based on my doctoral research (2020), does not aim to be a comprehensive literature review on existing knowledge regarding land registration nor an analysis of land registration in Timor-Leste, but aims instead to highlight a number of key authors and ideas on land registration that can contribute to the dialogue about this topic in Timor-Leste.
This article discusses the inherent limitations of law in transitional justice processes regardin... more This article discusses the inherent limitations of law in transitional justice processes regarding land grievances. Through analysis of the case of Timor-Leste (East Timor), a country marked by post-colonialism, post-authoritarianism, and post-conflict. The article shows how complex transitional justice regarding land grievances can be, and argues that a legalist perspective gives a limited view of these grievances, both for studying and finding solutions to them. The article employs the concept of ‘wicked problems’ to overcome the limitations of law. First, it shows how these grievances should be studied through a multi-disciplinary approach instead of a purely legal one. Second, it argues that transitional justice regarding land grievances is primarily a political issue, and creating adequate arenas for political negotiation should be prioritized. Finally, the article shows that, due to its complexity and political nature, transitional justice for land grievances is ultimately a s...
Thousands of people had to flee their homes when Cyclone Idai hit Mozambique in 2019. In its afte... more Thousands of people had to flee their homes when Cyclone Idai hit Mozambique in 2019. In its aftermath, the government resettled more than 80,000 people from high-risk areas to safer ground. This article analyses resettlement as a durable solution to disaster response. The question of durable resettlement due to climate-related displacement is especially pertinent in the light of ongoing climate change. Based on empirical research, we show that, although the government succeeded in providing a short-term response to the disaster, there are two major impediments to using resettlement as a durable solution: the lack of citizen participation in the decision-making process leading to resettlement; and the gap between the short-term humanitarian perspective and a longer-term development viewpoint. Resettlement can hardly be seen as a durable solution to climate-related displacement as long as key principles are not respected.
International Journal of Transitional Justice, 2021
This article discusses the inherent limitations of law in transitional justice processes regardin... more This article discusses the inherent limitations of law in transitional justice processes regarding land grievances. Through analysis of the case of Timor-Leste (East Timor), a country marked by post-colonialism, post-authoritarianism, and post-conflict. The article shows how complex transitional justice regarding land grievances can be, and argues that a legalist perspective gives a limited view of these grievances, both for studying and finding solutions to them. The article employs the concept of ‘wicked problems’ to overcome the limitations of law. First, it shows how these grievances should be studied through a multi-disciplinary approach instead of a purely legal one. Second, it argues that transitional justice regarding land grievances is primarily a political issue, and creating adequate arenas for political negotiation should be prioritized. Finally, the article shows that, due to its complexity and political nature, transitional justice for land grievances is ultimately a search for acceptable, rather than optimal, solutions.
Moçambique é um país propenso a desastres naturais tais como cheias e ciclones. As alterações cli... more Moçambique é um país propenso a desastres naturais tais como cheias e ciclones. As alterações climáticas estão a aumentar os riscos destes desastres. O reassentamento é a principal solução adoptada pelo governo para reduzir o número de pessoas que vivem em áreas de alto risco. Mas como se faz esse reassentamento? As pessoas estão satisfeitas com os seus novos locais de vida? São compensadas pela perda de propriedade e meios de subsistência? E quanto às pessoas que usavam as terras onde são feitos estes novos reassentamentos? Este relatório de pesquisa discute estas questões e mostra as realidades no terreno. O relatório é baseado numa revisão da literatura e legislação relevante, bem como pesquisa empírica realizada em Moçambique. Argumentamos que existem algumas lacunas no quadro legal que devem ser resolvidas, especialmente em relação aos processos de expropriação. Para assegurar que o reassentamento seja uma solução duradoura, as necessidades de longo prazo das pessoas reassentadas têm que ser consideradas. Para isso, é necessária a colaboração entre os actores humanitários e de desenvolvimento, assim como recursos consideráveis. Finalmente, recomendamos que se preste atenção às relações entre antigos e novos residentes nos locais de reassentamento para detectar e prevenir tensões e conflitos.
