CEDAW in Tonga Do the recommendations of the Tongan Royal Land Commission meet the requirements of the Convention on Elimination of Discrimination Against.

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Presentation transcript:

CEDAW in Tonga Do the recommendations of the Tongan Royal Land Commission meet the requirements of the Convention on Elimination of Discrimination Against Women (CEDAW)? Are there other options?

Acknowledgments The Canterbury Law Review Trust for their funding and support. Without this I would have been unable to attend this conference. The Organisers and Support Team of the Conference. Natalie Baird- lecturer at the University of Canterbury.

Tonga Today Section 43 Land Act: every male Tongan subject by birth of 16 years of age not being in possession of a tax or town allotment shall be entitled to the grant of a tax or town allotment or if in possession of neither to the grant of a tax or town allotment. Inheritance rights pass through male heirs. Women have no independent land rights unless: They acquire a lease; or They are a widow of a male allotment (although they cannot deal with it, and cannot pass it on to family).

CEDAW ‘Bill of Rights’ for Women Article 3: “ensure the full development and advancement of women” Article 2(f): Take measures to modify or abolish discriminatory laws, regulations, customs and practices and to modify the social and cultural patterns of conduct of men and women. Acceded to by 187 member states Tonga has not ratified CEDAW

The Royal Land Commission Recommendations Recommendation: Tongan women have the right to apply for a grant of a town allotment at 21. Women should not have the right to apply to tax allotment. Recommendation: Where there is no male heir, the landowner’s daughters shall succeed the land. Recommendation: Widows continue to hold their deceased husband’s land for life even if they commits fornication or adultery. Recommendation: Widows be able to lease or mortgage the land, with consent of heir.

The Three Options Option One: Implement the Commission’s recommendations and ratify CEDAW with reservations. Option Two: Choose not to ratify CEDAW in the near future. Option Three: Ratify CEDAW without reservations.

Option One Implement the Commission recommendations and ratify with reservations Reservations likely to cover succession, abortion, land ownership and same sex marriages. Articles 15 and 16 in particular. Problem- Reservation as to Article 16 indicates a reluctance to recognise women’s full competence as adults within the family Problem- A wide scope of reservations suggests ratification was all about Tonga’s status in the International Community. Benefit- Engages Tonga in conversation with the CEDAW committee and other states about the reservations.

Option Two Choose not to ratify CEDAW Ratification is dangerous because it may result in the erosion of customs and traditions important to Tongan culture. For example fahu. Ratification of CEDAW may allow for gay marriages and abortion. Ratification may undermine individual’s duties and responsibilities. Problem: Sends a message that women’s rights are not promoted in Tonga. Traditions and customs that promote women, do not apply to all Tongan women.

Option Three Ratify CEDAW without reservations This option is desirable because of the importance of land. Access to loans. If my brother was to die, the land would go to my Uncle’s eldest son… it is hard work to move. My whole life is here, I have been taking care of the place for almost all my life” As I understand the law, it will never happen that my children will be able to live on my parents land, it makes me angry… I have worked so hard for that land, and yet my children are not entitled to it”. Gender equality is “smart economics”.

Option Three How other countries have approached the reform of discriminatory land laws The Land Laws in both Kyrgyzstan and Tajikstan were amended and brought in line with Article 16 of CEDAW which relates to Rural women’s rights. Between 2002 and 2008 the proportion of women owning family farms in Tajikstan rose from 2% to 14%. The Tanzanian HC relied on CEDAW in overruling a customary law that prohibited women from selling clan land (Ephrohim v Pastory). Problem- the amount of land available.

Conclusion What ever option Tonga chooses, it is clear that women’s rights to land are an important issue that the Government is trying to deal with. It is a balancing act: promoting women’s rights to land whilst protecting Tongan Culture.