Land rights have received some attention as an issue concerning property rights. It
has been considered as an important right for the local communities living around or
across protected areas. However, the right to land is almost absent from international
instruments of human rights. Land rights are not typically perceived to be a human
rights issue.1 Land rights is corporeal hereditament as they are physical or tangible
objects incorporated in land while rights to land is incorporeal which fall under property
rights. In the same vein, rights to land “broadly refer to rights to use, control, and
transfer a parcel of land, and include the rights to: occupy, enjoy and use land and
resources; restrict or exclude others from land; transfer, sell, purchase, grant or loan;
inherit and bequeath; develop or improve; rent or sublet; and benefit from improved
land values or rental income”.2 Legally, according to Gilbert, land rights fall in the
“categories of land laws, land tenure agreements but they are rarely associated with
human rights law”.3 Internationally, there is no treaty or any specific declaration that
refers to human rights to land.4 Even land rights are absent from international
instruments of human rights. The African Charter on Human and Peoples’ Rights
stipulates in article 14: “the right to property shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general interest of the
community and in accordance with the provisions of appropriate laws”5. This can be
construed to cater for land rights in international law.
Land dispossession has a negative impact on the local communities and on all
mankind as it impacts on their livelihood and also has a negative impact on the
environment. It is extremely true that local communities also want to share the
resources of their land and to benefit from them. The establishment of protected areas
is a worldwide practice that intends to defend biodiversity and wildlife from human development.6 Such a policy tends to neglect the rights of local communities, generally
in the practice of protected areas. Most protected areas have followed the
conventional and exclusionary approach that was applied at Yellowstone7 in 1972 and
have failed to fully integrate other important factors such as social and cultural issues.
The dispossession of land can be considered as a restrictive measure that imposes
difficult and most of the time conflicting effects to the people settled around protected
areas. The dispossession of land has triggered adverse social impacts on local
communities in some cases by disrupting their traditional ways of living and limiting
their control of and access to resources.8 The dispossession of land undermines
protection policies through conflicts between protected area managers and local
communities. The prohibition of communities from their land without consultation
violates the obligations for free, prior and informed consent (FPIC).
This study investigates the human rights implications on protected land of Luki
Reserve in the Democratic Republic of the Congo (DRC). It will also explore the DRC
land rights framework and their implications on socio-economic rights of local
communities such as: the right to food, right to clean water, right to housing, right to
health and the right to culture.
Mini Dissertation (MPhil)--University of Pretoria, 2018.