I work on women’s land and resource rights globally, and when I was first asked to help to design a program that would benefit girls—and strengthen girls’ land rights in India—I said, “ok” because the asker was a donor, but I thought, “Right. Women rarely have real rights to land, what does it even mean for girls to have rights to land?” We focused on educating economically poor girls about their legal rights to inherit land, forming girls’ groups, and teaching girls some basic skills to help them earn some money, like growing mushrooms under their beds or planting something in a tiny patch of unused land near their house. We also tried to talk with community members (including boys) about girls’ rights to inherit land. I fell in love with the program, with the incredibly dedicated and brilliant young Indian staff, with the man in charge of the West Bengal office who gave up a secure job with the government to do something real, and of course with the girls I met.
Here are a few things to ponder—things I only understood as we moved forward in the project. First, there’s the definition of “girl.” Is a girl a girl until she’s married (which could be at 14 or earlier), or is she a girl until her 18th birthday? Does it matter? Yes, married girls have very different expectations and obligations than unmarried girls. They are unlikely to attend a girls’ group. Then we have the question of what we can expect from the program? Projects like this don’t last for years and years, so we couldn’t measure how many girls inherited their parents’ or husbands’ land because of our intervention. We settled on the idea that if girls were economically valuable to their natal family, because they could grow and sell vegetables, maybe they could stay in school longer and remain unmarried longer. We had some success; we bought some girls some time.
I also learned (re-learned?) a tough lesson. Behavior change takes real time, real effort, and real money. And frankly, as much as we want change for girls, most philanthropists want a big return for their investment within a reasonable period of time. This grassroots work can be too slow, too discouraging. I get it. We started out wanting communities to commit to allowing girls to stay in school and unmarried until they were 18. You know what we ended up considering a huge achievement? One community committed to celebrating girls’ birthdays for the first time. Only boys’ birthdays had been celebrated in that community until that commitment. A few years into this work. We were ecstatic.
The thing is, to reach girls you have to go to the girls. They are in their houses, they are in the brick factories, they are walking to get water and wood. You have to meet their parents. You have to help them figure out how they are going to have time to come to your meeting when they have chores and school. You have to convince parents that their daughters should stay in school and not marry the older men, who don’t require dowry, even though those parents do not have enough money to buy food for every family member.
This work does not have to be done girl by girl, but projects are successful when they stay around to shepherd communities through a shift in their thinking, when they pay for enough good local staff to be successful. Eventually, the reward will be huge, but the work that started the change may not even be noticed.
Recently the call for systemic change has gotten an audience again. And we need that in this country and all over the world. But we still need the work that is done in communities; we still need to have the community conversations that lead to the “ah-hah” moment when a community commits to valuing its most vulnerable.
Other Resources related to Girl’s Rights and International Day of the Girl.
Relatively recent advances in understanding the impacts of land and natural resource investments on women around the world are at risk if de-regulation takes hold in the post COVID19 world.
The economic fallout that comes with COVID19 is prompting companies to ask governments for help of all kinds – from loans to cheap credit, emergency funds to payroll subsidies, from tax relief to regulatory rollbacks.
While it’s in everyone’s interest to mitigate the effects of any economic downturn as successfully as possible, the prospect of regulatory waivers and rollbacks worries me. COVID19 is a perfect Trojan horse, with the potential to speedily undo the progress that’s taken decades to achieve.
In the U.S., almost immediately on assuming office, the Trump administration began dismantling environmental regulations that normally accompany infrastructure projects. It remains to be seen how effectively the U.S. systems of oversight will be able to combat this backsliding. However, it’s mainly developing economies I want to talk about in this blog post.
We know that when considering the social and environmental impacts of infrastructure or extractive developments, many states in the Global South face multiple pressures from internal and external actors. As the economic impacts of COVID19 begin to bite, a desire to protect the private sector, alongside a weakened capacity to enforce existing regulations, could result in worse outcomes for communities most affected by these developments. Or, to put it another way: when a country needs the economic stimulus that comes from external investment in major projects, the urgency of that need can easily result in social and environmental considerations being reduced to an afterthought.
And yet, there has never been a better time for governments to make positive environmental and social impacts the first principle of doing business.
Best practices for equitable, transparent and mutually beneficial investment deals are now more clearly established than any other time in history. International standards and guides for land and extractive resources investment are available, accessible, and useful, even if national governance frameworks are sometimes imperfect.
The FAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests have served as an influential land-related touchstone for almost 8 years. There are a variety of international principles, standards, and guidelines addressing mining and oil and gas investments and operations. And at the highest level, the UN Guiding Principles on Business and Human Rights have been with us for nearly a decade.
Broadly speaking, businesses and governments now know what “doing it right” should look like. In recent years we’ve made significant progress in increasing respect for human rights; in increasing respect for legitimate existing property and resource rights, and implementing good faith processes to ensure that meaningful, informed consent is sought from communities before business operations begin. And we’ve made some positive changes to ensure that communities are cared for in the long term after a resource-consuming business operation ends.
