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Recognition of Customary Tenure Rights in International Law

Andersson, Dan LU (2012) JURM02 20122
Department of Law
Abstract
A tenure system is the way in which ownership of, or rights to, land is regulated. Such systems can be determined by statutes, agreed precedents or by customary norms. In Sub-Saharan Africa, pluralistic legal systems consisting of traditional customary law as well as received law are common. Although immensely important in practice, as roughly 90 percent of the people of poor rural Africa access land through customary tenure mechanisms, the customary systems have consistently been disregarded when adopting received legal systems.

As the rate of investments in land in Sub-Saharan Africa increases, issues concerning customary tenure rights holders are recognised by the international community. Questions are raised regarding who actually... (More)
A tenure system is the way in which ownership of, or rights to, land is regulated. Such systems can be determined by statutes, agreed precedents or by customary norms. In Sub-Saharan Africa, pluralistic legal systems consisting of traditional customary law as well as received law are common. Although immensely important in practice, as roughly 90 percent of the people of poor rural Africa access land through customary tenure mechanisms, the customary systems have consistently been disregarded when adopting received legal systems.

As the rate of investments in land in Sub-Saharan Africa increases, issues concerning customary tenure rights holders are recognised by the international community. Questions are raised regarding who actually has rights to the lands subject to recent transfers. This paper examines the extent to which customary tenure rights are recognised in international law. Through examination of various instruments of international human rights law, as well as cases from relevant adjudicatory bodies, the current status of customary tenure rights in international law is distilled. This paper will argue that States have a duty under international law to recognise and respect customary tenure rights. The focus of this paper is Sub-Saharan Africa, and these conclusions are, of course, affected by this focus, as regional instruments as well as decisions have been studied.

Although the principal subject of this paper is the recognition of customary tenure rights in international law, the context is hunger, poverty and human rights. This paper argues that extreme poverty and hunger is intimately linked to tenure insecurity. Furthermore, it will pose tenure rights as human rights issue by presenting numerous connections between internationally recognised human rights and tenure rights. The principal issues of this paper are consequently examined with regard to this context.

In addition to examining international human rights law, certain instruments of soft law that are relevant to tenure rights will be examined. As the recent increase in land investments is largely driven by private business’, the UN Guiding Principles on Business and Human Rights are reviewed in the context of tenure rights issues addressed in this paper. Moreover, the Voluntary Guidelines on Tenure, a recent multiparty initiative to regulate tenure rights globally is reviewed. This paper argues that these instruments represent a shift in the attitude of the international community towards demanding equitable recognition and respect for customary tenure rights.

In conclusion, this paper argues that developments in international human rights law as well as internationally recognised soft law display substantial support for demands on recognition and respect for customary tenure rights. However, it also offers numerous examples of practices “on the ground” in Sub-Sahara Africa, that hardly conform to these trends in the doctrine and practice of international human rights law. (Less)
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author
Andersson, Dan LU
supervisor
organization
course
JURM02 20122
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Human Rights, Customary Tenure, Tenure rights, Land rights, International law
language
English
id
3359724
date added to LUP
2013-01-28 13:15:08
date last changed
2016-02-09 17:15:19
@misc{3359724,
  abstract     = {A tenure system is the way in which ownership of, or rights to, land is regulated. Such systems can be determined by statutes, agreed precedents or by customary norms. In Sub-Saharan Africa, pluralistic legal systems consisting of traditional customary law as well as received law are common. Although immensely important in practice, as roughly 90 percent of the people of poor rural Africa access land through customary tenure mechanisms, the customary systems have consistently been disregarded when adopting received legal systems. 

As the rate of investments in land in Sub-Saharan Africa increases, issues concerning customary tenure rights holders are recognised by the international community. Questions are raised regarding who actually has rights to the lands subject to recent transfers. This paper examines the extent to which customary tenure rights are recognised in international law. Through examination of various instruments of international human rights law, as well as cases from relevant adjudicatory bodies, the current status of customary tenure rights in international law is distilled. This paper will argue that States have a duty under international law to recognise and respect customary tenure rights. The focus of this paper is Sub-Saharan Africa, and these conclusions are, of course, affected by this focus, as regional instruments as well as decisions have been studied.

Although the principal subject of this paper is the recognition of customary tenure rights in international law, the context is hunger, poverty and human rights. This paper argues that extreme poverty and hunger is intimately linked to tenure insecurity. Furthermore, it will pose tenure rights as human rights issue by presenting numerous connections between internationally recognised human rights and tenure rights. The principal issues of this paper are consequently examined with regard to this context.

In addition to examining international human rights law, certain instruments of soft law that are relevant to tenure rights will be examined. As the recent increase in land investments is largely driven by private business’, the UN Guiding Principles on Business and Human Rights are reviewed in the context of tenure rights issues addressed in this paper. Moreover, the Voluntary Guidelines on Tenure, a recent multiparty initiative to regulate tenure rights globally is reviewed. This paper argues that these instruments represent a shift in the attitude of the international community towards demanding equitable recognition and respect for customary tenure rights. 

In conclusion, this paper argues that developments in international human rights law as well as internationally recognised soft law display substantial support for demands on recognition and respect for customary tenure rights. However, it also offers numerous examples of practices “on the ground” in Sub-Sahara Africa, that hardly conform to these trends in the doctrine and practice of international human rights law.},
  author       = {Andersson, Dan},
  keyword      = {Human Rights,Customary Tenure,Tenure rights,Land rights,International law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Recognition of Customary Tenure Rights in International Law},
  year         = {2012},
}