I. Introduction and Key Concepts
This page will highlight a few areas for analysis.
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How to Use This Guide
The goal of this guide is to aid practitioners in researching and using international legal norms, regional conventions, and regional treaties and Protocols to engage State officials and institutions, including local and customary legal officials, to encourage domestic compliance with State obligations, and to challenge local laws and court decisions regarding women’s rights to land and property. The guide provides the underlying international norms and relevant treaty provisions addressing women’s land rights. The guide also includes a series of questions focusing on how to build a case challenging local laws or a court decision which violates international or regional commitments that the state has made with regard to women’s land and property rights. An Appendix provides relevant conventions, treaties, and treaty bodies with key provisions pertinent to women’s rights to land and property.
In order to make these guides useful and user-friendly, when possible we have uploaded the full-text laws and articles that we cite to into the LandWise library.
The footnotes throughout this guide are all hyperlinked to full-text laws, articles or other citation information. When you hover over a footnote, the citation information will pop up in a bubble. When you click on the footnote, you will be taken to the full-text of the item the footnote is referencing.
The author would like to thank Francis Ssekandi, Christine Ochieng, Mayra Gomez, and Renee Giovarelli for reviewing and providing valuable comments for this practice guide, and Erin McIntire for her research assistance.
- International Law
International law is the body of rules established by customs or treaties that nations agree to regarding one another. It includes customary international law, which is largely unwritten, and treaties and other agreements between states. Its domain encompasses a wide range of issues of international concern including human rights, international crime, refugees, and the conduct of war.
For the purposes of this guide, it is important to know that international law is binding on States but that the enforcement of State obligations may only be carried out by other States through established institutions, such as the International Court of Justice. Individuals as beneficiaries of the international obligations undertaken by States generally only have recourse in domestic institutions to the extent that these obligations have been incorporated either directly or by legislation in domestic law. Treaties when accepted or ratified create obligations that states must abide by, and some treaties create committees or commissions to monitor their enforcement. In other cases, treaties establish courts to provide a mechanism to resolve disputes related to non- compliance.
- International Agreement
A treaty or similar agreement entered into by subject of international law, usually sovereign states and international organizations.
Treaties are international agreements entered into between two or more States, and include Conventions concluded by states to regulate broad areas of common interest, such as the law of the sea, capacity and procedures for making treaties. The adoption and application of Treaties is governed by the Vienna Convention on the Law of Treaties.
The Vienna Convention on the Law of Treaties
This is the primary law covering international treaties between countries. Below are some relevant provisions in the Convention related to the adoption and enforcement of treaties. These cover just what is relevant for understanding how the treaty may apply.
- Article 9 governs the act of adoption, the formal act of making a treaty either through a resolution by a representative organ of the organization or through a specially convened international conference. Adoption includes a step where states that have negotiated and participated in developing the proposed treaty express their consent to be bound by it.
- After a treaty is negotiated, the primary way a State indicates that it will be bound is by ratifying the treaty (Articles 2(1)(b), 14(1), and 16). States may also indicate they will be bound through accepting or approving the agreement (Articles 2(1)(b) and 14(2)). If a treaty is already negotiated or signed, a State that was not party to the original negotiations may accede to the treaty if the treaty so allows or if the negotiating states agree (Articles 2(1)(b) and 15). If a treaty was ratified by a state that is then succeeded by a different state, then it can be agreed to again by succession. If a treaty is not subject to ratification, acceptance, or approval a state may consent to it through a definitive signature (Article 12).
- There are a number of ways for states to agree to a treaty on their own terms. It is important to note how the treaty was agreed to, as it may mean that parts of it apply differently to that country than they do to other countries.
· States may make declarations or understandings at the time of signature that clarify their interpretation of particular treaty provisions.
· States can make reservations by accepting the treaty but stating which provisions they will not comply with. Valid reservations must not be incompatible with the object and purpose of the treaty, and a treaty can prohibit or only allow for certain types of reservations (Articles 2(1)(d) and 19-23). Note that the Convention on Discrimination Against Women, discussed below, expressly states "[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted" (Article 28(2))
· States can sign but not ratify a treaty or a portion of a treaty, such as the portion allowing complaints to be brought. This means the state has to desist from any acts which would defeat the objective and purpose of that treaty but that they are not bound by it (Article 18).
Nondiscrimination is a key primary norm common in almost all international instruments on human rights. It can be regarded as a preemptory norm (jus cogens) of international law. Below are some examples of key international treaties and conventions which have non-discrimination as a cornerstone.
These clauses are important because they provide the foundation from which to argue for the equal treatment of men and women under all laws, including any law which applies to land and property.
- The Charter of the United Nations (1945), which established the United Nations, explicitly recognizes the right of non-discrimination, “to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” (Article 1(3)).
- The Commission on the Status of Women is the principal global intergovernmental body exclusively dedicated to the promotion of gender equality and the empowerment of women. It was established by the Economic and Social Council in June 1946, and is a permanent, parallel body that addresses women’s rights within the United Nations, providing policy guidance to UN Women.
- The United Nations Human Rights Council (UNHRC), a subsidiary body of the UN General Assembly, was established by the General Assembly in 2006 to replace the UN Commission on Human Rights (UNCHR).
- The 1948 United Nations Declaration on Human Rights (UNDHR) sets forth that its rights are for everyone, without regard to sex (Article 2).
- The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) similarly protect people’s rights without regard as to sex (Article 2).
- The Convention on the Rights of the Child requires states to protect children without discrimination (Article 2).
Right to Property
While there is a universal recognition in international instruments, regional treaties, and national Constitutions of a human right to property, many international instruments do not explicitly guarantee a woman’s right to own property.
- The UNDHR guarantees that “everyone has the right to own property alone as well as in association with others” (Article 17).
- The African (Banjul) Charter on Human and People’s Rights guarantees the right to property for all peoples (Article 14).