II. International Instruments and Relevant Key Provisions
This page will highlight a few areas for analysis.
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What follows are two key treaties and conventions containing relevant clauses related to women’s rights to land and property.
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, access to justice, and legal mechanisms. Practitioners must be prepared to argue using a variety of provisions and sources, if possible.
More complete information on various pertinent international treaties, including which nations are signatories, can be found in Appendix B.
The United Nations Charter
The Charter of the United Nations established the United Nations. It was signed on June 26, 1945 and came into force on October 24, 1945. The Statute of the International Court of Justice is an integral part of the Charter.
- Article 1 sets out the purposes and principles of the United Nations and explicitly recognizes the right of non-discrimination (Article 1(3))
- Article 2(2) commits the members of the United Nations to “fulfill in good faith the obligations assumed by them in accordance with the present Charter.
- Article 55 provides that “the United Nations shall promote: ..(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.
- Article 62 authorizes the Economic and Social Council (ECOSOC) to prepare draft Conventions for the General Assembly.
Key provisions in addition to and including those cited above are listed in Appendix B. They include provisions from the UNDHR, CEDAW, the ICCPR, the ICESCR, and the Convention on the Rights of the Child (CRC).
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
CEDAW was adopted by the UN General Assembly in 1979 and entered into force two years later. CEDAW protects against discrimination in both civil and political rights and economic, social, and cultural rights.
- Article 1 defines discrimination against women as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." The first piece of this definition, “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose,” means that the intent of a state does not matter. A state can breach CEDAW merely through its practices; that is, if the effect of a law or regulation is to impair women’s rights, then it breaches CEDAW.
- Article 2 requires states to ensure the “practical realization” of the principle of sex equality. This includes requiring states to work to change discriminatory cultural and social practices.
- Article 5(a) requires states "to take all appropriate measures…to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."
- Article 13 explicitly requires parties to take all appropriate measures to eliminate discrimination against women in the areas of economic and social life, meaning, for example, that states must take measures to ensure that women enjoy the right to acquire mortgages on a basis of equality with men.
- Article 14 protects women in rural areas, including their right to “equal treatment in land and agrarian reform as well as in land resettlement schemes.”
- The Committee on the Elimination of Discrimination against Women is the supervisory body established by CEDAW. States submit reports to the Committee, and it also issues “General Recommendations” regarding aspects of the treaty’s interpretation and application and hears disputes over interpretation and implementation of the treaty. If it cannot settle these disputes, they can be referred to the International Court of Justice (Article 29).
- In 1999, an Optional Protocol was adopted allowing the Committee to consider communications submitted by or on behalf of individuals or groups of individuals who claim to be victims of a violation of any of the rights set forth in the Convention by a State Party to the Protocol (Articles 2–7). The Committee may also initiate inquiries into situations of “grave or systematic violations” of women's rights (Article 8).