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Land rights

Land rights are critical for access to food, water and other resources, and for security, livelihoods and sustainable development, especially for women. Individuals, families and communities’ rights to land can be weak, and rights are vulnerable.

A good gender analysis is important to ensure justice for women. Strong land rights can help community empowerment.

There are many kinds of conflicts over land, as the same land land might have many different uses. These can include conflicts about ownership, management and occupation rights, about the right to use land, boundary disputes, and the right to access land, or stopping other rights that harm your use of the land (for example pollution).  Access to land can be important for different reasons, including economic, social, cultural and spiritual.

Customary law is important. In some developing countries, the land law that affects most people is under customary law and not state law.  Up to 80% of people in some developing countries have their main source of law as customary law.

Some communities and groups may be able to rely on special areas of law, some of which are considered in other parts of this website, for example refugees and internally displaced people, migrant workers, indigenous and minority rights, and rights under international human rights standards applicable to women, children, persons with disabilities.

For indigenous peoples, see Open Society Initiative’s 2017 report Strategic Litigation Impacts: Indigenous Peoples’ Land Rights, with case studies from Kenya, Malaysia and Paraguay

It is also important to consider various types of land, eg forest tenure and fisheries.

“Food sovereignty” is a related issue.  La Via Campesina is a grass roots movement of farmers’ organizations that launched the idea of “food sovereignty” at the World Food Summit in 1996.  It mandates that the rights to use and manage land, territories, water, seeds, livestock and biodiversity are in the hands of those who produce food and not of the corporate sector www.viacampesina.org

Regional systems can also have special laws, for example the Inter-American system, the African system, the Organisation of the Islamic Conference, the Arab Charter of Human Rights, and the South Asian and South-East Asian systems.

Different countries have very different land laws, so the local context is always crucial. But some common principles apply, and this module shares good practice and practical tools from many countries.

Fortunately, there are many useful sources of help and advice for land rights, and this module provides links to useful websites and tools.

This module looks at different types of land disputes, the laws relating to land, and how to defend yourself and your community against problems such as land grabs, evictions, and other rights violations.

This website is about access to justice in conflicts, and although it does not focus on prevention, or the processes for managing land, it does provide links to other useful resources in those areas.

An excellent general resource for those who may want need to use advocacy in support of land rights is the GiZ Guide and Toolbox on “Understanding, Preventing and Solving Land Disputes”

Some issues on specific topics are outlined below.  See the separate pages listed for specific topics.

1

Ownership of land

Disputes often arise over who owns land in a formal legal sense. Does the person who claims to own land really own it, and can they prove ownership?

Many conflicts over land ownership arise in a family context, where inheritance rights may be disputed.

Another particularly common problem is the so called “land grab”, typically where those who have owned or lived on the land are dispossessed without their free, prior and informed consent and in violation of basic human rights. Such land grabs may be perpetrated by someone from outside the area who claims to have bought the land or to have been granted a concession to use it.

This problem has been exacerbated by the scarcity of land globally and the potential financial rewards for those able to exploit land for industrial scale agriculture or extractive industries rather than for traditional subsistence farming or pasture. This trend is well summarised in the 2011 Tirana Declaration, issued during a conference: “Securing land access for the poor in times of intensified natural resource competition”.

2

Formal land rights: ownership, leases

The types of land rights which exist, the way in which land rights are acquired or extinguished, or how rights can be proved, vary from country to country or even between different parts of the same country. (Urban land is sometimes treated differently from rural land.)

The starting point should be the national law of the country in which the land is situated. The land law of that country is the most likely to be relevant, but inheritance laws as well as the human or constitutional rights of citizens or groups may also be relevant.

Rights to land are generally acquired through

  • purchase
  • inheritance, gift, or marriage
  • occupation or usage over a period
  • grant from the government

Some countries have different categories of land to which different rules apply; for example, state land (sometimes divided into state public and state private land) as against private land and communal land as against individual land.

Some countries have a formal system of land registration, where a title certificate or similar document is needed, either to become the formal owner or to prove ownership.

