A Human Rights-Based Approach to Women’s Land Rights in Tonga Sela Teukisiafo‘ou Moa A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy University of New South Wales Faculty of Law April 2017 PLEASE TYPE Tl-IE UNIVERSITYOF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name· Moa First nflnle Sela Other narnc>Js Teuklsiafo'ou Abbrev1ahon for degree as given 1n lhe U111vers1ty calendar PhD School. Faculty of Law Faculty. Faculty of Law Title- A human nghls-based approach lo women's land rights ,n Tonga ABSTRACT Tonga is one of the many countries in the world where women have fewer ]and 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, supp01ted by cultural attitudes, operate to limit women's capacity to participate fi.1lly iu social, political and economic life. In formulatiug solutions the thesis utilises feminist legal <1pproaclles to equality and non-discrimination, feminist interventions in the debate between uuivers<11ism m1d culturnl refativism in h11111<111 rights discourse, and the hnman rights framework itself. This thesis makes an original contribution to knowledge by providing a feminist legal analysis of the basic principles of fand 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 iimdamental right to equa1ity and non-discrimination., but also their social and economic rights. The thesis utilises relevant international lnunan rights law on gender equality and women's land rights, which sets out standards to which Tong.an law and �overnance may work towards to achieve real equality forwomen in Tonga. A Royal Land Commission was established in 2008 to review land law practices and nrnke recommendations. The findings and recommendations of the Commission provide an impo11ant 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 aml gender discrimination. It also recommends that the Constitution and Laud Act should be amended to e1rnble women to hold tax and to\.vn allotments, and to provide all children of a landholder with equal rights of inheritance. A critical prag.matic approach 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. -- - --------------------- ! Declaration relating to disposition of project thesis/dissertation ' I hereby gran1 to the University of New South Wales or ,ts agents the right to archive ancJ to make availabt!, my thesis o, dissertation tn whole or ,n 1 part in the University hbranes in all forms of media, now or here after known, subJect to the provisions of the Copynght Act 1968 I retain all 1 property rights. such as patent rights I also retain the nght to use 111 future works (such as articles or books) all or part of this thesis or d,ssertat•on 1 also authorise University Microfilms to use the 350 wo1d abstract of my thesis tn D1ssertat1on Abstracts lnternat,onat (this ,s applicable lo doctoral I theses only) I <- . Ji.l.lf ..I.:. 0 / =? . Date . 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Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. Date …………………………………………….............. COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………........................... Date ……………………………………………........................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date ……………………………………………........................... 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 approach 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. ii Acknowledgments I would like to express my most sincere thanks to the Australian Government for the great privilege of being awarded an Australia Awards Scholarship to undertake this research. In addition, the stepping stones to this degree, my Bachelor of Laws and Master of Laws degrees, were also undertaken with the support of Australian Government scholarships. I would also like to thank the University of New South Wales and its Faculty of Law for accepting me into this study program. I am extremely grateful to my supervisors Associate Professor Christine Forster and Dr Janice Gray for their immense support and invaluable comments and suggestions. I would also like to thank my supervisory panel Professor Theunis Roux, Professor Sarah Williams and Mehera San Roque. A special thanks to Jenny Jarrett for her assistance and kindness since Year 1 of my study program. I would like to thank Dr Halahingano Rohorua and Dr Sue Farran for their suggestions in regard to my research topic prior to undertaking my PhD. I am indebted to countless people who helped me directly and through