The Right to Land and its Use
Contents:
What type of problem do you have?
Ownership of land
Occupation of land / tenure
Use of land
Access to land
Enjoyment of land
Who can sue / enforce their rights?
What legal arguments would you have to make?
Formal rights / ownership / leases
Tenure based rights
Occupation rights
Usage / enjoyment rights
Customary rights
Access / passage
Ancestoral / settlement rights
What kind of remedies should you claim in a land case?
Practical Tips / issues specific to land
Other considerations specific to land
Overview
This page may help with problems and disputes over land, including:
(a) Disputes over who owns land, land seizures or “grabs”, forced evictions
(b) Occupation of land/Tenure,rights to live or stay on land
(c) Use of land – Your use of land - Farming/growing food, Grazing/pasture, Wood or fuel, Water/food, Gathering, Minerals/right to what is below ground, Air space, Business, Parks, protected areas, forests
(d) use of land -Use of land by otheresDeforestation/logging, Ranching, Mining/extractive, Biofuels,Palm oil/soya
(e) Access to land – for any of the above (in (c)) or, Spiritual,Graves of family/ancestors, exercise of cultural rights
(f) For activities which might spoil your use of land such as pollution see the separate environment section)
Who may benefit from legal action
You may be an individual, a local community, a member of a specific group (women, ethnic groups, indigenous people) or an organisation concerned with land
What kind of remedies are available
Litigation may result in:
An order from a court of tribunal, Declaring that you are owner or entitled to occupy or use or enjoy land, stopping someone else occupying land or controlling it or infringing your rights, providing you with alternative land, paying you compensation (see below 'what remedies should you claim')
You may be able to obtain redress against:
Local or national governments of departments or officials
Corporations including their parent companies
Stakeholders in corporations
Other members of your community or family that you are in dispute with
Challenges you may face in obtaining a remedy
You may be able toobtain redress in a variety of court or tribunals or before other bodies, in the place where the problem is occurring or where the person/corporation/group causing the problem is based
What type of problem do you have?
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Ownership of land
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Disputes over who owns land
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Land “grabs” [link Tirana declaration]
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Occupation of land/Tenure
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Threats to rights to live or stay on land
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Forced evictions
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Use of land
Protecting your use of land
Farming/growing food
Grazing/pasture
Wood or fuel
Water
Food [ link to www.srfood.org ]
Gathering
Minerals/right to what is below ground
Air space
Business
Park, protected areas, forests [ http://pubs.iied.org/G03674.html ]
Preventing adverse use of land by others
Deforestation/logging
Ranching
Mining/extractive
Biofuels
Palm oil/soya
Building/settlements for others
Access to land – for any of the above or
Spiritual and/or cultural
Graves of family/ancestors
Enjoyment of land (for pollution and environmental degradation see Environment section)
Who can sue / enforce their rights? (REMOVE THIS??)
What legal arguments would you have to make?
Formal rights / ownership / leases
A. Formal land rights can exist in a variety of different forms. The possibilities are:
1) Public/State Property: this applies in cases where the state or another public body formally or legally owns of a piece of territory. Examples include national parks, public spaces, national development projects and state-owned farmland. In some countries[TB1] , the state may formally own all (or a large portion of) the land within its borders. However, tenants in these countries may still have substantial land rights, despite a lack of formal ownership.
2) Private ownership: land is formally owned by an individual or a legal entity (such as a corporation).
3) Common property: land is owned by a group of people or a community.
4) Open access: no individual or body holds specific rights, although there may be customary/formal rules in place to regulate use.
5) Vacuum situation: no formal or informal law applies to the land in question.
B. In addition to formalised land rights, ownership may be derived from customary land rights, regulated by traditional and cultural structures. Depending on the legal structure in place, formal land rights and customary land rights might be mutually reinforcing or contradictory. (Maybe link here to the “How do I get customary rights recognised legally page”?)
C. Finally, usufruct land rights establish the right to inhabit and derive profit from a piece of land, despite not legally owning it. They may apply if a tenure-agreement has been signed with the legal owner, or under the framework of customary and community arrangements.
Tenure based rights
Occupation rights
Usage / enjoyment rights
Customary rights
Access / passage
Ancestoral / settlement rights
What kind of remedies should you claim in a land case?
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Local administrative procedures
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Formalising your land rights – link to USAID Angola study
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Registration/declaration of (protected/common) status of land
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A court order
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Declaring that you are owner or entitled to occupy or use or enjoy land
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Quashing/annulling law or permit or decree legitimising land “grab”
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Stopping someone else occupying land or controlling it or infringing your rights
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Preventing a forced eviction [link to Node 197]
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Providing you with (rights to) alternative land/rehousing
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Paying you compensation
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Agreement or settlement
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Participation on decision on land and its occupation or use
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How land is to be used
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Sources of applicable law
Local/National
Local national law on land ownership and occupation
Trespass
Customary law
Women’s Property Rights Under Customary Law (South Africa)
[link/ref to] Olivier de Schutter (UN Special Rapporteur on Right to Food) report to 65th General Assembly of UN) and sources cited
Planning/environmental laws - EIAs
Law on conduct of foreign investors
BITs
Challenging Tax exemptions and incentives
Challenging any lack of proper procedure/consultation/notice [link to HR principle of Free Prior and Informed Consent http://www.etoconsortium.org/nc/en/library/documents/?tx_drblob_pi1%5BdownloadUid%5D=77 ]
Criminal law
Constitutional rights – look right to life, environment, shelter and protection against deprivation of property
Biodiversity/Habitat/Protected Species law
Regional/International
International Provisions:
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Ruggie Guidelines
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Maastricht Principles on ETOs http://www.etoconsortium.org/en/thematic-focal-groups/extractive-industries-landgrab-transnational-corporations/]
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International Labour Organisation
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Human Rights
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UNDRIP
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Inter American Convention on Human Rights
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San Salvador Protocol
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UNDHR
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International Covenant on Economic, Social and Cultural Rights
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International Covenant on Civil and Political Rights
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International Declaration on the Rights of Indigenous People
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International Convention on the elimination of all forms of racial discrimination
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Indigenous Rights
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Women’s Rights
Regional Provisions
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The African Charter on Human and People’s rights [based on/link to Node 188]
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The Protocol on the Rights of Women in Africa [link to Node 176]
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Link to Enderois case study [Node 189]
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Link to Haki Network [Node 191]
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European Convention on human rights [based on/link to Node 193]
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Link to Dogan case [Node 194]
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American Convention on Human Rights [based on/link to Node 190]
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Link to Saramaka Case Study [Node 192]
Soft law
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FAO guidelines may impact land rights
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Africa Land Policy Initiative [ link to http://www.uneca.org/lpi ]
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Sign up by corporate to various codes
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Statements of fact/intent/policy/CSR in corporate reports/filings/websites
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FLEGT VPAs signed by (eg Cameroon and Liberia)
Practical Tips / issues specific to land
Risks to consider
Other considerations specific to land
Further resources
Link here to access the PIL Checklist which covers:
What is PIL?
How could PIL help me?
What is my goal (remedies)?
When can I take action?
Who can take action?
Who can I take action against?
Where can I take action?
How can I gather information / evidence?
How can I finance my action?
How do I deal with community security issues?
How do I enforce a court order?
Alternatives to PIL?
Where can I get further information?