Land and States’ ICESCR Obligations
The UN Committee on Economic, Social and Cultural Rights (CESCR) adopted its long-awaited General Comment (GC) No. 26 on land and economic, social and cultural rights on 22 December 2022. The adopted version is a vast improvement over the earlier draft, which HIC-HLRN has addressed in Land Times/أحوال الأرض (Issues. 15, 19, 22 and 24) and a separate publication of its input to CESCR: A Human Right to Land.
The new GC No. 26 begins with a focus on “secure and equitable access to, use of and control over land” as essential to the realization of other human rights, and the need for systems of tenure to secure access to, use of and control over land. It points out, however, that the current use and management of land are generally not conducive to the realization of the rights enshrined in the Covenant, based on the Committee’s extensive reviews of state performance of the treaty. It proceeds to identify the most-important factors in this trend in both rural and urban contexts, especially affecting disadvantaged and marginalized social groups.
The GC points out how the mismanagement and/or inequitable distribution of land can affect six particular rights enshrined in the Covenant, including food, adequate housing, health, livelihood, culture, self-determination and water.
However, initiating the recognition of water as a human right in a GC two decades ago, the Committee did not venture to give land—also a classic physical element and physiological need—equal treatment in law. Nor did the Committee consider the physiological relationship between human and land, despite the pledge in its GC 25 “to develop the relationship more broadly between science and economic, social and cultural rights.” The examples given for land’s relationship to health are only in the negative sense, advising states to avoid land use that relies on pesticides, fertilizers and plant growth regulators or that results in the production of animal waste and other microorganisms has contributed to various respiratory diseases (para. 9).
The GC then begins to explore the connections between land and overriding principles of the Covenant’s implementation. As enshrined in the Covenant’s first three articles, these are self-determination, nondiscrimination, gender equality, rule of law, progressive realization, maximum of available resources and international cooperation.
First of these in the Covenant is the already-mentioned inalienable right and implementation principle of self-determination. An indicator of the Committee’s reticence is its sole reference to land as essential to self-determination in the example of the internal self-determination of Indigenous Peoples (para. 11). The GC does not make the connection between land and the peremptory norm and jus cogens obligation of all states, found in the Namibia Doctrine, to ensure land rights of peoples and nations denied their right to self-determination, including by nonrecognition and taking effective measures to bring an end to that illegal situation.
The GC is more thoughtful on the overriding implementation principle of nondiscrimination. The Non-discrimination, equality and groups or persons requiring particular attention section features the principle of nondiscrimination with a particular focus on women, Indigenous Peoples and peasants and other people working in rural areas. Rule of law is cited in connection with states’ duty to develop laws and policies to guarantee that land-based investments are made in a responsible manner (para. 28). This principle returns in the context of advice to states on preventing corruption particularly through consultation, participation and respect for the rule of law and the principles of transparency and accountability (para. 53). However, rule of law questions are best dealt with in the concluding Implementation and remedies section (paras. 59–61).
The GC does mention that “States shall use the maximum available resources to progressively realize the rights under the Covenant relating to accessing productive resources, particularly to assist individuals and groups to access an adequate standard of living” (para. 37), and to address the impact of climate change, particularly on disadvantaged groups (para. 57).
Also found in the body of the GC is guidance on operationalizing the principle of international cooperation. It provides that: “States parties shall ensure that the elaboration, conclusion, interpretation and implementation of international agreements, including but not limited to the areas of trade, investment, finance, development cooperation and climate change, are consistent with their obligations under the Covenant and do not have an adverse effect on access to productive resources in other countries” (para. 45).
The GC also advises that “International cooperation and assistance should be focused on supporting national policies to secure access to land tenure for those whose legitimate user rights have not been recognized. Policies should avoid leading to land concentration or commodification of land and should be aimed at improving the access of disadvantaged and marginalized individuals and groups and increasing their security of tenure. Adequate safeguard policies shall be in place, and persons and groups affected by measures of international cooperation and assistance shall have access to independent complaint mechanisms. International cooperation and assistance can facilitate efforts to ensure that land policies are sustainable and are or will become an integral part of official land use planning and States’ broader spatial planning” (para. 47).
Despite its omission of land denied to peoples entitled to self-determination, the GC treats extraterritorial obligations in matters of land transactions (paras. 40–47). It reminds states to take steps through international assistance and cooperation under article 2 (1) of the Covenant with a view to progressively achieving the full realization of rights under the Covenant relating to land (para. 46).
On process rights linked to land, the GC emphasizes participation, consultation and transparency as general obligations of states in matters related to land governance (paras. 20–21). Half of this brief treatment is dedicated to processes referred to in the UN Declaration on the Rights of Indigenous Peoples, in particular, the principle of free, prior and informed consent.
Respect, protect and fulfill
Elaborating on the aspects of state obligations, a section on Specific obligations of States parties (paras. 22–39)is organized in line with the obligations to “respect, protect and fulfill.” This standard formula is most useful in the interpretation of obligations corresponding to a particular human right. However, since this GC does not treat a “human right to land,” this section remains abstract.
