Colombia is the fourth largest country in South America with an area of 1.14 million square kilometers (approximately twice the size of France). It is one of the world’s most biologically diverse countries, with close to 14% of the planet’s biodiversity. Colombia has a wealth of natural resources, including extensive freshwater resources, the sixth-largest area of primary forests in the world, primarily in the Amazon basin, and a variety of mineral resources. Its coastal regions host increasing amounts of African palm, and it is the third largest producer of coffee in the world. Colombia’s population is 68% urban and 32% rural.
Colombia’s critical land issues stem from its colonial, agrarian past and the modern history of conflict which is its legacy. This legacy has also resulted in major displacement of people to cities which has exacerbated urban land issues, particularly in informal settlements. Forest and mining issues are the focus of much current policy attention. This profile focuses on Colombia’s land and natural resource situation. It explains the key land, water, forest and mineral issues and describes the ongoing set of policy and legal reforms aimed at addressing them.
Colombia was historically an agricultural society, and continues to rely strongly on agriculture for rural livelihoods. The landholding structure of colonial and post-colonial Colombia led, in the modern period, to a highly skewed distribution of land in which a relatively small group of landholders controls much of the good agricultural land, while a much larger group of rural inhabitants hold very small parcels. In rural areas, less than 1% of the population owns more than half of Colombia’s best land.
Colombia has a history of violent land-takings, beginning in 1948 and culminating in a civil war fueled by conflict between the Revolutionary Armed Forces of Colombia (FARC) and paramilitary militias established by landowners, local elites, and drug traffickers. A comprehensive peace agreement, which addresses land issues as a key part of Colombia’s peace planning, was negotiated and signed in December 2016. It is currently being implemented.
The conflict caused substantial displacement of rural people. Colombia has the second highest rate of internal displacement in the world surpassed only by Syria, with an estimated 5.7 million people having fled their land since 1985 (UNHCR, 2015), of which 87% are rural population (2015). This displacement has fueled the country’s swift urbanization and resulted in the creation of massive informal settlements in which residents lack tenure security and basic infrastructure. As a result, 3.8 million households, or 29.1% of all households in Colombia, do not have adequate housing, according to Ministry of Housing estimates from 2013, and another 662,146 families, or 5%, are homeless. Displacement has also left many rural people in precarious livelihood conditions with high poverty rates and lack of opportunities.
Land tenure is often insecure, particularly for small-scale farmers, indigenous and Afro-Colombian peoples, and members of women-headed households who have been forcibly displaced at disproportionately high levels. According to data from the Land Formalization Program (LFP) under the Ministry of Agriculture (2015), 48% of the 3.7 million rural parcels contained in the National Cadastre do not have registered titles. Approximately 1.7 million rural properties currently exist without formal property records.
Although successive government interventions have aimed at fostering land reform, these have historically been ineffective due to the conflict and the mixed record of government institutions responsible for reform. This may be changing as a part of the run-up to the peace process. In the last five years, two major legal reforms have taken place that focus on rural areas. These reforms promote land reform and reparation for victims. The reforms are spelled out in the 2011 law on land restitution and formalization for victims of violence (Law 1448) and a 2012 law that establishes a special process to develop a Land Formalization Program (Law 1561). The way that these laws are implemented will be a key part of the peace process and the establishment of an equitable and sustainable model of rural development and natural resource management for Colombia’s future. On December 7 of 2015 President Juan Manuel Santos signed a series of decrees under the special powers granted by Congress, which empower the GOC to make a comprehensive institutional reform to the agricultural sector.
KEY ISSUES AND OPPORTUNITIES FOR INTERVENTIONS
- Land in the peace process and post-conflict scenarios – A Peace Accord to end Colombia’s civil war was signed in December 2016. The Accord includes agreements on six topics, including rural land. The Agreement grants land to landless farmers, and to formalize legitimate landholders who do not possess valid legal documents. The Agreement also aims to establish a state land fund of properties for allocation to landless households. The recent National Development Plan (2014-2018) incorporates these agreements and plans for their widespread implementation. Implementing these measures should serve as a fundamental platform for lasting peace.
- Land tenure and rural land rights interventions – To address rural tenure insecurity, Colombia has been developing a National Land Formalization Program since 2012 under the auspices of the Ministry of Agriculture and Rural Development. The Program establishes an expedited process for resolving the situation of the owners of urban or rural properties who lack legal documentation. The Program also provides legal security to those people that possess registered titles that contain legal deficiencies, enabling them to fully clear their rights. The Program is being implemented in two stages: the first phase was carried out between 2012 – 2014 for design and development; and the second phase will be implemented between 2015 and 2021 for national roll-out. The goal is to move away from a demand-driven titling effort and towards a systematic, offer-driven program in which land titles are provided as a public service in rural areas. This initiative is extremely important for the country to overcome the legacy of conflict and bring the benefits of formality including increased agricultural productivity, environmental sustainability, and a reduction of violence to small-scale farmers across the country.
- Urban Land Rights Interventions. To improve land-rights security in urban areas and housing conditions for millions of urban residents, as well as to foster growth and employment in the construction sector, the government and donors should work closely with local authorities and the private sector to support a country-wide regularization effort for informal settlements. Lessons learned from experiences in the 2000s in Medellin, Bogota and Cali can provide a basis for action. The government could promote provisional land-rights security through encouraging local authorities to designate informal settlements as “special social areas.” It could further assist in providing primary services such as water and sewerage to these communities, as well as longer-term land-rights security over time. The legal framework for adverse possession could also be explored as a tool for formalizing land rights of urban settlers as an alternative to expropriation.
