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Current Recognition of the Rights of Peasants in International Human Rights Law

The Rights of Peasants - 2

Christophe GOLAY

11 / 2009

According to la Vía Campesina, the current mechanisms for safeguarding human rights suffer two major failings which prevent the adequate protection of the rights of peasants. Firstly, peasants’ rights are not recognized in their entirety; secondly, such protection as does exist is ineffectual and continues to be flouted with impun­ity. In the second part of this critical report, we will consider the relevance of the first major failing identified by la Vía Campesina by describing the current recogni­tion of the Rights of Peasants as it exists in International Law on Human Rights.

The rights of peasants are not subject to any specific protection under international law. However, peasants, like all human beings, benefit from the protection of rights enshrined in the universal instruments for the protection of human rights, in par­ticular the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1) and the International Covenant on Civil and Political Rights (ICCPR) (2). As a complement to this universal protection, women peasants and indigenous peasants also benefit from the protection granted by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and by the United Nations Declaration on the Rights of Indigenous Peoples (3).

1. Economic, Social and Cultural Rights

Many of the economic, social and cultural rights enshrined in the ICESCR have been interpreted by UN experts as offering significant protection for peasants’ rights. Of these, the most important are the right to food, the right to adequate housing and the right to health.

The right to food

The right to food is enshrined in Article 25 of the Universal Declaration of Human Rights and in Article 11 of the ICESCR. (1) In a number of UN documents, it has been interpreted as the right of all people to “be able to feed themselves, by their own means, with dignity”. (2) It has also been interpreted as “the right to have regular, permanent and free access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear.” (3)

According to the Right to Food Guidelines, adopted unanimously by the member States of the UN Food and Agriculture Organization (FAO) in November 2004, the right to food protects the right of peasants to have access to productive resources or the means of production, including land, water, seeds, microcredit, forests, fish and livestock. (4) In the same guidelines, States recommended the following: “States should pursue inclusive, non-discriminatory and sound economic, agriculture, fish­eries, forestry, land use, and, as appropriate, land reform policies, all of which will permit farmers, fishers, foresters and other food producers, particularly women, to earn a fair return from their labour, capital and management, and encourage con­servation and sustainable management of natural resources, including in marginal areas.” (5)

The States also unanimously accepted their obligations to respect, protect and to fulfil the right to food in the following way: “States should respect and protect the rights of individuals with respect to resources such as land, water, forests, fisheries and livestock without any discrimination. Where necessary and appropriate, States should carry out land reforms and other policy reforms consistent with their hu­man rights obligations and in accordance with the rule of law in order to secure ef­ficient and equitable access to land and to strengthen pro-poor growth. (…) States should also provide women with secure and equal access to, control over, and be­nefits from productive resources, including credit, land, water and appropriate technologies.” (6)

This interpretation of the right to food already offered significant protection to the rights of peasants, but the Committee on Economic, Social and Cultural Rights (CESCR) took it further by pointing out that on the basis of the ICESCR, member States were under an obligation to ensure sustainable access to water for agricul­ture in order to implement the right to food, and that they should ensure that the most disadvantaged and marginalized workers, including women, had access, on an equal basis, to water and water management, and especially to sustainable tech­niques for gathering rain water and for irrigation. (7)

Furthermore, in several of its concluding observations, the Committee set out the need to protect peasant families’ access to seed. In its concluding observations ad­dressed to India, for example, it urged the State to “provide state subsidies to en­able farmers to purchase generic seeds which they are able to re-use, with a view to eliminating their dependency on multinational corporations.” (8)

The right to adequate housing

The right to adequate housing, like the right to food, is enshrined in Article 25 of the Universal Declaration of Human Rights and Article 11 of the ICESCR. (9) In its General Comment n°4, the Committee on Economic, Social and Cultural Rights states that the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head. Rather, it should be seen as “the right to live somewhere in se­curity, peace and dignity.” (10) The former UN Special Rapporteur on the right to adequate housing defined it like this: “The human right to adequate housing is the right of every woman, man, youth and child to gain and sustain a secure home and community in which to live in peace and dignity.” (11)

On the basis of the ICESCR, every person – including peasants – has a right to housing which guarantees at all times the following minimum conditions:

  • legal security of tenure, including protection against forced eviction;

  • availability of essential services, materials, facilities and infrastructure, in­cluding access to safe drinking water and sanitation;

  • affordability, including for the poorest, through housing subsidies, protection against unreasonable rent levels or rent increases;

  • habitability, including protection from cold, damp, heat, rain, wind or other threats to health;

  • accessibility for disadvantaged groups, including the elderly, children, the physically disabled and victims of natural disasters;

  • a suitable location, which means removed from sources of pollution while be­ing close to schools and healthcare services. (12)

The Committee on Economic, Social and Cultural Rights provided that States put an end to forced evictions, defined as: “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropri­ate forms of legal or other protection.” (13) These forced evictions are prima facie (self-evidently) incompatible with the States’ obligations under the ICESCR and “not­withstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.” (14)

In a number of reports, the former Special Rapporteur on the right to adequate housing has also emphasized the need to put an end to forced evictions and he has produced the Basic Principles and Guidelines on Development-Based Evictions and Displacement. (15) According to these guidelines, it is, for example, a violation of the right to adequate housing when a government evicts peasant families from their land without ensuring that the families concerned have been adequately consulted and re-housed in equivalent conditions or have received adequate compensation.