So there’s no credible excuse for not meeting these standards. If necessary, companies need to be reminded that adherence to best practices isn’t an optional add-on: it’s a fundamental requirement. A non-negotiable cost of doing the deal. And if the costs of best investment practices don’t pencil out? Well, the investment must be adjudged to be flawed.
For women, the prospect of regulatory rollbacks is particularly worrying. It took years to acknowledge that both the negative and positive impacts of land and extractive investments are experienced differently by women and men because of their distinct social and livelihood roles. For example, historically, women have not been given the same opportunities to benefit from the economic potential of mining, yet sometimes they are most at risk of being harmed. They are rarely directly employed by mining companies, and often they are not counted as landowners, so may not receive compensation for loss of their land. In many cases they don’t receive royalties from the mining that takes place in their communities, or have a say in how community benefits are distributed.
But some fragile progress has been made. A recent project by Resource Equity analyzed three mining projects in Peru, Papua New Guinea, and Côte d’Ivoire (https://landwise.resourceequity.org/records/3126-women-land-and-mining-effective-strategies-for-improved-global-practice), showing what can be done when industry gets closer to best practices. Some strong results showed that when women are included in conversations about the project, and when they are made direct beneficiaries of project activities, they can not only avoid harm but can benefit from investments in mining.
When women are seen and heard, when their land and other rights are recognized, and when they are included in benefit streams, they can prosper and thrive along with men and communities as a whole.
Internationally recognized guidelines accepted by both corporate and governmental actors. Advances in understanding the differing impacts of development on women and men. Research based advances in our understanding of the mechanics of how best practices can work most effectively for women and their communities.
It’s been slow progress, but it’s been progress.
Let’s not jeopardize it in the immediate emergency of COVID19.
Resource Equity (RE) turns five years old on December 1st. There’s something about those five year increments—five, ten, fifteen, twenty—they seem solid, meaningful, a moment to pause. So let’s pause then, and consider why this small organization with its singular focus matters.
RE works to protect the rights of rural women who depend on land but don’t have clear rights to it. Most of our work is legal, related to drafting new laws or amending old laws and regulations, but also in the implementation and enforcement of legal rights. We specifically focus on women because everywhere we work, around the globe, women face huge barriers to their economic and physical well-being. In May of next year, I will have been working on legal issues related to land rights for women and men for 25 years. And still, every time I go out to rural areas and interview women, I hear something that is difficult to take in. On my last trip to Lesotho, a small country in southern Africa, the model for Wakanda, the fictional kingdom in the Black Panther, it happened again.
Daughters have a difficult time inheriting land in Lesotho. Customary law is applied to daughters’ inheritance, and customary law says that the oldest son inherits. For daughters to inherit, they have to be able to prove that the person who died gave up all his “African ways” and lived as a European—nearly impossible to prove. This law is a holdover from the colonialists, who applied a “mode of life” test to inheritance—essentially Africans were exempt from European inheritance laws.
What do young girls with no rights to land do in Lesotho? They work in textile factories. What must they do to keep their job in the factory? Accept sexual abuse and harassment. In fact, whenever they have to depend on a man—for a ride to work or to borrow money, for example—they know that sexual favors may be required.
Here’s the stunning part. As awful as that is, the girls make a joke out of it. In their phone contacts, they refer to these men as the “Minister of Transportation,” or the “Minister of Finance.” For instance, “My daughter is sick and needs medicine, I need to get the Minister of Transportation to take me to the pharmacy,” or “I need to borrow money from the Minister of Finance again.” Each transaction requires them to give something—and very often—they have nothing to give but their bodies.
For our team there are two important lessons here. First, the human spirit is incredible. To find humor in horror is pretty impressive. And second, economic power isn’t just about moving up in the world, buying new stuff, or even affording good food. Economic power gives women the ability to say no to abuse of all kinds. Ensuring women and girls have rights to land is not always the answer and is not the only answer. But, we live in a transactional world, and land is a valuable asset that many women cannot acquire. Economic empowerment for women means that they have something other than their bodies to exchange for their basic needs.
I hear some version of this exchange every time I talk to women—women who stay with abusive men, girls who agree to marry older men at their families’ request, and women who negotiate with fishermen to be the ones to sell their fish. Until women and men have equal opportunity to use and control land and other resources, until women have real economic choices, Resource Equity will continue to have birthdays.
As we enter our sixth year, our team wants to thank you for supporting women’s land and resource rights. We truly believe empowered women change the world.
We at Resource Equity know that strengthening women’s rights to land and resources leads to positive changes for women, their families, and their communities. That is why we are focused on working with partners across the world to help ensure that laws relating to land benefit women and men equally, and that through having secure access to land, women are able to move towards increased prosperity and economic security.
This December our aim is to raise $30,000 to help continue this work. Any donation – small or large – will help us reach this goal.
Please give by clicking here and please share this post to help us get the word out! And, thank you for supporting us!
This blog is a summary of a paper that assesses the effectiveness of a specific land tenure intervention to improve the lives of women, by asking new questions of available project data sets.
