Beyond Property Relations

In December 2022, the Committee on Economic, Social and Cultural Rights (CESCR), the supervisory body of the International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted General Comment No. 26 on Land and Economic, Social, and Cultural Rights (GC 26). GC 26 is concerned with the clarification of State obligations related to “access to, use of and control over land” (para 4) for the enjoyment of various rights enshrined in the ICESCR including the rights to adequate food, housing, water, health, cultural life, and self-determination (para 6-11). This blogpost examines the CESCR’s approach to land and human-land relations and argues that while the CESCR’s recognition of the importance of access to, use of and control over land for certain populations could be seen as an important step towards the realization of economic, social and cultural rights, this narrow understanding of land as a resource and land-relations as property-relations limits the potential for recognizing and protecting diverse human-land relationships. It further argues that this narrow conception excludes ontologies that do not perceive land merely as a resource to be exploited, used, and exchanged and, thus, might, inadvertently, re-inscribe hierarchical conceptions of human-land relationships rooted in colonial practices.

No Recognition of a Universal Right to Land

When GC 26 was finally adopted in December 2022, it did not recognize such a right to land. Given the dynamic nature of international human rights law, it had been argued—most prominently by then-Special Rapporteur on the Right to Food, Olivier De Schutter— that, while none of the core international human rights instruments, including the ICESCR explicitly codifies a right to land, such a right can be seen as ‘emerging’. Considering that General Comments such as GC 26 have become particularly important normative tools for the development of international human rights law, the adoption of a GC on land was seen as an opportunity for the CESCR to recognize a universal ‘right to land’. However, far from establishing the contours of a universal ‘human right to land’, the CESCR made it clear that it considers land a means to human rights rather than a right in itself. This was somewhat disappointing to the many land rights activists and scholars who have called for the recognition of a right to land for decades.

A Narrow Understanding of Human-Land Relations

One could argue that the CESCR should have seized the opportunity to extend the right to land to all—beyond certain specific vulnerable populations such as peasants and indigenous peoples. At the same time, a universal right to land—understood as a right to access to, use of and control over land—might, in fact, contribute to further denigration of the environment, harming the very people whom a right to land is intended to help. In other words, framing questions about human-land relationships in terms of a human right to access, use, and control land might very well be misguided.

Given this narrow framing of the issue as one of “access to, use of and control over land”, recognizing a universal human right to land would imply that every human being has a right to access, use, and control land. Thus, it is not surprising that the CESCR did not recognize such a universal right but rather emphasized that a right to land had been recognized for certain populations. Vulnerable and marginalized populations whose livelihoods directly depend on the tilling or foraging of land or whose spiritual and cultural life is entangled with access to their ancestral lands must have “access to, use of and control over land” in order to secure human rights such as the right to food, housing, self-determination, or cultural life. The assumption presumably is that “access to, use of and control over” land is necessary for some rights for some people but not others. More specifically, the General Comment recognizes that for some populations, the treatment of their “access to land and other productive resources is so important for the realization of most right under the Covenant that it implies for them a right to land” (para 18). In this context, the CESCR’s explicitly references the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) and the United Nations General Declaration on the Rights of Indigenous Peoples (UNDRIP) both of which do recognize a human right to land for peasants and indigenous peoples respectively.

Recognizing a universal right to access, use and control land would certainly have some desirable consequences. For example, this would have inevitably raised questions about the scope of a state’s obligation to fulfill such a right and, more specifically, about states’ obligations to (re)distribute urban and rural land in order to achieve greater social equity. Unfortunately, any such discussion is conspicuously absent from GC 26. While it does emphasize that “[a]grarian reform is an important measure to fulfil rights enshrined in the Covenant relating to land” and, further, alludes to the many benefits of “[m]ore equitable distribution of land” (para 36), GC 26 largely avoids the issue of redistribution and never explicitly comments on whether states have any obligation to redistribute land to landless or land-poor populations. Rather, GC 26 reiterates statements found in other instruments such as the 2012 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security or the 2014 Principles for Responsible Investment in Agriculture and Food Systems on the importance of “legal and institutional frameworks” (para 2 (g)) for land governance and the protection of “legitimate tenure rights” (para 22; footnote 31)—without further elaborating on the contours of such rights. As this approach solidifies the existing distribution of land in a given context, it inadvertently reinforces the status quo even if the latter is wildly unequal. In some cases, such an approach might be in direct tension with the CESCR’s emphasis on the benefits of an “equitable distribution of land”.

