Land restitution in the context of economic liberalization

According to official data, in the 1950s almost 55% of land owners in Colombia owned less than 10 hectares and occupied around 7% of the countries land; data from 2010 shows that the situation has worsened, with 77.6% of land owners holding 13.7% of the land.[1] As sociologist Alfredo Molano explains, the distribution of the land continues to be the historic origin of the armed conflict in Colombia.[2]

The 1991 Constitution and the legal framework for land restitution

Colombia is home to one of the world’s highest internally displaced populations, and the highest in Latin America. According to a recent report from the UN and the Norwegian Refugee Council (NRC), by the end of 2013 there were 5.7 million internally displaced people.[3] To address this issue, laws that seek to return land to the dispossessed have begun to be implemented.

In the 1991 Constitution a constitutional, legal and normative framework was consolidated in which reference was made to the territorial rights of the ethnic and small-scale farming (campesino) groups of Colombiam and the country was recognized as being multicultural and multilingual. With this constitution as a base, various laws that protect these rightshave been developed.[4] In 1993 Law 70 was passed, which came to be known as the “Black Communities Law”. One year later Law 160 brought back into law legislation regarding Peasant Farmer Reserve Areas (ZRC) and Indigenous Reserves.[5]

Likewise, the Santos administration passed, in 2011, Law 1448 (also known as the Victims’ Law). Chapter III, section IV of this law, which came into force in January 2012, defines the land restitution process,[6] in the context of the government’s transitional justice framework.

The economy and free trade agreements

Paradoxically and in parallel to the passing and application of these laws, that in principal guarantee the return to their land for millions of displaced Colombians, the Santos administration has, in the last few years, strongly pushed for economic liberalization, stripping the state of its importance in the regulation of the economy and encouraging inflows of foreign capital. The public investment plan for 2011-2014 has already established this strategy for these last years.

In this plan, the budget assigned to the so-called mining development and energy expansion plan reaches $96,625,212, while that assigned the agriculture and rural development budget is just $11,702,486[7]; that’s 8 times less than the energy and mining budget, which sees 96% of its funds coming from the private sector and the rest from the state. In 2013, the mining and energy sector was received 42% of public-private funding while the agricultural sector received just 2%.[8]

Furthermore, the Santos administration has dedicated itself to international commercial liberalization through the signing of various free trade agreements (FTA), as well as the creation of the Pacific Alliance, a free trade zone signed together with Mexico, Peru and Chile.[9]

As María Soledad Betancur, of the Grassroots Training Institute (IPC), explains, in response to this strategy, the most important agricultural protest against the government’s trade liberalization policies was declared in August 2013. This agricultural model is considered to be a consequence of a state strategy that seeks to concentrate wealth and exclude the campesinos from state investment.[10]

In this context, large multinationals have progressively begun to set up operations in Colombia with the intention of exploiting the country’s natural resources. These multinationals have been linked to, on numerous occasions, the systematic violation of human rights, conflicts in rural areas, and environmental crisis.[11]

Furthermore, Colombian legislation continues to offer more and more support to the establishment of these mining and energy companies. The Constitutional Court did declare unconstitutional the Law 1382 of 2010 for not having engaged in prior consultation with indigenous communities. This lead to the modification of the Mining Norms. However, though Court set a deadline of two years for legislative authorities to prepare a new proposal that takes into account the needs of the communities that inhabit mining areas, a new proposal for Norms has yet to be presented. Currently, the Mining Norms established by Law 685 of 2001 are still applied; amongst other things, those Norms hands over the resources of the Colombian subsoil to multinationals, while penalizing informal mining.[12]

Ineffectiveness of laws and a lack of guarantees

As the news site Verdad Abierta explains, of the 6,142000 registered that Colombians have had to abandon or have been displaced from during the armed conflict, only 17 thousand have been returned through Law 1448. At this rate, calculates Verdad Abierta, the restitution process will take at least 390 years, not the 10 that this very law stipulates.[13]

This investigation by Verdad Abierta identifies the functioning of the judicial system as a primary obstacle, given that the system is overwhelmed, ineffective, and prioritizes unopposed land claims over those for which a decision is more complicated.

