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Land rights

Is There a Human Right to Land? ... Kaitlin Cordes, CCSI at Columbia University

Burgess COMMENTARY

Peter Burgess

Is There a Human Right to Land? Categories: Blog

Ask a land rights defender if there is a human right to land, and she will likely say “Yes, without a doubt.” For people around the world, land is a source of food, shelter, and livelihoods; it’s an economic asset, a crucial safety net, a link with culture and social identity, even a living relative or ancestor. Given their importance, land rights are surely human rights.

Ask a human rights lawyer if there is a human right to land, however, and you might get a more ambiguous response. One common (and legalistic) answer is that there is no codified universal right to land in international human rights law—meaning land rights have not been written into treaties. Another response is that there is arguably an “emerging” human right to land, or perhaps an existing but not explicitly recognized one. What does this mean? And why should we care what human rights law says?

Human rights law: An evolving source of norms and legal obligations

Human rights law provides a legal framework that is meant to cover rights inherent to everyone—rights that are universal, interrelated, interdependent, and indivisible. At the core of international human rights law is a set of international and regional treaties signed by States. These treaties explicitly protect the rights described (“codified”) within them, and governments that have ratified the treaties have legally binding obligations to respect, protect, and fulfill those rights. These obligations empower individuals as legal “rights-holders” and turn governments into “duty-bearers.” They create important (though admittedly uneven) opportunities for accountability.

When lawyers say that there’s not a codified universal right to land in international law, they mean that the core international human rights treaties don’t explicitly provide for a right to land. These treaties protect other rights for which land may be crucial, such as the rights to food and adequate housing. Some of them also protect a right to property, which is not quite the same as a right to land, though it is related. But a universal right to land is missing from the treaties.

This doesn’t necessarily mean that a human right to land does not exist or alternatively is not emerging. Human rights law isn’t static. It evolves over time through new treaties (relatively rare), through authoritative interpretations of existing treaties (by human rights tribunals and treaty bodies), and through iterative processes that involve, for example, the creation, application, and gradual “hardening” of soft law (quasi-legal rules that aren’t legally binding, like the Voluntary Guidelines on the Responsible Governance of Tenure).

While governments may not be enthused to be told they have legal obligations regarding rights that they didn’t explicitly acknowledge in treaties, international law does sometimes accommodate newly recognized rights even without the conclusion of a new treaty. The right to water provides one example. It’s not explicitly codified in binding treaties as a universal right. But after decades of struggle and calls for recognition, the right to water has been authoritatively interpreted into a core human rights treaty and recognized in multiple UN resolutions. It is now widely acknowledged as existing within international law. Could a right to land be next?

Standing at the crossroads of a human right to land?

Social movements and civil society groups have called for a human right to land, which has been most recently articulated in the current draft of the United Nations’ Declaration on the rights of peasants. Some human rights lawyers and scholars concur, arguing that a human right to land can be located in the decisions and statements of human rights tribunals and treaty bodies. UN experts on the right to housing and the right to food have also weighed in, calling for, respectively, “recognition in international human rights law of land as a human right” and clarification of “the issue of land as a human right.”

The issue of land is particularly important for a number of rights codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the treaty body tasked with interpreting that Covenant—the same body that interpreted a human right to water—is currently working to develop a General Comment on land. (The Columbia Center on Sustainable Investment, where I work, recently hosted a consultation on the Comment.) Whether the Committee will interpret the ICESCR to include an explicit right to land, or simply as requiring certain State obligations related to land as components of other Covenant rights, remains to be seen. Whichever approach it takes, the General Comment will be a particularly useful step forward in elucidating links between governments’ legally binding obligations and questions of land.

While the status of a universal right to land remains unclear, human rights law does already provide more clarity for certain groups. Indigenous peoples, for example, have a clear human right to land and territories. This right is protected in ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples, but has also been authoritatively interpreted into other treaties, such as the ICESCR. Similarly, human rights tribunals and bodies have determined that certain non-indigenous groups, such as tribal communities, also have a human right to land.

It’s not much of a stretch to argue that, in addition, there is a human right to land for individuals and groups whose realization of other human rights effectively requires land. When land is so critical to the realization of a constellation of rights—such as those to food, housing, water, culture, and/or an adequate standard of living—land may cease to be just a means to a right and may instead become a right itself.

The place of land rights within international human rights law is more than an academic exercise. The recognition of a human right to land could have significant implications for governments, entailing, among other things, actions at the domestic level, reporting at the international level, and potential liability for new types of violations. It could require serious consideration by governments of a number of related issues, such as their obligations regarding rural and urban land redistribution. It might shape governments’ approaches to securing tenure, with important links to poverty reduction and the fulfillment of the Sustainable Development Goals. A recognized human right to land would also be relevant for companies, which, under the UN Guiding Principles, have responsibilities to respect human rights. This would mean, for example, that companies would be expected to factor land rights into their human rights due diligence, and to provide redress when their operations have caused or contributed to negative impacts on people’s land rights.

While exploring the status of land as a human right is important, we should not overlook the existing legal duties of governments in the context of land. As the UN High Commissioner for Human Rights noted in a human rights analysis of land-related issues, governments already have obligations relating to land. Regional human rights commissions and courts have made significant advances in elaborating these obligations. Indeed, greater clarification of these obligations, by courts and treaty bodies, could result in similar outcomes as those that would arise from an explicit codification or authoritative recognition of a human right to land.

Regardless of its technical status in international law, land is essential for individuals and communities around the world—a vital source of livelihoods and identity, a necessary ingredient to a life lived with dignity. Well into the future, land rights will remain inextricably linked with human rights.
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Kaitlin Cordes is Head of Land, Agriculture, & Human Rights at the Columbia Center on Sustainable Investment (CCSI). For further information about CCSI’s work on these issues, check out our website or contact us by email (ccsi@law.columbia.edu).

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