MODULE 18
LAND RIGHTS
USING
MODULE 18 IN A TRAINING PROGRAM
The Purpose of Module 18
The purpose of this module is to provide an overview of the primary issues facing activists seeking to address land issues from a rights-based perspective.
This module
- discusses the importance of land to life and livelihood;
- summarizes international and regional human rights standards related to land ownership and land tenure;
- addresses some broad land rights issues
that also affect other ESC rights, including
- social function of property principle
- ancestral, customary and statutory rights to land
- women’s rights to land, and
- discrimination and the principle of restitution; and
- suggests strategies to address land rights issues.
Land Rights-A Crucial Component of ESC rights
How can we say we own the land? How can we own something that will outlive us? Truly, it is not we who own land, rather it is the land which owns us.
- Paraphrasing Macli-ing Dulag, Tribal Chieftain of theKalinga, the Cordillera Mountains, Philippines
Land rights, particularly in the context of developing countries, are inextricably linked with the right to food, the right to work and a host of other human rights. In many instances, the right to land is bound up with a community’s identity, its livelihood and thus its very survival.
For farmers, peasants and fisherfolk, land is a vital component of a particular way of life. For this reason, peasants and poor farmers are generally opposed to the conversion of vast tracts of land for commercial monocropping, such as for sugar, tobacco, rubber, palm oil, etc. [1] Fisherfolk are usually opposed to large infrastructure and commercial projects along rivers, lakes and coasts because of pollution, dispossession of land, limitations on access to traditional livelihood and other disruptive changes that threaten their survival. [2]
In India recently thousands of subsistence farmers, traditional fisherfolk, workers, women’s groups and villagers protested en masse against the World Trade Organization’s policies. The protests were partly sparked off by the suicides of 450 peasant farmers in the states of Andra Pradesh and Karnataka. In India, more than 600 million people-70% of the population-are desperately poor and depend directly on the land and environment for survival. "It is the life resource of the majority of our people whose subsistence directly depends on the water, forests and the land. It is about justice.” 3
Land
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For the urban poor on the other hand, land is more than simply living space. In most instances, the urban poor live in communities that have been settled for a substantial period of time. Development of the community includes access to a means of livelihood, to education, to health care, all of which stand to be disrupted in cases of eviction.
It is not difficult to see why historically
land rights have been a flash point and landlessness
invariably a cause of social unrest.
Feudal exploitation, the process of colonization and the passing of natural resources to state control, encroachments by private commercial interests and now globalization-these are the main historical factors that have defined contemporary conflicts involving land and land rights. It is perhaps the historical importance of land that has made the question of the rights to land a very broad and complex subject matter.
The Muslim rebellion in the Philippines, the Palestinians’ struggle for the return of their homeland, the Zapatista movement in Mexico and many other conflicts that are very much part of today’s news, involve land. Indeed, issues of access to land and land security continue to have an impact on a very significant part of the world’s population who still depend on land access and security for their subsistence and livelihood.
"For the billions of the world’s rural poor, land security must be seen as a necessary precondition for the realization of other internationally protected human rights.”5 Despite this, land rights issues have rarely been addressed from an international human rights perspective. This is in part due to the fact that land issues are very complex. Land rights do not just pertain to the right of ownership. They also refer to access, use, possession and occupation of land, and security of such use, possession or tenure. Local and national landowning and land use systems vary considerably from country to country and, frequently, within countries. As a result, identifying and reaching agreement on principles and standards that can usefully be applied across borders and systems have proved to be very difficult.
International and Regional Human Rights Law and Land Rights
Article 17 of the Universal Declaration of Human Rights states:
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
The reference to property rights was altogether dropped in the two human rights Covenants adopted by the United Nations in 1966. In addressing the right to be free from hunger, article 11 of the ICESCR makes only one indirect reference to land when it encourages states parties to develop or reform "agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.” (See Module 12 on this point.)
The First Protocol to the European Convention on Human Rights states:
No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
However, these provisions shall not "in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”6
Article 21 of the American Convention on Human Rights states:
Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society . . . No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest and in the cases and according to the forms of established law.7
Article 14 of the African Charter on Human and Peoples’ Rights reads:
The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.8
Article 21(2) says, "In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.”
