Land Tenure
INSTITUTIONS:
A- Failure key indicators:
The critical elements and limitations of the land administration can help to identify existing constraints and required manages in systems. Also, it helps to examine the quality of the current system, identifying authority’ failures which can potentially hinder the successful engagement of LTA to meet the principles of fairness and equity, and the obtained levels of satisfaction of users. In this connection, the essential failure constraints of LTA identified in literatures were summarised within a set of negative interventions, as follows:
a) Weakness of governance or lack of institutional managements: as previously reviewed, it is experienced that a land administration must be established with an affective capability of the relevant institutional managements that have a clear system to be able to govern the needs of peoples. In practice, UN-Habitat (2003a) and USAID (2011) stressed on the fact that the unsecured tenure and property rights, poorly performing land markets, insufficient land/housing marketing laws, absent/ inadequate managements and a lack of tenure information, and livelihoods deprivation, all are vital consequences related to the
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weakness of governance and the ineffective legal performance in institutional
structures. In this connection, Wiley (2013) and Payne (2012) focused on
struggle over unfair shared rights and the losing indigenous /minority rights by the social/ culture and religious conceptions and their old morals/ regulations that may be unfair and inadequate with modern administration systems of tenures. In more general terms, the effective institutions should be spatially enabled because weakness of quality of system encourages all these negative impacts in which the LTA is lacked;
b) Bureaucratic routine/ corruption in system procedures: the bureaucratic routine in some cases has eroded the trust in system by encouraging people to avoid the legal procedures of system (UN-Habitat, 2010 and 2012). In this case, the negative impacts come directly from the authority’ deficiency and the weakness of system to achieve an adequate level of administrative role which can be the main reason of bureaucratic corruption in system procedures. Furthermore, many studies emphasis that this administrative corruption is a significant elements on the misunderstanding about how to reform the local rigid and old regulations with modern judicial systems, which have shared international experiences and approaches of land managements and monitoring
(see UN-Habitat, 2006 and 2013b; Amey, Velega and Andrew, 2009; FAO,
2012; Payne and Durand-Lasserve, 2012). In the Iraqi case, in its 2014 Corruption Perception Index, the Transparency International report ranked Iraq 170 out of 175, and 156 out of 189 countries in the corruption perceptions index 2016 overall (Transparency International EU, 2017). Furthermore, international surveys on business bribery also show high levels of bureaucratic corruption in the Iraqi province level, meaning that bribery is the norm to win a governmental
system in Iraq (see UN-Habitat, 2010a; Transparency International website,
2013). Therefore, the rigid and old laws and routine procedures are reflecting deeply a series of inadequate and slow progress contributing to different aspects in institutional system such as the weak legal and ineffective institutional structures, insufficient technical aspects, inadequate arrangements and a lack of information regarding land tenures;
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c) Misdirected policy and poor executions:evidence showed that the institutional performance adopted by the government at the national and local levels, reflects the success or failure of system to provide an efficient ways for land users in order to enable them to obtain appropriate possession for safe land tenure and
property rights (see UN-Habitat reports, 2010a and 2012;Zahir, 2013). Taking
international experiences and approaches unserious and deeply inequitable and
often unfair shaping and implementing land strategies, all led to ineffective
institutional structures and then wider land tenure crises, especially to vulnerable groups such as women and minorities, and then the insecurity
dwellingandpoorly performing land dispute resolution;
d) Constrained sales or poorly performing land markets:land markets at public and private components can reflect the effectiveness level of institutional structures regarding legal managements and financial support aspects. Land availability is also required for rebuilding damaged infrastructure and livelihoods. With contentious violence, insecurity spheres, chaos and land grabbing complex Land markets problems; constrained sales or markets in land on a countrywide all led to poorly performing land markets (see UN-Habitat,
2010b;Payne, and Durand-Lasserve, 2007). As the effective implementation of
land policies, legal regulations and law enforcement, sufficient land/ housing law managements, and organisational co-operation levels are used as the best way in which land markets performing can be enormously executed and decline the related crisis such as illegal occupancies and informal tenure to land. Thus, flexible land management, land administration and land development are the foundation on which the investment in land/housing markets in a country is built;
e) Informal settlements or illegal occupation: as observed in the previous intervention, instability and displacement affect LTA, heightening the risk of forced eviction, land grabs, abusive or fraudulent sales and then illegal occupation of land to the users. FAO (2012: p.16) endorsed that consequence by
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manner that respects existing formal rights under national law and in ways that recognize the reality of the situation and promote social, economic and environmental well-being”. As mentioned previously, this illegal occupation can
be closely diagnosed as a negative response to the weakness of the institutional frameworks and its weak capability to deal with a good policy to Land/ housing provision , that crisis also can be empowered by instable and insecurity situation such as war/post-war spheres (see Payne, 1997, 2001and 2003; USAID, 2005, 2005a, 2010 and 2011);
f) Refugee’s relocation problems: as observed in the previous intervention, war/ post-war sphere is a main cause to displacements and insecurity of tenure. World Vision Inc. (2016) and UNHCR (2017) registered that the number of displaced people in the world surpassed 50 million. The refugees became an international crisis and recently about 15.2 million refugees and 26.4 million internally displaced persons, with a further 14.8 million live in displacement as a consequence of natural/human disasters, most of them from the Middle Eastern region (IOM, 2017). In fact, the highest percent of these people live in war/post war areas in the Middle Eastern region. The global context of displacement today is further characterised by conflicts over land and other natural resources that are often related to human rights violations. In 2015, the Global Internal Displacement (GID, 2016) registered a high wave in the number of migrated people, citing the figure of 4.8 million from Syrian and Iraqi, most of them are in need of resettlement. This humanity problem is a reaction to various factors such as the national instability and insecurity, tribal/ethnic clashes and inter- communal violence which all trigger the refugee relocation problems and ineffective institutional frameworks can increase the number of refugee’s conflicts. Also, the inside displacement influence directly on the data and user’s information in the system, and the protection of end-user’s rights (see IMO, 2017; FAO, 2012: the Syrian Arab Republic, Jordan, Egypt, and Iraq country profiles). In practice, the vulnerable users’ rights, most deeply affected by the critical situation in their regions, however, the reasons remain unchanged. For example, World Vision Inc. (2016) emphases that only 10% of Syria’s most
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vulnerable refugees were resettled by the end of 2016, while the majority lost their lands and the legal access to proof their tenure rights. Therefore, the society’s instability and insecurity spheres of inter-communal violence undoubtedly have a vital negative role to play to lose access resources to land and related rights;
g) Lack of legal rights awareness: this is a vital problem in both levels of institutional managements and to land users; it is linked to misunderstanding about required documents. Payne and Durand-Lasserve (2012) emphasis that the person’s situation in informal tenure can be resulted due to lack of awareness about their legal rights and confusion about how to securing tenure through title/ what legal documentations that they should have, thus, this misunderstanding to the formal process and required documents can lead to severe consequences such as the forced eviction and informal occupancy.