Customary tenure is the predominant land tenure system in Uganda. About 80% of Uganda’s land is held under this tenure, which is administered according to customary rules and practices pertaining to a given geographical and/or culturally defined area. Customary tenure is recognized in law, but land held under customary tenure remains largely unregistered. Despite customary tenure being widespread, it is not homogeneous: land can be communal or individualized and, in some cases, even held by families, clans, or sub-clans. Article 237 of the Ugandan Constitution elevates customary tenure to be equal to other types of statutory land tenure (for example freehold, leasehold) where the bundle of rights in land are clear, absolute, and exist in perpetuity. Section 4 of the 1998 Land Act and Chapter 4.3 of the 2013 National Land Policy of Uganda endow customary tenure with the attributes of freehold tenure: the land being held in perpetuity and having the same legal protections and standing in law. These policies and legal provisions also provide a number of tools for the formalization of customary tenure, one of them being the certificate of customary ownership (CCO).
Proponents of CCOs contend that CCOs enhance tenure security for women and men, while critics argue that CCOs fall short of expectations, disenfranchise, and, at times, extinguish rights to land. The objective of this secondary data analysis was to assess changes in tenure security that are attributable to CCOs by focusing on the completeness of the bundle of rights using the Conceptual Framework on Women’s Land Tenure Security. The analysis focused particularly on the dimensions of: usus, abusus, fructus, transfer, and future interest bundles of rights as defined in the Conceptual Framework, and it used three existing data sets collected by the Ministry of Lands, Housing, and Urban Development in April of 2018 with the support of Associates Research Trust-Uganda. The data was collected from the Nwoya district located in the Acholi sub region in Northern Uganda, an area where customary tenure is dominant and where many CCOs have been issued. The data sets included: an extractive data set from a quantitative census of all CCO applications of the Nwoya District Land Office; a quantitative survey data set of CCO beneficiary and non-beneficiary households; and a qualitative data set from established illustrative case narratives on the process of CCO delivery and effects of having CCOs.
Administrative data results suggest that the CCO application process is largely inclusive of women. The majority of land area (82%) for which CCOs were applied does include women among the applicants. However, the survey data results show limited completeness of rights, looking at the rights of usus, abusus, fructus, transfer, and future interest rights. For the areas under study, women’s bundles of rights tend to be less complete than men’s, but women in households with CCOs tend to have more complete rights than women in households without CCOs.
From the results, it is apparent that the CCO intervention did not, or is yet to, improve tenure security as defined by the Women’s Land Rights Conceptual Framework. Experience gained from using the Conceptual Framework for analysis suggests that the framework’s broad definitions of bundles of rights may allow for disparate or incomparable definitions and metrics. The process of constructing analytical specifications also shows that existing programmatic data sets may not contain sufficient information to measure the bundle of rights.
To read more about the research and outcomes, access the full paper here.
Local communities manage a significant portion of the world’s remaining forests, pastures, and fisheries as common property resources, but they are rarely recognized as formal owners. Important progress has occurred during the last twenty years, as growing evidence suggests that devolving rights to communities can provide incentives for new forms of investment that facilitate sustainable outcomes as well as greater equity in the distribution of benefits. While much has been learned over recent decades from progress in tenure rights recognition worldwide, less is known about the reform processes that can lead to better outcomes for women and other marginalized groups. To respond to this challenge, the Center for International Forestry Research (CIFOR) analyzed data collected using quantitative and qualitative methods to analyze different reform processes in Uganda, Peru, and Indonesia. These reforms included several changes in laws, legal provisions, policies, and institutions that redefined the rights and responsibilities over who uses, manages, and controls forest resources and how.
The results show that there has been important progress for women’s tenure security in the three countries analyzed. Nevertheless, specific outcomes for women depend on the characteristics of implementation. For example. at the communal or group level, our research shows that whether women participate in forest tenure reforms depends on local governance structures and rules (e.g. local agreements of who is considered part of the collective), as well as by household dynamics. Therefore, identifying who is the subject of reforms and how women and men can be considered right holders is one of the different layers women need to go through to gain rights within collectives. Similarly, whether respondents perceived improved tenure security after the reforms depends on: gender (female), economic status (non-poor), being a member of an area subject to a reform, and being a member of a forest related organization; also, sources of tenure security include perception of clear boundaries, and perception that rights endure for the long term, and that the rights are not subject to conflict. Overall, positive perception of reforms is not only measured by the extent of rights granted but also the ability to protect these rights and benefit from them. This finding raises the importance of continued support for strengthening productive systems and building capacities to guarantee reform impacts even after issuing certificates, titles, or permits.
Across the three countries analyzed, there is no single type of reform that performs consistently better for men or for women. Nonetheless, processes of rights devolution can influence internal debates on how existing rules affect men and women differently and allow new forms of organizing that could empower women at the local level. The results in this study show that there is a need to establish clearer guidelines on how women should be accounted for in drafting and implementing reform processes. This requires clearly identifying women as subjects of reform and including specific targets in reform goals that specify how they will benefit. Interventions related to legal reforms, such as convening processes or mapping exercises, which do not involve women may risk formalizing or perpetuating existing inequities and may worsen tenure insecurity conditions.
