Why should we secure tenure rights to commons?
13 2. COMMONS AND THE GUIDELINES
Because of this situation, statutory and customary legal systems – and in some cases religious legal systems too – may overlap and contradict each other. This puts
commons under dual or plural governance systems, one of the negative efects of which is ‘forum shopping’, where powerful actors choose the legal system that best
its their own interests. The challenge is to ind appropriate ways and means to integrate customary and statutory systems, while recognizing that both may need
to be reformed and improved to fulil and realize the principles for responsible governance of tenure as laid out in the Guidelines see Chapter 2.3 of this guide and
§ 3B in the Guidelines.
2.2 Why should we secure tenure rights to commons?
1. Commons are crucial for many people in terms of food security, livelihood, cultural identity and well-being. They are a resource safety net during diicult
times, especially for vulnerable households and marginalized groups, for women, landless people and those who do not individually own enough land to support
themselves. They provide direct access to products such as fuelwood, fodder, ish, fruits and medicines, and are a framework for generating income beyond
the subsistence level via small-scale commercial use of the resources. At the same time, they are highly valuable in terms of equity, justice and social stability,
cultural identity and religious meaning. They provide important local and global ecosystem services: for example, contributing to climate change mitigation, aquifer
recharges, watershed protection, and the prevention of soil erosion. It is not true that commons are so-called ‘empty wastelands’, relics or backward systems. They
are the livelihood basis of many people around the world whose tenure rights need to be legally recognized and protected against encroachment from increasing
demands for and competition for natural resources. Commons are regularly the primary target of large-scale land acquisitions and commercialization that often
results in a variety of negative efects: involuntary restrictions on local livelihoods; restricted freedom of access; resource degradation and overexploitation; the
expulsion andor economic displacement of local users. Disadvantaged and less powerful resource users are the ones most easily expelled.
2. Tenure rights to commons are inextricably linked to the realization of human rights and must therefore be upheld. States have signed binding international
human rights treaties and declarations such as the International Covenant on Economic, Social and Cultural Rights ICESCR, which includes, for example, the
right to food and the right of self-determination. Other instruments ratiied by states include, inter alia, the UN International Convention on the Elimination of All
Forms of Racial Discrimination ICERD and the Convention on the Elimination of all Forms of Discrimination Against Women CEDAW, which protect rights to equality
and non-discrimination. States have legal obligations to respect, protect and fulil these rights, which also relate to common land, isheries and forests. The Guidelines
are strongly rooted in existing international human rights law and make speciic reference to the Universal Declaration of Human Rights, the International Labour
14 GOVERNING TENURE RIGHTS TO COMMONS
Organization ILO Convention No. 169 concerning Indigenous and Tribal Peoples, the Convention on Biological Diversity CBD, the United Nations Declaration on
the Rights of Indigenous Peoples UNDRIP, and related human rights instruments.