This negative intervention can be used for the indicator of the institutional aspects and how can the elements of the existing LTA be assessed. Building on the previous discussion, Figure 2.5 is graphically presenting an overall of these keys elements of success/failure of LTA.
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Figure 2.5: Overall of keys elements of efficiency of LTA (developed from Fig. 2.4)
In this research, reviewing the literatures showed a set of key constraints that have been identified and evaluated as the main constraints to LTA with their negative interventions (see Figure 2.5). Building on the previous discussion (see Subsection 2.4.4), the main elements of institutional performance and these critical factors influencing the LTA are summarised below, they describe these key constraints and interventions elements of LTA as identified in the reviewed literature:
Efficiency indicators KEYS ELEMENTS OF SUCCESS KEYS ELEMENTS OF FAILURE Weakness/absence of management & monitoring Discoordination with local governments Balanced procedures & processes Enhancing the end-users’ rights KEYS ELEMENTS Continuous improvement Transparency Administrative
Efficiency
Implementing Efficiency Efficiency of the land authorities (Agencies)End-user’s Satisfaction Deficiency of the land
authorities (Agencies) End-user’s Dissatisfaction Misunderstanding the end-users’ needs Administrative Corruptions Administrative
Deficiency
Implementing Deficiency49
1) Elements of Institutional Performance:
Security of Tenure
Land Tenure Managements
Financial Support
Legal Framework
Land Dispute Resolution System
Data and User’s Information
Technical Aspects of System
Organisational Co-operation.
2) Critical Factors Influencing the LTA: a) Social / Cultural factors;
Family Values/ Conceptions of Tenure’s Rights
Tribal Traditional Regulations/Rules.
Religious Conceptions of Tenure’s Rights (Islamic Rules).
b) Stability gap’s factors:
Weakness of Governance
Bureaucratic routine / corruption
Displacement/ Refugee’s Relocation Problems
Insecurity of Tenure
Lack/absence of Tenure Information
Misdirected Policy and Poor Executions
Poorly Performing Land Markets
The residential Market’s Crisis
Informal Settlements or Illegal Occupation
Lack of Legal/Rights Awareness.
c) Economic and financial factors:
Lack/Deficiency of Financial Support
Poorly Functioning Legal Systems
Family/Individuals Income
Land/ Housing Provision
Livelihoods Deprivation.
Therefore, in order for LTA to be effectively implemented and produce enhanced security for the end-user’s rights, key factors of success/ failure must be addressed. These keys elements and related influences will be further developed in the next chapter
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in order to develop the conceptual framework (Chapters 3 and 4). They are considered from the basis of the conceptual framework (Chapter 3: Section 3.3 and Table 3.3), which directs the investigation to be undertaken in the Iraqi case when data is collected (Chapters 7 and 8).
2.5 SUMMARY
This chapter has explored the literature to answer the research objective (No.1) regarding the LTA and its administration and securing issues. The chapter presented the LTA as the land administrative function in LAS aspects, in which the LTA and end- users rights be legally defined, and effectively managed and implemented within specific arrangements and process in the system.
In this chapter, keys elements and related influences of LTA have been explored in detail in order to develop in the next chapter the conceptual framework conducted in this research. The chapter has provided a set of variety of definitions and applications from which the significance of LTA clear. For the purpose of this research, the LAS policies, processes and institutions have presented as a set of organisational processes, legal understandings, and authority’ roles by which the tenures and end-user’s rights can be managed and monitored within an effective system.
From the literature review, it has become clear that there is agreement on role of LTA under the legally defined framework and the critical factors influencing the authority’s ability of success/failure on what constitute common efficiency is a need of all tenure stakeholders.
In the following chapter, the role of land institutional authorities in developing countries is explored and the critical factors influencing the efficiency/deficiency of the authority of tenure regarding LTA are considered to develop the conceptual framework in this research.
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