The Guidelines on the Responsible
Governance of Tenure at a Crossroads
10/12/2015
The Guidelines on
the Responsible Governance of Tenure of Land, Fisheries and Forests (Tenure
Guidelines, also referred to as VGGT), adopted by the UN Committee on World
Food Security (CFS) in 2012, are a major step towards a human rights based
governance of natural resources. The Tenure Guidelines are situated in a
context of decades of struggles for peoples’ access to and control over natural
resources and territories. Since their adoption social movements, civil society
organizations and communities have been using them in many ways to support
their struggles to attain food and peoples’ sovereignty.
More than three
years after the adoption of the Tenure Guidelines land and natural resource
grabs in all forms continue unabated around the world, visiting their
devastating impacts on local communities, environments with related human
rights violations. The implementation and application of the Tenure Guidelines,
therefore, remains a matter of extreme urgency.
Helping the
corporate sector to implement the Tenure Guidelines
The Tenure
Guidelines are primarily addressed to states. By adopting the Tenure
Guidelines, states have committed to apply them according to their paramount
objective: to contribute to the realization of the human right to adequate food
by improving the governance of tenure for the benefit of vulnerable and
marginalized people and communities.
We, social
movements, grassroots organizations and their allies, observe with concern that
some states – together with some UN institutions and non-governmental
organizations (NGOs) – are not focusing on the rights and needs of the most
marginalized, but are concentrating their efforts on helping companies and
private investors to use the Guidelines for their business interests.
A series of guides aimed at providing guidance to
companies and private investors on how to use the Tenure Guidelines in their
business operations have recently been developed by the US development agency
USAID, the G7 New Alliance for Food Security and Nutrition in Africa and the
so-called Interlaken Group (a group of several companies, banks, the World
Bank’s International Finance Corporation – IFC, the UK’s development
cooperation agency DFID and some International NGOs, namely Oxfam, Global Witness,
Rights and Resources Initiative, The Forest Trust, Landesa and Forest Peoples
Programme).
Food
and Agriculture Organization of the United Nations (FAO) also has published a
guide for government authorities on how to promote agricultural investments by
private actors.
These guides lead
to a proliferation of interpretations of the Tenure Guidelines that creates
confusion and diverts them from their true objectives. We see serious and
fundamental problems with these guides:
1. Natural resources are transformed from a
human rights issue into a matter of business
The Tenure
Guidelines clearly recognize that the access to, and control over natural
resources and their governance is a human rights issue. Improving the
governance of tenure is a complex process, in which the core issue is finding
ways to resolve social, political and economic conflicts. The Tenure Guidelines
provide states with crucial guidance about how to deal with these complex
issues in accordance with their international human rights obligations. The
above-mentioned guides, on the other hand, start from the wrong premise: they
are built around the risks that private and corporate investors encounter in
acquiring land, fisheries and forests. Companies and private investors are
invited to use the Guidelines in order to manage and reduce economic, financial
and reputational risks; to ensure a smooth flow for their business activities;
and to get a “competitive advantage” by improving their “overall supply-chain
efficiency, reliability and market share” (Quotes from Interlaken Group
Guide/Brochure)
By focusing on
the interests of companies and private investors, and not on the rights of the
most vulnerable and marginalized (as explicitly stated by paragraph 1.1 of the
Tenure Guidelines), these guides transform the Tenure Guidelines into a tool
for business and corporate social responsibility (CSR). Land and resource grabs
are legitimized by the exclusive focus on private and corporate investments in
the form of land acquisitions (buy or lease) and the interpretation of
paragraph 12.4 of the Tenure Guidelines about responsible investments according
to a corporate-centered agenda.
Fostering
such an understanding and use of the Tenure Guidelines will most probably lead
to their misuse by the corporate sector in order to whitewash their business
activities. A number of big agrifood transnational corporations (TNCs), such as
Coca Cola, PepsiCo, Cargill, Nestlé, Unilever and Illovo have already started
to use the Tenure Guidelines for their public relations and CSR purposes by
publicly endorsing them and announcing that they will “implement” them through
their business operations.