United Nations declarations more specific to land include the Declaration on Social Progress, adopted by the General Assembly in 1969, which recognizes the social function of property, including land, and calls for forms of land ownership that ensure equal rights to property for all.9
Of the UN specialized agencies, the Food and Agriculture Organization (FAO) and the International Labour Organization (ILO) have given most attention to land rights concerns, in either binding conventions or nonbinding declarations. At its World Conference on Agrarian Reform and Rural Development in 1979, the FAO adopted a Declaration of Principles and Programme of Action, referred to as "The Peasants Charter,” a major section of which is concerned with the reorganization of land tenure. It advocates the imposition of land ceilings in countries where substantial reorganization of land tenure and land redistribution to land-less peasants and smallholders is needed as part of a rural development strategy and as a means to redistribution of power. Other sections of the charter are concerned with tenancy reform, regulation of changes in customary tenure and with community control over natural resources.10
Land Tenure, Livelihood and the EnvironmentIn Centre for Environmental Law, WWF-I v. Union of India and others,11 the petitioners, World Wide Fund for Nature, approached the Supreme Court of India by way of a public interest petition in 1995. All over the country, state governments had issued notifications of intent under the Wildlife Protection Act, 1972, demarcating areas for wildlife sanctuaries and national parks. However, the process for assessing claims for compensation of those who would be dispossessed was not being undertaken and as a result, the final proclamation notifications under section 21 of the act were not being made. At the request of the petitioners, the court issued a blanket direction in August 1997 to all the state governments to complete the compensation procedure and issue final notifications within one year.12 The results have been catastrophic. The court did not consider that thousands of people are dependent for their livelihood on the forests and grasslands falling within the demarcated areas, and many others live there. The recording of usufruct rights over forest areas was last undertaken a hundred years ago when India was under colonial rule, and thus a large number of people who are exercising traditional usufruct rights are not able to produce documentary proof of such rights. Their claims cannot possibly be settled in a year. Nor did the court examine the current debates within activist and academic circles questioning the conservation model on which the existing law is based, which excludes rather than involves people in conservation. The state governments have used the Supreme Court's directions to advance their own agendas of evicting whole communities from these areas, often only to make way for large industrial projects. In many areas no claims for compensation were filed by the people likely to be affected as state governments short-circuited claims procedures under the guise of meeting the deadlines issued by the Supreme Court. One affected area is the Great Himalayan
National Park in the Kullu district of
Himachal Pradesh. The GHNP comprises mainly
high altitude pastures on which more than
11,000 people depend for their survival.
These rural communities have traditional
grazing rights in the alpine pastures
and each year an estimated 35,000 goats
and sheep are taken into the pastures
during the warm summer months. The people
also extract medicinal herbs and plants
from this area, to meet the needs of traditional
medicine systems, as well as for trade.
In pursuance of the Supreme Court's orders,
the government of Himachal Pradesh issued
a final notification on 21 May 1999 declaring
the boundaries of the national park, and
forbidding further exercise of traditional
usufruct rights in the area. Compensation
was given to only 312 families, since
the state relied upon records of rights
made during the British Raj 110 years
ago. No independent inquiry into current
rights exercise was undertaken. |
ILO Convention No. 117, The Social Policy (Basic Aims and Standards) Convention of 1962, covers measures to improve the standard of living for agricultural producers. They are to include control of the alienation of land to nonagriculturalists, regard for customary land rights and the supervision of tenancy arrangements.
The ILO’s Indigenous and Tribal Peoples Convention No. 169 of 1989 is a key instrument in the evolution of concepts of land rights in international law.13 That convention
- recognizes the special relationship between indigenous people and their lands;
- requires states to adopt special measures of protection on their behalf;
- provides safeguards against the arbitrary removal of indigenous people from their traditional land, with procedural guarantees; and
- includes other provisions related to the transmission of land rights and respect for customary procedures.
Land Rights in Domestic Law
There are two basic principles that underlie most national legal systems, constitutions and domestic laws on the question of land ownership.
The first is the right of private ownership. This right includes not only the right to use and enjoyment, but also the right to exclude others. Most systems of land ownership in domestic law seek to uphold and recognize this concept of private ownership, which gives absolute control and exclusive rights on the basis of legal, state-conferred ownership.
The second common and fundamental principle underlying domestic land laws is the regalian doctrine, which holds that all lands belong to the state. A corollary of this principle is that it is only by a grant from the state that land can pass into private ownership.
One can immediately sense inevitable conflicts between the two principles just mentioned. Much of the struggle on the domestic legal front has been to reform, if not change, these two principles of land ownership, which have their origins in most of the developing world’s colonial past.
