Land among Economic, Social and Cultural Rights
As previously reported in Land Times/أحوال الأرض, the UN Committee on Economic, Social and Cultural Rights (CESCR) has been deliberating over its draft General Comment on Land and economic, social and cultural rights for more than a year. Since the drafting team of CESCR experts presented their 1st version during the Committee’s 68th session in October 2020, the CESCR Secretariat published it in March 2021 and since issued a call for comments, which ran until 27 July, with a deadline extension till 15 August. By then, the Committee had received 100 formal inputs, including two from HLRN (9 and 10). The CESCR program of work foresaw adoption of the draft at its 70th session in October 2021; however, the volume of inputs, the range of recommendations (including some outright opposition to the draft text) and the fact that 10 out of 18 members are relatively new to the Committee have factored in CESCR’s decision to take a step back and rethink the content.
Most of the contributions argued for incorporating already-existing norms into the draft, with emphasis on rural populations. These cited the UN’s Declaration on the Rights of Indigenous Peoples (2007) and the more-recent Declaration on the Rights of Peasants and Other People Working in Rural Areas (2018), the CEDaW General recommendation No. 34 on the rights of rural women and other instruments recognizing particular groups and particular circumstances necessitating secure tenure and control of land to fulfill other Covenant rights.
Among the responding states, Australia, Canada, Colombia, Germany, Iraq, Ireland, Israel, Italy, Japan, Mexico, Norway, Philippines, Russian Federation, Switzerland, Turkey and United Kingdom. The United States also issued a submission through USAID, although that country is the only industrialized nation that is not a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Norway submitted that the Covenant allows for no claim to ‘free, prior and informed consent’ (FPIC) and does not accept such a claim with regard to matters of land tenure. The UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) disagrees and supports the draft’s inclusion of FPIC.
The Israeli submission surprisingly claims that “The State of Israel`s practice aims at maintaining the cultural and traditional relations of persons with previously established relations to their lands” (para. 6). This statement contradicts 25 years of CESCR’s reviews of that state party.
Australia noted that the draft General Comment (GC) acknowledges that the Covenant contains no ‘self-standing “right to land”,’ but objected to several references in the draft that imply that such a right exists. The Australian input also erroneously states that the ‘right to water’ is specifically guaranteed in ICESCR and that no extraterritorial human rights obligations exist. Japan disagrees with the assertion of a right to water and disputes the draft’s statement that ‘International law recognizes the right of indigenous peoples over the lands and territories that they have traditionally occupied.’
On the other side, thoughtful non-state party inputs filled gaps in the draft General Comment, including references by the Sahrawi National Commission for Human Rights, HIC-HLRN, EMRIP and FIAN International to land as an indispensable element of the right to self-determination, which is also an over-riding principle of ICESCR implementation.
Joint input from CODEHUPY, BASE Investigaciones Sociales, Heñoi and tierraviva asserts that the GC should recognize land as a universal human right, as did Landesa, FIAN and HIC-HLRN. FIAN, ESCR-Net. All questioned the draft GC statement that [w]hile the Covenant does not affirm a self-standing right to land, a number of its provisions are relevant to the governance of land tenure. FIAN advised the Committee to avoid such language dismissing the right to land, and HIC-HLRN objected to the draft’s assertion of a property right—which is not a subject of ICESCR—and noted that the number of its provisions relevant to land tenure is zero. Red Eclesial Pan Amazónica (REPAM) affirmed the right to land within a broader indigenous claim to ‘the right to territory.’
FIAN International’s input considered that “the framing of the draft GC around ‘access to land’ does not adequately capture the complex and multifaceted relationship that people have with the land (which is, at least partially, captured by the draft GC’s recognition of the social, cultural, spiritual and environmental dimensions of land) and fails to address the power relationships that underpin landed relations and which are more adequately captured by the phrase ‘control over land.’ This observation can be applied to ‘access’ as an important but highly insufficient aspect of a human right, as it is in the case of adequate housing. A joint submission by Global Initiative on Economic, Social and Cultural Rights, Landesa, ProDESC and AIDA made the same point.
HIC-HLRN’s submission argues for the Committee to consider not only existing law, but also the science of geophysics and electromagnetics, which explain the physical need for land to sustain human life as a basis for its recognition as a universal human right. FIAN International also recommends that the GC be built on a more-holistic understanding of land, taking into account that land is, above all, a social relationship as well as fundamental for the relationship of human societies with their environment. HIC-HLRN also reminded the Committee that the New Urban Agenda already has recognized and committed states to realizing the social and ecological functions of land (paras. 13 and 69). Both organizations’ inputs noted that the GC represents an important opportunity to clarify that land is, in itself, a substantive human right. This is understood as the right of every human being to effectively access, use and democratically control land and related natural resources—individually, or in association with others—in order to feed and house themselves, and to live, achieve and sustain wellbeing and maintain and develop their cultures.
At the current stage of developing the GC on land, CESCR now has to navigate among these constituencies as either human subjects (right holders) of the Covenant or duty holding states. It seems that no compromise text will satisfy all parties. However, the civil society inputs clearly call for the Committee not to compromise on human rights and, rather, deliver a more-progressive outcome than that found in the initial draft.
Photo: A human footprint in the sand. Source: HLRN file photo.