The Right to Land Takes-off

You won’t find it mentioned in its working agenda yet, but the UN Committee on Economic, Social and Cultural Rights (CESCR) already is facing the need to apply its treaty-interpretation mandate in response to the pattern of so many land-related issues in states’ implementation—and violation—of the International Covenant on Economic, social and Cultural Rights (ICESCR). The development of a new General Comment on land under the Covenant now is expected to occupy CESCR through 2018.

The struggles of land-based people and communities have led some HIC Members and other movements and organizations, including La Vía Campesina (LVC) and Minority Rights Group, to assert a “right to land.” They argue that such a human right already emerges from jurisprudence and normative development in the international Human Rights System. However, as of yet, no explicit “human right to land” exists in legal instruments. International recognition of a “right to land” so far only applies to indigenous peoples through the 2007 UN Declaration on the Rights of Indigenous Peoples (preamble, paras. 26–30) [AR], approved by a majority of states.

The number of states supporting that Declaration now has reached 144 (after President Obama belatedly changed the USA’s vote in favor in 2010). All states in the MENA region also voted in favor, except for the Morocco and Israel delegations, who absented themselves from the General Assembly during the vote.

As for peasants, LVC advocates a right to land and other natural resources, including the right to use nonproductive land, recognizing the social function of land, states regulating non-state actors and exercising their extraterritorial obligations, applying the broader concept of “territory,” promoting social-oriented agrarian reform, limiting or prohibiting big business land markets and excessive concentration of land ownership. LVC has issued its own declaration arguing that states bear a corresponding obligation to give priority to peasants’ access to public land, promote “inalienable public agricultural heritage,” end discrimination in access to land, and create peasant areas/territories.

In recent discussions with and among the members of CESCR on the prospect of a new General Comment on land, the Committee has not committed to a title, or whether it will interpret the Covenant as giving rise to a “right to land.” For the emergence of such a subject as a new human right, land would have to pass the test of universality, beyond the specific land-based criteria, contexts and communities of peasants and indigenous peoples. In important ways, a human right to land would have to apply to everyone, including those in the urban context.

In order to achieve the status of a human right, any interpretation of land would have to overcome the impression that it forms merely a subcategory of the human right to property. The right to property is enshrined in the Universal Declaration of Human Rights (Article 17) [AR] as something to be possessed as an individual, or in association with others.

When the Human Rights Covenants were adopted 50 years ago, property did not pass the universality test to be guaranteed as commonly needed by all humans. However, the human right to property and its concomitant prohibition against arbitrary dispossession have been restored in subsequent human rights instruments that apply to specific groups, including women, children, refugees, workers and people with disability. For decades also, the social function of land and property has been recognized in numerous state constitutions, and that concept likewise appears with respect to land in the “New Urban Agenda” (para. 69) [AR], regarding property through the lens of users’ or possessors’ inherent social responsibility.

A CESCR General Comment recognizing a “human right to land” also could ground the normative content of land in such philosophical approaches as the theory of human need and theory of justice. The corresponding dimensions of land as a human right would rely on the understanding of land as a universal human need, as well as its enjoyment through the exercise of equity and equality. The property dimension then would become a secondary concern.

Making a legal case for a “new” human right to land follows an analogous process that led to treaty interpretation and general recognition of water as a human right, first in CESCR’s General Comment No. 15 (2002) [AR] and, later, in General Assembly resolution A/RES/64/292 (2010). [AR] Both sources of declaratory international law affirmed that safe and clean drinking water and sanitation are indispensable to maintain human life and dignity, as well as “an integral component of the realization of all human rights.”  Just as water arguably forms an integral component of human rights to life, food, health and adequate housing, the development of the proposed new General Comment may find that land is an integral component especially to individual and/or collective rights to food, adequate housing, decent work and livelihoods, culture and the inalienable right to self-determination.

The preparation of a new General Comment on land under the Covenant provides an opportunity to explore the human rights relationship of everyone to land, beginning with land as a human need, as everyone is inextricably bound to the earth, not least through its gravitation pull. Specifying the common-but-differentiated human needs and conditions of justice related to land in a new General Comment would enable CESCR to write a needed new chapter in treaty interpretation in consultation with the diverse subjects of the Covenant.