International Legal Framework Related to Land-Based Agricultural Investments Regional Workshop on Responsible Large Scale Agricultural Investment - MRLG Vientiane, 15 novembre 2017

Introduction The International legal framework regulating International Land-Based Agricultural Investments State sovereignty International Human Rights International Investment Law Guide to due diligence of agribusiness projects that affect land and property rights Operating tool conceived by the French Technical Committee on “Land Tenure and Development”

State sovereignty over natural resources Binding customary law principle A right of the State to freely dispose of its natural resources (including arable land) Right to freely explore and exploit natural resources Right to control and regulate ownership of land, its legal statute, conditions for access to land and definition of agricultural policies Right to enter into agreements related to arable land with another State or a foreign investors State sovereignty over natural resources is not without limits Exercised in the interest of national development and the well-being of the people and in accordance with International Law

International Human Rights Law Main International Instruments governing HR law International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR) Right of peoples to freely dispose of their natural wealth and resources (article 1 common to the International Covenants) Procedural right related to the participation in the decision-making regarding to International Land-Based Agricultural Investments Recognition of the cultural rights of indigenous persons (article 27 ICCPR and article 15 ICESCR) “Culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples”. Effective participation / Free, prior and informed consent

International Human Rights Law Right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing (article 11 ICESCR) Links with tenure rights Voluntary Guidelines on the Governance of Tenure (VGGT) Assessment tool to measure national tenure governance Recognition of legitimate tenure rights Reflect emerging international standards

International Investment Law Fair and equitable treatment Minimum standard Treatment according to national law Expropriation Public interest and fair compensation Indirect expropriation: de facto expropriation Counterparts for foreign investors Respect of national law in good faith UN Guiding Principles on Business and HR Do not harm / Due diligence

Relationship between International Law and National Law Application of International Law in national legal systems Direct applicability and Transposition into national law Indifference of International Law to National Law A national law contradictory of IL is a violation of IL “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” Vienna Convention on the Law of Treaties (article 27)

Preliminary Conclusion No legal hierarchy between Human Rights and International Investment Law Respect in a harmonious manner Key issue regarding to HR Land targeted for investment are rarely unoccupied Effectivity of Human Rights Implementation Issues Conception of an operating tool conceived by the French Technical Committee on “Land Tenure and Development”

What is the Committee? The ‘Land Tenure and Development’ Technical Committee is a working group created by the French Cooperation in 1996 to discuss rural and urban land issues in developing countries across Africa, Asia and Latin America. It operates under the auspices of the Ministry for Europe and Foreign Affairs (MEAE) and the French Development Agency (AFD). It is composed of decision-makers, experts and researchers, supporting the formulation and implementation of land policies in developing countries.

Guide to due diligence of agribusiness projects Tool to ensure that all activities supported by the Ministry of Foreign Affaires and AFD effectively follow the VGGT Analytical framework identifying a set of criteria and questions to assess proposed agribusiness investment projects Focused on cooperation projects Five main sections covering all aspects of the projects and contracts

Guide to due diligence of agribusiness projects 1. General Framework of land governance Identification of the strengths and weaknesses of the legislative framework ( positive law and customary and informal tenure arrangements) 2. Negotiation process and management clauses in land allocation contracts Importance of transparency throughout the project cycle Legitimacy of the parties involved in the negotiations 3. Economic evaluation Benefice for the general community 4. Social component of the project Recognition of local rights, consultation and compensation 5. Environmental considerations Environmental impact assessment

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