Revisiting “The Right to Land”

First and foremost, I would like to thank Völkerrechtsblog for allowing me to rediscover and discuss my 2016 blog post.

At the time of writing, I felt it was necessary to condense my previous readings and gather my thoughts about a potential right to land to find whether it would make for a suitable PhD thesis. That PhD ultimately didn’t come to fruition. The reason I struggled to advance with my research may have been what makes land such a compelling field of research in the first place: The breadth and scope of (human) rights connected to land are myriad, although they can be compartmentalized and broken down. This is what the Committee on Economic, Social and Cultural Rights (CESCR) has attempted in its 2022 (draft) General comment No. 26 on Land and Economic, Social and Cultural Rights.

What is has not done is to acknowledge that where the rights to adequate food, housing, water, health, cultural life and self-determination (as well as other rights not mentioned in the covenant, such as the right to property) connect to land as well as the people who depend on, among others, accessing, using and controling it, the content of that connection could make for a standalone right. In my piece, I neither argued in favour of such a right nor dismissed the idea, but tried to roughly set out a legal research agenda to examine whether recognizing the right to land would be “a case of too many rights spoiling the broth or a recipe for justice”?

Following through with that agenda felt like overload at the time, so that I eventually tried to direct my research to more specific land rights issues (see for example here and here), but I am glad to see that the discussions around the importance of a general right to land have continued in academia and practice.

Within academia, the responses to my blog post specifically and my initial PhD research on the right to land elicited responses that were as varied as could be expected: On the one hand, there was a mixture of curiosity and mild scepticism of recognizing another new human right, mixed with a tendency to view land rights issues as complicated and heavily enmeshed with other fields of research and, therefore,  difficult to grasp from a legal angle. This certainly mirrored my own hesitancies regarding the subject. On the other hand, I also received input from established land rights researchers on what legal angles could be further explored, with a focus on national land rights cases, especially regarding indigenous peoples and peasants.

I also received some responses on my piece from PhD candidates and students, who found it useful it as a starting point for further research on land rights as well as related fields. Apparently, it also helped with practical issues: Some years ago, as a judge of the Philipp C. Jessup Moot Court German National Rounds, I was told by the members of one team that they had consulted the post during research for their written pleadings in the case of the “Kayleff Yak”

Having reread my post after several years and browsing through current developments,
I am struck by how relevant the topic of land rights continues to be and how timely the piece remains. In terms of delineating the contours of a right to land, along the lines of mapping out its doctrinal framework, identifying rights bearers and the specific rights encompassed, the discussion is ongoing and in full swing. This is certainly due to several new instruments that have been adopted after years of effort from within the land rights community to bring the issue of land to the table via UN working groups and other fora.

The UN General Assembly adopted the UN Declaration on the Rights of Peasants and other People working in rural areas (UNDROP) in 2018, bringing the vital importance land holds for smallholders to the fore, following the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Crucially, and insofar going beyond UNDRIP, UNDROP in its Article 17 proclaims the right to land for peasants and other people living in rural areas as both an individual and collective right. As mentioned, the CESCR’s draft General comment No. 26, adopted in December 2022, although highlighting the importance of land for the fulfillment of economic, social and cultural rights, refrains from recognizing such a right, both for specific groups and generally. This has incurred criticism, including on this blog (see here), where it was argued that the CESCR had missed the opportunity of providing a view of land beyond its capacity as resource and subject of property and should have focused on the “rights of nature”. The draft General comment has also elicited 100 responses from States, NGOs and other entities, which the Committee members may consider before issuing the comment in its final form. Some, such as Human Rights Watch or Minority Rights Group International have called on the CESCR to recognize the right to land.

In conclusion, not much has changed, in strictly legal terms, since I cited Jeremie Gilbert, who stated a decade ago that “[l]and rights are not typically perceived to be a human rights issue“. Still, the level and pace of activity and discussion surrounding both land rights as human rights and a human right to land has improved significantly and has made it to the top of the international agenda. That is good news, although much remains to be done to strengthen the rights of those populations who depend on land at this very moment to survive and lead dignified lives in their communities.