In such a context, forced displacement continues to occur and land ownership continues to become more and more concentrated with fewer landowners. 2012 saw an additional 60,035 displacements, of which 2.904 occurred in the region of Urabá.[14]

Likewise, other legal frameworks such as Law 70 also fail to be effective. The case of land restitution in Curbaradó and Jiguamiandó is, in this respect, symbolic. In 2000 the Pastrana administration recognized, in accordance with Law 70, the collective land titles of the communities of Curbaradó and Jiguamiandó. Nevertheless, the process faltered when it came to carrying out the population census and defining who had a right to seats and votes in the High Council (the highest decision making entity of the collective community). Since 2011, the Inter-Church Justice and Peace Commission (CIJP) has regularly denounced the presence of neo-paramilitary groups and the increase in threats toward community leaders. Likewise, they denounce the fact that, at the same time, many have been excluded from their right to a vote and a seat at the High Council, demonstrating the lack of guarantees in this process that has failed to confront the political and economic powers that fostered the dispossession.[15] In this way, as form of self-protection for the communities, more and more Humanitarian Zones have been established, in accordance with international humanitarian law, Colombia’s own constitution, and the Inter-American Court of Human Rights.[16]

Another example is that of the Peasant Farmer Reserve Zones (ZRC). In the Catatumbo department many local communities declared a 50 day strike in June and July 2013[17] in protest against the failure to comply with commitments assumed by the government to the implementation of a ZRC for this region. Despite some advances this year such as the State land agency INCODER issuing an legal decision favourable to the ZRC of Catatumbo[18], at the time of writing this has not been formalized by the government. As César Jérez explains, currently there exist six established ZRCs and 6 in the process of being established. The latter six, one of which being that of Catatumbo, have been vetoed by the Ministry of Defence and remain paralysed until such time as the peace negotiations in Havana progress sufficiently.[19]

In response to the problem of land ownership in Colombia, the Santos administration presented Law 1448 of 2011. However, organizations such as Censat Agua Viva explain that, in carrying out this process in the context of economic liberalization, a market for property titles may develop and consolidate in which land will simply be bought by those with the means to pay.[20] Furthermore, the application of this law has been overshadowed by the murder of community land restitution leaders, 65 to date[21], and by the attempts of large multinational companies to purchase land.[22]

These, hence, are the challenges and complications of a process which is fundamental to social justice and peace in Colombia.

[1] Trasnational Institute/ Censat Agua Viva FoE Colombia: Colombia Y TLC: entre la movilización y el conflicto, 20 September 2013

[2] Incoder: Publicación Pensar la Tierra, páginas 11 a 25, July 2013

[3] Semana: Colombia: El segundo país con más desplazados, 14 of May 2014

[4] For example, In the case of black communities the Constitution explains in ARTICULO TRANSITORIO 55 that: within the two years following the entering into force of the present constitution Congress will issue, following a study on the part of a special commission that the government will create to such an effect, a law that recognizes the black communities that have occupied vacant land in rural riverside areas of the Pacific River Basin, in accordance with their traditional practices of production and the right to collective property in the areas that this law demarcates.

[5] Razón Pública: Las Zonas de Reserva Campesina: una alternativa para la reincorporación de ex combatiente 29 of July 2013; Publicación UNESCO: Norma sobre Resguardos Indígenas, 3 of August 1994

[6] ElPaís.com.co: Santos firmó reglamentación de Ley de Víctimas y Restitución de Tierras, 21 of December 2011

[7] Proyecto de Ley 179 de 2011 por el cual se expide el Plan Nacional de Desarrollo 2010-2014 https://www.dnp.gov.co/PND/PND20102014.aspx

[8] El Frente: Dignidad Agropecuaria, 5 of May 2014

[9] El Espectador: Colombia firma acuerdo marco de la Alianza del Pacífico y TLC con Costa Rica, 22 of May 2013

[10] Reliefweb: La crisis agraria y las causas del paro. Mucho más profundas que los TLC, 5 September 2013

[11] Colombia Reports: Multinationals on ‘trial’ for human rights abuses in Colombia, 19 August 2013

[12] Cinep: Informe: Minería, conflictos sociales y violación de derechos humanos, October 2012, Page 21

[13] Verdad Abierta: Qué cambiarle a la restitución de tierras, 9 February 2014

[14] Ibíd. Verdad Abierta: Qué cambiarle a la restitución de tierras

[15] Cijp: Paramilitares aseguran que no se irán de Curbaradó, 26 of April 2011; Cijp: Más de 10 reclamantes de tierras amenazados, empresarios continúan despojo y desarrollo de mecanismos para imposibilitar devolución de tierras, 7 of October 2013

[16] Rueda Danilo y Bouley Catherine: Zonas Humanitarias y Zonas de Biodiversidad: Espacios de dignidad para la población desplazada en Colombia