Legal empowerment for local resource control

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account is shaped by power relations between their holders. However, the principle of equal protection before the law is in practice constrained by extralegal factors. Differences in power and resources may result in different interests enjoying different degrees of legal protection, and in protection granted in theory not being translated into practice. Therefore, the effectiveness of using legal and para-legal tools as a means for empowerment is likely to be inversely proportional to the scale of the power asymmetries: the greater the asymmetries, the more difficult it is to redress them through legal processes (or through other processes, for that matter); the lesser the asymmetries, the less likely it is that they can significantly affect the application of the law, and the more likely that legal processes can be used to redress them. The effectiveness of legal and para-legal tools is also likely to be linked to the relative importance of the different sources of power represented in Figure 1. Where differences in power are mainly derived from social, economic, cultural and political factors (see Table 3 above), using legal and para-legal tools is unlikely to be enough: they can only help if combined with other strategies that address those factors (e.g. social mobilisation). These considerations suggest that legal empowerment is a complex and non-linear process. Local groups may use a range of legal and para-legal tools to strengthen their negotiating power and have greater control over their lives. This entails pursuing the formal operation of the law (e.g. community land registration, litigation); and/or undertaking negotiations in the shadow of the law – where existing or advocated legal entitlements are used as a source of negotiating power and as a lever to induce change in the behaviour of other negotiating parties. Outcomes depend on legal entitlements and negotiating power, and on the use that different stakeholders make of their entitlements and power. Local groups may feel that cooperation with the central state and foreign investors gives them greater benefits than confrontation to assert their rights and tough negotiating positions. Internal divisions within local groups, possibly exacerbated by buying-offs from outsiders, may undermine the exercise of legal entitlements. Foreign investors may support local empowerment efforts, for instance because they feel that cooperation with local groups reduces non-commercial project risks; or may oppose those 117
118 efforts through recourse to administrative or judicial authorities and through other means. As a result of these forces, legal empowerment may entail temporary successes and setbacks, and final outcomes may partly differ from those originally planned. These hypotheses concerning the extent to which and the conditions under which legal (and para-legal) tools can help increase local resource control will be tested on the ground through research and capacity building work undertaken in the next phases of the “Legal tools” project (see section 4.3 below). The contrast between the high aspirations enshrined in many laws and their often disappointing implementation and outcomes has led many to be sceptical about the usefulness of legal tools. This partly originates from the frustration of excessive expectations – the illusion that merely adopting a law can change society with a pen stroke. Instead, social change is inevitably a complex and slow process. Legislative efforts must be accompanied by work to build local capacity to translate legislation into reality. This is even more so where the law challenges entrenched power asymmetries rather than legitimising them. Even when a constitution or a law is not fully implemented, its adoption is not in vain. The very fact that norms are discussed and adopted, and that certain principles and values are enshrined in the “social contract” governing society contributes to the long-term process of social change.
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Legal empowerment for local resourc
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LEGAL EMPOWERMENT FOR LOCAL RESOURC
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ABOUT THE AUTHOR Lorenzo Cotula (lo
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ICSID International Centre for the
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viii
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x III. LEGAL TOOLS TO SECURE LOCAL
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2 Legal empowerment can increase lo
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4 and implementing para-legal tools
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6 1.1. OVERVIEW 1.1.1. The issue Ac
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8 local levels. Overall, the law te
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10 1.2. DEFINITIONS, SCOPE AND RATI
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12 generally, the range of strategi
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14 CHART 2. FDI STOCK IN SELECTED A
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16 the Middle East, to sub-Saharan
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18 2.1. POWER AND LEGAL EMPOWERMENT
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20 where short timeframes would pre
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22 provisions embodied in the const
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24 2.2. FOREIGN INVESTMENT PROJECTS
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26 country power structures through
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28 investor to access a specific lo
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30 compensation), 11 and those on t
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32 that characterised the Cold War,
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34 As a result, the international l
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36 have also created government age
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38 In Africa, very little land has
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40 When conflicts between local and
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42 FIGURE 1. LAW AND POWER IN FOREI
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44 2.3. TOOLS FOR LEGAL EMPOWERMENT
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46 citizens at large use them. The
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48 2.3.2. Para-legal tools The fact
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50 emphasise helping clients themse
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III. LEGAL TOOLS TO SECURE LOCAL RE
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institutional arrangements, or wher
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In Cameroon, efforts to vest strong
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Group rights and individual rights
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BOX 4. TOOLS FOR LOCAL GOVERNMENT A
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(section 1 of the Land Act and sect
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BOX 5. LOCAL CONVENTIONS Where stro
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Page 82 and 83: Denise Malauene Community land regi
Page 84 and 85: addressed. Reform to strengthen the
Page 86 and 87: state, local resource users can “
Page 88 and 89: Another aspect of “who to consult
Page 90 and 91: occur at a relatively late stage in
Page 92 and 93: To sum up Mandatory consultation pr
Page 94 and 95: usually not formalised in the way r
Page 96 and 97: 3.3. TOOLS TO MINIMISE AND COMPENSA
Page 98 and 99: In some cases, these EIA provisions
Page 100 and 101: Tighter legal requirements on SIAs
Page 102 and 103: First, legislation typically requir
Page 104 and 105: under the Village Land Act, “cust
Page 106 and 107: prohibits “arbitrary” deprivati
Page 108 and 109: the implementation of micro-project
Page 110 and 111: BOX 7. THE SAN OF BOTSWANA: COMBINI
Page 112 and 113: aise issues about the project’s s
Page 114 and 115: Tight rules on statutes of limitati
Page 116 and 117: to hold the parent company responsi
Page 118 and 119: IV. CONCLUSION 107
Page 120 and 121: Part III of the study analysed rece
Page 122 and 123: FIGURE 3. LEGAL TOOLS - CONCEPTUAL
Page 124 and 125: 4.2. FROM LEGAL TOOLS TO LEGAL EMPO
Page 126 and 127: First, each of the legal tools anal
Page 130 and 131: 4.3. WHAT NEXT? This study has deve
Page 132 and 133: V. ANNEXES 121
Page 134 and 135: years or periodic tenancy, usually
Page 136 and 137: 5.2. REFERENCES 5.2.1. Literature A
Page 138 and 139: Egbe, S.E., 2001b, “The Law, Comm
Page 140 and 141: Platteau, J.P., 2000, “Does Afric
Page 142 and 143: BACONGO v. Department of the Enviro
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Legal empowerment for local resource control

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