Legal Limits on Government Authority to Expropriate Land An Assessment of Expropriation Procedures in 50 Countries Across Asia, Africa, and Latin America
Nicholas K. Tagliarino
A significant amount of empirical research indicates that land expropriation for “economic
development” purposes has often been used as a tool for benefiting private companies while failing to serve public interests and jeopardizing the tenure rights and livelihoods of affected populations. Due to land scarcity, urbanization, population growth and other factors, increased use of expropriation has been documented in China, India, Rwanda, Tanzania, Nigeria, and many other countries. Given the immense risks arbitrary expropriation poses for affected landholders and the general public, the question arises: what can be done to effectively limit expropriation power so that it is only used as a last resort for purposes that genuinely benefit the public? To address this research question, this article investigates the national-level constitutions, statutes,
and regulations of 50 countries across Asia, Africa, and Latin America to determine whether they comply with international standards on expropriation as established in Section 16 of the
Voluntary Guidelines on the Responsible Governance of Tenure (VGGT). The findings
demonstrate that, in the vast majority of countries assessed, statutory and regulatory laws do not clearly define what constitutes a “public purpose”, thereby easing judicial review. In countries that fail to clearly define "public purpose", government authorities have broad discretion to
acquire land, with limited oversight and obligation to be sensitive to areas of cultural,
environmental, and religious significance or areas held by poor and vulnerable groups, such as Indigenous Peoples. Additionally, many of the national legal frameworks assessed do not require
the government to survey, inform, and consult affected landholders or otherwise follow a transparent and participatory expropriation process. This article establishes a benchmark for progress that can be used by lawmakers, NGOs, civil society, and activists to monitor progress
on the adoption of Section 16 principles established in the VGGT. This article also presents a set of evidence-based recommendations for reforming laws so that they appropriately limit government expropriation power, ensure a transparent and participatory expropriation process, and protect the tenure rights and livelihoods of populations within these 50 countries.
Event: Land Governance in an Interconnected World_Annual World Bank Conference on Land and Poverty_2018
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