The GC reminds that the obligation to respect requires that States parties do not interfere directly or indirectly with the rights enshrined in the Covenant relating to land, including the access to, use of and control over land. The Committee interprets this aspect of obligation to mean that the state (and its organs) refrain from any of the following:
(a) interfering with land users’ legitimate tenure rights, in particular by evicting occupants from land on which they depend for their livelihoods;
(b) evicting by force and demolishing property as punitive measures;
(c) committing any discriminatory acts in the process of land registration and land administration, including on the basis of marital status, legal capacity or access to economic resources; or
(d) committing any act of corruption with regard to tenure administration and tenure transfers.
It adds that the obligation to respect also entails respecting existing access to land of all legitimate tenure holders and respecting decisions of concerned communities to manage their lands according to internal modes of organization (para. 22).
Echoing the Committee’s earlier GCs Nos. 4 and 7 on the right to housing, GC 26 advises that States should provide all persons with a reasonable degree of tenure security that guarantees legal protection against forced evictions (para. 23), respecting “land users’ legitimate tenure rights.”
That means that the obligation to protect requires States parties to adopt measures to prevent any person or entity from interfering with the rights enshrined in the Covenant relating to land, including the access to, use of and control over land. States parties shall protect access to land by ensuring that no one is forcibly evicted and that their access rights to land are not otherwise infringed by third parties (para. 26), notwithstanding the type of land tenure systems (para. 27).
On the pro-active obligation to fulfill economic, social and cultural rights in the context of land, the GC reminds states parties to identify all existing tenure rights and rights holders, not only those in written records. States parties shall, through public rules, establish the definition of land user rights that are legitimate, in line with all the relevant Covenant provisions and with the definitions contained in the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (para. 33).
The GC points out that land distribution schemes should also support small, family-owned farms, which often use the land in a more sustainable way and contribute to rural development owing to their labor intensity. However, land redistribution schemes should ensure that the beneficiaries receive proper support to enhance their capacity to use land productively and to engage in sustainable agricultural practices in order to maintain the productivity of the land (para. 36).
As a function of fulfilling the various ESC rights related to land, the Committee proffers standard advice for states parties to engage in long-term regional planning to maintain the environmental functions of land (para. 38). This purposeful recommendation aligns with the provisions of the New Urban Agenda, which commits states to ensure both the environmental and social functions of land and the city (paras. 13 and 69). Most implementers, monitors and other subjects of the New Urban Agenda still need specificity to realize these dimensions beyond land’s economic function. However, this GC leaves them referring to other sources to understand the requirements of states to ensure the ecological and social functions of land.
The section of the GC on extraterritorial obligations (ETOs) is very useful. I would be helpful to explain to states—especially those that commented with reservations about the concept—that ETOs are an inherent dimension of states’ human rights obligations, in addition to the individual, collective and domestic dimensions.
The GC explains how land transfers are quite often financed or fostered by international entities, including public investors such as development banks financing development projects requiring land, such as dams or renewable energy parks, or by private investors. In reviews of State party reports, the Committee has encountered an increasing number of references to the negative impact on individuals’, groups’, peasants’ and Indigenous Peoples’ access to productive resources as a result of international investment negotiations, agreements and practices, including in the form of public-private partnerships between State agencies and foreign private investors (para. 40).
To fulfill its extraterritorial obligations, the GC reiterates the Committee’s position that States should take steps through international assistance and cooperation under article 2 (1) of the Covenant with a view to progressively achieving the full realization of rights under the Covenant relating to land, which would also benefit peoples and communities outside their territories (para. 46).
The GC does address land as a subject of special circumstances. However, it focuses only on internal armed conflicts and post-conflict situations, corruption, the protection of human rights defenders, and climate change. With regard to women’s rights to inheritance of land, the GC’s guidance is mentioned briefly in the section under discrimination against women. It is disappointing, particularly in the present phase of human history, that the first authoritative interpretive instrument on land and human rights from a Human Rights Treaty Body omits the many current cross-border conflicts and war situations, as well as ongoing illegal occupations. These will undoubtedly have to be the subjects of further application of the more-general principles of this GC in country-specific application.
While the current GC on land and economic, social and cultural rights is constructive and much improved over its previous draft, it seems to fall short of expectations. It demurs on the subject of land as a human need and human right, leaving more abstract advice on the treatment of land as only an accessory to the realization of other covenanted human rights.
In its abstract sense, the GC does recognize Indigenous Peoples, peasants and other traditional communities who have a material and spiritual relationship with their traditional lands that is indispensable to their existence, well-being and full development (para. 27). social, cultural, spiritual, economic, environmental and political value of land (para. 35). However, that view separates those communities from the wider humanity, as if land were not a human need and, therefore, not the subject of a human right.
The Committee did not apply to land the same principled method as in its recognition of water as a human right 20 years ago. Thus, the treatment of land in the current GC is rather transactional, suggesting to treat land as property, which is not a subject of either Human Rights Covenant.
Despite cultural impediments found in Western dualist philosophies, humanity’s understanding of its relationship with land and nature has evolved. The still-wanting recognition of land and a human need and, thus, human right lies somewhere between arguments for the intrinsic value of land and nature and the defunct perception of the land’s instrumental value founded on its usefulness in the service of humankind. However serviceable this GC may be in the short run, further interpretation is needed to bridge the human/nature dualism that still alienates people from land and each other, as if those communities organically linked to the land are merely quaint exceptions.
Photo: Maya community leaders in Belize demand respect for their communal land rights. Source: Program on Human Rights and the Global Economy (PHRGE) at Northeastern University School of Law.