There are also a number of land ownership and use patterns that form exceptions to, or mitigate, these principles. These generally fall into three categories:
1. Land as a resource with a "social function”
2. "Time immemorial” concepts and ancestral land claims
3. Collective rights to land use and/or ownership
Social function of property principle
The social function of property principle has been reflected in the constitutions and laws of countries in Africa, Asia and Latin America in recent decades. This principle is an effort to
balance recognition of private land rights with key matters of public interest, such as equity. In such situations, the state has power to expropriate private lands as long as adequate compensation is provided. There may also be a ceiling put on the size of land holdings. The box on the previous page gives an example from South Africa.
South African Constitution Section 25 -Property Rights25.1 No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. 25.2 Property may be expropriated only
in terms of law of general application 25.3 The amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regard to all relevant circumstances, including: a) the current use of property; b) the history of the acquisition and use of the property; c) the market value of the property; d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; e) the purpose of the expropriation. The Property Clause in the South African Constitution has serious implications for the South African Land Reform Process. Firstly, it protects existing property rights and entrenches the existing property holdings in South Africa. Secondly, in the promotion of the Land Reform Process the Constitution authorizes the balancing of individual interests and the public interest in controlling and regulating the use of property and the distribution of property. South African Constitution Section 25 (4)(a)-Right to Land Reform The public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources. South African National Land Policy The current land ownership and land development patterns strongly reflect the political and economic conditions of the apartheid era. Racially based land policies were a cause of insecurity, landlessness and poverty among the majority of black people and a cause of inefficient land administration and land use. The Land Reform Policy is thus fourfold: •to redress the injustices of apartheid The Land Policy therefore has to deal with the following in both urban and rural areas: • the injustices of racially based
dispossession Responsibility for Land Reform It is the responsibility of the national government to ensure a more equitable distribution of land, to support the work of the Commission on Restitution of Land Rights and to implement a program of land tenure and land administration reform. On the other hand it is the responsibility of provincial governments to provide complementary development support. |
With the trend towards land privatization, the social function of property principle has come increasingly under attack. As a result, the enjoyment of various ESC rights, such as the right to work or the right to an adequate standard of living, including the right to adequate food, is threatened.
Ancestral domain, customary and statutory rights to the land
The right to ancestral domain, collective ownership of land, customary land rights and the concept of "time immemorial” possession have been claimed as exceptions to the regalian doctrine and private individual ownership.
In a large number of countries there are conflicts between private land ownership and tenure provisions allowed for under the customary law of the indigenous peoples and those provided for by statutory laws. In Africa, this conflict was first generated through colonial models that tended to provide for dual systems of ownership, with settlers having private rights to land and indigenous Africans enjoying communal rights. This distinction has been maintained to greater or lesser degrees in various countries. In Southeast Asia the growth of the logging industry in recent years has led to pressure on forest dwellers who until recently had exclusive occupation of the land under customary law.14
Issues of land tenure and titling have a particular importance for indigenous peoples. The indigenous rights movement worldwide has accepted that indigenous peoples have the basic right to manage their lives, development and resources in a distinct manner within the framework of a multicultural state. This is a "special rights” approach that links the recognition and enjoyment of these rights to a particular ethnic or cultural identity. Such "special rights” have been approached conceptually in different ways. One way is to argue that indigenous peoples have "original” or "immemorial” rights to their lands and resources, in that they never sacrificed these rights after conquest and colonization. It is these concepts of original and native title to land that are now driving the indigenous rights movement in such places as Australia and Canada. A second way is to place the emphasis on the historical land rights of indigenous communities, namely the ancient land titles that were issued during the colonial period or after independence. This approach has been important in countries including Colombia, Guatemala and Mexico, where ancient land titles can be jealously guarded.
A third way is to place the emphasis on discrimination and on the need to combat the injustices of the past by adopting special measures to favor indigenous access to the land. This third dimension of a rights-based approach focuses not so much on the concept of special historically derived rights as on the need to promote genuine equality of opportunity for indigenous peoples in economic and social development. Thus indigenous peoples should be specially favored in land access, distribution and purchase programs.
Aboriginal Land Claim in South AfricaAs of early 1999 the Legal Resources Centre in South Africa was litigating an aboriginal land claim on behalf of the Richtersveld community. The community of 3,000 used to be nomadic and pastoralist people who traditionally occupied the Richtersveld. The land claim was held by the state-owned diamond mine Alexkor, which was in the process of privatization. The LRC was negotiating for a community equity share in the mine and to secure the land rights of the community. It was also working on an integrated development plan which would provide that • the residential land at Alexkor
should be formalized as a town; |
Land Rights of Women
Special attention should be paid to the right of women to land. In many cultures and societies, women are excluded from owning property, including land, or they do not enjoy the same rights as the men. In marriage and family relations, women’s right to property is often subject to the authority of the husband or father. Ensuring equal rights to property translates into economic empowerment and has a direct bearing on the status of women. Denial of and/or limitations on rights to land and discrimination against women can be seen, for instance, in laws that exclude women from inheriting land.
