Land rights typically refer to land-related property or tenure rights. Land rights can be private or collective rights.
Article 17 of the Universal Declaration of Human Rights states that ‘Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.’
Nonetheless, the right to property is not explicitly mentioned in either of the two International Covenants of human rights. However, the International Covenant on Economic, Social and Cultural Rights mentions, as part of the right of everyone to an adequate standard of living, the obligations that States have in ‘developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.’
The UN developed a document, Land and Human Rights – Standards and Applications which is a useful guide to understand the status of land under international law, and the human rights related to land.
The right to property is, however, recognized in various regional human rights instruments. The First Protocol to the European Convention on Human Rights establishes that ‘No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’
The American Convention on Human Rights establishes that ‘Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases according to the forms established by law. Usury and any other form of exploitation of man by man shall be prohibited by law.’
The African Charter on Human and Peoples’ Rights states in Article 14 that ‘The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.’ Furthermore, Article 21 establishes that ‘In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.’
Land rights should be entitled to anyone in possession of the land. Nevertheless, there are particular and traditionally vulnerable groups whose land rights tend to be violated, such as indigenous peoples and women.
The International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (ILO No. 169) contains important developments regarding indigenous peoples land rights. Articles 13 to 18 are related to land concerns. Indigenous peoples’ land rights are more specifically, rights over territory. This includes rights over ‘the total environment of the areas which the peoples concerned occupy or otherwise use.’ Indigenous peoples’ land rights are collective, in the sense that they belong to the indigenous community as a whole.
The Convention obliges States parties to consult whenever they want to develop resource extraction projects in the territories of indigenous peoples. In that sense, Article 15 establishes that ‘n cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.’
Traditionally, in many societies women have been excluded from land rights. However, important efforts have been made in order to recognize the historical role of women in land use and likewise, their right to land ownership. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) explicitly recognises women’s land rights.
Land rights and the right to a healthy environment
Land rights are closely related to the right to a healthy environment in a number of ways. Land rights, both private and collective, are often affected when, for example, megaprojects of different kinds produce environmental harm. Infrastructure projects, extractive industries, energy production projects, water supply systems and transport projects to mega-events, inter alia, can trigger drought or pollute surrounding land and, therefore, have negative effects on the people that depend on that land to live.
Indigenous peoples are often those most vulnerable to environmental threats in their territories. Their rights are continuously being violated when economic and political interests take over their lands for exploitation. Environmental harm near their territories can also cause their living standards to deteriorate.
Principle 15 of the Framework Principles On Human Rights And The Environment develops the obligations that all States have with indigenous peoples regarding the protection of the environment. Those are:
- ‘Recognizing and protecting their rights to the lands, territories and resources that they have traditionally owned, occupied or used;
- Consulting with them and obtaining their free, prior and informed consent before relocating them or taking or approving any other measures that may affect their lands, territories or resources;
- Respecting and protecting their traditional knowledge and practices in relation to the conservation and sustainable use of their lands, territories and resources;
- Ensuring that they fairly and equitably share the benefits from activities relating to their lands, territories or resources.’