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United Nations Human Settlements Programme (UN-HABITAT)

Women’s equal rights to housing, land and property in international law

United Nations Human Settlements Programme (UN-HABITAT)

July 2006

SARPN acknowledges UN-HABITAT as the source of this document: www.unhabitat.org
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Women’s equal rights to adequate housing, land and property are well elaborated under international human rights law but are often elusive in practice. This document is a reference guide to international human rights standards identifying both the substance of women’s rights as well as the commitments made by States with regard to improving women’s rights to adequate housing, land and property.

Why Human Rights

The international human rights system aims to be an enabling framework through which every individual’s entitlements and the corresponding State can be addressed for achieving policy goals. For example Goal 7, Target 11 of the Millennium Development Goals (MDGs), adopted by the United Nations General Assembly on 18 September 2000, calls for governments to achieve by 2020 “a significant improvement in the lives of at least 100 million slum dwellers". This would require, among other actions, better access to land, property and housing, an improvement in their security of tenure, protection from forced eviction and a range of other rights1. This document identifies goals and expectations of the global community in the areas of women’s equality and empowerment with respect to land, property and housing rights.

Rights based approaches help identify where the rights come from and thereby assert their validity beyond moral or economic arguments2. They assert that everyone everywhere is entitled to certain basic rights including equality in pursuing the rights to adequate housing, land and property3. Human rights standards also establish various levels of obligations of States to respect, to protect and to fulfill these rights4. These obligations are supplementary and complementary to the national protection for it is ultimately the concerned State’s responsibility to make rights realizable. Yet, the Zimbabwean court judgement in Magaya v. Magaya in 1999 - proposing that the ‘nature of African society’ dictates that women are not equal to men in the context of inheritance rights - may be nationally valid but fails to meet the basic human rights benchmarks5. On the other hand, the Nigerian court is using human rights principles in finding an Igbo custom to be discriminatory and in violation of the right to marry and freedom of association6.

It is insufficient to note that women’s equal rights to land, property and housing exist - without clarifying their nature and scope as well as the meaning of the operative terms. Thus, a closer look at human rights standards assists in ascertaining concepts such as ‘right to adequate housing' or protection from ‘forced eviction’7. The human rights infusion into land rights debates has provided normative depth and sophistication, clarification of expectations and standards relating to land rights as well as strategies in seeking formulations of accountability and redress. Yet, the individual civil rights human rights approach has its limits when it ignores family and group rights or the potential benefits of customary laws8. Human rights articulation cannot substitute development based approaches9 or broader systematic objectives such as reform of land management and administration systems which are required for rights to be sustainable.

The role of law in bringing about social reform or women’s empowerment also varies from country to country10. Human rights advocacy can make a difference only where a variety of factors including the political will, institutions, ability to resist patriarchal attitudes and strong networks exist11. This compilation does not outline the practical issues faced by women in accessing their property rights arising out of gender biased laws, gender deprecating customary and religious norms, patriarchal attitudes and social structures12. It merely identifies the international human rights tools as a significant part of the strategy by which women empower themselves. At the same time, it follows that the results of human rights approaches may be varied and complex and would have to be adapted to context13.


Footnotes:
  1. See Amnesty International (2006) ‘Africa: Forced evictions reach crisis levels’, Press release, AI Index: AFR 01/009/2006 (Public), 4 October 2006.
  2. See Bobbio, N (1996) The Age of Rights (Cambridge: Polity Press); Donnelly, J (1998) ‘Human Rights: A New Standard of Civilization?’ 74 International Affairs 1-24. See also Freeman, M (1994) ‘The Philosophical Foundations of Human Rights,’ 16 Human Rights Quarterly 491-514.
  3. Tomasevski, K (2005) Strengthening Pro-Poor Law: Legal Enforcement of Economic and Social Rights Overseas Development Institute: Rights in Action http://www.odi.org.uk/rights/Meeting%20Series/EcoSocRights.pdf
  4. Eide, A. (1989) ‘Realization of social and economic rights and the minimum threshold approach’, Volume 10: 1-2, Human Rights Law Journal, 35.
  5. Ncube, W (1987) ‘Underprivilege and Inequality: The Matrimonial Property Rights of Women in Zimbabwe’ in A. Armstrong and W. Ncube (eds.) Women and Law in Southern Africa, (Harare: Zimbabwe Publishing House).
  6. See Muojekwu v. Ejikeme (2000) 5 NWLR 402.
  7. See for example United Nations Committee on Economic, Social and Cultural Rights, General Comment 7 on the right to adequate housing: forced evictions E/C.12/1997/4 (1997). See also UNHABITAT Compilation of United Nations Resolutions on Housing Rights (Nairobi: UN-HABITAT, 2ed 2005)
  8. Palmer, R (2003) Opening Welcome, Women’s Land Rights in Southern and Eastern Africa: FAO/Oxfam Workshop, Pretoria, South Africa, 17-19 June 2003.
  9. Jackson, C (2003) ‘Gender Analysis of Land: Beyond Land Rights for Women?’ Volume 3:4 Journal of Agrarian Change, 453. See also Nowak, M (1993) ‘The Human Right to Development versus Human Rights based Development Cooperation’, in: R. Tetzlaff (ed.), Human Rights and Development, (Bonn: Eine Welt Stiftung Entwicklung und Frieden).
  10. Rwezaura, B. (1990), "Researching on the Law of the Family in Tanzania, Some Reflections on Method, Theory and the Limits of Law as a Tool for Social Change, " in A. Armstrong (ed.), Perspectives on Research Methodology (Harare: WLSA)
  11. Hathaway, O (2002) ‘Do Human Rights Treaties Make a Difference?’ 111 Yale Law Journal 1870-2042
  12. See Sait, S and Lim, H (2006) Land, Law and Islam: Property and Human Rights in the Muslim World (London: Zed)
  13. Wanyeki, L M (2003) Women and Land in Africa: Culture, Religion, and Realizing Women’s Rights (London: Zed Books)


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