The Status of National Legal Frameworks for Valuing Compensation for Expropriated Land: An Analysis of Whether National Laws in 50 Countries/Regions across Asia, Africa, and Latin America Comply with International Standards on Compensation Valuation

Abstract

Abstract:The challenges associated with determining fair compensation for expropriated land have been extensively discussed and debated among scholars, practitioners, policymakers, and the public. However, to date, a comprehensive study of national-level compensation procedures established by law considering whether such procedures meet internationally recognized standards on compensation valuation has not been conducted. This article aims to bridge this gap by serving as a reference point and informing "fair compensation" debates among scholars, practitioners, and policymakers. This article examines national-level legal provisions on compensation in 50 countries/regions across Asia, Africa, and Latin America against a set of legal indicators that are based on international standards on the valuation of compensation. The legal indicators focus on the substantive and procedural requirements pertaining to the calculation of compensation. The indicators ask whether laws require assessors to account for various land values when calculating compensation, and whether there are legal processes in place that allow affected persons to negotiate compensation amounts, receive prompt payments, and hold governments accountable by appealing compensation decisions in courts or before tribunals. The results of the study show that most of the 50 countries/regions assessed do not have national laws that comply with internationally recognized standards on the valuation of compensation. Based on the findings from the legal indicator analysis, this paper presents a set of recommendations for reforming compensation procedures to bring them into conformity with international standards.

Compensation for Expropriated Community Farmland in Nigeria: An In-Depth Analysis of the Laws and Practices Related to Land Expropriation for the Lekki Free Trade Zone in Lagos

“…Recent studies that examine expropriation and compensation procedures in 50 countries across Asia, Africa, and Latin America indicate that Nigeria's legal framework lags behind many of the other countries assessed in terms of its compliance with international standards on expropriation, compensation, and resettlement [2,13]. The governing law on expropriation in Nigeria is the Land Use Act (LUA), a law that has been highly criticized by NGOs, scholars, and the public [62].…”

“…The Local Government, if it is satisfied that an occupier or holder is entitled to possession, 2 In section 51, the LUA defines customary rights of occupancy as "the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a local government. "…”

“…In 37 of 50 countries analyzed, fair market value (FMV) is the legally required method expropriating authorities must use to value compensation for land and there are no allowable alternatives which can be used to value land in areas where land markets are weak or non-existent [2]. For a variety of reasons and in a range of locations, "market value" may be an insufficient approach to value land, especially when indigenous and rural community land is expropriated because there is no FMV and no clear way to compensate for the social, cultural, spiritual values attached to such land [2]. In India, for example, several laws restrict community rights to sell their land so there is a lack of robust land markets in many community land areas [76].…”

“…In countries with robust and functioning land markets, the replacement cost should be approximately equal to fair market value, but this is not always the case [2]. In areas with weak or non-existent land markets, the fair market value may be less than the replacement cost.…”

Land Acquisition in India: A Pareto and Kaldor-Hicks Perspective

“…For example, Keliang et al observed that out of 476 expropriation cases in China, a majority of the farmers were undercompensated [27]. According to the World Bank's Land and Governance Assessment Framework (LGAF), affected populations in Afghanistan, Brazil, Ethiopia, Nigeria, South Africa, South Sudan, and Tanzania were inadequately compensated for taken land [28]. Van Eerd and Banerjee found similar cases in Cambodia, Indonesia, Sri Lanka, and the Philippines [29].…”