- Land Dispute Resolution. Colombia’s land disputes complicate the formalization effort and initiatives for rural development and poverty reduction. New efforts are needed to mediate and resolve conflicts based on land and natural resources. USAID’s Land and Rural Development Program (LRDP) is currently helping the GOC to explore innovations such as a comprehensive, expedited land-mediation initiative which uses alternative dispute resolution (ADR) to resolve tenure security issues. LRDP is also providing support at the public policy level to use this dispute resolution initiative as the official tool to issue titles once a dispute is settled.
- Internally Displaced Persons (IDPs). As of 2017, Colombia had 7.2 million officially registered IDPs. Providing IDPs with secure tenure and connecting them to government services and employment opportunities is a priority. For many IDPs, it may not be feasible or desirable to return to their place of origin. The government will need to work closely with IDPs and other stakeholders to develop acceptable strategies and policies to integrate displaced people in urban, peri-urban and rural areas where economic and social opportunities differ.
- Land restitution and victims’ reparation. For IDPs and conflict victims land issues are at the heart of national reconciliation processes. The Law for Victims and Land Restitution (Law 1448 of 2011) provides for attention, assistance and reparations to displaced people and civilian victims of the conflict. The law is the centerpiece of the framework for transitional justice that seeks to create a post-conflict status based on the rights of victims to truth, justice and reparation, with guarantees of non-repetition. It is seen as a spearhead for the GOC’s broader land agenda and so political commitment to the Law is critical to ensure a multi-faceted land reform.
- Impediments to Land Market Efficiency. Tax incentives and government subsidies support large landholdings by wealthier families/groups, even if this land is under-utilized. These government interventions create land-market inefficiencies, and impede the distribution of land rights to potentially more productive users. They also contribute to continued socio-economic disparity in rural areas. As a preliminary step toward greater land-market efficiency and more balanced land distribution in rural areas, the government should be encouraged to remove tax incentives and subsidies that give distorted support to large landholders.
- Mining and minerals extraction. Colombia’s internal conflict and lack of policy enforcement has resulted in two major problems for mineral exploitation. The first involves situations where formal mining activity has triggered conflicts involving displacement of populations and land disputes. The second involves situations in which the mining sector has become a tactical or strategic objective of armed groups, including cases where mining facilitates the activity of these groups as a source of income, money laundering or territorial control. Resolving mining conflicts in the country is currently one of the biggest challenges the government faces, not only for its environmental implications, but also for the sector’s linkages to political, economic and social outcomes.
- The Government of Colombia has enacted legislation favorable to women’s rights to land and property, but women-headed households remain especially susceptible to insecurity, poverty and the consequences of forced displacement. A focus on effective implementation of laws protecting women’s rights to land could improve living conditions for women and children in Colombia. The government and donors could continue to support gender training within land-administration bodies and launch a legal awareness/legal aid campaign that aims to increase awareness of women’s rights (LRDP’s work on televised programming is a possible model) and empowers women to exercise them. Programs should have a particular focus on vulnerable women, particularly Afro-Colombian and indigenous women, who are more likely to be displaced.
The history of Colombia has always been substantially intertwined with the institutions of land ownership (Constitutional Court, 2012). Much of the political, economic and social conflict in the country has historically involved rights over land, especially in rural areas, and the issue of state-sponsored land redistribution.
These issues continue to influence the country’s stability and development, as they support inequality in land distribution and insecurity of land rights for vulnerable populations. Land distribution in Colombia is highly inequitable: An estimated 0.4% of the population owns 62% of the country’s best land. Upward of 68% of the rural population lives below the official poverty level. The Government of Colombia (GOC) has attempted land reform programs designed to equalize land distribution and protect the rights of tenant farmers for decades, but with limited success. Large landholders have evaded reform, while institutions charged with promoting reform have suffered from internal corruption and lack the capacity to implement changes.
Land tenure insecurity therefore remains a widespread problem in Colombia. The failure of land reform, as well as escalating competition for resources, has fueled conflict between guerrilla insurgencies and paramilitary groups, with rural communities often caught in the middle. Over time, armed groups have gained territory by displacing smallholders from their land. Also, a lack of land administration tools means that private sector investments in land may not follow best practices for community engagement and consultation.
The new policies being set in place in support of the Peace Process are intended to change these institutional structures and address land distribution and insecurity of tenure. The legal framework tries to balance protection of private property with the state’s interest in promoting equity and efficiency through agrarian reform. Constitutional law thus provides for strong protections for private land holders, but also creates provision for state-led land redistribution. The Colombian Constitution (Article 58) states that private property and other rights acquired under civil laws are guaranteed. However, when the application of a law enacted for reasons of public utility or social interest results in a conflict with the rights of individuals, the private interest must yield to the public or social interest.
The Constitution also stipulates that it is the duty of the state to “promote progressive access to land for agricultural workers, individually or in partnership (…) in order to improve the income and quality of life of the peasants” (Political Constitution of Colombia, 1991, Article 64). In this way the Colombian Constitution stipulates that property has a social function; it implicitly creates obligations to use land for social purposes, and supports an inherent ecological function (Political Constitution of Colombia, 1991).
Within this broad constitutional understanding, the Civil Code of Colombia establishes five ways to acquire ownership of property: tradition, accession, succession upon death, occupation and acquisitive prescription, which is equivalent to adverse possession (Colombian Civil Code, 2015). Civil law is complemented by the Agrarian Law, which provides the state with the right to intervene in private landholding in cases where land’s social function is not being achieved, or to support land access for agricultural workers.
The reality of a legacy incomplete agrarian reforms, some of whose regulations were later overturned, and the displacement and neglect caused by decades of conflict, have created a great deal of uncertainty on the ground. The challenge of the GOC faces with a new set of land law reforms is to systematically update and clarify the information about the actual situation of all landholdings and apply the full set of legal instruments in ways which will facilitate national reconciliation and a create a sustainable model of inclusive rural development.