Enhancing Women's Land Rights in the Americas | Land Portal | Securing Land Rights Through Open Data

Land distribution is an issue innately tied to inequality throughout the region of Latin America and the Caribbean, which is considered the most unequal region in the world. This inequality ranges from wealth disparity and political corruption to gender discrimination in labor practices and the exploitation of natural resources.

Equality can only be achieved in the region through targeted efforts to secure the rights of the poorest and most historically marginalized groups to land and natural resources. Over the past 200 years, unequal land distribution has played a major role in the region’s 35 countries, driving regional wars, population displacement, social and political conflicts, and hunger.

A main driver of inequality has been the discrepancy between women’s rights to land under formal legal systems and their actual ownership of and access to land in practice. Although periodic waves of feminism throughout the 20th century helped to expand women’s property rights within the broader picture of civil and political rights, the gains were gradual and piecemeal, and did not always translate to actual increased land tenure.

The creation and expansion of such regional political and rights-based frameworks as the Organization of American States (OAS) and Inter-American human rights system over the past 75 years has played an increasingly important role in promoting and protecting women’s land rights.

The commitment of these systems to parity in land rights runs deep: the OAS Charter itself, in Article 34(d), contemplates the specific need for equitable and efficient land-tenure systems and an expanded use of land in order to achieve equality of opportunity and the elimination of extreme poverty. The OAS Charter establishes human rights standards for all OAS members, whether or not they are parties to the principal human rights treaty of the region, the American Convention on Human Rights, and can be referred to in individual complaints.

Below is a summary of ways in which the regional human rights instruments of the Americas can be used to enhance women’s access to land and tenure security.

  • American Declaration of the Rights and Duties of Man (1948)

One of the oldest human rights instruments – older than even the Universal Declaration on Human Rights – the American Declaration of the Rights and Duties of Man provides an important jumping-off point for the growth and protection of women’s land rights in the region.

Like the OAS Charter, the American Declaration is not a treaty and so is not legally binding. It can, however, be used and referenced as a framework enshrining important human rights and ideals. Of particular use in the context of women’s land rights are the equality and nondiscrimination provisions of Article 2, as well as Article 23’s right of every person to own private property as a fundamental aspect of human dignity.

  • American Convention on Human Rights (1969, entered into force 1978)

The principal human rights treaty of the Americas, the American Convention on Human Rights (ACHR) is a key source of positive rights, enshrines important duties on the part of states parties, and establishes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. As of 2019, 23 states have ratifiedthe Convention. Importantly, Article 1 of the ACHR bestows an obligation on states parties to respect the other rights without discrimination, and makes the rights within the ACHR actionable in a litigation or adjudicatory context.

Article 21 provides the right of everyone to the use and enjoyment of their property. Article 17 contains a provision that contemplates “equality of rights and the adequate balancing of responsibilities of the spouses as to marriage.” This right can be interpreted as providing access to land for women who do not own title to land but might use the land as part of their husband’s estate. Creative practitioners might also argue that Article 17 could be read to bear on inheritance rights and practices, which, due to their centrality in women’s access to land, may be valuable in the context of enhancing women’s land rights.

However, the Convention is otherwise ambiguous on the right to own property, conferring only the right to use and enjoyment without mentioning the right of ownership. The ACHR also permits the use and enjoyment of property to be subordinated in the “interest of society,” and allows deprivation of property in certain conditions such as receipt of just compensation.

  • Protecting women’s land rights in the Americas

In the case of a human rights violation(s), individuals, groups, or organizations can submit petitions (PDF in Spanish here) or requests for more immediate precautionary measures through a confidential system to the Inter-American Commission for investigation, adjudication, and relief on the merits. If the state against which the filing is made has ratified the American Convention, the Commission can find violations of the rights enshrined in that treaty. If the state has not ratified the Convention but is a member of the OAS, the Commission can only receive petitions alleging violations of the American Declaration or ancillary Inter-American treaties the state may have ratified.

After submission and investigation, there are a variety of reparative and compensatory measures the Commission can provide in the case that a violation is found, including through “friendly settlements” or issuing recommendations to the state. Although state compliance continues to be an issue spanning every forum in international law, regional compliance (or at least partial compliance) with the Commission’s recommendations is actually quite high. As such, it is hoped that this mechanism may provide one avenue among others for the protection and expansion of women’s land rights throughout the Americas.

If you think that you or someone you know in the region of the Americas has had their rights violated, faced discrimination in a land transaction, or been unlawfully denied access to land or natural resources, filing a complaint with the Inter-American Commission may be a way to obtain relief. In addition, the mere act of filing a complaint may garner significant media attention, which may help your cause, or the threat of filing may spur the state to engage in a negotiation process. Using the recommendations in this guide as a starting point, you can thus use international law to urge states to uphold their human rights commitments in the continuing quest to secure land rights for all women in the region.

 

This blog was originally posted on the Resource Equity website.  

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