Even though women play a very substantial role in agriculture in most countries around the world, land ownership and/or land tenure systems, whether customary or statutory, have historically very often discriminated against women. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recognizes women’s land rights. Article 14 of CEDAW obliges states parties to
take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on the basis of equality of men and women, that they participate in and benefit from rural development and, in particular . . . ensure to such women the right:
. . . (d) to obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as the benefit of all community and extension services, inter alia, in order to increase their technical proficiency;
. . . (g) to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes . . .15
Women and Land-South AfricaThe White Paper on South African Land Policy notes that "it is essential that gender equity be ensured in the land distribution and land reform programme . . . " Positive constitutional and policy provisions must be seen against the background of the acute social, economic and political disadvantages suffered by the majority of women in South Africa. Most rural women are agricultural producers, cultivating mainly subsistence crops. As a result of apartheid, most became farm managers when their husbands and sons were forced into wage labor on the mines and in the cities. Most are heads of households, bearing the responsibility for childcare and household maintenance in addition to agricultural production. In keeping the "home fires burning," they have to put in extra hours of work carrying water and finding wood since they do not enjoy such infrastructural support as electricity, piped water or other social services. Women's position is the result of discrimination emanating from race, class and gender oppression and each finds expression in relation to land. As part of the black majority, black women were prevented by apartheid from owning land in 87 percent of the land in the country. In addition, customary laws as tampered with by apartheid prevented women from owning land. Up until 1986 a women was not able to obtain real rights to land without the permission of her husband or guardian. Even though the racial restrictions on owning land have been lifted, because of their extreme poverty most rural black women cannot afford to buy land. Women's participation in the land reform process has not been on an equal basis with men so far. Many of the trusts and committees established in the land restitution and redistribution process are still male-dominated. The Communal Property Associations Act of 1996 ensures equal representation of women but the equal participation of women is not guaranteed. The Recognition of Customary Marriages Bill of 1998 has been introduced to Parliament. The proposed legislation includes measures that bring customary law in line with the Constitution and South Africa's international obligations. The legislation provides for the equal status and capacity of the spouses and provides measures for women to enter into contractual ownership agreements. The legislation proposes that Section 11 (3b) of the Black Administration Act, which regards women as perpetual minors, be repealed. Equity will be achieved only with the removal of all legal, social and economic restrictions on the participation of women. The Land Reform Process must include the reform of customary marriages, natural resource management policies, and inheritance laws where they are obstacles to women receiving and holding rights in land. Challenges to South Africa's Constitutional and Land Policy Processes must thus go well beyond reforming rights in land. |
Discrimination and the Principle of Restitution
In various countries, individuals or groups are demanding the restitution of land they believe was unlawfully taken from them-or payment of compensation in lieu of the land. Such claims have been common in Central and Eastern Europe, for example, where land had previously been subject to collectivization. Similarly, the issue of the return of land in Israel or the Occupied Territories to Palestinians who had owned it has long been a bitter issue.
Basic to international human rights law are provisions related to equality and nondiscrimination. Article 2(2) of the ICESCR, for example, provides:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
According to article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD):
State Parties must assure everyone within their jurisdiction effective protection and remedies through the competent tribunals and other State institutions, against any acts of racial discrimination which violate his human rights . . . as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damages suffered as a result of such discrimination.16
These provisions apply to ownership of land as well as security of tenure of land. One of the bases on which restitution has been claimed or provided has been discrimination-that land had previously been taken from an individual or group because of their racial, ethnic or other identity.