To read more about the research and outcomes, access the full paper here.
Using data collected from over seven million land records, this study examines the extent to which a systematic registration and certification program has contributed to women’s land tenure security. The Land Investment for Transformation (LIFT) program is a six-year DFID-funded program that aims to improve incomes of the rural poor and enhance economic growth in Ethiopia. A major program component involves securing land rights of households through the Second Level Land Certification (SLLC) of 14 million parcels in the four highland regional states of Ethiopia.
The research used a mixed-method approach integrating quantitative and qualitative data. Quantitative information was analyzed from a dataset of more than seven million land parcels to understand how the program had incorporated gender considerations into the SLLC process. The approach used three recognized quantitative indicators that use land as a unit of analysis: 1) distribution of parcel holding by form of land holding by gender, 2) the mean size of parcel by gender, and 3) distribution of land area by form of landholding by gender. Qualitative data was also examined from a range of LIFT field studies and also from narrative records relating to the LIFT team’s interactions with landholders, including case study examples of restituted parcels.
Using being named on a land certificate as a proxy for more complete and more robust rights (as defined in the Women’s Land Tenure Security Conceptual Framework), this report shows that the processes used by the LIFT program contributed to more secure land tenure for women. Despite numerous threats to the land rights of women in Ethiopia (identified in qualitative research), evidence from the LIFT program shows that:
This demonstrates that, at the point of certification, parcels are being distributed evenly between women and men, and that land area is also allocated equitably between women and men. The qualitative data suggests that these results might in part be explained by specific effort that was made to ensure that women participate in the SLLC process, ensuring women are more aware of their rights, are better able to report threats to their land rights, and can get the required support to resolve outstanding disputes. The intervention specifically engaged women through specialist staff members on the field registration teams – Social Development Officers (SDOs). SDOs undertake public awareness activities with a focus on women, including: conducting women-only meetings, identifying women involved in land disputes, connecting those women to available support to address issues, and subsequently following up to support the resolution of the disputes, and helping to restore encroached-upon boundaries, on and restitute parcels which were illegally occupied or claimed.
The report finds that the approach taken to second level land certification by the LIFT program has shown that fair and equitable outcomes in land registration are achievable at scale. By demonstrating what is possible, LIFT makes an encouraging and positive contribution to the African Union’s goal that 30% of all registered land should be in the name of women by 2025. Land remains a critical resource in Ethiopia, and the likelihood of women facing land rights violations does not stop with certification; To help ensure the sustainability of the improved tenure security for women, the program advocates for institutionalization of the SDO role into the ongoing rural land administration through the proactive engagement of dedicated staff within the current government structure.
To read more about the research and outcomes, access the full paper here.
Considering that land tenure security is crucial to better outcomes for women it is a surprise that there is not more evidence out there on what works to achieve it.
That is why we launched the Research Consortium: to start to bridge that gap by supporting new research on what works to improve women’s lives through more secure land rights – and what doesn’t. Our goal is to help practitioners, advocates, and policy-makers make evidence-based decisions in programs of reform on land, and to encourage researchers to ask questions that will be relevant in shaping global practice and policy.
We’re excited to share with you the findings on three new publications, created with support from the Research Consortium, that explore systematic titling and registration programming and the impact on women; whether being named on a customary certificate of ownership improves tenure security for women; and a comparison of forest tenure reforms across three countries.
This report from Ethiopia looked at research from a systematic titling and registration program which assesses data from 7.1 million parcels across four regional states. It found that a female name appears on 77% of certificates for parcels (ranging from 69% in Tigray to 80% in Amhara), on 55% of certificates for parcels where a woman’s name appears jointly with a man’s, and for 22% of parcels a female name appears on its own. It also found that there was no statistically significant difference in mean parcel size between women and men. The project under study employed processes that were sensitive to the different needs of women from men, and also of the different needs of women in different social situations (e.g., women in male headed households, women in female headed households, women in polygamous relationships, and widows). Referring to the Women’s Land Rights Conceptual Framework, the report concludes that when using the certificate as a proxy for the completeness of the bundle of rights, women with certificates have more complete rights at the conclusion of the project, and that their rights are more robust. Access the full paper on LandWise.
The report from Uganda concludes that understanding the contours of the existing tenure system is critical to being able to assess whether an intervention has improved the completeness of women’s rights to land. The research used existing data collected in Nwoya in Northern Uganda where land is held under collective, customary tenure, but is allocated to individual households, and where certificates of customary ownership have been issued by an NGO, and validated by the area land committee. Also employing the Conceptual Framework, the report finds that for women, being named on a Certificates of Customary Ownership alongside men has not resulted in more complete rights. It explains this as perhaps a problem of concepts: the kinds of questions that were asked in the survey to get to completeness were not well aligned with the way that customary tenure is managed in the Nwoya, and suggests that future data collection on these questions should be based on a thorough understanding of the customary tenure system. Read more about the outcomes here.
