Report - Office of the High Commissioner on Human Rights

Recommendations to States:
– Develop urban and rural development policies to address <strong>the</strong> specific needs <strong>of</strong> indigenous and
rural women;
– Ensure laws, policies, programmes and national institutions such as human rights
commissions address economic, social and cultural rights as well as civil and political rights
(for example, Australia has not passed legislation to fully recognise economic social and cultural
rights in domestic law).
3.4 Land, Inheritance, Property Rights and Customary Law
“The sense <strong>of</strong> ‘home’ in <strong>the</strong> Pacific is so strongly related to our sense <strong>of</strong> land, so to
focus on housing we have to focus on land.” (Susie Saitala K<strong>of</strong>e, Tuvalu)
Discriminatory cultural customs in <strong>the</strong> Pacific (<strong>of</strong>ten reinforced by discriminatory laws and policies)
prevent women from accessing <strong>the</strong>ir rights to land, inheritance and property, which directly restrict
women’s right to adequate housing.
“A married couple contributed equally to <strong>the</strong> financial building <strong>of</strong> <strong>the</strong>ir house. The husband
divorced her and re-married (<strong>the</strong>re are seven grounds for divorce in Tonga: adultery,
separation for over two years, imprisonment for life, terminal disease etc.). The husband
later died. After <strong>the</strong> divorce, <strong>the</strong> first wife was left with nothing. If she had a son she would
have secure access to property and could have claimed some maintenance, but she didn’t
have a son. On <strong>the</strong> death <strong>of</strong> <strong>the</strong> husband, <strong>the</strong> second wife can only live on <strong>the</strong> husband’s
land if she does not remarry or commit adultery (even after her husband is dead). If <strong>the</strong>
second wife had a son her interests would be secured by her son. The son would protect
<strong>the</strong> land and property until she died and <strong>the</strong>n he can take over. As she has no son, when
<strong>the</strong> second wife dies she cannot take anything and <strong>the</strong> land will revert to <strong>the</strong> husband’s
bro<strong>the</strong>r or his uncle and nephews. So both women are very vulnerable to being denied
<strong>the</strong> right to land and housing.” (Case Study provided by Betty Blake, Tonga)
The existence <strong>of</strong> discriminatory cultural practices in <strong>the</strong> Pacific arise from <strong>the</strong> fact that land that is
clan-owned cannot be divided and given to spouses. As a result, marital homes on clan land cannot
be registered in joint names; and women’s monetary and non-monetary contributions to homes on clan
land are not necessarily taken into consideration in any claims.
Ano<strong>the</strong>r factor is that women’s participation in customary forums is very limited, particularly in relation
to decisions on land and housing. Customary leaders have not always demonstrated a will to take
into consideration <strong>the</strong> rights <strong>of</strong> women. Nei<strong>the</strong>r have <strong>the</strong>y considered actions that could be taken to
redress <strong>the</strong> situation.
There is also a tendency common to many <strong>of</strong> <strong>the</strong> island nations to give preference to members <strong>of</strong> <strong>the</strong>
island in land allocations. As a result, when spouses are from different places, <strong>the</strong>re is a lot <strong>of</strong> politicking
over land, and those who are not from <strong>the</strong> island (<strong>of</strong>ten wives) are treated differently. Historically, intermarriage
did not exist; people only married within <strong>the</strong> clan. It is only recently, since marriages outside
<strong>the</strong> clan have started to take place, that issues such as those identified in <strong>the</strong> testimony below have
begun to emerge.
EXECUTIVE SUMMARY 39