South Africa and the Right to RestitutionLand ownership in South Africa has long been a source of conflict. Its history of conquest and dispossession, of forced removals and a racially skewed distribution, has left it with a complex and difficult legacy. Section 25(7) of the South African Constitution now provides:
The right to restitution is guided by
principles of fairness and justice. It
is therefore important to identify the
different ways in which people have been
prejudiced through dispossession: A restitution claim will be accepted
for investigation where the claimant was The claimant should have a registered or unregistered right or interest. Such a right may have been established by occupation of the land for a substantial period. It is not limited to a right recognized by law nor to ownership rights; it may include certain long-term tenancy rights and other occupational rights. Recognition is given to the fact that discriminatory laws may have prohibited certain claimants from obtaining legal rights on account of their race. Implementation of the restitutional right
through negotiation by the parties or
adjudication by the Land Claims Court
can take the following forms: The Commission on Restitution of Land Rights was established in 1995 with a national office and eight regional offices. The Land Claims Court is tasked with the responsibility of ratifying agreements that are mediated by the commission as well as arbitrating in cases where no agreement can be reached. The court's principal powers lie in the ability to determine restitution, compensation and rightful ownership. |
Strategies and Approaches
The strategies and approaches that have been used to protect and promote land rights are varied and operate at different levels.
- One common approach is legal reform. Land rights activists know that unless there are changes in the laws and institutions on land rights, fighting for rights to land on a case-by-case basis is very difficult.
- As previously explained, the odds are stacked against the activist at the outset. One approach therefore has been to develop new legal principles and mechanisms that give better footing to sectors of society that have been placed at an historical disadvantage. This is true in struggles for urban and rural land reform, claims to ancestral domain and assertion of customary law.
- Another common approach is to expose and oppose the negative effects of development and commercial projects that entail large-scale displacement. This approach is used in campaigns against dam projects, commercial logging, plantations, mining, etc. The campaigns are usually related to larger issues such as skewed government priorities, cronyism and corruption,17 as well as globalization and the role of nonstate actors such as the World Bank and multinational corporations.
- Another strategy, related to campaigns against infrastructure and commercial projects, is to assert related rights, for example, the right to information and consultation, compensation, restitution and equal treatment.
Bakun Dam
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Authors: The general structure of this module is based largely on the writings of Roger Plant. Johannes ("Babes”) Ignacio contributed substantially to this module; examples from South Africa were provided by Anthea Billy.
USING MODULE 18 IN A TRAINING PROGRAM
NOTES
1. The problem of commercial encroachment is on top of the problems of landlessness and feudal exploitation that still exist in many developing countries.
2. Construction of wharves and the conversion of seas for commercial navigation interfere with, if they do not eradicate, traditional fishing communities. In coastal areas in Manila Bay, commercial development has displaced fishing communities and prevents access by fisherfolk to the bay. In Indonesia, the creation of marine reserves, construction of bridges to connect islands, and the creation of industrial estates along the coast of Java is interfering with the movements and traditional activities of sea nomads.
3. Weekly Mail and Guardian 15, no. 7 (February 1999): 19.
4. See Jose W. Diokno, A Nation for Our Children: Human Rights, Nationalism, Sovereignty: Selected Writings of Jose W. Diokno, ed. Priscilla S. Manalang (New Manila, The Jose W. Diokno Foundation; Quezon City, Philippines: Claretian Publications, 1987), 47-48.
5. Roger Plant, "Land Rights in Human Rights and Development: Introducing a New ICJ Initiative,” The Review, no. 51 (Geneva: International Commission of Jurists, 1993): 10.
6. Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 Sept. 1953, as amended by Protocols Nos. 3, 5, 8 and 11, entered into force 21 Sept. 1970, 20 Dec. 1971, 1 Jan. 1990, and 1 Nov. 1998 respectively, article 1.
7. American Convention on Human Rights, OAS Treaty Series No. 36, 1144 UNTS 123 entered into force 18 July 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), article 21.
8. African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 Oct. 21 1986.
9. Declaration on Social Progress and Development, GA Res. 2542 (XXIV), 24 UN GAOR Supp. (No. 30) at 49, UN Doc. A/7630 (1969). United Nations Declaration on Social Progress, 1969.
10. Plant, op cit., 19.
11. Writ Petition (Civil) no. 337 of 1995. For further information on this situation, see Alka Sabharwal, "Strangers in Their Own Land,” Down to Earth, 15 November 1999, 21.
12. 1997 (6) SCALE (SP) 8.
13. Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force 5 Sept. 1991.
14. Plant, op cit., 26-28.
15. Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 Dec. 1979, GA Res. 34/180, 34 UN GAOR Supp. (No. 46), UN Doc. A/34/46 (1980), 1249 UNTS 13, entered into force 3 Sept. 1981, reprinted in 19 ILM 33 (1980).
16. International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, entered into force 4 Jan. 1969.
17. For example, problems of land encroachment and land grabbing by powerful interests; corruption and manipulation in the titling of land and maintenance of land records; concessions given to cronies; and exemptions from coverage of land reform programs.