The right to health

The right to health is enshrined in Article 25 of the Universal Declaration of Human Rights and Article 12 of the ICESCR. (16) In its General Comment n°14, the Commit­tee on Economic, Social and Cultural Rights defines it as “the right to enjoy the highest attainable standard of health conducive to living a life in dignity.” (17)

The right to health includes the provision of adequate health care but also “the un­derlying determinants of health, such as access to safe and potable water and ad­equate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels.” (18)

According to the ICESCR, States are required to ensure that medical services and the underlying determinants of health are available to all, including those in rural areas. (19) States have a minimum core obligation to provide, as a minimum and at all times, the following:

  • the right of access to health facilities, goods and services on a non-discrimin­atory basis, especially for vulnerable or marginalized groups;

  • access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;

  • access to basic shelter, housing and sanitation, and an adequate supply of safe drinking water;

  • essential drugs, as periodically defined under the WHO Action Programme on Essential Drugs. (20)

2. Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) protects peasants, as it protects all human beings. In particular the right to life, the right to be free from arbitrary detention, the right to a fair trial, and the rights to freedom of ex­pression and freedom of association are fundamental rights of all peasants.

The Human Rights Committee, which oversees the implementation of the ICCPR, stressed the fundamental importance of the right to life in its General Comment no 6. According to the HRC:

“The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee con­siders that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity.” (21)

On the basis of the ICCPR, all human beings also have the right not to be arbitrar­ily arrested or detained and the right to have access to a judge and a fair trial if they are arrested (Articles 9 & 14). Anyone deprived of his or her liberty has the right to be treated humanely and with respect (Article 10). All people similarly have the right to freedom of expression, the right of free association with others, including the right to form and join trade unions for the protection of their interests, and the right to peaceful assembly (Articles 19, 21 & 22).

Arbitrary arrests and detentions and extrajudicial executions of peasant leaders are therefore serious violations of the ICCPR, as are infringements on their freedom of expression, freedom of association and the right to peaceful assembly by peasant movements.

3. The Rights of Women and Indigenous Peoples

One of the major aims of the Convention on the Elimination of All Forms of Dis­crimination against Women (CEDAW) is to put an end to discrimination against wo­men in rural areas(22) Article 14 of the Convention specifically protects the rights of women living in rural areas against discrimination in their access to resources, in­cluding land, and in their access to work, adequate housing and programmes for social security, health and education. According to this Article: “1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. 2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to en­sure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: (a) To participate in the elaboration and implementation of development planning at all levels; (b) To have access to adequate health care facilities, including informa­tion, counselling and services in family planning; (c) To benefit directly from social security programmes; (d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency; (e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self-employment; (f) To participate in all community activities; (g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and wa­ter supply, transport and communications.”

In several of its concluding observations, the Committee on the Elimination of Dis­crimination against Women, which oversees the implementation of the Convention by States parties, required that women in rural areas should be given priority in de­velopment programmes and that the State should appeal, if necessary, for interna­tional assistance and cooperation. (23) In other concluding observations, it recommended that the State party should protect women’s access to land against the activities of private business and against forced evictions. (24) In its concluding observations addressed to India for example, it made the following recommendation: “The Committee urges the State party to study the impact of megaprojects on tribal and rural women and to institute safeguards against their displacement and violation of their human rights. It also urges the State party to ensure that surplus land given to displaced rural and tribal women is cultivable. Moreover, the Committee recommends that efforts be made to ensure that tribal and rural women have individual rights to inherit and own land and property.” (25)

The Convention on the Elimination of All Forms of Discrimination against Women and the Expert Committee which it set up offers, therefore, significant protection for the rights of women peasants.

