SECTION 5 UNDERSTANDING SPECIFIC ESC RIGHTS
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.
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 communitys 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.  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. 
In India recently thousands of subsistence farmers, traditional fisherfolk, workers, womens groups and villagers protested en masse against the World Trade Organizations 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
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 todays news, involve land. Indeed, issues of access to land and land security continue to have an impact on a very significant part of the worlds population who still depend on land access and security for their subsistence and livelihood.
"For the billions of the worlds 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
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 ILOs 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
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 worlds 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
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.
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, womens 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 womens 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
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.
Strategies and Approaches
The strategies and approaches that have been used to protect and promote land rights are varied and operate at different levels.
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.
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.