Legal recognition and allocation of tenure rights and duties
7. Safeguards |
7.2
States should ensure that all actions regarding the legal recognition and allocation of tenure rights and duties are consistent with their existing obligations under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments. |
Right to equality before courts and tribunals and to a fair trial
Human rights noteThe aspect of consistency with international and national legal obligations is related to the Rule of law as a principle of governance: All persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency (https://www.un.org/ruleoflaw/what-is-the-rule-of-law/).
As clarified by the HRC, the right to equality before courts and tribunals and to a fair trial encompasses the right of access to courts and tribunals. See HRC, general comment no. 32. |
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18.1
Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals. In the determination of any criminal charge against them or of their rights and obligations in a suit of law, they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
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Legal recognition and allocation of tenure rights and duties
7. Safeguards |
7.3
Where States intend to recognize or allocate tenure rights, they should first identify all existing tenure rights and right holders, whether recorded or not. Indigenous peoples and other communities with customary tenure systems, smallholders and anyone else who could be affected should be included in the consultation process, consistent with paragraphs 3B.6 and 9.9. States should provide access to justice, consistent with paragraph 4.9 if people believe their tenure rights are not recognized. |
Right to equality before courts and tribunals and to a fair trial
Human rights noteAs clarified by the HRC, the right to equality before courts and tribunals and to a fair trial encompasses the right of access to courts and tribunals. See HRC, general comment no. 32. |
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18.1
Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals. In the determination of any criminal charge against them or of their rights and obligations in a suit of law, they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
Explanatory noteAs clarified by the HRC, the right to equality before courts and tribunals and to a fair trial encompasses the right of access to courts and tribunals. See HRC, general comment no. 32.
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Legal recognition and allocation of tenure rights and duties
7. Safeguards |
7.4
States should ensure that women and men enjoy the same rights in the newly recognized tenure rights, and that those rights are reflected in records. Where possible, legal recognition and allocation of tenure rights of individuals, families and communities should be done systematically, progressing area by area in accordance with national priorities, in order to provide the poor and vulnerable with full opportunities to acquire legal recognition of their tenure rights. Legal support should be provided, particularly to the poor and vulnerable. Locally appropriate approaches should be used to increase transparency when records of tenure rights are initially created, including in the mapping of tenure rights. |
Right to equality before courts and tribunals and to a fair trial
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18.1
Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals. In the determination of any criminal charge against them or of their rights and obligations in a suit of law, they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
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