This report draws from large amounts of quantitative and qualitative data assessing different kinds of forestland tenure reforms in Indonesia, Peru, and Uganda. It looks primarily at questions of women’s experience with and perceptions of different aspects of forest governance. The report does not conclude that any one kind of reform is better or worse for women. However, it notes that across all reforms, women are not often considered full members with equal decision-making power in forest governance. Communal governance structures may also be composed only of men, or leadership positions may only be held by men; so, even in cases when women are part of communal assemblies, men continue to hold the authority, and views of women around forests and rules are rarely captured. It also found that the lack of specific provisions that target women, including guidelines on how these groups should be informed and convened, risks perpetuating internal social differentiation, with direct impact on outcomes for women’s tenure security and livelihoods. Read the full paper here.
Despite the variation in findings and themes, these reports all ask, “What works?” for women and land; and we are pleased at the potential for their results to help shift global practice on this question.
To hear more about the research and outcomes, we invite you to participate in our upcoming webinar, The Role of Land Certification in Securing Women’s Land Rights on Collective Lands. To learn more about this event click here.
Continue to watch this space, or sign up for our newsletter, to hear about our next round of grants due for release soon.
We are pleased to introduce our summer 2019 legal intern, Justin Loveland. A third-year student at Seattle University School of Law, Justin has helped us draft an international law practice guide, looked over translations of French and Spanish, and assisted in various research projects. He is currently based in Geneva, where he is working with the UN Office of the High Commissioner for Human Rights.
Land distribution is an issue innately tied to inequality throughout the region of Latin America and the Caribbean, which is considered the most unequal region in the world. This inequality ranges from wealth disparity and political corruption to gender discrimination in labor practices and the exploitation of natural resources.
Equality can only be achieved in the region through targeted efforts to secure the rights of the poorest and most historically marginalized groups to land and natural resources. Over the past 200 years, unequal land distribution has played a major role in the region’s 35 countries, driving regional wars, population displacement, social and political conflicts, and hunger.
A main driver of inequality has been the discrepancy between women’s rights to land under formal legal systems and their actual ownership of and access to land in practice. Although periodic waves of feminism throughout the 20th century helped to expand women’s property rights within the broader picture of civil and political rights, the gains were gradual and piecemeal, and did not always translate to actual increased land tenure.
The creation and expansion of such regional political and rights-based frameworks as the Organization of American States (OAS) and Inter-American human rights system over the past 75 years has played an increasingly important role in promoting and protecting women’s land rights.
The commitment of these systems to parity in land rights runs deep: the OAS Charter itself, in Article 34(d), contemplates the specific need for equitable and efficient land-tenure systems and an expanded use of land in order to achieve equality of opportunity and the elimination of extreme poverty. The OAS Charter establishes human rights standards for all OAS members, whether or not they are parties to the principal human rights treaty of the region, the American Convention on Human Rights, and can be referred to in individual complaints.
Below is a summary of ways in which the regional human rights instruments of the Americas can be used to enhance women’s access to land and tenure security.
One of the oldest human rights instruments – older than even the Universal Declaration on Human Rights – the American Declaration of the Rights and Duties of Man provides an important jumping-off point for the growth and protection of women’s land rights in the region.
Like the OAS Charter, the American Declaration is not a treaty and so is not legally binding. It can, however, be used and referenced as a framework enshrining important human rights and ideals. Of particular use in the context of women’s land rights are the equality and nondiscrimination provisions of Article 2, as well as Article 23’s right of every person to own private property as a fundamental aspect of human dignity.
The principal human rights treaty of the Americas, the American Convention on Human Rights (ACHR) is a key source of positive rights, enshrines important duties on the part of states parties, and establishes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. As of 2019, 23 states have ratified the Convention. Importantly, Article 1 of the ACHR bestows an obligation on states parties to respect the other rights without discrimination, and makes the rights within the ACHR actionable in a litigation or adjudicatory context.
Article 21 provides the right of everyone to the use and enjoyment of their property. Article 17 contains a provision that contemplates “equality of rights and the adequate balancing of responsibilities of the spouses as to marriage.” This right can be interpreted as providing access to land for women who do not own title to land but might use the land as part of their husband’s estate. Creative practitioners might also argue that Article 17 could be read to bear on inheritance rights and practices, which, due to their centrality in women’s access to land, may be valuable in the context of enhancing women’s land rights.
However, the Convention is otherwise ambiguous on the right to own property, conferring only the right to use and enjoyment without mentioning the right of ownership. The ACHR also permits the use and enjoyment of property to be subordinated in the “interest of society,” and allows deprivation of property in certain conditions such as receipt of just compensation.
In the case of a human rights violation(s), individuals, groups, or organizations can submit petitions (PDF in Spanish here) or requests for more immediate precautionary measures through a confidential system to the Inter-American Commission for investigation, adjudication, and relief on the merits. If the state against which the filing is made has ratified the American Convention, the Commission can find violations of the rights enshrined in that treaty. If the state has not ratified the Convention but is a member of the OAS, the Commission can only receive petitions alleging violations of the American Declaration or ancillary Inter-American treaties the state may have ratified.