2. “Multi-Stakeholderism” mixes up the role
of states and companies
The guides assume
that all actors (states, individuals and communities, companies, CSOs etc.) are
“stakeholders” at the same level. Accordingly, they wrongly act as though the
Tenure Guidelines address states and business in the same way. Moreover, they are
largely silent about what the Guidelines have to say regarding states’
obligations vis-à-vis companies. This approach ignores the fundamental
differences in the nature, and consequently the roles and responsibilities, of
states and companies. States draw their legitimacy from the people who confer
on them a mandate to serve the public interest based on the principle of human
dignity and human rights. States are accountable to the people. Companies, on
the contrary, have no legitimate public governance functions, because they
represent solely particular interests and are only accountable to their
shareholders or owners. Companies and private investors, first and foremost,
have to respect and act in accordance with the law.
The guides
implicitly transfer state prerogatives and duties to companies and private
investors, especially regarding highly sensitive issues in the context of
natural resource governance. One example is the process of identifying and
recognizing legitimate tenure rights not currently protected by law, which the
Tenure Guidelines strongly call for. The guides suggest that this is something
that can be done by investors through “participatory stakeholder mapping” (New
Alliance Guide) However, this is one of the most contentious processes in
society and is charged with power asymmetries and conflicts. Private investors
and companies do not have the necessary legitimacy to carry out such a process.
It is part of the mandate given to the state by the people, for which it is
accountable to the people. Private investors and companies pursue their own
particular economic interests and will try to maximize their profits whenever
they are supposed to identify and recognize legitimate tenure rights. Nothing
would be more harmful to the recognition and protection of the legitimate
tenure rights of marginalized groups than entrusting the very investors that
are seeking to get control over their lands, fisheries and forests with such a
task, as the guides suggest. It is a clear case of conflicting interests. This
also applies to processes to assess the impacts of business activities (of
which para. 12.10 of the Tenure Guidelines clearly says that states have to
ensure that these are independent), conducting consultations and negotiations
as well as compensating people for losses.
Another example
is the resolution of conflicts related to land, fisheries and forests in the
context of business operations. The guides assume that this is something that
private investors or companies should handle by putting in place “grievance or
dispute resolution procedures.” It is true that, in many countries, the formal
judicial system does not work very well, especially regarding rural areas.
However, the Tenure Guidelines would be rendered meaningless and even harmful
by relinquishing the obligation of the state to provide (a) access through
impartial and competent judicial and administrative bodies to timely,
affordable and effective means of resolving disputes over tenure rights; and
(b) effective and promptly enforced remedies that may include restitution,
indemnity, compensation and reparation. The guides entrust business with these
tasks, yet private investors and companies cannot “resolve land conflicts” (New
Alliance Guide), replace the state in providing access to justice, nor can they
“supplement more formal [judicial] processes,” as the guides suggest. Reality
shows that powerful investors are often involved in serious abuses against
human rights such as forced and violent evictions, killings, arbitrary
detention and harassment of communities and people. It is obvious, then, that
entrusting the very parties involved in directly or indirectly committing such
human rights offences will never provide justice. Also, allowing this to happen
formalises the capture of the state by capital and vested interests. Investors
and businesses cannot be enjoined to “support and supplement the activities of
government” (New Alliance Guide).
As
social movements and CSOs, we know how difficult it can be to engage with
governments and state authorities at all levels. In some cases states are
promoting resource grabs (often justified with the need to create an “enabling
environment for investments”), or are even acting as grabbers themselves. These
are human rights violations for which they have to be held accountable.
However, it is the states and their public institutions that have the mandate
to serve the public interest and the obligation to protect the people from
human rights abuses by companies and private investors through appropriate
legal frameworks. This includes the obligation to regulate companies and
investors at national and international levels and to sanction them when they
commit crimes or impair the human rights of individuals or communities, ensure
redress for damages and prevent repetition. This obligation also applies to the
home state of companies and private investors when these infringe human rights
abroad (extraterritorial human rights obligations). Investment contracts cannot
replace laws and it is certainly not the first task of state authorities to
“guide” and “shepherd investors,” in order to facilitate land acquisitions by
them, or to “solve the problems faced by existing or potential investors”
(quotes from FAO Guide for state authorities). We do not believe a word of the
commitments to responsible behaviour by the corporate sector and the
self-regulation of business.