Mozambique is a country that is prone to natural disasters such as floods and cyclones. Climate c... more Mozambique is a country that is prone to natural disasters such as floods and cyclones. Climate change is increasing disaster risks. Resettlement is the major solution taken by the government to reduce the number of people living in high-risk areas. But how does such resettlement take place? Are people satisfied with their new places of living? Are they compensated for the loss of property and livelihoods they experience? And what about the people that were making use of resettled land before? This research report discusses these questions and shows realities on the ground. The report is based on a desk study of academic literature, grey sources, and relevant legislation, as well as empirical research carried out in Mozambique. We argue that there are some gaps that should be addressed in the legal protection frameworks, especially in relation to expropriation processes. To ensure that resettlement is a durable solution, people’s longer-term needs in displacement should be addressed. For this, collaboration between humanitarian and development actors is required, as well as considerable resources. Finally, we recommend that close attention is paid to the relations between old and new settlers at resettlement sites to avoid tensions.
This sociolegal study focuses on the political, legal and institutional problems and dilemmas of ... more This sociolegal study focuses on the political, legal and institutional problems and dilemmas of regulating land tenure. By studying the development of the Timorese formal land tenure system, this book engages in the larger debate about the role of state systems in addressing and aggravating social problems such as insecurity, poverty, inequality, destruction of nature, and cultural and social estrangement.
Land tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective based on the author’s experience in Timorese state administration, and through the investigation of five analytical themes –political environment, lawmaking, legal framework, institutional framework, and social relationships and practices– this book studies the development of the Timorese formal land tenure system from independence in 2002 to 2018. It shows how political, legal, and administrative decisions on land administration are made, what and who influences them, which problems and dilemmas emerge, and how the formal system works in practice. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens in the wake of centuries of socio-political tumult and huge fluctuations in resources. The book concludes by highlighting the importance of lawmaking and how abuses of power can be curbed by adequate administrative processes and laws. Finally, it argues that land administration is primarily a political matter. The political dimension of technical solutions must be considered if we aim to achieve fairer formal land tenure systems.
The pertinence of the topics covered, the multi-disciplinary perspective, and the research methodology followed make this book appealing to a variety of readers, including international organizations, practitioners, academics and students engaged in land administration, post-colonial and -conflict issues, lawmaking, rule of law, public administration and issues of access and exclusion.
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Papers by Bernardo Almeida
In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra‐familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head‐on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with data from exploratory fieldwork in two South Sudanese towns, this article aims to reflect on the cohabitation of customary and formal norms and values and the role formal legal and administrative systems, in areas of limited statehood, can and do play in boundary setting for customary self‐governance.
that can contribute to the dialogue about this topic in Timor-Leste.
Finally, the article shows that, due to its complexity and political nature, transitional justice for land grievances is ultimately a search for acceptable, rather than optimal, solutions.
In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra‐familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head‐on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with data from exploratory fieldwork in two South Sudanese towns, this article aims to reflect on the cohabitation of customary and formal norms and values and the role formal legal and administrative systems, in areas of limited statehood, can and do play in boundary setting for customary self‐governance.
that can contribute to the dialogue about this topic in Timor-Leste.
Finally, the article shows that, due to its complexity and political nature, transitional justice for land grievances is ultimately a search for acceptable, rather than optimal, solutions.
Land tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective based on the author’s experience in Timorese state administration, and through the investigation of five analytical themes –political environment, lawmaking, legal framework, institutional framework, and social relationships and practices– this book studies the development of the Timorese formal land tenure system from independence in 2002 to 2018. It shows how political, legal, and administrative decisions on land administration are made, what and who influences them, which problems and dilemmas emerge, and how the formal system works in practice. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens in the wake of centuries of socio-political tumult and huge fluctuations in resources. The book concludes by highlighting the importance of lawmaking and how abuses of power can be curbed by adequate administrative processes and laws. Finally, it argues that land administration is primarily a political matter. The political dimension of technical solutions must be considered if we aim to achieve fairer formal land tenure systems.
The pertinence of the topics covered, the multi-disciplinary perspective, and the research methodology followed make this book appealing to a variety of readers, including international organizations, practitioners, academics and students engaged in land administration, post-colonial and -conflict issues, lawmaking, rule of law, public administration and issues of access and exclusion.