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

2. 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”

3. 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

4. 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

5. 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

6. 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

7. 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)

8. 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”

9. 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.

10. 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

11. 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

12. Thank you for your attention !