3. Imposing a non-existent “partnership”
between corporations and communities
All the above
mentioned guides call upon private investors and companies to seek strong
engagement with communities that are affected by their business operations. The
underlying assumption is that land acquisition is potentially good for both
companies and communities. All that is needed is for private investors do the
correct things and engage with affected communities, taking into account their
“needs, desires and concerns” (USAID Guide). What is more, the guides suggest
that “responsible investments” in the form of land acquisitions by businesses
will “bring important benefits to local communities”, “open opportunities” for
them and improve their food security (quotes from USAID Guide and Interlaken
Group Guide respectively). This line of reasoning follows a corporate-led
strategy of considering companies and private investors as main actors for
development and food security, thus positioning them as “part of the solution,”
rather than the actual problem.
A community and a
company or a private investor planning to buy up or lease land, forest or water
resources are not the same and cannot be treated as such. This is at the core
of the human rights approach of the Tenure Guidelines, which demands a special
emphasis on vulnerable and marginalized people. Business enterprises of any
kind, including corporations, have as their primary purpose to obtain profit.
Investment projects that entail the acquisition of land, fisheries and forests
utterly disrupt the daily lives of peasant, indigenous, fishing, pastoralist or
urban communities. In all parts of the world, communities are asserting their
rights and resisting corporate resource grabbers. The generalization of
companies and private investors, on the one hand, and communities, on the
other, as “stakeholders” that negotiate on equal terms on as crucial an issue
as the control over natural resources is unfounded and will generate injustice.
It also ignores the power asymmetries that exist between the groups. Therefore,
it is wrong and dangerous to assume that communities automatically will engage
in private or corporate investment projects, if only private investors do the
right things and that, as a result, local tenure will not be compromised,
affected or undermined. The same applies to an approach that sees state authorities’
role primarily in “facilitating dialogues” between investors and communities.
(FAO guide for state authorities)
Companies and
private investors planning to buy or lease land also cannot ensure appropriate
consultations with affected communities. They are obviously not neutral actors
and there are usually huge power imbalances between them and communities.
Again, it is the state that has the authority and responsibility to guarantee
that the consultations conform to regulations and the standard set by the
Tenure Guidelines (paragraphs 3B6 and 9.9). This includes the right of
communities and people to withhold their consent if they deem that an
investment project is not in their interests.
The
putative “partnership” between private investors and communities that the
guides construct and try to impose ultimately means that communities are to be
included in corporate value and supply chains. Contract farming, out-grower
schemes and management contracts figure prominently in the guides as a means to
ensure “mutual benefits” of investment projects and “greater returns on
investments for all parties involved” (FAO Guide for state authorities). This
ignores the real experiences of many communities around the world, who have
seen themselves trapped in a situation of complete dependence on powerful
companies. While every community has to decide whether or not to engage in
contract farming, out-grower schemes or management contracts, it is utterly
wrong to stipulate that these are best practices that automatically improve
communities’ livelihoods and food security. Small-scale food producers produce
most of the food consumed in the world and need to be supported through public
investments, as recognized in the Tenure Guidelines (paragraph 12.2). Reducing
them to providing a cheap work force at the bottom of corporate-controlled
value and supply chains is a crude misinterpretation of paragraph 12.6 of the
Tenure Guidelines, which calls for state support for “production and investment
models that do not result in the large-scale transfer of tenure rights to
investors.”
We
do not accept the corporate capture of our natural wealth, resources, human
rights and public policies, and will oppose all attempts to establish money-
and market-driven governance of natural resources, food and nutrition. We will
continue to oppose all forms of land, water, ocean and seeds grabbing, to
assert our rights to our resources and territories and to strengthen our
struggle for food and peoples’ sovereignty.
We, therefore, call upon:
States, UN agencies, research institutions
and NGOs
to withdraw and refrain from all
initiatives that aim at abetting the corporate sector and private investors to
use the Tenure Guidelines for the pursuit of business interests, thus
supporting the corporate capture of resources, public policy spaces and human
rights.
States
to apply and implement the Tenure
Guidelines in accordance with their existing human rights obligations
(territorial and extraterritorial), to which they have committed by endorsing
them. This means that all efforts have to start from the rights and needs of
communities and the most marginalized, instead of particular corporate
interests.
