A/HRC/40/61
indigenous peoples to development and culture and to remain on their traditional
territories.70 The Inter-American Court of Human Rights has affirmed that the distinctive
relationship with land, property and housing among indigenous peoples must be
incorporated into the interpretation and application of the right to property under the
American Convention on Human Rights and has developed extensive jurisprudence on the
rights of indigenous peoples. 71 In the recent case of Kaliña and Lokono Peoples v.
Suriname, the Court found that the laws of Suriname failed to provide legal remedies for
the protection of the collective land rights of indigenous peoples, depriving the Kaliña and
Lokono peoples of land and access to a river that was essential to both their cultural life and
their survival. 72 The Court ordered the adoption of legislative and other measures to
recognize the rights of all indigenous and tribal peoples subject to State jurisdiction.
49.
Women experience multiple systemic barriers to access to justice. As noted by the
Committee on the Elimination of Discrimination against Women, obstacles include “gender
stereotyping, discriminatory laws, intersecting or compounded discrimination, procedural
and evidentiary requirements and practices, and a failure to systematically ensure that
judicial mechanisms are physically, economically, socially and culturally accessible to all
women”.73 Access to justice for the right to housing for women – as described in thematic
reports of previous mandate holders – means women must be able to challenge systemic
discrimination with respect to land, housing and property74 in a range of areas, including
inheritance, marriage, divorce, succession and title registration.
50.
Where access to justice in housing and land relies on customary laws and traditional
practices, women must have recourse to formal justice systems to challenge systemic
discrimination.75 On the other hand, when customary ownership and tenure arrangements
are replaced by formal title, property rights, financing and new tenure arrangements,
women also face systemic discrimination within formal justice systems. Women are often
denied equal access to title, rental agreements or credit to finance housing. 76 Concerted
efforts are required to provide spaces and support for women to make substantive equality
claims in all areas related to housing and through which women-led transformative
remedies can be designed and implemented. Support should be provided for legal
empowerment strategies and community-based human rights education for women. 77
51.
Access to justice for persons with disabilities requires States to take positive
measures in accordance with article 13 of the Convention on the Rights of Persons with
Disabilities to ensure effective participation in all stages of legal processes. Justice systems
must recognize both the barriers faced in developing and taking forward disability-related
claims and the distinctive nature of the right to housing claims advanced. Adjudication of
such claims must operate within the “disability human rights paradigm” affirmed in the
Convention and described in the Special Rapporteur’s report on the right to housing of
70
71
72
73
74
75
76
77
14
African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v.
Republic of Kenya (application No. 006/2012), Judgment of 26 May 2017, para. 126.
For a summary, see Inter-American Court of Human Rights, Kaliña and Lokono Peoples v. Suriname,
Judgment of 25 November 2015, paras. 129–132.
Ibid., paras. 152–160.
General Recommendation No. 33 (2015) on women’s access to justice, para. 3; see also Committee
on Economic, Social and Cultural Rights, general comment No. 16 (2005) on the equal right of men
and women to the enjoyment of all economic, social and cultural rights, paras. 21 and 38.
See E/CN.4/2006/118 and A/HRC/19/53.
See International Network for Economic, Social and Cultural Rights Women and ESCR Working
Group, “Mapping study on women’s rights related to land, housing and natural resources”, July 2016.
Ben Cousins and Espen Sjaastad, “Formalisation of land rights in the South: an overview” in Land
Use Policy, vol. 26, No. 1 (January 2009).
United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women) and
others, A Practitioners’ Toolkit on Women’s Access to Justice Programming: Introduction (United
Nations, 2018). See, for example, the mobile courts initiative in the Democratic Republic of the
Congo, available at http://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/CaseStudy-DRC-Mobile-Gender-Courts.pdf; and the women’s initiative in Bangladesh, available at
www.angoc.org/wp-content/uploads/2016/01/Women-issue-brief1.pdf .
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