Follow up on the Colombian Peace Agreements and Land Tenure Issues: transitions, property rights and tenure security Margarita Varón Perea Colombia Rural

PRESENTATION OVERVIEW Peace agreements and land tenure policy Where are we standing The “No” Arguments Lets listen what we don’t want to hear Zoom to a practical problem / State Land for? What are the practical consequences and the potential effects? A Pardon Regime for Land Tenure in Colombia A way out The principles to design the pardon regime

1. The Peace agreements and land tenure policy: context Half of rural property in Colombia informal (ranges 25%-60%) The Peace Agreement puts an end to the armed conflict with FARC. Comprehensive Rural Reform (RRI) is the first point of the Peace Agreement. Land governance has a predominant role in RRI

Land Fund Unexploited lands Illegally acquired lands Illegally occupied lands that have been recovered by the State Lands that are no longer considered to be part of or classified as forest reserves Unexploited lands Expropiated lands due to their social interest or public utility Lands donated to the Fund

Comprehensive Rural Reform: Land Tenure Issues Massive formalization of small and medium rural properties Acquisitive prescription State land Creation of a land fund Creation of an agrarian jurisdiction Creation and update of a multipurpose cadaster Land Restitution

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The Peace Agreement includes basic rules common to almost every modern and lawful state where legal certainty and protection of property rights play a fundamental role. So… Why some of the most incidental political groups in Colombia would argue that the prescriptions of the Peace Agreement on land tenure undermine property rights in Colombia?

From 59 suggestions, 23 reflect a concern about how RRI could affect private property.

The “NO” Arguments about how the rural reform may affect private property Validity Government will accurately characterize the concept of the "Baldío de la Nación“(State land) and the processes to conversion to private property. valid Agreements should not affect honest owners or holders, whose good faith must give presumption of absence of guilt that can not be disproved Invalid State shall clarify expiration of ownership for breach of the social and ecological function of property and of administrative expropriation for social interest or public utility Partially valid In almost every case there was misleading information that created the idea that the agreement included new mechanisms to conquer the lands that people legitimately acquired in order to give them to the poor, moving towards a socialist regime. This is false mainly considering that all this mechanisms have existed in Colombia for more than 4 o r 5 decades, at least since 1961 with the issuing of Act 135 on Rural Agrarian Reform. The legal analysis shows that from the 15 grouped observations, only 1 is completely valid and 4 partially valid.

Legal security of land tenure Unclear definition of “unexploited lands” Land administration capacity No evident definition for “Baldío” legitimately acquired Legally acquired Legal discussions regarding the application of prohibition of landholding over a UAF Legal security of land tenure Good and bad faith Social function of property

None of this problems have an actual relation to the Peace Agreement None of this problems have an actual relation to the Peace Agreement. But the “No” groups pointed out that people that do comply with the social function of rural property and have legitimately acquired land in good faith do not want to lose it over a new land tenure public policy. NEW LEGAL FRAMEWORK?

3. Zoom to a practical problem: What is state land for? If the person than has been farming the land has a patrimony superior to 1000 MLMS or has another property State land Illegally occupied state land If the person has been farming more than one (1) UAF Property title

Should the State recover the illegally occupied state land and nurture the land fund to distribute those parcels to peasants? State will enforce the law: prevent new invasions of State Land Materialize State presence in areas where its absence was already a normal situation, key to trust building between state and communities Provide land for the Land Fund, needed for distribution purposes. Provide social justice by recovering land from the rural inhabitants that have the capacity to acquire it by their own means, which also contributes to reduce the structural conditions that facilitated the creation of armed conflict in the first place

Should the State recover the illegally occupied state land and nurture the land fund to distribute those parcels to peasants? Create social conflicts between State and occupants Create a sensation of injustice for the occupants who have harvested the land for years, created a life and a production system counting on a peaceful possession that has complied with the social function of rural property without public goods or State support. Question the legitimacy of the legal framework which could undermine State´s legitimacy in itself and create social unrest. Imply high costs for contentious legal processes that the State could loose given the ambiguity and complexity of the Colombian legal framework on land tenure

4. LAND PARDON REGIME?

Distributive justice Corrective justice Legal Framework that: Emerges from customary practices understood as legitimate Acknowledges and encourages sustainable harvesting of the land regardless if it is a big or small portion of land Accepts formalization processess as one way to distribute land. Often Implies binary relations and: It is easy to classify between good and bad There is a problem between Big Land Owners and poor small peasants Legal certainty and respect of property rights implies a sacrifice in distribution,

5. The principles to design the pardon regime Principle 2, Due diligence: Transactions will be judged and analyzed with attention to: Due diligence and Economic resources, access to information. Principle 1, State’s responsibility: Lack of information Action of the state. The citizen will not assume the costs of the law infringement and the land rights will be protected Principle 3, State’s interest in judicial proceedings: State agency will participate as an interested part in judicial cases

5. The principles to design the pardon regime Principle 4: Legitimacy is needed. Legality of transactions over rural lands is not enough. Principle 5: Symbolic cases. National Land Agency will be able to select paradigmatic cases. Not every illegal transaction will be processed. Principle 6: Corrective measures taken by the State need the practical implication of recovering lands in favor of the Land Fund.

Conclusions Peace agreement brings rules common to every modern state on property rights and is based on the current legal framework. To fulfill the goals established in it we need a new legal framework that: addresses a more complex scenario rather than the traditional binary relation between corrective / distribution justice Respects legitimate property even if it is a big extension or even if it is illegal

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