The legislation that regulates the use, access to and distribution of land in Colombia is complex and difficult to navigate, not just for people from the countryside but also for the judges within the system given the different interpretations of the law and how it should be applied. In general, there is a marked poliarisation in perspectives on Colombia’s territory; one which recognises the rights of small-scale farmers to the land they cultivate, and the other that favours the concentration of land in the hands of a few through private property titles.[1] Current Colombian norms reflect these two visions and generate confusion as well as judicial and social tensions when it comes to applying the law.[2]

Compared to other Latin American countries, Colombia has never been through a real process of agrarian reform, despite various attempts over the years.[3] This has generated significant uncertainty about land tenure on a national scale, feeding high levels of corruption and chipping away at the rights of people who live in rural areas under the gaze of geo-strategic interests. In the Colombian context, the issue of land stems from a historical and social debt that the State has with ethnic and farming communities in the country who have been affected by the armed conflict and by the absence of protection guarantees in rural territories. Therefore, integrated public policy is needed that recognises the reality in rural areas, and seeks equilibrium between the different positions and interests.[4]

17. Pavas_Caldwell Manners_Ecap — Photo: Caldwell Manners/ECAP

Legislation

Law 160 of 1994 is an emblematic example of an attempt to mix two opposing visions in the law to promote rural development by creating the Campesino Reservation Zones, whilst at the same time letting the State off the hook from its obligation of carrying out full agrarian reform by allowing it to further implement its neo-liberal vision, a model that expects all issues to be resolved by the forces of the free market.[5] Camilo Sanchez, expert on land issues in Colombia, describes the law as “a sad languishing of agrarian reform in Colombia”.[6] The law stipulates that what are known as unoccupied lands, baldíos, of the State could be granted to farmers who had no land to cultivate.

In principle, every municipality is responsible for developing its own Territorial Organisational Plan (POT) which sets out the norms for territorial usage and cohabitation between the different actors and interests that exist.[7] More than 20 years have passed since the Law was create and most of the Plans have yet to be drawn up, partly because of the insecurity produced by the armed conflict in the territories, and also because of the lack of systematic and up to date information about the national territory with accurate details of how much unoccupied land is available.[8]

Law 1776 of 2016, known as the Zidres Law, changes the rationale behind the use of unoccupied land under Law 160.[9] The State can now grant its unoccupied lands to companies, on the understanding that these lands are remote and of low productivity.[10] This law has been widely criticised because it favours large scale capital investment over protecting the rights of the farming communities and environmental conservation; for now, the Constitutional Court has approved the law whilst it examines a claim of unconstitutionality put before it.[11]

These laws interact with Law 1448 of 2011, known as the Victims’ Law.[12] This law was presented with the aim of repairing the victims of the armed conflict and responding to one of the country’s many historic injustices.[13] The law includes a part on Land Restitution for people whose territories have been forcibly dispossessed during the armed conflict. This Law only applies to people whose lands have been formally recognised; those who have no access to property titles for whatever reason cannot benefit from it.

Despite numerous difficulties, more than 3000 requests have been resolved by the Land Restitution Unit with around 2000 hearings held in the last six years, which represents about 25% of the requests received by the entity. However there are only four years left to process the rest of the requests, because the law is due to terminate in 2021.

There has been a lot of criticism about the application of Law 1448, mostly because of its slow and bureaucratic processes which can take years to resolve.[14] The persistence of the armed conflict has prevented many victims from making applications, because of the high risks faced by people who reclaim their land.[15] Every case is studied individually and exhaustively depending on the circumstances of the people who apply, meaning collective and community requests are harder to process. This means that rural communities who have been forcibly displaced have to get over yet another hurdle to request the community’s land restitution within the system.[16] In addition, the high degree of informal land tenure means that many displaced people have not been able to access the Land Restitution system because their titles have not been formalised.[17] Women are particularly vulnerable in this regard, often widowed by the conflict, with no land title documentation, in a country where land titles have historically been the prerogative of men.

Despite the achievements of the Land Restitution Law and the opportunities presented by the current peace process between the Government and the Farc, there are still several obstacles to implementing a legal system that is able to apply justice with regards to the use, access and distribution of land in Colombia. As well as these there are bodies of law that protect ethnic groups and contain measures for territorial protection, and the body of law on environmental protection as applied to land. These articulate themselves within the tensions between the rights of communities versus the prioritisation of economic interests, which demonstrates the complexity of the topic and the need to understand the roots of the problem.

Hannah Matthews

Footnotes:

[1] Interview with Camilo Sánchez, Centro de Estudios de Derecho, Justicia y Sociedad – Dejusticia, 18 October 2017
[2] Ibid., Interview with Camilo Sánchez
[3] Centro de Memoria Histórica: La política de reforma agraria y tierras en Colombia. Esbozo de una memoria institucional, 2013
[4] Op. cit., Interview with Camilo Sánchez
[5] Secretaría Senado: Ley 160 / 1994
[6] Op. cit., Interview with Camilo Sánchez
[7] Cámara de Comercio de Bogotá: Plan de Ordenamiento Territorial
[8] Op. cit., Entrevista a Camilo Sánchez
[9] Presidencia: Ley 1776 / 29 enero 2016
[10] Op. cit., Interview with Camilo Sánchez
[11] El Espectador: Corte Constitucional deja en firme ley Zidres, 8 de febrero de 2017
[12] Secretaría Senado: Ley 1448 / 2011
[13] Op. cit., Interview with Camilo Sánchez
[14] Amnesty International: A title is not enough : ensuring sustainable land restitution in Colombia, 2014
[15] Op. Cit., Restitución de tierras, política de vivienda y proyectos productivos: Ideas para el pos-acuerdo
[16] Interview with Germán Romero, DH Colombia, 6 October 2017
[17] Op. Cit., Restitución de tierras, política de vivienda y proyectos productivos: Ideas para el pos-acuerdo