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

Amanda Richardson · Sep 22, 2016

IV. Research Questions for Building a Legal Case Using International Agreements.

Page Contents

This page will highlight a few areas for analysis.

To jump to one of the sections on this page use the below links:

Background Information

To start, you may find it helpful to use the other LandWise guides, on Inheritance and on Land Rights, to research the law of your country and to determine what rights women currently have in your state. These are available at http://landwise.resourceequity.org/guides.

 

During your background research, you should answer the following broad questions:

 

  1. What land and property rights do women have under the formal law? Consult the LandWise guides for guidance in what types of law to consider, which may include customary law, and how to find them. This research should include family laws, marital laws, and inheritance laws.
  2. Are those rights enforced and enjoyed in practice?
  3. What local laws are discriminatory towards women’s land and property rights?
  4. Is there a permanent institution for the reform of laws, like a Law Reform Commission? Are women well represented?
  5. Are there active NGOs working on these issues?
  6. Does the legal system of your country provide for direct application of international agreements adhered to by the State? If not, have the relevant international instruments referred in this Guide been domesticated by passing legislation for their enforcement?

International Agreements

Next, you should determine which international laws and agreements may apply to your country.  In addition to determining which agreements your state has signed on to, you must determine if there are any reservations or other limitations to their agreement. The appendices to this guide contain a comprehensive selection of international treaties (Appendix B) and regional agreements (Appendix C) that may apply. However, there may be other agreements which would be of use to your situation, so it is best to use the appendices as a starting point. What follows are questions you should ask.

 

The international agreements which focus on women have not always, or even often, had a focus on land and property as well.  To use these agreements for a specific land or property issue it is therefore important to look at key provisions regarding non-discrimination, equality, socio-economic rights, and access to justice. It is often true that agreements covering socio-economic rights, like the ICESCR, have not been enforced or adopted as readily as those governing political and civil rights. They may also have limitations; for instance the ICESCR notes that its obligations must be undertaken “to the maximum of its available resources,” which could be interpreted to mean that poorer countries may delay implementation (Article 2). This is why practitioners must be prepared to argue using a variety of provisions and sources, if possible.

 

The following are questions it is suggested you answer as you research:

 

  • Which agreements has your state signed on to?
    • Check both international agreements and regional agreements. If you are not sure which region your country is in, start by identifying whether it is a member of any regional unions, like the European Union or the African Union.

 

  • Has your state fully ratified the entire agreement?
    • Are there any understandings? These can greatly add to your arguments about how the agreement is relevant, especially where a definition might not be clear (e.g. whether “economic rights” includes the right to property).
    • Has the agreement been signed but not ratified? This may limit your ability to use it. Remember that this means the state has to desist from any acts which would defeat the objective and purpose of that treaty, but that it is not bound by the obligations of the treaty itself. In general, this will result in weak arguments. It will also mean that the corresponding mechanism for bringing a claim is unavailable.

 

  • Are there any reservations?  Many of the states that have ratified CEDAW have made reservations, especially towards Articles 2, 9, 15, and 16. For this reason it is especially important to understand exactly what your country agreed to if it ratified CEDAW. This ratification may have had very big exceptions that make CEDAW less effective.
    • If so, have these been challenged by any other Member States?
      • Does the instrument itself say anything about reservations? For instance, CEDAW states that reservations incompatible with the object and purpose of CEDAW are not permitted.
      • Can you find any way that they are incompatible with the object and purpose of the treaty? Remember that even if the instrument says nothing, the Vienna Convention requires compatibility.

 

  • What obligations do these international agreements bind your state to?
    • Read each agreement closely for any mention of your issue. A good starting point are the appendices of this guide, but remember that there may be issues the appendices does not cover.
      • Remember that your issue might fall under a broader issue. For instance, if your issue is a woman’s right to inherit land, you might look first for mentions of women’s right to equality with men under the law, which could apply to a discriminatory inheritance law.
    • Check any reservations to ensure that the provisions you have found have been agreed to by your state.
      • For instance, in the above example, a state may have reserved the right to allow Sharia law, which discriminates in inheritance on the basis of sex.
      • Remember that these reservations might not be binding. It is possible to argue, for instance, that in the case above reserving the right to allow discrimination in law abrogates the meaning of CEDAW, which has equality of women as its central purpose.

 

  • How can you use these obligations?
    • Check the constitution of your country to determine if treaties are considered self-executing in your country.
      • If so, this means the obligations have direct effect and are considered law.
        • In some cases, the constitution will explicitly reference international agreements and give them the force of law.
      • If not, you should check to see if the requirements of the treaty have been implemented in any domestic legislation.
        • If they have not, you may be able to use this as evidence that your country is not fulfilling its obligations.
    • Are there any bodies established by the instruments or to which the instruments refer?
      • Some examples of these bodies are the African Court on Human and Peoples’ Rights, the Inter-American Court, the European Court of Human Rights, the Human Rights Committee, and the CEDAW Committee.
      • Check which bodies are referred to, in what order, whether your state has ratified an instrument establishing a specific body, and who is allowed to bring a case.
      • Check to see if there are any other requirements to bring a case. For instance, CEDAW Optional Protocol (Article 4.1), the Inter-American Commission, and the African Commission on Human and Peoples’ Rights require exhaustion of domestic remedies in order for a petition to be admissible.  In addition, check for rules governing time limitations.
    • Are there any previous cases that apply to your issue? You should consult:
      • Domestic cases, especially those which have been decided by your country’s highest court and those which applied provisions of treaties and conventions.
      • International/regional cases, especially those which use the conventions that you have identified as useful
      • Recommendations or other reports from applicable committees to your state. For instance, the CEDAW committee publishes two types of recommendations.