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International Bar Association: draft guidance for bar associations and business lawyers on the implementation of the UN Guiding Principles on Business and Human Rights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