A human rights - based approach to women's land rights in Tonga

Abstract

Tonga is one of the many countries in the world where women have fewer land rights than men. This thesis proposes a response to the problem of unequal land rights for women in Tonga. Discriminatory laws that prevent women from owning land, supported by cultural attitudes, operate to limit women’s capacity to participate fully in social, political and economic life. In formulating solutions, the thesis utilises feminist legal approaches to equality and non-discrimination, feminist interventions in the debate between universalism and cultural relativism in human rights discourse, and the human rights framework itself. This thesis makes an original contribution to knowledge by providing a feminist legal analysis of the basic principles of land law in Tonga. The analysis of land law demonstrates that women in Tonga are discriminated against not just on the basis of their gender, but also on the basis of their class. It also illustrates that discrimination against women in land law breaches not only women’s fundamental right to equality and non-discrimination, but also their social and economic rights. The thesis utilises relevant international human rights law on gender equality and women’s land rights, which sets out standards to which Tongan law and governance may work towards to achieve real equality for women in Tonga. A Royal Land Commission was established in 2008 to review land law practices and make recommendations. The findings and recommendations of the Commission provide an important starting point for this thesis’s proposals which offer a way forward. In short, this thesis recommends that the Declaration of Rights in the Constitution should be amended to guarantee gender equality and to prohibit sex and gender discrimination. It also recommends that the Constitution and Land Act should be amended to enable women to hold tax and town allotments, and to provide all children of a landholder with equal rights of inheritance. A critical pragmatic a¬¬pproach to reform is employed that recognises the complex social, political and cultural environment in Tonga while aiming at substantive equality for women and girls in the long term.