Women’s Land Rights – International Agreements & How to Build a Legal Case for Women’s Land Rights

The goal of this
guide is to aid practitioners in researching and using international legal
norms, regional conventions, and regional treaties and Protocols to engage
State officials and institutions, including local and customary legal
officials, to encourage domestic compliance with State obligations, and to
challenge local laws and court decisions regarding women’s rights to land and
property. The guide provides the underlying international norms and relevant
treaty provisions addressing women’s land rights. The guide also includes a
series of questions focusing on how to build a case challenging local laws or a
court decision which violates international or regional commitments that the
state has made with regard to women’s land and property rights. An Appendix
provides relevant conventions, treaties, and treaty bodies with key provisions
pertinent to women’s rights to land and property.

In order to make
these guides useful and user-friendly, when possible we have uploaded the
full-text laws and articles that we cite to into the LandWise library.

The footnotes
throughout this guide are all hyperlinked to full-text laws, articles or other
citation information. When you hover over a footnote, the citation information
will pop up in a bubble. When you click on the footnote, you will be taken to
the full-text of the item the footnote is referencing.

Acknowledgments

The author would
like to thank Francis Ssekandi, Christine Ochieng, Mayra Gomez, and Renee
Giovarelli for reviewing and providing valuable comments for this practice
guide, and Erin McIntire for her research assistance.

Key
Terms

International
Law

International law
is the body of rules established by customs or treaties that nations agree to
regarding one another. It includes customary international law, which is
largely unwritten, and treaties and other agreements between states. Its domain
encompasses a wide range of issues of international concern including human
rights, international crime, refugees, and the conduct of war.[1]

For the purposes of this guide, it is important to know that international law
is binding on States but that the enforcement of State obligations may only be
carried out by other States through established institutions, such as the
International Court of Justice. Individuals as beneficiaries of the international
obligations undertaken by States generally only have recourse in domestic
institutions to the extent that these obligations have been incorporated either
directly or by legislation in domestic law.[2]
Treaties when accepted or ratified create obligations that states must abide
by, and some treaties create committees or commissions to monitor their
enforcement. In other cases, treaties establish courts to provide a mechanism
to resolve disputes related to non- compliance.[3]

International
Agreement

A treaty or
similar agreement entered into by subject of international law, usually
sovereign states and international organizations.

Treaty

Treaties are international
agreements entered into between two or more States, and include Conventions
concluded by states to regulate broad areas of common interest, such as the law
of the sea, capacity and procedures for making treaties. The adoption and
application of Treaties is governed by the Vienna Convention on the Law of
Treaties.

The Vienna Convention on the Law of
Treaties

This is the
primary law covering international treaties between countries. Below are some
relevant provisions in the Convention related to the adoption and enforcement
of treaties. These cover just what is relevant for understanding how the treaty
may apply.

Article
9 governs the act of adoption, the formal act of making a treaty either
through a resolution by a representative organ of the organization or
through a specially convened international conference. Adoption includes a
step where states that have negotiated and participated in developing the
proposed treaty express their consent to be bound by it.

After
a treaty is negotiated, the primary way a State indicates that it will be
bound is by ratifying the treaty (Articles 2(1)(b), 14(1), and 16). States
may also indicate they will be bound through accepting or approving the
agreement (Articles 2(1)(b) and 14(2)). If a treaty is already negotiated
or signed, a State that was not party to the original negotiations may
accede to the treaty if the treaty so allows or if the negotiating states
agree (Articles 2(1)(b) and 15). If a treaty was ratified by a state
that is then succeeded by a different state, then it can be agreed to
again by succession. If a treaty is not subject to ratification,
acceptance, or approval a state may consent to it through a definitive
signature (Article 12).

There
are a number of ways for states to agree to a treaty on their own terms.
It is important to note how the treaty was agreed to, as it may mean that
parts of it apply differently to that country than they do to other
countries.

·
States may make declarations or understandings at the time of signature that
clarify their interpretation of particular treaty provisions.

·
States can make reservations by accepting the treaty but stating which
provisions they will not comply with. Valid reservations must not be
incompatible with the object and purpose of the treaty, and a treaty can
prohibit or only allow for certain types of reservations (Articles 2(1)(d) and
19-23). Note that the Convention on Discrimination Against Women, discussed
below, expressly states “[a] reservation incompatible with the object and
purpose of the present Convention shall not be permitted” (Article 28(2))

·
States can sign but not ratify a treaty or a portion of a treaty, such as the
portion allowing complaints to be brought. This means the state has to desist
from any acts which would defeat the objective and purpose of that treaty but
that they are not bound by it (Article 18).

Non-Discrimination Clauses

Nondiscrimination
is a key primary norm common in almost all international instruments on human
rights. It can be regarded as a preemptory norm (jus cogens) of
international law. Below are some examples of key international treaties
and conventions which have non-discrimination as a cornerstone.

These clauses are important because they provide the foundation from which to
argue for the equal treatment of men and women under all laws, including any
law which applies to land and property.

The
Charter of the United Nations (1945),
which established the United Nations, explicitly recognizes the right of
non-discrimination, “to achieve international co-operation in solving
international problems of an economic, social, cultural or humanitarian
character, and in promoting and encouraging respect for human rights and
for fundamental freedoms for all without distinction as to race, sex,
language or religion.” (Article 1(3)).

The
Commission on the Status of Women is
the principal global intergovernmental body exclusively dedicated to the
promotion of gender equality and the empowerment of women. It was
established by the Economic and Social Council in June 1946, and is a
permanent, parallel body that addresses women’s rights within the United
Nations, providing policy guidance to UN Women.

The
United Nations Human Rights Council (UNHRC), a subsidiary body of the UN
General Assembly, was established by the General Assembly in 2006 to
replace the UN Commission on Human Rights (UNCHR).

The
1948 United Nations Declaration on Human Rights (UNDHR) sets forth that its rights are for
everyone, without regard to sex (Article 2).

The
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) similarly protect
people’s rights without regard as to sex (Article 2).

The
Convention on the Rights of the Child requires
states to protect children without discrimination (Article 2).

Right
to Property

While there is a
universal recognition in international instruments, regional treaties, and
national Constitutions of a human right to property, many international
instruments do not explicitly guarantee a woman’s right to own property.

The
UNDHR guarantees that “everyone has the right to own property alone as
well as in association with others” (Article 17).

The
African (Banjul) Charter on Human and People’s Rights guarantees the right
to property for all peoples (Article 14).

Categories: Releases

Women’s Land Rights – International Agreements & How to Build a Legal Case for Women’s Land Rights

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