Islamic Approach to Natural Resources Tenure and Food Security

Natural disasters and climate change increasingly have a negative impact on the life of people in the Middle East and the Sub-Saharan Africa. Droughts and floods disrupt community livelihood systems, affect their capacity to achieve food security and at times, result in the displacement of entire communities. Access to natural resources is becoming a growing concern for governments and organizations involved in humanitarian response.

 

Target 2.3 of the Sustainable Development Goals (SDG) explicitly notes the importance of “securing access to land and other productive resources[1]”. Recognizing events surrounding climate change such as the recent El Nino in 2015, which has had a severe impact on food security in several countries in the Great Horn of Africa, understanding the connection between a fair and equitable management of natural resources like land and water, and food production, availability and accessibility is fundamental. It is well recognized that “boosting agricultural productivity and investing in agriculture are essential to food security for a growing population[2].” The right to access natural resources and in a particular land is becoming a crosscutting issue to guarantee other fundamental human rights such as housing, food security, water and health.

 

But what are the basic elements characterizing a natural resources tenure system? For the purpose of this paper we can consider land as the prominent component. As a start, we can look at the definition on the online Oxford English Dictionary where land is: “ the part of earth’s surface that is not covered by water”. This definition is not so helpful because describes a physical characteristic of our world. Adopting a right-based approach, land is a defined physical space with boundaries where we can claim and exert rights, either alone or with others. The ancient Romans defined three different rights that can be exerted on land: The right to use the land (usus), for instance for seasonal or permanent cultivation, the right to collect crops (fructus), and ultimately the right to destroy it (abusus).

 

Moving a step forward, we can say that a land tenure system doesn’t describe physical characteristics of the object but ”the relationship, whether legally or customarily defined, among people, as individuals or groups on land[3]”.

 

What is the main characteristic of the natural resources tenure mechanism in the Islamic World? It’s undeniable that for the past seventy years Western legal system heavily influenced the legislation in different North Africa and Middle East countries through the adoption of civil codes[4]. In the field of land tenure, Islam law marks a substantial difference with the Western common law or civil law systems. In principle indeed, all natural resources belong to Allah as clearly stated in this surah of the Quran:

 

“All that is in the heavens and on the earth belong to Allah s.w.t.”(S-An-Nisa (4):126 & 134)

 

“To him belongs whatever is in the heavens and on earth.” (Surah An-Nahl (16): 52)

 

As such, Men can still hold and manage properties but only in trust of which they will be held responsible. The landholder is seen as a mere trustee that has to act accordingly with the principles of the Shari’a law.

 

The prophet, peace and blessing of Allah be upon him said:” Whoever cultivates land which is not the property of any has a better title to it” (Bukhari 41:15)

 

The prophet, peace and blessing of Allah be upon him, said: “Whoever takes any part of land without having a right to it, he shall be, as a punishment for it, sunk down into earth on the day of resurrection to the depth of seven earths” (Bukhari 46:13)

 

These two hadiths shows the emphasis given by the prophet to regulate and protect access to natural resources, and in particular land. This was always considerate important in the context of the Saudi Arabian peninsula, for instance, where resources were particularly scarce. Since the beginning, the Muslim society has provided a holistic moral and ethical approach to property rights, where Islam has been known to promote private property balanced with the need to create an egalitarian society where every person can meet his/her fundamental rights and needs – thus reinforcing the nature of humans as custodians, rather than owners of land.

 

The concept of dual ownership [human being–God] is one of the special features of the Islamic doctrine of economics. Islam protects and endorses the personal right to own what one may freely gain, through legitimate means…. It is a sacred right. Human ownership (of land) is tempered by the understanding that everything in the last analysis belongs to God….. What appears to be ownership is, in fact, a matter of trusteeship, whereby we have temporary authority to handle and benefit from the property.[5]

 

This principle, in different degrees, deeply influenced the state policies of many governments in the Middle East and North Africa and marked a substantial difference with the Western systems.

Despite strong religious principles, through history the Islamic tenure system changed and adapted to the local environment and mechanisms of conflict resolutions. The Hakura system[6] in Darfur is an interesting example of a mixed land tenure system that incorporates Islamic, and customary law in an area where farmers and seminomadic pastors coexist.  In this case we have a traditional allocation mechanism that reflect the social structure during the Fur sultanate and separated types of tenures based on the type of irrigation (rain fed, spat, irrigation) and cultivation (permanent, seasonal). This has allowed the creation of a distribute tenure system among

For the past decades, such flexibility allowed some countries to develop legislations and jurisprudence aimed to better protect and guarantee owner rights over land and water, even though in certain cases against old tenants’ rights[7]. Facing many cultural and social resistances some concrete steps have been taken to avoid discrimination and ensure that gender, private or ethnic interests do not adversely affect the possibility for its citizens to enjoy the same opportunities to access natural resources.

The international legal framework provides some useful guidelines[8] for national and international organizations and private sector implementing activities in the field of natural resources management. In any case it is important to remember that at the heart of the Islamic land tenure system, we can always find the principles of Shari’a law that still permeate most of the legislation in the Islamic world impacts on all stages of the property cycle, from acquisition to management and transmission.

[1] https://sustainabledevelopment.un.org/?menu=1300

[2] World Bank, March 2014 http://www.worldbank.org/en/topic/agriculture/brief/land-and-food-security

[3] http://www.fao.org/docrep/005/y4307e/y4307e05.htm

[4] Tunisian Civil and Commercial law, 2012, http://www.jurisitetunisie.com/tunisie/codes/cpcc/menu.html

[5] Abdul-Rauf M. (1979) The Islamic doctrine of Economics and Contemporary Economy Thought: Highlight of a conference on a Theological enquiry into Capitalism and Socialism, Washington; American Enterprise institute for Public Policy Research (Abdul-Rauf 1984:19).

[6] De Waal, Alex (2005) Famine that Kills: Darfur. Cary, NC: Oxford University Press.

[7] Egypt law No.96 1992

[8] FAO, 2011 http://www.fao.org/nr/tenure/voluntary-guidelines/en/

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Land and Property Rights

“Land is the part of earth’s surface that is not covered by water” Oxford English dictionary

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