This includes to
·
pass and enact new laws and/or
effectively enforce existing laws that put effective safeguards to large-scale
land transactions, such as ceilings on permissible land transactions or
parliamentary approval (paragraph 12.6 of the Tenure Guidelines);
·
pass and enact new laws and/or
effectively enforce existing laws that regulate companies and investors, and
particularly TNCs, with regard to guaranteeing free prior and informed consent
(FPIC) as well as prior and independent impact assessments (including human
rights impact assessments);
·
hold companies and investors liable
if they do not deliver the commitments they make to create employment, local
revenue, etc. in the context of land acquisitions;
·
criminally prosecute the offenses
and crimes by companies that impair the realization of human rights and the legitimate
tenure rights of people and communities;
·
improve the state’s capacities to
monitor and prosecute these abuses and crimes;
·
prioritize investment policies that
develop the investing capacities of small-scale food producers and communities.
to promote true accountability and
monitoring of the implementation of the Tenure Guidelines and governance of
tenure by
·
supporting and accelerating the
establishment of a robust and innovative monitoring mechanism within the CFS.
The CFS will remain truncated and will fail to fulfill the great expectations
behind its reform without a monitoring mechanism that allows for reflection,
discussion and assessment of the progress made in the coordination of actions
by actors at different levels and that ensures accountability in the
application of the Tenure Guidelines and other CFS decisions;
·
contributing in a constructive way
to the global monitoring event during the 43rd CFS
session in 2016, in order to ensure a comprehensive and thorough assessment of
the use and application of the Tenure Guidelines.
to support and engage in good faith in
the process towards the adoption of an international legally binding instrument
on transnational corporations and other business enterprises with respect to
human rights at the UN Human Rights Council, in order to define clear and
obligatory international standards on duties of transnational corporations and
other business, including rules on impact assessments, due diligence and
liability, and hold them legally accountable for human rights abuses and
crimes.
FAO
to provide technical support to the
implementation and application of the Tenure Guidelines according to their true
objective and in good faith, building on the Guidelines and the principles of
implementation contained in them and not lowering the standard the set. Among
others, FAO should initiate an inclusive process in order to develop technical
instruments that guide states in mandatory regulation of business according to
the obligations identified in the Tenure Guidelines and human rights.
Signed by
International Indian Treaty Council –
IITC/CITI
International Federation of Rural Adult
Catholic Movements – FIMARC
La Via Campesina
Mouvement
International de la Jeunesse Agricole et Rurale Catholique – MIJARC
Urgenci – International Community Supported
Agriculture Network
World Alliance of Mobile Indigenous Peoples
– WAMIP
World Forum of Fish Harvesters and Fish
Workers – WFF
World Forum of Fisher Peoples – WFFP
Centre for Environmental Education and
Development – CEED, Nigeria
Centro Internazionale
Crocevia
Convergence malienne
contre l’accaparement des terres – CMAT, Mali
Conseil citoyen Droit
à l’Eau et à l’Assainissement – COCIDEAS, Sénégal
Conseil national de concertation
et de coopération des ruraux – CNCR, Sénégal
COPAGEN Sénégal
Enda Pronat, Sénégal
European Coordination
Via Campesina – ECVC
Fédération Nationale pour l’Agriculture
Biologique (FENAB), Sénégal
FIAN International
FIMARC Afrique
Focus on the Global South
Forum Social Sénégalais
Friends of the Earth International
Housing and Land Rights Network-Habitat
International Coalition – HIC-HLRN
International Collective in Support of
Fishworkers – ICSF
Land Research Center, Palestine
Masifundise Coastal Links, South Africa
Mouvement de solidarité pour le droit au
logement – MSP-DRO.L, Burkina Faso
National Fish Workers’ Forum – NFF, India
National Women Peasants Association, Nepal
Nepal Landless Dalit Peasants organization
Nepal Youth Farmers Association
Panafricaine pour l’Education au
Développement durable – PAEDD
Plateforme d’Innovations pour l’Emploi des
Jeunes et des Adultes (PIEJA), Sénégal
Réseau maghrébin des associations de
développement local en milieu rural (REMADEL)
RIAO-RDC,
Democratic Republic of Congo
South Asia Farmers Forum
South Asia Food Sovereignty Network
South Asia Peasants Coalition
South Indian Coordination committee of
Farmers movements – SICCFM, India
Terra Nuova
Transnational Institute – TNI
Union
des groupements paysans de Meckhé (UGPM), Senegal
* Click here to download the
declaration