“Land as a Human Right” Masterclass
Could land be considered a human right in international law? This was the question deliberated in a masterclass co-organized by HIC-HLRN and the Global Land Tools Network (GLTN) within the 2nd Arab Land Conference, organized as an activity of the Arab Land Initiative [AR] and hosted by the Government of Egypt on 22–24 February 2021.
HIC-HLRN planned the event to parallel the process of the UN Committee on Economic, Social and Cultural Rights (CESCR) drafting a General Comment on land for states parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The first draft of this new legal instrument interpreting state obligations under the Covenant will be released in March 2021. The masterclass addressed both ALC themes 4 and 5, convening experts in natural science and law to interrogate and discuss with participants the criteria for, and implications of recognition of a “human right to land.” It also served to offer balance to the Conference program by identifying the economic, social and cultural human rights related to, and arising from land.
HIC-HLRN coordinator Joseph Schechla posed the premise of land as a human right by exploring the criteria for such a recognition, beginning with the test of land’s “universality” as a subject of human need. While land is not mentioned in ICESCR, he presented the example of water—also absent in the Covenant—and its recognition as a human right, first by CESCR in General Comment 15 (2002), and then by the UN General Assembly in resolutions A/RES/64/292(2010) and A/RES/70/169 (2016), recognizing every human’s physiological need for water.
He then subjected land to the same test, citing the findings of geophysics, electromagnetics and gravitational biology that affirm the human’s physiological need and organic relationship to land, consistent with CESCR’s assertion that human right be informed by science (GC No. 25). Among those findings is the discovery that the electromagnetic frequency of the Earth’s landmass is the same as that of the human brain. This phenomenon, first discovered by physicist Winfried Otto Schumann in the 1930s, is known today as the Schumann Resonance. Other essential processes and functions of the human body rely on the gravitational pull of the earth. A geophysics and biological approach to land as a common physical need is distinct to treating “land rights” as property, which is not a subject of ICESCR.
Schechla followed these lessons by sharing the treatment of other human rights in other international law instruments affirming a “right to land” of specific groups who especially rely on land for their livelihood, means of subsistence, culture and self-determination, as well as those groups typically subjected to historic discrimination, including women, minorities, indigenous peoples, peasants and rural workers. As explained, these examples still treat land as property, about which ICESCR is silent. Therefore, Schechla argued that an approach to land as distinct from property and consider the universality of human need for land.
Michael Windfuhr, director general of the German Human Rights Institution, member of CESCR and a drafter of the current General Comment (GC), spoke from the perspective of the Committee. He recounted CESCR’s need and motives for elaborating a GC on land, due to the frequency with which land figures in the violation or fulfilment of other human rights enshrined in ICESCR when reviewing states’ performance of the treaty. He shared the Committee’s process and approach to the challenge of clarifying state parties’ obligations related to land, corresponding also to the outline of the current draft’s contents.
That approach involves an inquiry into the relationship of land as part of a chain of elements affecting the enjoyment of other human rights already enshrined in the Covenant (e.g., livelihood, housing, food, culture). He also explained that, although CESCR had newly recognized the human right to water almost two decades ago, the Committee has not achieved consensus on being the first authoritative source recognizing land as a new human right. Instead, it is taking a more-customary approach to land as a factor in implementing other covenanted human rights, with priority to those groups threatened with, or victim to deprivation of land to the detriment of other human rights enshrined in the Covenant.
Windfuhr ended by announcing that the Committee will look forward to commentary and inputs to the draft from the time of its publication in March until June 2021. Based on those inputs, CESCR will finalize and adopt the GC on land in its end-2021 session.
Jean Du Plessis, human rights lawyer and land specialist at GLTN, introduced the “GLTN approach to Land,” by which the team develops and applies land tools that also coincide with the objective of human rights implementation and realization. Among those tools, Jean focused on the “Continuum of Land Rights,” an important conceptual guide to recognizing and legally securing as legitimate multiple forms of tenure typically practiced within any state jurisdiction. Along that spectrum freehold tenure (ownership) is only one of wide variety of tenure types. Likewise, he introduced the GLTN-developed Social Domain Tenure Model as a method to record those tenure relationships as a factual basis for tenure recognition.
Robert Lewis-Lettington, chief of the Urban Legislation Unit at UN-Habitat and director of GLTN, addressed the implications of the new GC on land as a guiding instrument for land policy and governance across regions. Completing the circle from theory to actual practice, Robert noted the importance of approaching land from a perspective other than property, as the “human right to land” offers, as well as an opportunity to elaborate the “social function of land” recognized in the New Urban Agenda (paras. 13 and 69). He also proposed GLTN and its partners as natural collaborators with CESCR to develop the practical guidance of the GC, and GLTN’s potential as convener and host for consultations on the draft as soon as it is made public in March 2021.
The half-hour delay in setting up the session meant that no time remained at the end of the session for discussion from the floor. Nonetheless, the digital format enabled participants to make contributions through the chat function. These included an observation that land in cities and urban areas is usually seen as an economic value, while its social and cultural values increase the more one goes outside the city. Such a diverse perception complicates land issues and their perception by various parties. The participant observed that such complexity and diversity of perception make it difficult for governments to mediate interests and resolve disputes related to land.
Another participant observed that a problem arises in most developing countries, including in the Arab region, in the interference of civil society in government tasks. It is often forgotten, she noted, that the regulation of lands requires political decisions to formulate policies and laws that are in line with international treaties by which the states are bound, and to leave the training work and initiatives for civil society, for which it is the most capable.
One participant intervention shared the 2019 decision of the Conference of Parties to the UN Convention to Combat Desertification on land tenure, which was the result of a civil society initiative to focus on land tenure in the process of implementing the Convention. Another written intervention in the chat emphasized the example of Palestine and its people’s struggle to retain lands.
Also arising from the masterclass was a proposal for GLTN to host two consultations on the draft GC in May/June 2021, the outcomes of which will serve as input to CESCR’s finalization process.
Presentation materials: “Land as a Human Right” presentation (pdf) [AR]
“GLTN Approach to Land” presentation (pdf)
Background paper: “Land as a Human Right” by Joseph Schechla
CESCR General Comments
Image: Artist’s rendering of the influence of geomagnetism and Schumann resonances on human health and behavior. Source: HeartMath Institute.