Other countries focus more on rights based on occupation or customary rights. Indeed many rural communities do not recognise land as being something subject to ownership in the developed country sense at all. It is rather considered a resource, like the atmosphere, to be used for the benefit of the members of the community and according to the community’s customs and usages.

The prevalence of occupation under customary rights lies at the heart of many land disputes. Those in occupation may have no security of tenure, even if the land has been occupied by the same families or communities for generations.

Furthermore, it is difficult for outside purchasers or investors to know whose consent they must obtain to acquire rights themselves. As established by the Enderois case, a denial of security to tenure to those occupying land on the basis of customary rights may be a breach of fundamental human rights.

3

Occupation of land, land tenure and use of land

It is not only landowners who have rights to occupy or use land. Tenure in the form a lease or other grant may be given by the owner to others, either in writing or orally.

Often, ownership as such is not at issue but rather occupation of land or the right to occupy it. Forced evictions of lawful occupiers is another form of “land grab”, whether or not questions of ownership are concerned.

 

Protecting your use of land

A range of common customary and legitimate rights and uses of land exist which should be protected. These include rights for:

  • living on the land
  • farming and growing food
  • grazing and pasture
  • growing wood or fuel crops
  • providing water
  • fishing

Land use concerns not only the surface of land, but also rights to what is under the ground (minerals, oil, etc.) and to the air space above, as well as rights incidental to water on the land such as a river running through it.

Rights to collect water are often vital for communities, yet, their right to water may be affected by preventing or limiting their access to the land or by land use which pollutes the water source.

Some land is not formally “used” for anything but either remains in its natural state or is specifically designated as a park, reserve, forest, or other protected area. The rights of Indigenous people in respect of such land are often very important.

The status of “empty” or “unoccupied” land is frequently a source of confusion and dispute.

For example, the land may be regarded as “belonging” to a community under customary or international law but as available for granting concessions to other parties under national law.

4

Tenure-based rights

Tenure covers a mix of different and sometimes overlapping rights over the same land to manage or occupy it or to access or exploit the land or resources in it or adjacent to it.

Occupation rights. One of the most important rights over land is the right to occupy it, whether or not the occupier has any formal lease or ownership. The right to exclude others from occupation is also important.

 

a) Usage or enjoyment rights

Rights short of occupation may be important. These might include rights of pasture, gathering wood, hunting, or obtaining water.

 

b) Customary right

This is not so much a type of right but a reference to how rights arise, by custom or customary law of the place or community in question.

 

c) Access and passage

The use of land solely for the right to pass across it and to access other land may also be important.

 

d) Ancestral and cultural rights

Of particular interest to indigenous peoples is the right to visit or access land at specific times for religious and cultural purposes such as to take part in a religious or cultural ceremony or to visit graves of ancestors. [ See case study: South Fork Band and others v. United States: a legal challenge by Native American Western Shoshone Tribe against the US Government for allowing the construction of a gold mine in an area of great cultural and spiritual significance.]

5

Preventing adverse use of land by others

Disputes may involve asserting the right of a person or group to use land, but also the right to exclude others from doing so or from coming onto the land in question.

Disputes about land often involve questions as to what constitutes inappropriate use of land. Common causes of disputes include activities such as

  • deforestation and logging
  • ranching
  • mining and other extractive industries
  • dam construction
  • growing fuel crops, palm oil, soya, or other crops on an industrial scale
  • building settlements for others or constructing roads to facilitate any of the above activities
  • Transformation of mixed local land use system to monoculture
  • Access to land for any of the above purposes
6

Right of access to land for specific purposes

Sometimes, the dispute does not concern ownership or occupation of land but the right of access to it at particular times for specific purposes.

This may include use as temporary pasture, use for gathering fuel or food or for obtaining water, and use for spiritual or cultural purposes such as visiting graves of family or ancestors.

7

Environmental degradation of land

Sometimes the issue is not any of the above problems but pollution and environmental degradation of land.

This is dealt with in the Environment section [ref – internal link to be added when “Environment” module is uploaded]

8

Land rights in "special economic zones"

In some countries, special economic zones are created by Government in which the usual legal safeguards do not apply.

This can mean that farmers and land users are adversely affected, and that compensation is inadequate, partly because there is no market value against which compensation can be assessed

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