Land Rights and Nomadic Peoples: Using International Law at the Local Level

Abstract

Introduction Despite a profound attachment to their lands and territories, nomadic peoples throughout the world and history have seen their land encroached on and reduced. International law has played a significant role in the non-recognition of the rights of nomadic peoples. For a long time international law has been based on territorial rules that were supporting the view that to be occupied a land needed to be used in a settled fashion, with the dominant view that lands occupied and used by nomadic communities were empty and therefore open to colonisation under the imperialist fiction of terra nullius (Gilbert 2007). The development of human rights law within the international legal framework has arguably changed this approach by focusing on the fundamental rights of the individuals rather than on state power to control its territory. Nonetheless, international human rights law does not refer to the specific situation of nomadic peoples, and no treaties include any specific rights for nomadic peoples. Instead, the focus is on universal human rights applicable to all. Under this universal framework of protection, nomadic peoples could find some protection for their specific nomadic lifestyle, notably under the banner of cultural rights. Cultural rights are an important part of human rights law, and they include the right to practise and maintain a specific way of life. Hence, while human rights law does not specifically mention a right to a nomadic lifestyle, the general and universal protection offered to all cultures should, in theory, protect a nomadic lifestyle. With this in mind, this short article is aimed at highlighting how international human rights, despite been drafted and negotiated in New York or Geneva, could be of relevance at the local level for nomadic communities when it comes to their rights to land. The article is a review of some of the main points that were developed in a workshop, during the Dana +10 meeting, on the relevance of human rights law when it comes to land rights for mobile indigenous communities. The first section examines the content of land rights under international human rights law. The second section focuses on the process rights. The third section focuses on practical ways to use international law at the local level. Land Rights as Human Rights Despite the lack of inclusion of land rights within the international treaties, land rights have nonetheless been examined by both international human rights monitoring bodies and international and national courts. Indirect protection for land rights has been included under the umbrella of other protected rights such as property rights or the right to food, for example. Probably the most relevant human right in the context of land rights is the right to property. However, the right to property has generated a lot of controversy since its inscription in the Universal Declaration on Human Rights in 1948, to the extent that the fight to property was not included in the two main human rights treaties of the 1960s, the two international covenants which form the main basis of international human rights law. The controversy was notably on whether property rights should be considered on an individual basis (Western approach) or through a more collective approach (Soviet approach). The fight to property has been largely developed under the Western view that property is individual and when it comes to land rights, it is predominately about protection of individual title to the land in a very settled manner (Gilbert 2007). By and large, the human rights jurisprudence on property rights is still largely based on this individualistic and largely settled approach to property rights. Property rights are about the rights of the individual, but in many situations nomadic and semi-nomadic communities are claiming a collective right to their lands, not individual title. Therefore, customary forms of land tenure developed to serve the way mobile peoples use the land, namely common property regimes, are not effectively protected under this approach. …