After submission and investigation, there are a variety of reparative and compensatory measures the Commission can provide in the case that a violation is found, including through “friendly settlements” or issuing recommendations to the state. Although state compliance continues to be an issue spanning every forum in international law, regional compliance (or at least partial compliance) with the Commission’s recommendations is actually quite high. As such, it is hoped that this mechanism may provide one avenue among others for the protection and expansion of women’s land rights throughout the Americas.
If you think that you or someone you know in the region of the Americas has had their rights violated, faced discrimination in a land transaction, or been unlawfully denied access to land or natural resources, filing a complaint with the Inter-American Commission may be a way to obtain relief. In addition, the mere act of filing a complaint may garner significant media attention, which may help your cause, or the threat of filing may spur the state to engage in a negotiation process. Using the recommendations in this guide as a starting point, you can thus use international law to urge states to uphold their human rights commitments in the continuing quest to secure land rights for all women in the region.
La distribución de tierra es una cuestión vinculada de manera innata a la desigualdad que se vive en la región de América Latina y el Caribe, la cual es considerada como la región más desigual en el mundo. Dicha desigualdad incluye, entre otros temas, la disparidad de riqueza, la corrupción política y la discriminación de género tanto en la práctica laboral como en la explotación de recursos naturales.
La igualdad en la región sólo se puede alcanzar direccionando todos los esfuerzos a la protección de los derechos de los grupos más pobres e históricamente marginados quienes han sido despojados de su tierra y recursos naturales. A lo largo de los últimos 200 años, la distribución desigual de la tierra ha jugado un gran papel en los 35 países de la región, siendo ésta la causa de guerras regionales, desplazamiento de poblaciones, conflictos sociales y políticos y el hambre.
Una de las principales claves de la desigualdad ha sido la discrepancia entre el derecho a la tierra de mujeres bajo sistemas jurídicos formales y sistemas consuetudinarios, es decir, el acceso de mujeres a la tierra en la práctica. Aunque ha habido olas de feminismo periódicas lo largo del siglo 20, las cuales ayudaron a expandir los derechos de propiedad de las mujeres dentro un marco más amplio de derechos políticos y civiles, las alzas fueron graduales y fragmentadas y no siempre se traducían en una posesión real de la tierra.
La creación y expansión de marcos políticos regionales fundamentados en los derechos humanos como la Organización de Estados Americanos (OEA) y el Sistema Interamericano de Derechos Humanos han jugado un papel cada vez más importante a lo largo de los últimos 75 en la promoción y protección del derecho a tierra de mujeres.
El compromiso de dichos sistemas jurídicos respecto con los derechos a la tierra está muy arraigado: la propia Carta de la OEA en el Artículo 34(d) considera la necesidad específica para sistemas de tenencia de tierra equitativos y eficientes y un uso aumentado de tierra para alcanzar igualdad de oportunidad y la eliminación de la pobreza extrema. La Carta de la OEA establece estándares de derechos humanos para todos los países miembros, sin importar si son estados partes de la Convención Americana de Derechos Humanos, el tratado principal de derechos humanos de la región, y se puede hacer referencia a la Carta en quejas individuales.
A continuación se muestra un resumen de los instrumentos regionales de derechos humanos de América que tienen como una de sus finalidades el mejoramiento del acceso a la tierra y la seguridad de tenencia para mujeres.
Uno de los instrumentos de derechos humanos más viejos, más viejo aún que la Declaración Universal de los Derechos Humanos, la Declaración Americana de los Derechos y Deberes del Hombre provee un punto de partida importante para el desarrollo y protección del derecho a la tierra para mujeres en la región.
De igual forma que la Carta de la OEA, la Declaración Americana no es un tratado y por eso no es jurídicamente vinculante. Sin embargo, puede ser referido y usado como un marco que reconoce derechos humanos e ideales importantes. En el contexto del derecho a la tierra para mujeres, se destacan las provisiones de igualdad y no discriminación en el Artículo 2, además del derecho de cada persona a poseer propiedad privada como aspecto fundamental de la dignidad humana, el cual se consagra en el Artículo 23.
El tratado principal de derechos humanos del sistema interamericano, la Convención Americana de Derechos Humanos (CADH) es una fuente clave de derechos positivos, consagra deberes importantes de parte de los estados partes y establece la Comisión Interamericana de Derechos Humanos y la Corte Interamericana de Derechos Humanos. A partir del año 2019, 23 estados han ratificado la Convención. Es importante destacar que en el Artículo 1 de la CADH se plasma el deber que tienen los estados partes de respetar todos los otros derechos en el tratado sin discriminación y hace que los derechos de la CADH sean justiciables en un contexto contencioso o consultivo.
