Report - Office of the High Commissioner on Human Rights

To conclude, in a sentence, land tenure and land inheritance in Vanuatu is constitutionally regulated
by custom, which in fact favours <strong>the</strong> men more than <strong>the</strong> women.
With regard to <strong>the</strong> property rights <strong>of</strong> women in Vanuatu, <strong>the</strong>re are no matrimonial property rights per
se, but women may have some rights where <strong>the</strong>y have contributed substantively to <strong>the</strong> matrimonial
home. Such cases are more likely to arise in urban areas. There are two possible ways women’s claims
may arise in this situation: if she can prove her contribution by quantifying it <strong>the</strong>n accordingly
compensation will be granted; or if she knows her rights <strong>the</strong>n she can challenge any bias or prejudice
incurred upon herself – which is why legal literacy for women is so important).The legal authority
for this is <strong>the</strong> Toto Case, which was decided by <strong>the</strong> Supreme Court <strong>of</strong> Vanuatu in 2000. The dispute
was over a piece <strong>of</strong> land, a beach in nor<strong>the</strong>rn Vanuatu. The family had converted <strong>the</strong> land into a tourism
attraction and <strong>the</strong> fee acquired from it was distributed between <strong>the</strong> family members. A matrilineal system
<strong>of</strong> inheritance is recognised in this area. The male head <strong>of</strong> <strong>the</strong> family had two wives. The first wife
had a daughter (eldest) and a son. The daughter was not given any inheritance, so <strong>the</strong> daughter’s eldest
son took <strong>the</strong> case to court, arguing that it was a violation <strong>of</strong> Article 5 <strong>of</strong> <strong>the</strong> constitution, which provided
for equal rights to land. The Chief Justice was a foreign judge.
Elements – While all elements are affected, <strong>the</strong> core element affected is security <strong>of</strong> tenure and freedom
from dispossession. Since land tenure is regulated by custom, and <strong>the</strong> latter is deeply valued, unless
women’ know <strong>the</strong>ir rights and have <strong>the</strong> courage to speak out, land tenure, even in matrilineal systems
would be subject to male decisions and authority.
Sources – Constitution, CEDAW, CRC, Land Act, global conferences (Vienna, Istanbul and Beijing).
Over-riding principles – Gender equality and non-discrimination on <strong>the</strong> grounds <strong>of</strong> traditional beliefs,
as provided in <strong>the</strong> constitution.
Causes/threats/obstacles/contributing factors – We have laws that provide for women’s right to adequate
housing and land, but <strong>the</strong>re is inadequate enforcement.
Victims – Women, wife, widow, women with disabilities.
Vulnerable – Children, following generations, especially girls.
Impact/consequences – The confusion between custom and equality in <strong>the</strong> constitution could lead to
conflict and violence.
Material costs – Loss <strong>of</strong> finance and property; loss <strong>of</strong> investment in matrimonial house.
Non-material costs – In Vanuatu, land is associated with wealth, or a source <strong>of</strong> wealth, and a means
<strong>of</strong> survival. If someone doesn’t have land, <strong>the</strong>y are seen as landless/aimless. For women this can mean
<strong>the</strong>y may find it difficult to find someone to marry.
Violator – Could be anyone from <strong>the</strong> community or family.
Duty Holder – State/government since <strong>the</strong>y pass <strong>the</strong> laws in Parliament; <strong>the</strong> Chiefs in <strong>the</strong> village as
well because <strong>the</strong>y are closely working with <strong>the</strong> government on land issues (i.e. Article 74 <strong>of</strong> <strong>the</strong>
Constitution); <strong>the</strong> community may also bear a responsibility because <strong>the</strong> community may have
knowledgeable people, or people who don’t agree with a decision made by <strong>the</strong> common council, but
who out <strong>of</strong> respect or due to <strong>the</strong> culture <strong>of</strong> silence, do not raise <strong>the</strong>ir voices.
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