International Agreements and How to Build a Legal Case for Women’s Land Rights

Amanda Richardson · Sep 22, 2016

III. Regional Agreements

Page Contents

This page will highlight a few areas for analysis.

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Introduction

In addition to international Legal Instruments, to which most United Nations Member States are parties, many States also belong to and are parties to Regional Agreements with relevant provision on women’s rights to property and land. These agreements are binding only to those members of the regional organizations (ROs) that accept or ratify them.  Important regional organizations include, but are not limited to, the Organization of American States, the African Union, the Caribbean Community, the European Union, the Association of Southeast Asian Nations, the South Asian Association for Regional Cooperation, and the Organization of the Islamic Conference.

 

This guide currently focuses on selected African regional agreements and selected agreements of the Organization of American States, as an example only. Each region will have many declarations relating to gender and to property, so it is important that independent research be done.

 

In Africa, the two most important agreements are the African (Banjul) Charter on Human and Peoples’ Rights, called the Banjul Charter, and the 2003 Protocol to the African (Banjul) Charter on Human and Peoples’ Rights on the Rights of Women in Africa, called the Maputo Protocol. Both of these apply only to states that have signed and ratified them and that are eligible for membership in the Organization of African Unity, formerly known as the African Union or the OAU.

The Banjul Charter

The African Charter on Human and Peoples’ Rights, also known as the Banjul Charter, entered into force in 1986.

 

  • Article 14 guarantees the right to property for all peoples.

 

  • Article 2 guarantees all rights without distinction as to sex.

 

  • Article 19 states that all people shall be equal and enjoy the same respect and rights.

 

  • Article 22 states that all people have a right to economic, social, and cultural development (Article 22).

The Maputo Protocol

This addition to the Banjul Charter (known as the Maputo Protocol) explicitly protects women against discrimination.

 

  • Discrimination against women is defined as “any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life” (Article 1(b)).

 

  • Article 2(1) establishes equality between sexes and also obligates states to take positive action to eliminate discrimination where it still exists.

 

  • Article 4 provides for equality before the law and the right to equal protection and benefit of the law.

 

  • Article 6 protects a married woman’s right to acquire her own property.

 

  • Article 7 protects the right to equitable sharing of joint property during divorce, separation, or annulment.

 

  • Article 19 addresses the role of women in development, and mandates that State Parties “promote women’s access to and control over productive resources such as land and guarantee their right to property.”

 

  • Articles 12 to 17 protect women’s economic and social rights.

 

  • Article 21 protects widows rights to inheritance, including the right to continue living in the matrimonial house.

The American Declaration of the Rights and Duties of Man

The American Declaration of the Rights and Duties of Man was adopted by the Ninth International Conference of American States on 7 May 1948 and is one of the oldest instruments on Human Rights.

 

  • Article 2 provides for equality for all and non-discrimination.

 

  • Article 23 protects the right for every person to own property. “Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”

The American Convention on Human Rights

The American Convention on Human Rights was signed by the Organization of American States on 22 November 1978. The Convention established an Inter-American Commission on Human Rights and an Inter-American Court of Human Rights.

 

  • Article 1 commits States to respect the “rights and freedoms recognized in herein and ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion national or social origin, economic status, birth or any other social condition” and to take such legislative or other measures as may be necessary to give effect to those rights or freedoms.

 

  • The Convention is ambiguous on the right to own property, guaranteeing only the right to use and enjoy property without expressly conferring a right to own property. 

 

  • Article 21 provides for a right for everyone to “the use and enjoyment of his property.” The law may subordinate such use and enjoyment in the interest of society.