Digital Theses Archive


Tesi etd-12192016-184912

Type of thesis
Emerging international standards on access to land and security of tenure – the role of soft law in the United Nations system
Scientific disciplinary sector
SCIENZE POLITICHE - Politics, Human Rights and Sustainability
Presidente Prof.ssa HENRY, BARBARA
Membro Prof.ssa SIRSI, ELEONORA
  • access to land
  • land rights
  • soft law
  • tenure security
  • United Nations
Exam session start date
Notwithstanding the fact that the question of access to land and security of tenure has undertaken a remarkable wave of attention in the last decade, each and every attempt to frame the topic has fallen within the sphere of documents with more or less open-ended language, negotiated and endorsed by states, but without binding force: in other words, soft law. The quantitative significance of the documents with these characteristics, and the fact that so far a systematic study of documents with these characteristics and dealing with this topic has not yet been conduced, suggested the opportunity to abstain from reading soft law instruments only under the function of a subordinate complement of the traditional sources of law, and rather collocating it at the centre of the analysis and appreciating its contribution to international standard-making as an autonomous phenomenon of the international or –better- global governance. The research aims to study the role that the soft law instruments elaborated in the ambit of the United Nations system play in the evolution of international standards on access to land and security of tenure. The intended objective is to verify whether instruments characterised by a lack of enforceability but significant legitimacy are able to contribute to the consolidation of some shared principles on the governance of access to land and tenure security. In order to reach the research goals, the thesis presents four chapters, each one exploring a set of instruments dealing with the issue of access to land and security of tenure adopted in the ambit of United Nations activities: the UN General Assembly resolutions; the outcome documents of the International Conferences on Sustainable Development; the outcome documents of the Human Rights bodies and procedures; and finally the instruments adopted by two of the specialized agencies of the UN: the World Bank and the Food and Agricultural Organization.<br><br>Land governance has historically covered a crucial position in sphere of national sovereign power and can be described as a matter “which is essentially within the domestic jurisdiction of any state”. Nevertheless, since the early years the United Nations, through its bodies and agencies, have been releasing reports and recommendations on the governance of land. In the first chapter, the first objective is to see to what extent there is a degree of consistency -when the issue of land is considered- on the terms with which it is framed, pointedly land access, land/tenure/property rights, and tenure security; the values or more general objectives underpinning the discourse on the matter; the subjects that are identified as bearing a stake with regard to it. The second objective is to evaluate whether there is conceptual clarity on the terms that are employed, or whether, on the contrary, in different moments and contexts the same terms refer to different meanings. What emerges from the analysis is that land issues have always been a relevant topic in the General Assembly agenda. Considered originally only for its agricultural production function, during the decades and especially since the 90s, the land discourse has been enriched with considerations pertaining not only to the economic aspect of agricultural production, but also to more fundamental needs of individuals and rural societies, such as livelihood, food security, identity and non-discrimination. Conversely, what appears also quite clearly is that there is a lack of uniformity in the terminology used.<br><br>The second chapter explores how land issues are framed and articulated within the ambit of sustainable development. In particular, it aims to analyse what are the elements that trigger the inclusion of the theme of land access and tenure security in the sustainable development agenda, and how land issues are collocated with regard to the sustainable development principles. The research described in the chapter is grounded on the examination of whether the ensemble of the outcomes of the international conferences on sustainable development allows to discern some common characteristics regarding their structure and their function as soft law instruments. The analysis of the structure and function of non-binding instruments on sustainable development serves as basis to ascertain whether it is possible to draw a system of principles, standards and rules pertaining to land. The question of land access and tenure rights appears as having a partially different characterization according to the area in which it is addressed. The three thematic areas in which the standards on land access and tenure are elaborated are poverty eradication, environmental protection and sustainable use of natural resources, and food security and sustainable agriculture. Although characterized by a general vagueness, provisions on land are inserted in a framework of interdependent principles that orient their implementation. Sustainable development constitutes the main context in which the issue of land access is addressed systematically in a multi-dimensional perspective (social, economical, environmental, developmental perspective). The main