Role of lawyers in ensuring respect for legitimate tenure rights in the context of large scale land acquisitions: supporting the implementation of the VGGT

World Bank Conference on Land and Poverty, March 2015Margret Vidar, FAO and Lorenzo Cotula, IIED

with Rachael Knight, Namati and Thomas F McInerney

FAO Technical Guide for lawyers and legal services providers

Legal nature of the VGGT and links with binding international law

Roles and responsibilities of private sector lawyers in large scale land acquisitions

Conclusions

Overview

Responsible governance of tenure and the law: a technical guide for lawyers and legal services providers (forthcoming 2015)

Scope: legal aspects of governance of tenure of land fisheries and forests

Part of a series of Technical Guides to support VGGT implementation

Collaboration between FAO and IIED, with contributions also from Rachael Knight (Namati) and Thomas F McInerney

FAO Technical Guide for lawyers and legal services providers

Issues: legal value of VGGT, legitimate tenure rights, legal assessments, law making, law implementation, dispute resolution

Not just on large-scale land acquisitions Target audience:

◦ Lawyers working for or in public institutions; ◦ Lawyers working for or in civil society, NGOs or

communities; and ◦ Lawyers working for or in the private sector

More on TG for lawyers

VGGT = soft law Not legally binding on states or others But important linkages:

◦ Reflects existing international law◦ Meant to be consistent with international law ◦ Should be applied consistently with international

obligations (as well as voluntary commitments) Enjoy high level of legitimacy

◦ Through process before and during CFS◦ Additional endorsement by major international

bodies

Legal value of the VGGT

Primarily human rights law, e.g.: ◦ the right to enjoy one’s property (UDHR); ◦ the right to an adequate standard of living,

including food and housing (UDHR, ICESCR);◦ Process rights, such as the right to participate

(ICCPR) Negative impacts on legitimate tenure

rights may constitute a violation of human rights

Links with binding international law

TG for lawyers addresses the role of all types of legal professionals in the context of LSLA

Focus here is on lawyers advising investors: ◦ Advise on legal standards to comply with;◦ Negotiate sales and leases in proper form;◦ Process transaction and registration documents

Role of lawyers in LSLA

International Bar Association: draft guidance for bar associations and business lawyers on the implementation of the UN Guiding Principles on Business and Human Rights

Future incorporation into standards of conduct of lawyers in national bar associations

VGGT refer to and build on UNGP Responsibility to respect human rights

Related work of IBA

Weak governance Inadequate laws Inadequate implementation of law

Lack of recognition of customary rights Lack of reliable records of tenure rights State ownership of all or most land

Risks of non-respect for legitimate tenure rights of groups and individuals

Environment in which LSLA often takes place

Assess national legislation for compliance with VGGT: identify gaps and possible responses

Identify and negotiate with holders of legitimate tenure rights, whether or not they are fully recognized by law or adequately registered

Undertake in-situ investigation of the land and who is using it

Due diligence

Simply avoiding breaches of national law is no longer sufficient

Negotiating solely with governments at national and local levels is not sufficient - written contracts with tenure rights holders should be concluded

The costs of due diligence and multiple negotiations and contracts, including benefit sharing, need to be factored into the cost of investment

Evolving issues in LSLA

Recognize that holders of legitimate tenure rights may be in a weaker position◦ Financial, legal education etc.

Recognize that there is a conflict of interest if an investor pays for lawyers on both sides

Establish arms-length mechanisms to enable legitimate tenure rights holders in rural areas to be able to engage meaningfully in negotiations

Conflict of interest issues

All legal professionals should consider the human rights implications of their work

Soft law such as VGGT provide guidance based on international law and best practices

TG for lawyers aims to assist legal professionals in supporting the implementation of the VGGT and related human rights standards

Conclusions