E/C.12/GC/26 regardless of marital status, to share such redistributed land on equal terms with men should be carefully observed. States should also monitor and regulate customary law, which in many countries has an important role in governing land, to protect the rights of women and girls who are affected by traditional inheritance rules of male primogeniture. 15. However, laws and social customs such as those providing that, upon the death of a man, his land belongs to his sons and not his widow or daughters, remain in place, despite their flagrant violation of women’s rights under the Covenant.16 Ensuring that women enjoy the rights enshrined in the Covenant on an equal basis to men requires the removal of traditional land regulations and structures that discriminate against women. This could be achieved by a combination of traditional and modern land governance regimes. 17 2. Indigenous Peoples The right of Indigenous Peoples over the lands and territories they have traditionally occupied is recognized in international law. The Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization and the United Nations Declaration on the Rights of Indigenous Peoples (arts. 25–28)18 both recognize Indigenous Peoples’ right to land and territory.19 These sources of international human rights law provide for respect for and the protection of the relationship that Indigenous Peoples have with their lands, territories and resources, requiring States to demarcate their lands, protect those lands from encroachment and respect their right to manage the lands according to their internal modes of organization. The spiritual relationship of Indigenous Peoples to land is linked not only to spiritual ceremonies but also to every activity on land, such as hunting, fishing, herding and gathering plants, medicines and foods. Thus, States parties should ensure Indigenous Peoples’ right to maintain and strengthen their spiritual relationship with their lands, territories and resources, including waters and seas in their possession or no longer in their possession but which they owned or used in the past. Indigenous Peoples have the right to have their lands demarcated, and relocation should be allowed only under narrowly defined circumstances and with the prior, free and informed consent of the groups concerned.20 Laws and policies should protect Indigenous Peoples from the risk of State encroachment on their land, for instance for the development of industrial projects or for large-scale investments in agricultural production.21 Regional human rights courts have contributed to strengthening the rights of Indigenous Peoples to their lands and territories.22 Both the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights have taken the view that Indigenous Peoples who have unwillingly lost possession of their lands without 16. 16 17 18 19 20 21 22 GE.23-00043 also Committee on the Elimination of Discrimination against Women, general recommendation No. 34 (2016), paras. 55–78. Committee on the Elimination of Discrimination against Women, general recommendation No. 34 (2016), paras. 55–78. African Union, African Development Bank and Economic Commission for Africa, Framework and guidelines on land governance in Africa (Addis Ababa, 2010), para. 3.1.3. See also the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, guideline 9. See also A/HRC/45/38. Arts. 10–11, 19, 28–29 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples refer to the necessity to seek Indigenous Peoples’ free, prior and informed consent on measures affecting them. This operates as a safeguard for the collective rights of Indigenous Peoples. See A/HRC/39/62. United Nations Declaration on the Rights of Indigenous Peoples, arts. 28 and 32. Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, paras. 151 and 164. For a discussion of the case law of the Inter-American bodies in that area, see Fergus MacKay, “From ‘sacred commitment’ to justiciable norms: indigenous peoples’ rights in the Inter-American system,” in Casting the Net Wider: Human Rights, Development and New DutyBearers, Margot E. Salomon, Arne Tostensen and Wouter Vandenhole, eds. (Antwerp, Intersentia, 2007). See also African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/2012, Judgment, 26 May 2017. 5