Land tenure Institutions

Posted January 1999

Women's right to land and natural resources:
Some implications for a human rights-based approach

by Eve Crowley
Land and Natural Resource Tenure Officer
Land Tenure Service (SDAA)
FAO Rural Development Division, FAO
The ideas presented here are the views of the author, and do not represent the position of FAO.

Women's right to land is a critical factor in social status, economic well being, and empowerment. Land is a basic source of employment, the key agricultural input, and a major determinant of a farmer's access to other productive resources and services. But land is also a social asset, crucial for cultural identity, political power, and participation in local decision-making processes. Women's access to other natural resources, such as water, fuelwood, fish and forest products, is also crucial for food security and income, particularly as land becomes increasingly scarce and access becomes a growing problem for women and men alike.

Although women own only about 2% of all land (see Special: Gender and sustainable food security), the UN Economic and Social Council Commission on the Status of Women states that "land rights discrimination is a violation of human rights" and urges States "to design and revise laws to ensure that women are accorded full and equal rights to own land and other property..."(42 Session, 2-13 March 1998, Agenda item 3). Similarly, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) states in Article 14 that "State Parties shall take all appropriate measures to eliminate discrimination against women in rural areas...and...shall ensure to such women the right...to have access to...and equal treatment in land and agrarian reform..." (CEDAW/C/LUX/3, p. 83).

The approaches of governments around the world to gender equality in access to land and natural resources are highly variable. This presents a dilemma for UN Organisations, such as FAO, that are by mandate driven by the needs and requests of member nations. If member nations do not request FAO assistance in improving women's access to land, it is difficult for FAO or any other international agency to assist member nations in meeting their obligations to uphold human rights agreements to which they are signatories. This is a fundamental dilemma, which FAO faces in its approach to this highly complex issue.

This paper is divided into two parts. The first provides an example of some of the practical problems which rural women face in establishing and exercising their rights to land and natural resources. The second part provides a brief overview of some of FAO's approaches to this subject.

Rights to land and natural resources: a rural woman's view

Apili is a woman farmer in rural Africa, one of millions of rural women like her who produce up to 80% of the basic food stuffs we all consume. Apili is a concrete example of the practical issues that implementing agencies face when trying to achieve a "human rights-based approach" aimed at real individuals like Apili, rather than abstract legal persons.

Apili tills her household's field for many hours most days to feed her family, gathers fuelwood from the forest shared with two neighbouring villages to cook the food, collects water from the river twice a day to bathe her children and, in her extra time, cultivates the garden plot near the house to grow vegetables for her family and to sell to neighbours less fortunate than herself. This small sample of what Apili does on her average day suggests the importance of the resource access rights she needs to survive.

Currently Apili has access to a variety of resources, through a range of local institutional arrangements. By virtue of her membership in a household, she has rights to USE a rice field and a garden plot. By virtue of her membership in a community, she has rights to COLLECT water and fuelwood from nearby common lands. By virtue of her status as a woman within a lineage or extended family, she may also have rights to HARVEST certain trees crops. Apili usually has enough to eat because she carefully cultivates her position in these different institutions to guarantee that her access to these resources persists. Membership in these institutions provides use rights; the way she operates within them, her behaviour, provides the leverage to exercise these rights. The control of these institutions over her access to land is also an important means of coercing her to conform to certain types of behaviour.

Apili lives in a complex social environment which is not composed of one "customary system", but many informal interpenetrating changing systems by which she is both constrained and provided with opportunities for negotiation. There is no single institution of duty holders which can be pressured to respect, protect or promote Apili's rights to access (we have to deal with her household, her husband's lineage, the community and neighbours who share the forest, the State at multiple levels, and in the case of divorce, her father's lineage as well). There is no single norm or value that all these institutions uphold, but together they uphold a set of multiple, sometimes conflicting norms. Research and better tools are needed to enable a rights-based approach to compel these diverse institutions to uphold the universal standards of gender equality or to transform the standard, the "international norm" into a current customary norm and moral force at each of these levels.

Apili is a stranger in her husband's lineage, because she has entered it by marriage. A few years back her husband made her move her garden plot. He needed the rich soil to grow fruit trees, but she knew the soil was rich because she had been carefully applying manure to it year after year. Even though she told him she did not want to move, and her family and friends from her age grade complained to her husband, he took it anyway. He gave her another less fertile plot, where she had to start all over again. Apili has no security of tenure. If she had, imagine the things she would do with her land!