El Artículo 21 provee el derecho de cada persona al uso y goce de su propiedad. El Artículo 17 contiene un precepto que contempla la “igualdad de derechos y la adecuada equivalencia de responsabilidades de los cónyuges en cuanto al matrimonio.” Este derecho puede ser interpretado para proveer acceso a la tierra para mujeres quienes no posean el título de propiedad pero usen la tierra que forma parte de la finca de su esposo. Es posible que a partir de una interpretación más amplia del artículo 17 se pueda postular que los derechos y las prácticas de herencia, los cuales, debido a su enfoque en el tema de acceso a la tierra para mujeres, son valiosos y esenciales para mejorar y contribuir con los derechos a la tierra para mujeres.
Sin embargo, por otra parte, la Convención puede ser ambigua en el tema del derecho a la propiedad, ya que confiere únicamente el derecho al uso y goce sin mencionar el derecho a poseerla. La CADH también permite la subordinación del uso y goce de propiedad “al interés social” y permite la privación de propiedad en ciertas circunstancias, por ejemplo, con la condición del pago de una indemnización justa.
En el caso de una o varias violaciones a los derechos humanos, cualquier individuo, grupo u organización pueden someter peticiones o solicitudes de medidas cautelares por un sistema confidencial a la Comisión Interamericana para la investigación, adjudicación y decisión del fondo del asunto planteado. Si el estado en cuestión ha ratificado la Convención Americana, la Comisión puede basarse en los derechos humanos consagrados en dicho tratado para argumentar cuales fueron violentados. Si el estado no ha ratificado la Convención pero es un estado miembro de la OEA, la Comisión sólo puede recibir peticiones que aleguen violaciones de la Declaración Americana u otros tratados interamericanos subordinados ratificados por el estado.
Después de la sumisión e investigación existe una variedad de medidas de reparación y compensación que la Comisión puede exigir en el caso de que el Estado haya cometido alguna violación a derechos humanos, incluso puede facilitar “soluciones amistosas” o expedir recomendaciones al estado. Aunque el cumplimiento estatal continúa siendo un problema de discusión en cada foro de derecho internacional, el cumplimiento regional (o por lo menos el cumplimiento parcial) de las recomendaciones de la Comisión representa en realidad un nivel alto. Por ende, se espera que este mecanismo provea un camino para la protección y expansión del derecho a la tierra para mujeres en América.
Si usted considera que sus derechos o los de alguien conocido en la región de América han sido violentados, o siente que ha sufrido discriminación en alguna transacción de tierra o se le ha negado el acceso a la tierra o a los recursos naturales de manera ilegal, una vía para obtener una compensación y reparación es presentar una queja ante la Comisión Interamericana. Asimismo, el presentar una queja ante la CIDH puede atraer la atención de los medios de comunicación, lo cual es favorable en el caso concreto, además de que puede incitar al estado que participe en un proceso de negociación. Se pueden utilizar las recomendaciones en esta guía como punto de partida y de esta manera accionar el derecho internacional para exigir a los estados que sostengan sus compromisos en el ámbito de derechos humanos y así alcanzar la misión perpetua del reconocimiento, protección y respeto del derecho a la tierra para todas las mujeres en la región.
Over the past year, during my work in western Uganda, I have had the opportunity to get to know Paolyel Onencan. Paolyel is the Executive Director of Buliisa Initiative for Rural Development Organisation (BIRUDO). Paolyel and his BIRUDO colleagues are doing good work around Uganda’s oil and gas development in the Albertine Graben, by helping families get better deals on compensation from the oil companies (Total and China National Offshore Oil Company) working in the region. One of the most striking things I’ve seen from Paolyel and BIRUDO is an effective combination of advocacy and education that is helping pull the Government of Uganda and oil companies a bit closer to best practices in their compulsory acquisition of land.
BIRUDO’s advocacy work is about hearing from the families – from both women and men – that are displaced from their land by expropriation. BIRUDO listens to the stories of the people that are losing their land and homes. Then Paolyel and his team members tell these stories to the Government of Uganda and the oil companies. The stories are often about insufficient compensation and about their need to receive other land when they lose their land, their need to receive sufficient money to cover other losses and damages, and the need to have their livelihoods restored.
BIRUDO’s education work is aimed at all stakeholders – the families seeking new land, nearby families that have accepted only cash compensation from the companies, the other civil society organizations active in the area, the government, and the oil companies. The lessons being taught are about engagement and transparent, timely, and fair compensation called for by IFC Performance Standard 5 (IFC PS5).
IFC PS5 mandates that if displacement cannot be avoided, the risks to affected people should be mitigated through replacement land, compensation for other lost assets at replacement cost, resettlement support, and a range of other measures to, at a minimum, restore the livelihoods and living standards of affected persons. These measures are to be designed and implemented with appropriate disclosure of information, meaningful consultation, and informed participation of those affected.
The Performance Standards also call for a special focus on the rights and assets of women, including engagement and impact assessment that is aimed at their differences and the challenges facing them.
