Land rights: sources of law

The law of the country or part of the country, where the land is located is often the only relevant law. This law may itself be derived from various sources, which are sometimes contradictory or in conflict with one another.

a) The three common sources of national land law:

• customary law
• national law in the form of legislation or regulations
• international law which is specifically integrated into national law by a treaty, by the constitution, or by some other means.

b) Main types of national laws relevant to land disputes:

• local national law on land ownership and occupation
• laws to protect property rights; trespass, rules on eviction
• customary law
• planning and environmental laws
• laws on licensing and permits, e.g. petroleum laws
• law on conduct of foreign investors
• biodiversity, habitat, protected species law
• criminal law: often those carrying out forced evictions commit criminal offences such as assault or criminal damage. Trespass (unauthorised entry onto another’s land) may also be a criminal offence.
• constitutional rights and human rights, including the right to life, environment, shelter and protection against deprivation of property, in the constitution or elsewhere. More detail on human rights is given in the regional and international section below.

Note that much of this rights-based law is not of direct effect or only applies to public bodies. This means that it can be difficult to use a right to property against a person or a corporation who evicts you.

You could, however, use it to challenge a law or action by the government or by a public body which infringes these rights.

Disputed land acquired legally under national law

One of the main problems with national laws is that often, the taking of land is, or is alleged to be, authorised by some land grant or purchase and is thus claimed to be legal under national law. Indeed, it often is legal.

Ways of dealing with this problem during litigation are detailed below under point 6 – Land disputes: taking legal action.[ Link: page 2 section 6: “When disputed land is acquired under local law”]

Many provisions of international law are potentially relevant to land disputes.

Specialist advice may be necessary as to

• which international laws are part of the national law of the country where you are bringing litigation,
• The  legal status of the laws in question (some provisions are legally binding, others just declarations of principles),
• which of these laws may have been breached in your dispute.

Many non-binding guidelines, codes, and statements of principle exist – often called “soft law” – which can be of real practical use.

[Check for more content on this point]

Land and its use is essential to many other activities and rights. Thus, infringement of rights to land may also involve breach of national or international laws on rights to:

• Water
• Food,
• Shelter/housing
• Livelihood
• Family life

• Land rights: introduction. A general overview for community activists
• Land disputes: taking legal action. Practical guide on planning and managing a court case.