Reproducing and Perpetuating Hierarchies

While a recognition of state obligations to create a reasonably equal distribution of land would be highly desirable, I argue that the CESCR’s narrow framing of the issue at stake as “access to, use of and control over land” unduly limits the potential for the recognition and protection of diverse human-land relationships. While this specific functionalist conception of the role of land for the realization of economic, social, and cultural rights may, at first glance, seem sensible, it implies—problematically, I suggest—an understanding of land as a resource and land-relations as property-relations borne out of a Western ontology of land. Such an understanding of human-land relations as property-relations is not necessarily based on the Blackstonian ideal of property focused on the right to exclude. What all understandings of property—even broader ones, such as the prominent US legal realist idea of property captured by the bundle of rights metaphor—have in common is that they presuppose a particular hierarchy between humans and their environments. That is, property implies a relationship structured around the exploitation or mastery of nature. Such an understanding does not acknowledge the entanglement between human and non-human worlds but constructs nature as a resource that is in service of humankind. This reductionist view of human-land relations excludes ontologies that do not perceive land merely as resource to be taken (Bryan, pp. 17-26), used, and exchanged. Rather, it further re-inscribes hierarchical conceptions of human-land relationships rooted in colonial practices that provide a further veneer of legitimacy for the reproduction of racial regimes of ownership (Bhandar, pp. 5-23) through processes such as land-titling (Anthias, pp. 270-71).

Conceptualizing the solution to precarious and volatile human-land relationships as declaring a right to access, use, and control land runs the risk of reproducing and perpetuating a hierarchy manifested through the human right to appropriate and even commodify land, which negates the entangled nature of humans, non-humans, and their environments. Creating a world in which humans, individually and collectively, can relate safely and securely to land, requires building societies in which humans recognize their interconnectedness with the natural world and acknowledge the intrinsic value of the land beyond its utilitarian purposes. In such a society, land would not be treated as mere property or commodity, but rather as a living entity with its own rights. This would require recognizing that human flourishing is inseparable from the flourishing of the natural world and would, consequently, prioritize the health and well-being of all beings including land. While it might seem inconceivable to some, there is no reason why the CESCR could not have established the contours of specific obligations for states related to the creation of societies in which humans, individually and collectively, can relate safely and securely to land—especially given that the realization of economic, social and cultural rights for all will only be possible in such a world. Alas, GC 26 takes a rather conservative approach. This, however, does not mean that it cannot be used—as I hope it will be—to stronger ends that are about the interconnected and interdependent—rather than hierarchical—rights of humans and lands.

The struggle for land rights has been a long and difficult journey. Despite the efforts of activists and scholars, the CESCR stopped short of recognizing a universal “right to land”. To recapitulate, GC 26’s treatment of land is limited to the clarification of state obligations related to the access to, use of and control over land when it comes to the realization of economic, social and cultural rights. The CESCR does not recognize a universal right to land, which—unfortunately, I suggest—allows it to avoid engaging in questions of land redistribution. What might be even more problematic, however, might be the CESCR’s narrow framing of the connection between land and rights as one of human access to, use of and control over land. By framing land solely as a resource and human-land relations as property relations, the CESCR missed an opportunity to acknowledge that the realization of human rights depends on the recognition of the rights of nature. In a world where environmental degradation and climate change are threatening the very foundations of our existence, it is more important than ever to understand and safeguard the complex and intricate relationships between humans and the environment. Recognizing and protecting the diverse human-land relationships that exist—along with and akin to protecting the rights of nature—is imperative for creating a more just and equitable world for all.