emerging arguments of the second chapter are that the international instruments elaborated in the ambit of sustainable development conferences have advanced the understanding of the international relevance of access to land and land tenure, clarified their functions with regard to the attainment of global goals, and collaborated in the development of international standards concerning its regulation. In particular, the contribution of sustainable development outcomes is remarkable under two points of view. Firstly, they dealt with the issue of land across thematic areas that refer explicitly to established or emerging international principles of sustainable development, therefore linking guidelines on state conduct with international law provisions. Secondly, they mirror states consensus on provisions which aim at influencing states conduct. <br><br>The third chapter offers an analysis of the characteristics and the contents of non-binding documents elaborated by the human rights bodies of the UN. To reach this goal, the chapter aims at drawing the main features of the soft law instruments adopted in this field and what are the contents of the standards concerning the access to land and to the security of tenure. Among the many existing human rights treaty bodies and procedures, the attention is focused on the bodies in charge with the economic, social and cultural rights, as this is the context in which references to the topic under discussion are found. The analysis shows how the multiplicity of instruments dealing with the same themes does not create overlaps or conflicts among standards, but rather creates a constructive dialogue between bodies, that build on previous achievements for adding details on a same subject or expanding the applicability of a settled standard to a new domain. The cross-referencing among special rapporteurs, and the contamination between private and public sector regulations is the symptom of an endeavour of the human rights machinery to broaden and uniform the system of human rights standards with regard to access to land and tenure security.<br><br>The last two chapters, titled ‘The Food and Agriculture Organization’s Voluntary Guidelines’ and ‘The World Bank Environmental and Social Standards’ respectively, address the standards on access to land and security of tenure developed by the specialized agencies of the United Nations and are meant to be read in more close comparison than the other chapters. The aim is to shed light both on the process undergone by the two agencies for drafting the instruments, which is characterized by a very significant participation of stakeholders, and on the content resulting from it. In these two chapters, particular effort is put in closing the circle of the research questions, therefore the emphasis is on ‘connecting the dots’ of the contents of the instruments produced by the two UN specialized agencies with the broader landscape of principles and standards surrounding the issue of access to land and security of tenure.<br>The Voluntary Guidelines developed by FAO have principally expanded the standards aimed at strengthening the security of tenure, detailing the protection that has to be granted to legitimate tenure rights holders according to the particular circumstances and characteristics of their land rights, and providing guidance on how to conduct those ancillary activities that concur to determine the security of tenure, such as the recognition, allocation, registration and valuation of tenure rights, as well as the mechanisms that protect land rights in the event of a land-based investment. The Voluntary guidelines also expanded the provisions on the enabling conditions for equitable and secure access to land, by providing standards on issues such as land markets, land reforms, spatial planning, pro-poor and gender-sensitive policies, and included broad guidelines pertaining to the environmental sustainability of land and other resources. <br>The Environmental and Social Standards finally detailed the procedures that states are due to undertake when land rights or access to land are affected by a development projects. The standards have the major merit of spelling out all the procedural requirements that the states have to provide prior to the beginning of the project, and the measures that have to be undertaken to restore or improve the economic conditions and livelihoods of this affected by the projects. In doing so, they relate to the content of previously adopted standards. The Standards distinguish and protect accordingly the different situations of land take, land use or access restriction, and economic displacement derived by those changes in land tenure.<br><br>The survey of the activities of the United Nations system dealing land issues shows how soft law has acquired a distinct and relevant role in the UN system. Despite soft law instruments present some criticisms (they can work as weakening already existing states obligations; promote ‘forum shopping’; raise some problems of legitimacy, consistency, and definitely of efficacy), they definitely play a role in the international governance that is not only political and not yet legal. Indeed, they operate as a guide for states to facilitate the reaching of a consensus on a complex and sensitive topic as the land one, and work as a means for coordination across bodies and agencies and forums. It is an imperfect but needed flexible tool for conciliating the multiplicity of actors, claims, levels, interests at stake, sources of law and, ultimately, for dealing with the complexity of an increasingly globalized world.<br>