To whom can Apili turn to support her claim? In some countries, NGOs are emerging to support women like Apili. To inform her of her rights (information). To take her to the court and show her how the system works (know-how). To make the officials acknowledge her presence when she walks into the big building in the city (power). To help her draft her "statement" and translate it (education). To help her sign it (literacy). To help her pay the transport to get to the legal offices and the official service fees and, possibly, unofficial bribes to make the case advance through the system (access to capital). To continue to pressure the courts to take a decision on the case (human resources to lobby consistently/a persistent urban presence). To familiarise the courts with precedents in national and international laws that show that Apili has the right (knowledge of national and international law/training/public awareness). Then, IF the courts rule in her favour, to send agents to guarantee that the ruling is applied and that her husband restores the land to her (enforcement). And what would this do for her marriage? If she won the case, would Apili still have access to her children's labour and that of her household or lineage to help her cultivate the plot?

If these organisations do not exist or if Apili is uncertain that they will work, she will not press her claim. If she were to do so, if she were to create problems, her husband or other members of her family or community might deny her a garden plot completely and she would lose the little security she has. Better approaches need to be developed to foster certainty of outcomes for women resource users in such circumstance.

If, like her brothers, she had inherited land from her father, if she had capital to purchase land, if she shared title with her husband, or if her temporary use rights were clearly recognised for a reasonable duration through a lease or other formal contract, she might have more leverage. She could then plan her investments, sell or mortgage this land to have some working capital, or exchange, lend, or rent it. In any case, if someday she were separated from her husband or if he died, she would have some way to survive. She would not be so vulnerable to the pressures of the institutions of which she is a part. Gender equality in laws governing inheritance of property could contribute significantly to Apili's economic equality and autonomy of choice.

Apili does not think that the system she lives in works perfectly. Her private aspirations may be to own some land of her own. But there are many reasons why the institutions to which she belongs might not make this possible. For example, her father might not let her inherit, not least because this would mean that the land would leave the lineage/his family, the descendants of those who cleared and defended it over the centuries. This land is the main symbol of her lineage's history and social identity. The land is not just an economic asset, but also a social asset. If Apili were to inherit and then marry, the land would be transferred to her husband's lineage. Dividing the land in this way could undermine her lineage and other social groups, which are the very building blocks of social order. Land tenure is not about titles and ownership for Apili; she is concerned about her claims and obligations with other people, in relationship to land.

Apili also knows that rights to land often affect other responsibilities. Apili's right to inherit from her father may, for example, entail the duty to use it herself, even if it is located many kilometres away. Fulfilling this public duty could decrease the time she would have available to fulfil her private duties, such as the time available to care for her children. Thus it is not just a question of extending international human rights from the public to the private sphere. Clearly, for a human rights-based approach to empower effectively, public rights (i.e. to land) and private responsibilities (to care for children) have to be more equally distributed across society. If both male and females were to share the same public rights and private responsibilities, customary systems, citizens (whether male or female), and governments would be more inclined to promote support services and create a work environment which permits attention to family care and other private responsibilities.

Apili also knows that her secure access to land, alone, is not enough without access to associated support services such as credit, capital, appropriate technologies, access to markets and information.

Apili is just one case, among millions like her. While UN member states are our partners in all that we do, Apili is our target and the reason that organisations like FAO were established. But for the purposes of land rights policy, Apili is invisible, since we have few gender-disaggregated statistics to build our case or to demonstrate the impact that different types of rights, resources and institutions have on gender equality.

We do know, however, that the circumstances of rural women vary greatly and it is inaccurate to characterise custom or culture in land/NR rights as either purely conservative and abusive or purely democratic and progressive. The question for a rights-based approach is how to support customary and informal institutions that are relatively democratic and provide channels for change in those that are not?

Some FAO approaches

With over 50 years in the business of land reform, one thing FAO knows is that we can not use the same approach or the same solution for all tenure systems, even if gender equality of rights is a universal standard. This is because FAO takes Sustainable Development very seriously and abides by the very specific etymology of these terms: "sustainable" comes from Latin sustinere "to hold up from below" and "development" from Old French dis+veloper "the process of unwrapping or bringing out the capabilities and possibilities of something". We believe that the true potential of systems can only be brought out when they are held up solidly by people, institutions, and systems from below. This base is, however, constantly evolving: so the changing customs and cultures that have always informed circumstances will inevitably inform the application, interpretation, and negotiation of universal human rights, whether we like it or not.

