WUNRN
Landesa Center for Women’s Land Rights
http://landwise.landesa.org/guides/5
International
Agreements & How to Build a Legal Case for Women’s Land Rights
By Amanda
Richardson – July 23, 2014
I. Introduction
and Key Concepts
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:
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
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.[1]
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.[2]
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.[3]
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.
·
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.
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.