The Right to Land Beyond Hope

Eking out an existence is the experience of a large number of the world’s population that is driven by human survivalist instincts. Acts of desperation are usual in these circumstances. While a piece of land may not always ease that burden immediately, it provides hope for survival. If there is seed and some implements then there is a real plan, if the rain gods cooperate. It would also be a place to put up a rudimentary shelter in anticipation of better times. Land here serves as a mode of production, provides a location for a person and serves to protect the right to dignity. Without that there is little hope, except to migrate to the city and be lost amongst the poor there. These experiences have a great deal of resonance with the plight of many in today’s Africa and Asia.

Land is also associated with the culture and traditions of people. The place where their ancestors are buried, for example, may be linked with their sentiments or religious beliefs. When times are hard an invocation for spiritual assistance to their ancestors, or to some geographical feature on that land, may be required. Without the linkage to that land, some are spiritually adrift from their culture and beliefs. As a generalisation, this can lead to hopelessness.

Since the arrival of colonial powers, an additional feature of land developed: it had value, monetary value. You could lease it, sell it or get a loan using it as collateral. Since land is a limited resource, and scarce, its value would be determined by what someone else was willing to pay for it. However, such a value does not take into account the hope associated with the land, or the  spiritual and cultural association, or the dignity it brings to its occupier.

The notion of land as a human right is relatively new even though a few international human rights treaties speak of it in those terms. There is a right to property, but that protects all who have property. Most will argue that there is no single piece to land today which does not “belong” to someone under some law.  That belonging is supported and protected, and some say that all law is directed to the purpose of the protection of property. So the law protects the status quo.  What supports and protects those who do not have land? Some believe it is the duty of a state to make laws that protect such vulnerable people. But people who are wealthy are close to governments, and have the ear of politicians. Therefore it is unlikely that such a government will be quick to make laws to give back land that was taken from such vulnerable people.

The notion of land as a human right is relatively new even though a few international human rights treaties speak of it in those terms.

It is here that the right to land has been developed. That right seeks to protect the rights of forest people for example, or the rights of those whose land was expropriated, or the rights of women to access to land and a range of other marginalised, vulnerable and indigent people. The right to land does not promise a piece of land to everyone but seeks to protect disadvantaged people. That right receives some support from the right to an adequate standard of living which is protected in the multilateral treaty on economic, social and cultural rights. However, the mere acquisition of a piece of land on its own does not lead to an adequate standard of living, some have rightfully argued. Therefore the acquisition of land must be supplemented by state support to achieve that adequate standard of living.

Others might say that there is no duty upon the state to acquire land to redistribute it to those who do not have land. People must acquire land through their own labours and efforts, they argue. One answer is to think of the role of the state in the social contract with its people. People vote for a government who will provide them with protection or security. In return the state will take care of its people. Why then should the state not make laws that will protect those who have been disadvantaged by land loss? That will provide some security.

There is however a further argument to support state intervention, through the creation of a right to land through appropriate laws. It is a fact that many of our laws on land were not developed locally. Land laws have been imposed by those who conquered a territory, or have been imported as good practice from another country. When this fact is added into the social contract elements of unfairness, whether real or imagined, emerge and there is social discord. That could lead to the lack of security because people question how is it that you can have a just outcome from unfair laws?  Any “ownership” of such property cannot have the protection of law in the same way that a thief cannot claim to be an owner of stolen property. Taking the benefits from such unfair laws will lead to rancour and disquiet in that society.

The right to land therefore seeks to address, and where appropriate redress, such instances of injustice. Where that land was taken unjustly, various modes of redressing that should be examined. The right to land recognises the need to look beyond mere ownership in law as being immutable. The right to land seeks to address the hope, the culture and traditions and the dignity of all people equally. It achieves this through questioning the justice of the past acquisition of land.

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