FAO's current paradigm for land reform combines market, property rights, and reforms in a comprehensive supporting institutional framework to enshrine rights and security of individuals. This paradigm combines several approaches which have been developed over the past five decades, and which are used in different combinations in different countries, depending upon the specific problems and institutions involved. For the most part, the approaches are aimed at improving the access of landless and poorer farmers generally to land and natural resources. Very few among these target women specifically (South Africa is a notable exception), although such an approach would be promising. For the sake of brevity, a very simplified description of these strategies is provided here, highlighting their implications for a rights-based approach to gender equality.

Imposed redistribution and land reform through restitution

This approach focuses on the transfer of land from large to small holders, landless and the poor, usually through a new government or powerful political group. Although there are both highly successful and unsuccessful examples, the approach has usually been aimed at providing land and support services to farm families and often benefits men as "household heads" rather than women. Reform through restitution to redress discriminatory legislation (e.g. South Africa) can be more specifically oriented toward securing rights of women and tenant farmers. The approach involves new legal frameworks, which strengthen women's abilities to press claims and monitor progress in the reform in terms of increased access to women specifically.

Market-led reform

Market-led reform focuses on increasing access of the most "efficient" producers to land through market mechanisms. These reforms work only where there is an active land market and affect only a small percentage (5%) of national privately owned land in market economies. In the past, the land market has not been an effective mechanism for increasing women's access, since lack of capital is a major constraint to women's participation. Recent strategies focus on increasing women's participation in normal land transaction (sale, lease, loans), by increasing transparency about the content and capacity of rights being transferred and by providing services to increase women's participation, such as purchase value or tax subsidies and financial assistance to help women gain access, advisory services to protect and support prospective owners, and networks to ensure that women's rights are protected.

Land tenure reform/negotiated land reform

This approach focuses on making institutions more equitable and efficient through good legal support, Land Information Systems (LIS), and decreased transaction costs which create unambiguous rights and improve tenure security. Markets are also employed, but governments tend to play a larger role than in market-led reform. Strategies for strengthening women's rights include involving women in the development and application of tools (title, LIS, registries, and cadasters), including women as right holders in registries, procedures to ensure protection against violation of rights, designing affordable and equitable dispute resolution mechanisms. In the FAO/IFAD/World Bank Network for Negotiated Land Reform (NELAREN) new partnerships between landless groups and civil society (Columbia, Brazil, South Africa) and coalitions of farmer groups and NGOs (Philippines) have also been promising, in helping to focus negotiations on the behalf of the rural poor and to maintain pressure on governments to develop efficient support services. Coalitions, such as these, could be developed specifically to promote gender equality in access to land and natural resources, although this has been done in only a very few cases so far.

Challenges facing a rights-based approach to land and natural resource rights

Broadening property rights to a human rights issue reveals some of the shortcomings in past approaches, and highlights policies previously used for increasing access for the poor, which might also be fruitful for increasing women's rights to land. Gender-disaggregated statistics, information, education, advocacy and public awareness will also be needed to enable women to exercise their rights and to increase the accountability of duty holders. Furthermore, secure access to land and natural resources will depend in part on better access for women to associated support services, cash, labour, markets, and information.

Rights are defined, not just in law, but also in practice through a diversity of competing legal and moral systems and are strongly influenced by power dynamics at all levels. These informal struggles can undercut the formal instruments of law, for example through court interpretations, which narrow or broaden definitions of right holders. This raises a number of questions, which need to be explored in future research:


Note

An earlier draft of this paper was presented to the Workshop on "A rights-based approach to women's empowerment and advancement and gender quality" organised by the UN Inter-agency Committee on Women and Gender Equality/OECD-DAC Working Party on Gender Equality (Rome, Oct. 1998). This document draws on the work of other SDAA staff, particularly the position paper by Jim Riddell (et. al.) 1997 "Contemporary Thinking on Land Reform", prepared with the Land Tenure Service (SDAA), Rural Development Division, FAO and the FAO Draft Contribution to the 1999 World Survey on the Role of Women in Development. N.Y.: UN Division for the Advancement of Women. The author is grateful to Gerard Ciparisse, Jim Riddell, Sue Nichols, Paolo Groppo, Sissel Ekaas, and Sally Sontheimer for contributing ideas to this paper.



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