Indigenous peasants possibly suffer even more than other groups from forced evictions and displacements. Until recently, the only international instrument that offered them any specific protection was the ILO C169 Indigenous and Tribal Peoples Convention of 1989, ratified by 20 States. This ILO Convention protects a large number of civil, political, economic, social and cultural rights. In particular, Articles 13 to 17 enshrine the rights of indigenous people to their land, their territ­ories, and their right to participate in the use, management and conservation of these resources. It also enshrines the right of indigenous peoples to participation and consultation regarding all uses of resources on their lands, and the prohibition of their eviction from their lands and territories.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the Human Rights Council in June 2006, and by the General Assembly in December 2008, represented therefore a major step forward in the protection of the rights of indigenous peasants. (26) The Declaration begins by recognizing that indigen­ous peoples, both individually and collectively, have the right to the full enjoyment of all human rights and all fundamental liberties recognized in the United Nations Charter, the Universal Declaration of Human Rights and in international human rights law. It then goes even further than the ILO Convention, in recognizing that indigenous people also have the right of self-determination and the right to land and resources. It refers to the injustices that occurred as a result of colonialism and highlights the threat that globalization currently poses. It recognizes the im­portance of traditional knowledge, biodiversity and the safeguarding of genetic re­sources and calls for limits on activities that third parties can carry out on the lands belonging to indigenous communities.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples represents a major step forward in safeguarding the rights of indigenous peasant populations, which goes far beyond the rights enshrined in the ICCPR and the ICESCR. The fact that the Declaration has already been taken up by certain coun­tries, such as Bolivia, and adopted in their national law enshrines these rights at the national level and should allow indigenous populations to demand legal remedies in the case of violations.

(1) C. Golay, M. Özden, The Right to Food, CETIM, 2005, http://www.cetim.ch/en/publications_brochures.php. Also see, C. Golay, {The Right to Food and Access to Justice: Examples at the National, Regional and International Levels, FAO, 2009.
(2) Human Rights Council, Report of the Special Rapporteur on the right to food, Jean Ziegler, A/HRC/7/5, 10th January 2008, § 18.
(3) Commission on Human Rights, The right to food. Report by Mr. Jean Ziegler the Special Rapporteur on the right to food, E/CN.4/2001/53, 7th February 2001, § 14.
(4) FAO, Guideline No 8 on the right to food. The guidelines on the right to food are available, see Annexes.
(5) FAO, Guideline No 2.5 on the right to food.
(6) FAO, Guidelines No 8.1 & 8.6 on the right to food.
(7) CESCR, General Comment n°15: The Right to Water (Articles. 11 and 12), § 7, adopted 20th January 2003.
(8) CESCR, Concluding Observations, India May 2008 E/C.12/IND/CO/5, § 69. Cf also, General Assembly, Seed policies and the right to food: enhancing agrobiodiversity and encouraging innovation, Report of the Special Rapporteur on the right to food, Olivier De Schutter, A/64/170, 23 July 2009, § 5.
(9) Cf. C. Golay, M. Özden, The Right to Housing, CETIM, 2007.
(10) CESCR, General Comment n°4 The right to adequate housing (Art. 11 , para 1), § 7, adopted 13th December 1991.
(11) Cf. Report of the Special Rapporteur on adequate housing, presented at the Fifty-seventh session of the Commission on Human Rights, E/CN.4/2001/51, 25th January 2001, § 8.
(12) CESCR, General Comment n°4 The right to adequate housing (Art. 11 , para 1), § 8.
(13) CESCR, General Comment n°7 The right to adequate housing (art. 11 para 1): forced evictions, § 3, 20th May 1997.
(14) Ibid.
(15) Human Rights Council, Basic principles and guidelines on development-based evictions and displacement set out by the UN Special Rapporteur on adequate housing in Human Rights Council Report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, 5th February 2007, A/HRC/4/18, See Annexes.
(16) CETIM, The Right to Health, CETIM, 2006, www.cetim.ch/en/publications_brochures.php
(17) CESCR, General Comment n°14: The Right to the Highest Attainable Standard of Health (Art. 12), § 1, 11th May 2000.
(18) Idem, § 4.
(19) Idem, §§ 12 et 36.
(20) Idem, § 43.
(21) Human Rights Committee, General Comment n°6, The Right to Life (article 6), § 3, adopted in 1982.
(22) Cf. K. Frostell, M. Scheinin, “Women” in A. Eide, C. Krause, A. Rosas (ed), Economic, Social and Cultural Rights. A Textbook, pp. 338-349.
(23) Cf. for example, CEDAW, Final Comments. Gabon, 28th January 2005, A/60/38, Part. I, §§ 247-248.
(24) Cf. for example, CEDAW, Final Comments. Cambodia, 25th January 2005, A/60/38, A/61/38, Part. I, § 49.
(25) CEDAW, Final Comments. India, 20th February 2007, A/62/38, Part. I, § 184.
(26) General Assembly, Report by the Special Rapporteur on the right to food, Jean Ziegler, A/61/306, 1st September 2006, §§ 41-44.

Mots-clés

droit international, droits économiques, sociaux et culturels, revendication de droits, paysan, communauté paysanne, ONU

dossier

Les droits des paysans

Notes

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Source

Texte original

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