Paolyel and the BIRUDO team have also been educating the government and the oil companies on the value of CSOs, like BIRUDO, assisting with community capacity building, engagement, dialogue, and negotiations among affected families, the government, and the companies. Initially, the government and companies resisted this support, but it now seems there is a bigger role for BIRUDO to play. All the stakeholders are realizing that needed capacity building (such that affected families can meaningfully participate in the process), transparent and ongoing engagement, and real, good-faith negotiations are also best practices called for by IFC PS5.
The overall effect of BIRUDO’s work has been the prospect of better outcomes for displaced families. It is also pulling the government and the companies a bit closer to the best practices set out in IFC PS5 and elsewhere. The combination of advocacy and education has been important. The advocacy has helped to amplify the voices of the affected families, and it has created a seat at the table for both the families and BIRUDO. The education has been central to reminding the government and the companies about the IFC PS5 best practices that are supposed to govern their behavior. In combination, the advocacy and education has helped the families affected by the most recent compulsory land acquisition that is the cornerstone of the regional investment in oil exploration and production. It has also set the stage for better company performance on upcoming acquisitions.
CSOs in the Albertine Rift oil regions are well positioned to bring their unique combination of skills and expertise to the investment process. BIRUDO has helped chart the way. These civil society experts have the know-how and experience to help all the stakeholders (including women) and to assist the oil companies as they move closer to embracing the best investment practices that should be shaping all of their land acquisitions.
Resource Equity and Associates Research Trust – Uganda (ARTU) just wrapped up a pilot project in Karamoja, Uganda, with promising results for women and for communities.
The Starting With Women approach centers women in design and implementation. Its starting point is the belief that women’s land rights can be made more secure through an approach that starts with women. It is a pragmatic, adaptive framework and approach for understanding and taking action to strengthen women’s land tenure security.
From 2018-2019, Resource Equity and ARTU implemented the Starting With Women approach with three mining groups in one district in the Karamoja region in Uganda: the 20-member Seglochoro Marble Mining Association in Katikekile, the 28-member Lopusak Gold Mining Association in Rupa, and the 30-member Nachan Limestone Mining Association in Tapac.
The project began with an inventory of existing miner’s associations, meetings with district leaders, and the recruitment of a community-based facilitator. We conducted a needs assessment with intervention groups and then worked with the groups to co-create a curriculum that responded to those needs and aspirations. The facilitator then conducted weekly sessions with the groups to implement the curriculum from November 2018 until May 2019, when project activities ended with graduation ceremonies for all participants. A comprehensive evaluation including a baseline, midline, and endline was carried out, with some key findings:
By the end of the project, all 21 beneficiaries who had attended school could read and write, and 65 (97.01%) of 67 respondents could count, an increase from 38 (52.05%) who were able to count at the beginning of the project. For miners, these skills are very important. They mean that they can now count how many grams of gold or truckloads of stone they sell and, therefore, calculate how much they are owed from the people they sell to.
At the beginning of the project, only 13 of the 74 respondents said they knew their land rights. This increased to 65 (97.01%) of 67 interviewed beneficiaries by the end of the project. Respondents also changed their perception of land rights, from a narrative dominated by “land belongs to men” to an understanding that women have rights to land, both as wives and as individuals. Participants also learned that land can be protected through having marked boundaries and by having documents such as agreements or titles which can be obtained through processes involving local leaders like the local councils and the area land committee.
Beneficiaries plan to share their knowledge of women’s land rights with elders in their community, because they control the land and, as one respondent noted, “elders should allow women to own land.”
By the end of the project 66 (97.06%) of the 68 beneficiaries felt that the decision making process was inclusive of all members, an increase from the 43 (58.11%) of 74 beneficiaries who felt the decision-making process was inclusive at the beginning of the project. This may have been because of trainings on women’s rights and on public speaking. One woman said, “as women, we can now stand in front of men and talk.”
There was a substantial increase in beneficiaries who identified savings schemes as one of their group’s main activities, from 50 (67.57%) of the 74 beneficiaries at baseline to 66 (97.05%) of the 68 beneficiaries at endline.
People used the knowledge they gained about saving to save at home as well. One respondent said, “we want to use the knowledge by buying a savings box for a family to start savings in it because we have knowledge on management.”
At the start of the project, all three associations were unregistered, community-based organizations that had been initiated by past, unrelated projects. We prioritized ensuring the groups were registered with the Moroto District local government, by helping them write constitutions, connect with the government office, and pay the fees.
Registering gives the groups formal status, which helps them access government projects, connect with non-profits, and negotiate with companies. The Nachan Women’s Group said that their formal status helped them secure mining equipment from the company they work for, Tororo Cement Company, and resulted in a partnership with the Human Rights Network – Uganda (HURINET) to teach the local communities on their land rights. The Seglochoro Mining Association used their formal status to get bee keeping equipment from the local government. The Lopusak Association went on to register with the Uganda Cooperative Alliance, enabling it to have a stronger operational presence and leverage opportunities.
We are excited by these initial results. We previously implemented the SWW approach in another area in Uganda, focused specifically on land rights. We plan to build on this work, using the approach in different contexts to advance women’s rights to land and resources, and hope that others will use this toolkit as well!