Rule of law and land rights

Discussion of the application of the principles of international law to the protection of communities from land grabs.

Four billion people in the world do not have access to the Rule of Law. Until recently, the development agenda has prioritised social and economic indicators of development, including providing food security and basic health and educational opportunities see for example the Millennium Development Goals. There is now a growing recognition that not only does Rule of Law in itself constitute a basic development right, it is also a pre-condition to many of the other social and economic development indicators see "Levelling the Playing Field" in IBA Global Insight, October/November 2015. This has been recognised in the new Sustainable Development Goals, which include a new goal 16.3 - to promote the rule of law at the national and international levels and ensure equal access to justice for all.

Land tenure is a particularly pertinent example of the Rule of Law being an essential pre-condition to other development priorities. Secure land tenure enables people to build a home in which to live, to secure a livelihood, to have access to a community including education and health facilities, and to access collateral for credit. However 1.25 billion people do not have access to secure land tenure, largely in the poorest countries, which do not have the infrastructure to provide title to land. This means that when other stakeholders seek access to their land, these people are left powerless.

Recently pro bono lawyers have developed an international practice representing the rights of vulnerable communities in developing countries whose lands are coming under pressure from large commercial interests and are the subject of "land grabs". Where there is a void in the domestic law in providing legal rights in particular jurisdictions, there is a role for lawyers to step in and apply principles of international law to assist local communities in obtaining access to justice.

Application of the rule of law to "land grabs"

The rapid commodification of land globally means that "land grabs" are an area of increasing concern for human rights. Those communities affected are often those least able to afford access to justice. In response to this concern, we have experienced significant demand for advice in our pro bono land rights practice, carrying out work in Tanzania, Colombia, the Solomon Islands, the Democratic Republic of Congo and Liberia.

The practice has utilised the principles of human rights in international law to protect land rights in developing countries in three different ways; firstly by the application of established principles of international human rights in public international law to domestic judicial proceedings relating to land rights through assistance to local counsel and assistance to the Court; secondly by assistance provided to the domestic legislature to develop legislation which protects land rights; the third way is through the application of these principles in private contract negotiations to ensure indigenous and other untenured communities have their interests met on equal footing in negotiations relating to their land.

Application of international law principles in domestic judicial system

It is possible to advocate the application of international human rights principles in Governmental and Court decision-making processes involving land rights in Colombia. These cases involve Afro-Colombian peoples who have been unlawfully and wrongfully dispossessed of their lands as a result of illegal occupation by agribusiness or armed groups.

In 2013, at Christian Aid’s request, an amicus curiae brief was submitted to the Colombian Constitutional Court covering two questions of international human rights law pertinent to an ongoing case by two Afro-Colombian communities: the Curvaradó and Jiguamiandó communities. Each of the communities in the Pacific Basin region of Colombia have recognised (but as yet unrealised) rights to collective ownership. The Court is monitoring effective enforcement of these rights.

The communities (with whom Christian Aid works through a local partner organisation) additionally had concerns about the potential for the Court-ordered land restitution process currently underway to create divisions between individuals in the communities (including excluding some community members), and wished to have international law input on the point before the Court. Our brief was directed to international human rights law considerations related to defining and prescribing the members of the "Afro-descendant group" entitled to be registered as collective owners of land at Curvaradó and Jiguamiandó respectively, in accordance with a 2004 Constitutional Court decision.

One of the key points in the Constitutional brief was addressing the definition of Afro descendant groups, and their recognition as akin to indigenous peoples for the purposes of international human rights law (at least insofar as land rights are concerned), particularly relevant in a Latin American context.

The first question related to defining the membership of Afro-Colombian communities (recognised as tribal peoples under ILO Convention 169 and therefore with characteristics similar to an indigenous community), taking into account international law principles and the scope of the Colombian law which was being applied. The Court had directed a census of the communities’ populations in order to properly define who was entitled to participate in the (recognised) collective land rights, but questions had arisen about who (under the relevant Colombian laws) could properly belong to the community (and therefore own the land), which were referred back to the Court. Our amicus brief presented international law principles pertinent to this question. The second question related to scope of the remedy of reparations and/or restitution recognised in international law to which collective land owners are entitled, resulting from rights violations.

Domestic legislation to recognise land rights

We have recently assisted Global Witness, along with a Congolese NGO working for the protection of indigenous peoples’ rights, in reviewing and suggesting modifications to a draft law on the "Protection of Indigenous Peoples’ Rights" in the Democratic Republic of Congo (DRC).

Global Witness, in support of Congolese civil society organisation Dynamique des Groupes des Peuples Autochtones (DGPA) representing indigenous forest-dependent peoples, asked us to advise on a draft law on the protection of indigenous peoples’ rights in the DRC. The draft law had been developed jointly by members of the National Parliament of the DRC and members of DGPA as a crucial step towards recognition and protection of rights of these communities. This is against a background of the lack of legal recognition and enforcement of indigenous peoples’ customary rights in Central Africa where these communities have all too often been deprived of, and even evicted from, their traditional forest lands without consultation or compensation.  The richness in natural resources of the communities’ forest homes, as well as historic discrimination against such groups, has made them more vulnerable to exploitation than other forest-dependent communities and so the need for them to ensure their rights are adequately protected is acute.

The advice, and the proposed amendments to the draft law, has provided an extremely strong basis for discussions with all political parties. The Proposal of a Law on the Protection of the Rights of Indigenous Peoples has now been submitted to the National Assembly of the DRC.

Global Witness aims to use this draft law in the future as a model to transfer to civil society partners in other countries in the Congo Basin seeking to protect indigenous people’s rights.

Application of international principles in private law to ensure land rights

Forest Peoples Program (FPP), a UK-based NGO that works with indigenous and forest communities in a number of different countries is working to develop a model community-company land use contract for use in Liberia. Following recent attempts at large-scale land acquisition by foreign direct investment (usually for industrial scale palm oil concession agriculture) without respect for communities’ prior rights and uses of lands, it has become evident that communities have little or no access to regular legal advice and support. The development of a model community-company land use contract is one way to help deliver legal support to communities who are engaging with companies seeking to use their customary lands. This contract is designed to help assist communities decide whether a contractual relationship with a company is the right thing for them, what any such agreement should include to protect their rights and interests and be legally binding and enforceable, and how negotiations should be conducted in a way that fully addresses the fact that customary land ownership is often collective, and that contractual negotiations aimed at reaching a land-use agreement require a fully collaborative process and the free, prior and informed consent of the community.

Conclusion

The recent prominence given to the UN Guiding Principles on Business and Human Rights (UNGPs) has placed an obligation on companies to consider human rights when operating in developing countries. Whilst the UNGPs do not directly refer to land grabs, companies are now operating in an environment where there is an increasing legislative, regulatory, financial and commercial requirement on them to avoid causing/contributing to adverse impacts on human rights. This is significant as companies will be seeking to apply the rule of law where it may not otherwise be clear, to protect land rights, by reference to international norms. There is an important interface between the UNGPs and respect for land rights, because, in the absence of the protections of domestic law, companies which abide by the UNGPs should avoid causing/contributing to adverse impacts on human rights and prevent or mitigate adverse impacts on human rights that are directly linked to their operations, products or services by their business relationships. For the communities whose land rights are in need of protection, access to justice and representation through the application of these international principles will enhance their ability to negotiate with external parties who operate in line with international norms. These tools will be critical for dealing with parties whose interests may not be so virtuous.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.